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What does “due process” really mean?

On Behalf of | Mar 2, 2017 | Criminal Defense

One of the features of America democracy that is most often celebrated is the guarantee of due process in the criminal justice system. While it is a bedrock principle that the rest of America’s civil liberties rest upon, few really understand what is meant by due process and how it applies to real-world criminal proceedings. It is important to have an appreciation of this feature of society to be able to fully exercise a person’s rights in the event that he or she is charged with a crime, though.

In the Constitution

The Constitution of the United States of America uses the term “due process” twice. It appears once in the original Bill of Rights, under the 5th Amendment. Later, it was added again, as part of the 14th. The principle as shown in those locations applies to the idea that the government shall not deprive anyone of life, liberty, or property without due process. What that means would be left to several other sections of the Constitution, though.

The elements of due process

The processes that would come to be considered “due process” in the criminal justice system are outlined in several places, as rights or guarantees because of rights. They include:

  • The Fourth Amendment and its guarantees about reasonable search and seizure
  • The Fifth Amendment, which guarantees that one cannot be forced to testify against oneself
  • The Sixth Amendment, which outlines one’s right to counsel
  • The Eighth Amendment, which prevents the government from using cruel and unusual punishments

Together, these rights outline the rough set of rights and safeguards that, along with a person’s right to a speedy trial by jury, define the rough outlines of the American criminal justice system.

Due process in the modern courtroom

Over the past couple of centuries, there have been a number of changes in both technology and in the way society views these rights, so the application of due process in the modern courtroom looks very different than it did years ago. It now includes processes such as formalized arraignment and bail hearings and jury selection processes that describe how to actually accomplish the goals laid out in the Constitution, and it is these processes that are modified over time to keep the actual behavior of the court in line with the constitutional principles it follows.

Part of that process is the right of everyone to an attorney if they are facing criminal charges. The state usually provides public defenders to those who have no other options, but if a person wants to find someone with experience handling a specific type of case, it is best to hire a criminal defense attorney.


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