Due Process

Today’s entry on the topic of due process serves as a guide. We need only a basic understanding of due process to be able to recognize a situation where it is obviously absent or inadequate. In its most common form, due process is a legal doctrine that requires the government to follow fair procedures before depriving a person of important rights.

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In The United States, the Fifth and Fourteenth Amendments contain a due process clause:

  • The Fifth Amendment reads, “No person shall … be deprived of life, liberty, or property, without due process of law …

  • The Fourteenth Amendment reads, “[N]or shall any State deprive any person of life, liberty, or property, without due process of law …

Before the government is able to deprive anyone of life, liberty, or property, it is required to follow fair procedures and ensure a fair process. Those charged with more serious misconduct and those facing more serious consequences are entitled to a greater amount of “process” protection against a false finding of guilt.

In the article “Some Kind of Hearing” Judge Henry Friendly made a due process list that has remained relevant to all criminal and civil proceedings. This list is not official in the sense that all proceedings are required to follow these exact steps:

  1. An unbiased tribunal.

  2. Notice of the proposed action and the grounds asserted for it.

  3. Opportunity to present reasons why the proposed action should not be taken.

  4. The right to present evidence, including the right to call witnesses.

  5. The right to know opposing evidence.

  6. The right to cross-examine adverse witnesses.

  7. A decision based exclusively on the evidence presented.

  8. Opportunity to be represented by counsel.

  9. Requirement that the tribunal prepare a record of the evidence presented.

  10. Requirement that the tribunal prepare written findings of fact and reasons for its decision.

Due process is an incredibly dense topic, not something that can be thoroughly discussed in a simple blog post. What an overview of due process can do is demonstrate what most people would consider fair and reasonable proceedings. In the event of a traffic ticket, where legally speaking the stakes are quite low, the accused has the right to be heard in front of a neutral judge and has the right to the active participation of their attorney, the right to cross-examine the police officer, and the highest burden of proof available, “proof beyond a reasonable doubt”. In Title IX cases, most accused persons are provided with none of these protections and are afforded a low burden of proof, “preponderance of evidence”, which simply means more likely than not. Thus, the accused in Title IX matters is afforded far less due process protections than someone cited for a simple traffic violation.

By understanding the basics of due process we can more easily identify a clear lack of due process.

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