Procedural due process: Difference between revisions

Revision as of 18:22, 12 August 2017

Revision as of 18:56, 20 May 2019

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{{Distinguish|Substantive due process}}

'''Procedural due process''' is a [[legal doctrine]] in the [[United States]] that requires government officials to follow fair procedures before depriving a person of [[life]], [[liberty]], or [[property]].<ref name=":0">{{Cite book|title = Administrative Law: Agency Action in Legal Context|last = Glicksman|first = Robert L.|publisher = Foundation Press|year = 2010|isbn = |___location = 9781599416106|pages = |last2 = Levy|first2 = Richard E.}}</ref>{{Rp|657}} When the government seeks to deprive a person of one of those interests, procedural due process requires at least for the government to afford the person notice, an opportunity to be heard, and a decision made by a neutral decisionmaker. Procedural due process is required by the [[Due Process Clause]]s of the [[Fifth Amendment to the United States Constitution|Fifth]] and [[Fourteenth Amendment to the United States Constitution|Fourteenth]] Amendments to the [[US Constitution|United States Constitution]].<ref name=":0" />{{Rp|617}}

The article "Some Kind of Hearing" written by Judge [[Henry Friendly]] created a list of basic due process rights "that remains highly influential, as to both content and relative priority."<ref name="Strauss Due Process Rights">{{cite web|last=Strauss|first=Peter|title=DUE PROCESS|url=https://www.law.cornell.edu/wex/due_process|publisher=[[Legal Information Institute]]|accessdate=8 March 2013}}</ref> The rights, which apply equally to civil due process and criminal due process, are the following:<ref name="Strauss Due Process Rights" />

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# A decision based only on the evidence presented.

# Opportunity to be represented by counsel.

# TheA tribunalrequirement tothat the tribunal prepare a record of the evidence presented.

# TheA tribunalrequirement tothat the tribunal prepare written findings of fact and the reasons for its decision.

Not all the above rights are guaranteed in every instance when the government seeks to deprive a person life, liberty, or property. AAt minimum, a person is due only notice, an opportunity to be heard, and a decision by a neutral decisionmaker. Courts use various tests to determine whether a person should also be guaranteed any of the other above procedural rights.

== References ==