The concept of “due process” has been in the news a lot recently. While it’s addressed in both the Fifth Amendment and Fourteenth Amendment of the U.S. Constitution, a lot of people don’t know exactly what it means for them if they’re arrested.
The Fourteenth Amendment’s “Due Process” clause states, “No person shall be… deprived of life, liberty, or property, without due process of law…” The U.S. Supreme Court (SCOTUS) has since added more specifics about due process in multiple rulings.
The nation’s highest court has ruled that anyone who is legally in the U.S., regardless of whether they’re a citizen, is “invested with the rights guaranteed by the Constitution to all people within our borders.” While those who aren’t in the country legally don’t have the same due process rights, SCOTUS has ruled that a person who isn’t in the country legally can be deported “only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”
The basic procedural due process rights
When people refer to “due process,” they typically mean procedural due process. Substantive due process, on the other hand, refers to “unenumerated rights” in the Constitution, like the right to privacy.
Basic procedural due process rights include the right of those accused of a criminal offense to receive the following:
- Notice of the offense they’re accused of: People need to be informed why they’re being arrested and charged.
- Opportunity to be heard: Those charged with a crime have the right to present a defense.
- An impartial tribunal: People have the right to have a jury hear their case and decide their fate.
This is just a basic outline of due process rights. Americans have many other rights granted by the Constitution as well as the courts. Some of these are included in the Miranda warning that people must be read before being interrogated – like the right to remain silent, the right to legal representation and more.
Everyone can’t always be expected to know what their due process and other rights are – certainly not while they’re being arrested and tossed in a jail cell. Getting experienced legal guidance as soon as possible is the best way to protect all of your rights.
