Due process is a fundamental principle of law designed to protect the rights of individuals from arbitrary and unjust actions of the government. Before any person can be deprived of life, liberty, or property, they must be given notice of the charges against them and an opportunity to be heard in an impartial tribunal.
Due process acts as a check on arbitrary use of power and protects individuals.
An example of due process is ensuring a person who was caught red-handed robbing a bank must still go to court and have the chance to be represented by a lawyer rather than being sent straight to prison.
Similarly, in nations with free press, it protects journalists who are often sued by governments, but who can go to an independent court and defend themselves from undue influence of intimidation by the government.
Due process ensures that all legal rules and principles about a case are applied by the state, protecting the legal rights of the individual.
It balances the power of the law and protects individuals from it. When the government harms an individual without following established legal procedures, it constitutes a violation of due process, which goes against the rule of law.
Alternatively and controversially, due process has been interpreted as limiting laws and legal proceedings, allowing judges, instead of legislators, to define and guarantee fundamental fairness, justice, and liberty.
Due Process Examples
1. Being informed of your rights (Miranda rights)
For due process, most nations insist that people should be informed of their rights. If not, then due process is violated. A great example of this is Miranda rights in the USA.
The Miranda rights were established by the U.S. Supreme Court in the 1966 case Miranda v. Arizona.
The case involved a man named Ernesto Miranda who, during police questioning, confessed to his crimes.
Later, the Supreme Court ruled that his confession was inadmissible in court because he had not been properly informed of his right to remain silent.
As a result of this case, the Miranda warning became a standard procedure for law enforcement officers in the United States when questioning a suspect in custody. We know it as something like this: “You have the right to remain silent. Anything you say can be used against you in the court of law…”
2. The right to a fair and impartial trial
In far too many nations in the world, the judiciary system is corrupted by politics. The executive and lawmaking branches of government instil their own puppets in the legal system so they can manipulate the results.
In such nations, there is no true due process. While people are taken to court, it’s often called a “kangaroo court”, meaning the trial is already corrupted and the result is a foregone conclusion.
For due process, the judge should be impartial. In fact, they should be so impartial that they put aside their own opinions and political views and simply go about following the letter of the law. They are, after all, only there to interpret the law.
Nevertheless, even in places like the USA, we see judges imposing their own bias, political views, and opinions regularly.
3. The right to an attorney
In order for due process to be executed, most nations allow people to have an attorney represent them in court.
Even though attorneys may not want to represent a criminal who has probably committed terrible crimes, public attorneys are employed to ensure due process is executed. These public attorneys take pride in defending their clients because they are upholding the principle that everyone – even people who are guilty – deserve a legal representative.
4. The right to present evidence
The right to present evidence underpins a fair legal system. It ensures that individuals have the opportunity to state their case and bring to the jury anything that supports their case.
This right is protected by the Fifth and Fourteenth Amendments to the United States Constitution and is an essential component of the adversarial system of justice.
During the process of presenting evidence, we often come across surprising things that change the outcome of the trial.
This right helps to ensure that the outcome is just and equitable.
5. The right to cross-examine witnesses
While a defendant has the right to present evidence and bring witness, so too does the prosecutor.
Therefore, the defendant is given the right to cross-examine witnesses brought forth by the prosecutor.
It provides individuals with the opportunity to challenge the credibility and reliability of witnesses and their testimony through a process of questioning known as cross-examination.
The right to cross-examine witnesses helps to ensure that the evidence presented in court can stand up against a close examination.
6. The burden of proof
The burden of proof is perhaps the most important due process example. It refers to the responsibility of the party making a claim to provide evidence or proof that supports their argument.
We might also call this “innocent until proven guilty.”
In criminal cases, it is the prosecution’s responsibility to prove beyond a reasonable doubt that the defendant committed the crime they are accused of.
In civil cases, the plaintiff has the burden of proving their case by a preponderance of the evidence, meaning that it is more likely than not that their claim is true.
7. Legal search and seizure
Evidence obtained through an illegal search or seizure may be excluded from trial. The prosecutors must work hard to ensure they do everything within the law so they don’t cause a mistrial.
As with many other features of due process, this rule prevents overreach of the government and protects everyone’s civil liberties.
A legal search and seizure usually requires a warrant granted by a judge, who must look at the evidence and arguments presented by the police and make a decision as to whether the seizure is appropriate and does not violate any legally-granted rights or freedoms.
8. Right to silence
The famous fifth amendment of the US constitution states that people should not be compelled to give incriminating evidence against themselves.
You’ll often hear of people “pleading the fifth”, which means they choose not to answer a question because their answer may be incriminating.
This right exists in some jurisdictions, but not others. Some people are compelled to present evidence and speak the truth, the whole truth, and nothing but the truth – meaning they must answer direct questions presented to them, even if it’s incriminating.
9. The right to appeal
Even once a person is convicted, they still have due process rights. One of these is the right to appeal a finding.
In order to appeal, they often have to present some sort of evidence that is compelling enough for the case to be re-examined. This may be that either their due process was violated, or perhaps that new evidence has come to light that requires examination.
10. Freedom from double jeopardy
Double jeopardy refers to someone being prosecuted twice for the same crime. This is not allowed in most nations.
There was a movie in the early 2000s that examined this case in a very confronting way: a woman served time for killing her husband, even though she hadn’t done so. She then got out of prison and set about killing him, on the premise that she can’t be re-tried for something she’d already gone to prison for doing!
11. The right to a speedy trial
Many jurisdictions have laws preventing the government from holding a person indefinitely without a trial.
This is where bail comes in. Often, because it takes time for a court case to be prepared, a person can post bond in order to be released until the trial date.
Whether a person is granted bail has a lot to do with the risk to the community. If the person is considered a high risk to the community, they may be held until the trial. However, this doesn’t negate the fact that the trial must take place in a speedy manner.
12. The right to trial by jury
People have the right to trial by jury in many nations. This helps to prevent the government from abusing its power by instating corrupt judges.
Juries also often represent a cross-section of the community, meaning that it is the community itself which is prosecuting the person who they find guilty. This underpins the democratic principle that the nation is run by and for the people themselves, not by a government bureaucracy.
Due Process Around the World
In the United Kingdom
The concept of due process can be traced back to clause 39 of the Magna Carta in England.
The first recorded reference to due process appears in a statutory version of clause 39 from 1354, which states that no person, regardless of their status or circumstances, shall be deprived of their lands, properties, or lives without being allowed to defend themselves through due process of law (Liberty of Subject (1354), n.d.).
For example, the term is not used in contemporary English law, but two similar concepts are: “natural justice” and “rule of law” (Pennock & Chapman, 1977).
The term “natural justice,” as it is used in English law, refers to rule against bias and the right to a fair hearing. In Europe, this corresponds to the right to a fair hearing guaranteed by Article 6 of the European Convention on Human Rights.
Rule of law, on the other hand, was popularized by the British jurist Albert Venn Dicey and refers to the idea that all citizens and institutions within a political community are or shall be accountable to the same laws, without the exclusion of the lawmakers and leaders.
In the United States
In practice, we may cite two well-known examples of due process clauses of the U.S. Constitution, those of the 5th and 14th Amendments.
The 5th Amendment applies to the federal government and states that no person shall be “compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law” (U.S. Const. amend. V).
The 14th Amendment, on the other hand, states that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (U.S. Const. amend. XIV).
Section 10 of the Canadian Charter of Rights and Freedoms is a fundamental law that guarantees the rights of all individuals in Canada.
This section guarantees the right to personal security, protection against arbitrary detention or imprisonment, and the right to be informed of the reasons for detention (Government of Canada, 1999).
It also provides the right to legal counsel and the right to “habeas corpus” (the right to challenge the lawfulness of detention before a court of law).
Article 6 of the European Convention on Human rights protects everyone’s right to a fair trial.
An individual has the right to a fair and public hearing if they are charged with a criminal offense and have gone to court, or a public authority is making a decision about said individual’s civil rights or obligations (Article 6: Right to a Fair Trial | Equality and Human Rights Commission, n.d.).
Article 7 of the African Charter on Human and Peoples’ Rights states that “every individual shall have the right to have his cause heard” (African Commission on Human and Peoples’ Rights Legal Instruments, n.d.).
In the United Nations
Article 9 of the Universal Declaration of Human Rights states that “no one shall be subjected to arbitrary arrest, detention or exile” (United Nations, n.d.).
Article 21 of the Constitution of India (Protection of life and personal liberty) states that “no person shall be deprived of his life or personal liberty except according to procedure established by law.”
In New Zealand
The New Zealand Bill of Rights Act (1990) guarantees everyone the right not to be arbitrarily arrested or detained. Everyone who is arrested or detained has the right to be informed, consult a lawyer, and have the validity of the arrest or detention determined without delay.
Due process is a fundamental principle of law designed to protect the rights of individuals from arbitrary and unjust actions by the government. In the United States, it is based on the 5th and 14th Amendments of the Constitution. In other countries, the terminology and definitions of what constitutes due process, a fair trial, a just hearing, an impartial tribunal, and so on may vary. Due process applies to a wide range of government and private actions.
African Commission on Human and Peoples’ Rights Legal Instruments. (n.d.). Retrieved January 15, 2023, from https://www.achpr.org/legalinstruments/detail?id=49
Article 6: Right to a fair trial | Equality and Human Rights Commission. (n.d.). Retrieved January 15, 2023, from https://www.equalityhumanrights.com/en/human-rights-act/article-6-right-fair-trial
Britannica, T. Editors of Encyclopaedia (2022, December 16). due process. Encyclopedia Britannica. https://www.britannica.com/topic/due-process
Constitution of India | Legislative Department | Ministry of Law and Justice | GoI. (n.d.). Retrieved January 15, 2023, from https://legislative.gov.in/constitution-of-india
England, drafted S. L. issued by J. of. (n.d.). Magna Carta Libertatum (Great Charter of the Liberties). Wikisource.
Government of Canada, D. of J. (1999, November 9). Charterpedia—Section 10 – General. https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art10.html
Hurtado v. California, 110 U.S. 516 (1884)
International Covenant on Civil and Political Rights. (n.d.). OHCHR. Retrieved January 15, 2023, from https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights
Liberty of Subject (1354). (n.d.). [Text]. Statute Law Database. Retrieved January 15, 2023, from https://www.legislation.gov.uk/aep/Edw3/28/3
Pennock, R., & Chapman, J. W. (1977). Due Process: Nomos XVIII. NYU Press.
United Nations. (n.d.). Universal Declaration of Human Rights. United Nations; United Nations. Retrieved December 14, 2022, from https://www.un.org/en/about-us/universal-declaration-of-human-rights