Understanding due process

Both the Fifth Amendment and the Fourteenth Amendment of the Constitution state that if you stand accused of a crime, you have the right to due process before the government can deprive you of your life, your liberty or your property. This is the only provision that the Constitution states twice, which should give you an idea of how important it is. 

What exactly is due process, and what does it involve? Understanding due process may help you to assert your rights in the event of an arrest. 

Fair procedures 

According to the principle of due process, if you are under suspicion of committing a crime, the government cannot deprive you of life, incarcerate you or confiscate your belongings without following fair procedures. There is no definitive list of due process required procedures, but the general understanding is that they include the following: 

• An unbiased trial  
• Opportunity for legal representation 
• Judgment based exclusively on the evidence 
• The right to know the evidence against you and present your own evidence 
• The right to call witnesses and cross-examine opposing witnesses 

Essentially, due process gives you the right to know what the accusations are against you and present your side of the story to the court. 

Note that the law does not need to expressly state what procedures are fair. In other words, merely following the letter of the law may not be enough to satisfy the requirement for due process. 

Incorporation 

Originally, the understanding was that the Constitution’s guarantee of due process applied only to actions by the federal government. The law did not hold state governments to a standard of due process, meaning that states had a greater ability to deprive people of liberty or property. 

However, the Supreme Court decided in the mid-20th century that the Due Process Clause of the Fourteenth Amendment incorporated the most important protections in the Bill of Rights, including Fifth Amendment rights. In other words, the Fourteenth Amendment applies these protections to the states, making the state governments’ obligation to conduct due process identical to that of the federal government.