What Is Due Process in Criminal Defense?

Sometimes you may hear about “due process” in connection with your rights in the criminal justice system. But what exactly does that mean, and what are its sources of authority? In this and some of our future posts we will address due process generally as well as its core opponents.

The root of due process lies in the 5th Amendment to the U.S. Constitution, which states that no one shall be deprived of life, liberty or property without due process of law. In addition to the Constitution itself, both federal and state rules of criminal procedure also help to ensure that the due process rights of the accused are respected from the time of arrest through pretrial and trial proceedings and during sentencing if the trial results in a conviction.

The right to due process is so significant that it is referred to twice in the Constitution; in addition to the 5th Amendment, it also appears in the 14th Amendment, which effectively superimposes elements of the Bill of Rights onto state legal systems such as that of New Jersey. Procedural due process concerns itself with ensuring that the legal system observes constitutional rights included in the 4th, 5th, 6th and 8th Amendments.

Not every matter that finds its way before a court will invoke due process concerns. For due process to be an issue, there must by some action by the government. This includes meeting the requirements for the issuance of a search or arrest warrant, and whether probable cause exists to detain a person before trial.

What are some procedural due process rights in criminal cases?

Due process in criminal law is largely established in the Bill of Rights to the U.S. Constitution. These include but are not limited to protections against unreasonable search and seizure, the rights of a defendant after arrest (which also contains the specific “due process” language), the right to a public and speedy trial and to have the assistance of legal counsel, and limitations on excessive bail requirements or cruel and unusual punishment.

In later posts we will examine specific due process elements, most notably the relevant amendments to the U.S. Constitution that form the core of procedural due process, in more detail.