Procedural 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.:657 When the government seeks to deprive a person of one of those interests, procedural due process minimally requires 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 Clauses of the Fifth and Fourteenth Amendments to the United States Constitution.: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". These rights, which apply equally to civil due process and criminal due process, are:
- An unbiased tribunal.
- Notice of the proposed action and the grounds asserted for it.
- Opportunity to present reasons why the proposed action should not be taken.
- The right to present evidence, including the right to call witnesses.
- The right to know opposing evidence.
- The right to cross-examine adverse witnesses.
- A decision based exclusively on the evidence presented.
- Opportunity to be represented by counsel.
- Requirement that the tribunal prepare a record of the evidence presented.
- Requirement that the tribunal prepare written findings of fact and 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. At 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.
- Glicksman, Robert L.; Levy, Richard E. (2010). Administrative Law: Agency Action in Legal Context. 9781599416106: Foundation Press.
- Strauss, Peter. "DUE PROCESS". Legal Information Institute. Retrieved 8 March 2013.
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