LS500
Legal Method and Process
Unit 7
Due Process, Procedural, Substantive,
and Equal Protection
Dr. Christie L. Richardson
Kaplan University
Due Process of Law
The core meaning of the Due Process Clause is that laws
protecting life, liberty, and property must be protected by all
branches and officials of the government.
What is due process of law?
– Guarantee of government fairness.
– Government cannot take away our right to life, liberty, or property,
unless it provides us with the chance to protect our interests that is
called due process.
– Protects us from arbitrary and unreasonable actions by the
government.
– Applies to government actions - NOT private actions.
Limitations of Due Process
• 1st - Growth of government actions and not private ones.
– Intertwines public and private actions causing difficulty in drawing
a line between the two.
• 2nd - Due process must apply to “something” that belongs
to a person alleging deprivation.
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Life
Liberty
Property
NOT happiness
You must have a “right” or be “entitled” to something.
Limitations of Due Process
• Due process is divided into procedural and
substantive.
• Procedural
– Requires before any deprivation, there must be NOTICE
and OPPORTUNITY for a FAIR hearing before someone
neutral and competent.
• Substantive
– Requires that laws be reasonable attempts to achieve
legitimate government goals while putting the least
burden on people’s rights.
– Courts examine the content of laws to ensure they do
not violate traditional notions of fairness.
Procedural and Substantive
Due Process
• Procedural Due Process
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–
–
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Concerned with the manner in which government acts
Prevent arbitrary government
Avoid mistaken deprivations
Know about and respond to charges
Promote a sense of official legitimacy
• Substantive Due Process
–
–
–
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Freedom of contract
Liberty of enterprise
Discrimination
Reasonableness standard to balance legitimate government
interests
Substantive Due Process
• This refers to the essence of life, liberty, and property.
• The doctrine of Substantive Due Process holds that the
due process clause not only requires "due process," that is,
basic procedural rights, but that it also protects basic
substantive rights.
• "Substantive" rights are those general rights that reserve to
the individual the power to possess or to do certain things,
despite the government’s desire to the contrary.
– Stated within the Bill of Rights of the United States Constitution.
– Court views whether or not you have a fundamental right to your
claim. Judicial review then takes over.
• "Procedural" rights are special rights that, instead, dictate
how the government can lawfully go about taking away a
person’s freedom or property or life, when the law
otherwise gives them the power to do so.
Substantive Due Process
• Once the federal courts decide what
substantive rights are protected by
Substantive Due Process, it can use judicial
review to enforce these rights by reviewing all
state legislation for compliance with these
rights.
• Substantive due process defines criminal
offenses and their penalties.
Right to Remain Silent
Fifth Amendment
• A person cannot be
compelled in any criminal
case to be a witness
against himself.
• Government must prove
“beyond a reasonable
doubt”.
• Protects individuals against
coerced confessions,
falsely admitting guilt, and
protects guilty from
escaping sanctions.
• Miranda v. Arizona 384
U.S. 436 (1966).
• Protects individuals
only against verbal
testimony.
• Individual may be
compelled to provide
blood, hair, voice, and
handwriting samples.
• Participate in a lineup.
• Put on articles of
clothing.
Double Jeopardy
Fifth Amendment
• No person shall “be
subject for the same
offense to be twice
put in jeopardy of life
or limb”.
• Once acquitted, he
or she can never be
tried again for the
same crime.
• EXCEPT
– When new evidence is brought to
the court . . .
– Evidence violates state and federal
law (can be tried in state AND
federal courts).
– Don’t forget about the potential civil
case . . .
• Defendant cannot be convicted of
both murder and manslaughter for
the same killing, but he or she can
be convicted of both murder and
robbery, if the murder arose out of
the robbery.
Right to Counsel
Sixth Amendment
• Guarantees the accused the
assistance of counsel for his
defense in felony cases, Gideon
v. Wainwright, 372 U.S. 335
(1963).
• The right to appointed counsel is
not limited to court, but extends
to any time the police wish to ask
a suspect questions (Miranda).
• This right was
extended to
misdemeanor cases
where imprisonment
might result,
Argersinger v. Hamlin,
407 U.S. 25 (1972).
Right to Confront Witnesses
Sixth Amendment
• Defendant be informed of
the nature and cause of
the accusation.
• Be confronted with the
witnesses against him or
her.
• Have compulsory process
for obtaining witnesses in
his or her favor.
• Defendant can
subpoena witnesses
to testify in his or
her defense.
• Defendant has
unlimited right to
cross-examine
adverse witnesses.
Right to a Speedy and Public Trial
Sixth Amendment
• Defendants shall enjoy
the right to a speedy
and public trial.
• Again, does not define
“speedy”.
• How “public” is “public”
now?
– Court TV
– News media
– Neutral observers
• Barker v. Wingo, 407
U.S. 514 (1972)
– Established tests:
• Length of the delay
• Reasons for the delay
• Timely assertion of the
right to a speedy trial
• Prejudice to the
defendant as a result of
the delay.
– Made on a case-by-case
basis.
Right to Bail
Eighth Amendment
Basic Purpose is to Return Court
• Prohibits excessive
bail, but it does not
describe what
“excessive” pertains to.
• A person without
means may find $25 to
be excessive.
• A drug dealer may find
no difficulty in raising
$1M bail.
• Supreme Court ruled that
defendants found to constitute a
danger to public safety may be
held without setting bail, United
States v. Salerno, 481 U.S. 739
(1987).
• Release on Recognizance
(ROR)
– Unsecured pledge to return to
court on the appointed date to
stand trial.
• Unable to post bail, you stay in
jail!
Exclusionary Rule
Poisoned Fruit Doctrine
• Illegally seized evidence must be
excluded from trial.
• Originally had three purposes:
• To protect individual rights
from police misconduct;
• To prevent police
misconduct; and
• To maintain judicial integrity.
• Created by the Supreme
Court in 1914, and
extended to state courts in
1961, Mapp v. Ohio, 367
U.S. 643 (1961).
• Premise was to control
police behavior.
• Reasonable
suspicion/probable cause
• Terry v. Ohio, 392 U.S. 1
(1968), allowed police to stop
and frisk a suspect, even in
the absence of probable
cause (officer’s protection).
• “Terry Stops”
Procedural Due Process
Balancing Test
• The private interest that will be affected by the official
action;
• The risk of an erroneous deprivation of such interest
through the procedures used, and the probable
value, if any, of additional or substitute procedural
safeguards; and
• The Government's interest, including the function
involved and the fiscal and administrative burdens
that the additional or substitute procedural
requirement would entail.