Due process is one of the most familiar phrases in legal jargon. In fact, this is the only phrase which is stated twice in the Constitution, both in the Fifth and the Fourteenth Amendment (Strauss & Cochran, 2007). It has been used most often, but what does it actually mean? Due process is defined as “the exercise of government power under the rule of law with due regard for the essential and fundamental fairness rights of individuals” (Stevens, 2003).
It is based in the premise that all legal proceedings must be fair and just to the parties involved, granted that an occasion for objection is given (Lectric Law Library, 2005). Due process has two types: procedural and substantive. This essay aims to distinguish between the two, and discuss how criminal defendants have the right to be present at the grand jury’s adjudication, in relation to the topic of due process.The main difference between procedural and substantive due process is marked by the question that each process answers.
While the procedural due process deals with how the law is just, substantive due process asks why such law is just (Stevens, 2003). The procedural due process is the determinant of fairness in the Constitution (Stevens, 2003). It questions the vagueness of a particular law, or if the said law is fairly applied to all (Mount, 2006). From this process, a decision is derived through a thorough consideration of error and interests (Stevens, 2003).
Lastly, this process is closely identified with the question of legitimacy (Stevens, 2003). Legitimacy, in this case, speaks of the perception of fairness manifested by the legal system (Stevens, 2003). Since procedural due process is the basis for the Constitution, the kinds of freedom that are established in the Constitution are the kinds of freedom inherent in the said due process.This includes “freedom of assembly, freedom to vote, freedom to travel, freedom from search and seizure, freedom of property, freedom from bodily invasion,” etc.
(Stevens, 2003). Moreover, the procedural due process is manifested in the Due Process Clause of the Fifth Amendment and the Fourteenth Amendment (Lectric Law Library, 2005). The application of the former involves the federal government, while the latter covers all the states (Lectric Law Library, 2005).Unlike its counterpart, substantive due process does not measure fairness by what is indicated in the Constitution; in fact, it goes beyond it (Stevens, 2003).
Substantive due process deals with the rights not included in the Constitution; in the words of Charles Black, they are the “unnamed rights” (as cited in Strauss and Cochran, 2007). A certain law may have been passed through a procedural due process, but it can be considered unconstitutional by substantive due process, if it was found to be unreasonable (Mount, 2006). One example would be the Roe v Wade abortion case in Texas (Mount, 2006). A law was found to be in violation of due process.
It was established that it is only in the third trimester of pregnancy when the state is allowed to meddle against abortion for the sake of the fetus (Mount, 2006). For the first trimester, the woman’s right for abortion holds without inference of the state (Mount, 2006). Meanwhile, for the second semester, the state can only meddle in terms of regulating abortion for the welfare of the mother’s health (Mount, 2006).The decision that arises from such process is determined through the questions of “fundamental rights and compelling need” (Stevens, 2003).
Instead of delving into the realm of legitimacy, it focuses on the issue of legality. In this instance, legality speaks of the wide reach that consists the entire legal system (Stevens, 2003). The kinds of freedom enclosed within the substantive due process include “freedom of association, freedom to participate, freedom of movement, freedom to enjoy, and freedom of choice,” just to name a few (Stevens, 2003). In addition, the scope of substantive due process involves reviewing under the Equal Protection Clause, as well as determining whether a particular law that affects all is valid under the Constitution (Lectric Law Library, 2005).
In the instance one might ask, “ should a criminal defendant be allowed to be present at the grand jury’s adjudication?” In the light of the the distinction between the two types of processes, the answer is yes. First of all, this right is indicated in the Fifth and Sixth Amendments. According to Stevens (2003), the Fifth Amendment states that:No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor 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. The first part of the Fifth Amendment clearly states that a person can only be held accountable for a crime with the presence of a grand jury.
As indicated in FindLaw (2008), the Sixth Amendment states that:In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. If the Fifth Amendment reinforced the need for the presence of a grand jury, the Sixth Amendment delved into the required details of the trial itself. Despite the polarity, both amendments convey a similar message. Every person convicted of a crime, except those involved in special cases, have the right to a fair trial.
This includes attending one’s trial in the presence of witnesses and a grand jury. Both amendments are included in the Constitution, which characterizes a procedural due process. If a criminal defendant is prohibited to attend the grand jury’s adjudication, this is would be an obvious violation of his Constitutional rights. At the same time, for a criminal defendant to be barred from a grand jury adjudication is also an effort to undermine the substantive due process.
One of the freedoms included within the said process is the freedom to participate. The act of being present in an adjudication is considered as participation, and to be deprived of this chance is a violation of his or her rights.In conclusion, procedural and substantive due processes are distinguished by the questions the respective processes answer. Procedural due process asks how a law is just, and is dependent on the Constitution.
Substantive due process, on the other hand, asks why such law is just and has the capacity to question the signed laws if they are found to be unreasonable. Due process, in general, assures every individual the right to trial and the right to be present in the said trial. If the specifications of procedural and substantive due processes may be examined, a criminal defendant has every right to be present in a grand jury’s adjudication. The Fifth Amendment states that a man may only be held for a crime in the presence of a grand jury.
Consequently, the Sixth Amendment states that the criminal defendant should be aware of the accusations against him or her, which is discussed in a grand jury adjudication. The criminal defendant also has the freedom to participate in trial, as is indicated in the substantive due process. Hence, for a person not to be present during a grand jury’s adjudication is a violation of his rights on both accounts. ReferencesFindLaw.
com (2008). U.S. Constitution: Sixth Amendment.
Retrieved January 16, 2008, from http://caselaw.lp.findlaw.com/data/constitution/amendment06/Lectric Law Library.
(2005). Due process mini-outline. Retrieved January 16, 2008, from http://www.lectlaw.
com/files/lws63.htmMount, S. (2006). Constitutional topic: due process.
Retrieved January 16, 2008, from http://www.usconstitution.net/consttop_duep.htmlStevens, M.
(2003). Due process of law: procedural and substantive issues. Retrieved January 16, 2008, from http://faculty.ncwc.
edu/mstevens/410/410lect06.htmStrauss, P., & Cochran, S. (2007).
Due process. Retrieved January 16, 2008, from http://www.law.cornell.edu/wex/index.php/Due_process
