August 25, 2010
Hal C. Kern III
Due process is procedures that effectively guaranteed the individual rights in the face of criminal prosecution and those procedures that are fundamental and rules for a fair and orderly legal proceeding. Due process have the Fifth and Fourteenth Amendments constitutionally guaranteed rights of an accused to hear the charges against him or her and to be heard by the court having jurisdiction over the matter. It is the idea that basic fairness must remain part of the process, and it ensures fairness to an individual and to prevent arbitrary actions by the government. It is a process of rules and procedures by which discretion left to an individual is removed in favor of an openness by which individual rights are protected. The Fifth Amendment states “no person shall… be compelled in any criminal case to be a witness against himself.” It also states “no person shall… be deprive of live liberty, or property, without the due process of law.”
The due process clause was made applicable to states government in Malloy v. Hogan (1964). Due process is an important concept of American law that no precise definition accurately suits it, even though the concept is clear. It is basic fairness must remain part of the process. It is the right to hear and the right to be heard.
In the 50s and 60s the United States was called the era of the “due process revolution.” During that time, public sentiment demanded the government be haled accountable and that the rights under the Constitution be applied equally to all. The government conduct was critically evaluated and the police conduct was especially brought into the public’s eyes. Examples of the police actions that “shock the conscience” were found to violate due process (Rochin v. California, 1952). In Rochin, Justice Frankfurter started “due process of law, as a historic and generative principle, precludes defining and thereby confining...