Criminal and Civil Procedure
... how does it protect us, and when is it truly important? Within the Constitution, there are two places where due process is guaranteed—the fifth and fourteenth amendments. The Fifth Amendment states that “no person shall be deprived of life, liberty, or property without due process of law.” The Fourteenth Amendment nearly repeats the Fifth Amendment verbatim aside from the addition of the words “no state,” which was later used to incorporate the procedural and substantive due process protections of the Bill of Rights to state action. The legal system implemented by the United States guarantees due process “between man and man” and “between the individual and the government.” The adversarial legal system can be defined as the jurisprudential network of laws, rules, and procedures characterized by opposing parties who contend against each other for a result favorable to themselves. In such a system, the judge acts as an independent magistrate rather than prosecutor, distinguishing this from the inquisitorial system. When Justice Frankfurter refers to the “fairness between man and man,” implying the civil protection provided by the government, the legal system guarantees two basic rights: the right to notice and the opportunity to be heard. The right to notice says that any person who has been charged must know about the accusation. In this case, a court summons would be given to the defendant. The opportunity to be heard allows the accused to contest the charges against them. Civil procedure has a different set of standards than does criminal procedure and restrictions regarding defendant’s rights. For instance, in criminal cases, the accused has to be proven guilty “beyond a reasonable doubt.” On the other hand, in civil procedures, there must only be “clear and convincing evidence” for the court to find in favor of the plaintiff. Other differences include the right to self-incrimination and the right to a trial by jury. The protections from man against government, typically referring to criminal procedures, are the basic procedural due process rights within the Bill of Rights, plus the additional substantive due process rights that the Court has granted the accused over the years. The protections against illegal search and seizure, self-incrimination, excessive bail, double jeopardy, and other rights given to the accused such as right to counsel, and witnesses form the procedural due process protections. On the other hand, rights like privacy,...