Procedural due process

Overview

Procedural due process refers to the constitutional requirement that when the federal government acts in such a way that denies a citizen of a life, liberty, or property interest, the person must be given notice, the opportunity to be heard, and a decision by a neutral decisionmaker.

Procedural due process is one of two of the components of due process, with the other being substantive due process.

Due Process Clause

In the U.S. Constitution, the phrase "due process" appears twice: in the Fifth Amendment and in the Fourteenth Amendment. Both Amendments guarantee due process when someone is denied "life, liberty, or property."

Possibly Guaranteed Procedures

Judge Henry Friendly, in this article titled "Some Kind of Hearing," created a list of required procedures that due process requires. While this list is not mandatory, it remains highly influential, both in its content and relative priority of each item. 

  1. An unbiased tribunal.
  2. Notice of the proposed action and the grounds asserted for it.
  3. Opportunity to present reasons why the proposed action should not be taken.
  4. The right to present evidence, including the right to call witnesses.
  5. The right to know opposing evidence.
  6. The right to cross-examine adverse witnesses.
  7. A decision based exclusively on the evidence presented.
  8. Opportunity to be represented by counsel.
  9. Requirement that the tribunal prepare a record of the evidence presented.
  10. Requirement that the tribunal prepare written findings of fact and reasons for its decision.

Further Reading

For more on procedural due process, see this University of Miami Law School International Repository article, this Duke Law Review article, and this Columbia University Law Review article. 

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