Understanding Our Constitution - Part 18 - Due Process of Law

The Fifth Amendment is the first of four amendments (V-VIII) that protects an accused person. Due process of law is the principle that the government must respect all of the legal rights that are owed to a person. Government must adhere to the law of the land and protect individuals from the state.

Due process restrains all branches of the government. If a person is deprived of liberty by a process that conflicts with the Constitution, then the Due Process Clause normally requires restoration of that person’s liberty.

The Fifth Amendment, ratified in 1791, only applies to the actions of the federal government. Section I of the Fourteenth Amendment, ratified in 1868, is almost the same exact phrase but is expressly applied to the states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Statutes, regulations, and enforcement actions must ensure that no one is deprived of life, liberty, or property, without a fair opportunity to have an effect on the judgment or result. He/she is entitled to adequate notice, a hearing, and a neutral judge.

Procedural due process requires that state and federal governments follow certain procedures in criminal and civil matters.

The Bill of Rights contains provisions that are central to procedural due process: freedom from unreasonable searches and seizures, freedom from double jeopardy (tried more than once for the same crime), and freedom from self-incrimination (testifying against oneself).

A person has a right to a speedy and public trial by an impartial jury, right to be told of the crime being charged, right to cross-examine witnesses, and the right to be represented by an attorney. A person has freedom from cruel and unusual punishment and has the right to demand the state prove any charges beyond a reasonable doubt.

A Miranda warning, mandated by the 1966 Supreme Court, is given by police to criminal suspects before they are interrogated. An incriminating statement will not be considered admissible evidence unless the suspect was informed of his/her “Miranda rights” and has waived those rights. The Supreme Court ruled, in 2004, that states are allowed to require information such as name, date of birth, and address without providing them with Miranda warnings.

American English developed the verb Mirandize, meaning “to read the Miranda rights” to a suspect (when the suspect is arrested):

A person has the right to remain silent, must understand that anything said may be used against that person in court, has the right to consult with an attorney and have that attorney present during questioning, and if an indigent, be provided with an attorney, at no cost.

Under the Uniform Code of Military Justice, Article 31[3] provides for the right against self-incrimination. Subjects under Army jurisdiction must first be given Form 3881 (PDF) which informs them of the charges and their rights, and sign it. The US Navy & Marine Corps require that all arrested personnel be read the “rights of the accused” and must sign a form waiving those rights if they so desire.

The Fifth Amendment states:

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...

In other words, a war situation - or where there is public danger - is an exclusion to this amendment. A terrorist who is conducting war against the United States and/or is placing the citizenry in danger has no protected rights. All such rights are solely for US citizens - as defined in the Fourteenth Amendment.

Beginning in 2009, some detainees captured in Afghanistan have been read their Miranda rights by the FBI. But, the Justice Department states that “There has been no policy change nor blanket instruction for FBI agents to Mirandize detainees overseas. While there have been specific cases in which FBI agents have Mirandized detainees overseas in order to preserve the quality of evidence obtained, ... there has been no overall policy change with respect to detainees.”