What Is Constitutional Due Process and How Does It Work?

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What Is the Constitutional Due Process of Law?

Due process refers to the implementation by the state of its legal obligations regarding citizen rights. As the name implies, due process means that legal matters must be resolved according to established rules and principles, and that individuals should be treated fairly.

It protects people’s right to life, liberty, and property. Also, it guarantees fair procedures in the criminal justice system and provides defendants with the right to defend themselves.

Courts must adhere to certain procedural standards to protect people’s rights. Additionally, statutes and regulations must not violate those rights.

While facing criminal charges in Maryland, due process covers you. It ensures you have the right to counsel. Thus, your Mayland criminal lawyer can advise you of your rights and offer counsel. The attorney will explain to you the different phases of the criminal process.

Requirements of the Due Process of Law

Due process is the fairness of the U.S. Constitution. The statutes of case law provide fair treatment of citizens by state, federal, and local governments. Due process gives citizens this guarantee. That the federal government cannot take away an individual’s fundamental rights. It protects citizens during any legal action by the state government.

Due process involves two processes:

  1. Procedural due process
  2. Substantive due process


Procedural Due Process

Procedural due process requires government officials to follow fair procedures before denying a person their life, liberty, or property.  This means giving the person notice, an opportunity for a hearing, and a neutral decisionmaker.

The notice should describe the problem, list the law or statute that has been violated, and describe consequences, obligations, or duties.

Procedural due process confers the following rights:

  • An impartial tribunal.
  • To be notified of the proposed action and its grounds.
  • To present reasons for opposing a proposed action.
  • To present evidence and call and cross-examine witnesses.
  • To know opposing evidence.
  • Decisions based solely on evidence.
  • The opportunity to be represented by a lawyer.
  • A record of the evidence presented by the tribunal
  • A written finding of fact and reasons prepared by the tribunal


Substantive Due Process

Substantive due process is a legal element. It allows the court to protect citizens’ rights from government interference. The Supreme Court takes an assertive approach when upholding due process. It leads the government’s executive and legislative branches to adjust the laws and statutes.

In addition to procedural rights, the 14th Amendment also protects substantive rights, such as freedom of speech and religion. Here are some fundamental rights protected by the clause:

  • The right to how parent raise their children
  • The right to privacy
  • The right for extended families to share a home
  • The right for people to reject life-saving medical procedures
  • The right for people engaging in same-sex marriage

How Does Due Process Work in Criminal Proceedings?

Both the Fifth Amendment and the Fourteenth Amendment to the United States Constitution contain Due Process Clauses, which prohibit the federal and state governments from depriving someone of their life, liberty, or property in an unjust manner.

According to the Supreme Court, nearly all criminal procedural guarantees of the Bill of Rights, including the Fourth, Fifth, Sixth, and Eighth Amendments, are protected under the Due Process Clause.

Additionally, they are fundamental to state criminal justice systems, and if any of these guarantees are not present. So, the absence of any of these Amendments denies a defendant due process under the Fourteenth Amendment.

The Supreme Court has held that the Due Process Clause prohibits government policies and practices that violate fundamental principles of fundamental fairness, regardless of whether they violate specific Bill of Rights guarantees.

The due process requirements also apply to the interpretation of laws. This includes the requirement that laws must be reasonably clear and specific enough to provide fair notice of what conduct is prohibited or required. Therefore, legislators must provide clear and understandable statutes in order to inform people of the illegal conduct that is prohibited.

Articles 1 §9 and §10 of the Constitution prohibit “ex post facto” laws, which punish acts committed before they were declared illegal. This ensures that people are not unfairly punished for actions that were not prohibited when they were committed. Moreover, prohibiting ex post facto laws protects citizens from arbitrary, unjust laws and ensures the legal system is fair and just.

What Does the 14th Amendment Say About Due Process?

The Fourteenth Amendment acknowledges various aspects of nationalization and the rights of citizens. It talks about the equal protection of the law in most cases. The Fifth and Fourteenth Amendments both contain a Due Process Clause, although the Fourteenth Amendment applies explicitly to the states.


Does Due Process Determine How States Set LAws?

Due process is not required in the enactment of laws. Due process applies only when a state or the federal government acts against an individual, so it does not apply to how legislatures set specific rules. As a result, it governs how those rules are applied to individuals who violate them.

How Can an Attorney Help You Understand Due Process Law?

Do you lack certain rights to your case in Maryland? Then, you need legal help from a Criminal defense lawyer to protect your rights. Concerning your rights to the due process law, your attorney can do the following:

  • File a motion to challenge the opposing evidence

  • Fight against prejudicial or irrelevant evidence

  • Hold the government to its burden of proof

  • Fight the credibility of witnesses

  • They will investigate the facts and represent a legal defense

  • Demand from the state access to exonerating evidence that will be used against you.

If you believe law enforcement has violated your rights, then seek help from an experienced Maryland assault lawyer to get a fair conviction.

Contact Paolo Gnocchi of Scrofano Law today to represent your case and protect your civil rights.


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Lysa S

Paolo Gnocchi is an excellent attorney. He offered sound advice and thoroughly explained the court process. If you are looking for professional representation and a reliable attorney that will advocate for you, Paolo is your guy. Joseph Scrofano and his team are all dedicated individuals. Hopefully I never need a criminal defense attorney again LOL, but if I do, Scrofano Law would be my choice!


Joe is amazing! Here’s the hard truth:

- 99% of cases that go court in DC end in convictions
- Last year there were 120 cases in DC and the conviction rate was 100%

Here is the good news, Joe represents people in DC and knows what he is doing! When I was charged with a crime that I didn’t commit, Joe went to work. Three years, a grueling court case, and one long battle later, I got to hear the words, “not guilty!” Joe didn’t just collect a retainer and show up on court date. He scrutinized every document in the case, subpoenaed the information he needed, and presented a perfect case of facts!

When you need someone that will fight for you and can actually win, Joe is the guy!!

Jacob Wilkerson

Joe is an incredible lawyer who goes above and beyond for his clients, and he does so because he genuinely cares about people. Joe knows that the justice system is stacked against the average person, and he does everything in his power to level the playing field for his clients by being a fierce advocate for justice and truth. I’ve met many lawyers in D.C., they’re everywhere around here, but Joe is of the rare variety that actually does it for the people and not the paycheck. We need more lawyers like him. And if you need a lawyer, he’s your best bet at getting a fair shot in an otherwise unfair system.