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Due process of the law means that the government in the process of delivering justice in the courts should not act unfairly and arbitrarily by using individual judgment and impulse to arrive at a decision. Instead, when making decisions, the government must stay within the boundaries of reason and the law. The fundamental reason of following due process is to ensure that criminal procedures are fair and just, for example a defendant must be given notice about the nature of the offence they are being charged for. There are two types of due process: substantive due process and procedural due process.
According to Gaines and Miller (2008), substantive due process stipulates that the laws themselves must be fair and reasonable, and if the law is unfair or arbitrary, then it should be declared unconstitutional (p.95). The punishment given must fit the crime committed. Procedural due process stipulates that the law should be carried out in a method that is fair and orderly. This means that the conduct of the police, attorneys and court officials must meet the conditions of the due process amendments. In reference to Bergman and Berman (2009), before criminal a defendant is subjected to punitive measures, he must be given a legitimate opportunity to contest the charges against them (p.394). In addition the burden of proof placed on the prosecution must proof guilt beyond any reasonable doubt.
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The fifth and fourteenth amendments state that no person should be deprived of 'life, liberty or property without due process of the law' (Gaines and miller, p.95). The Fifth Amendment is only applicable to that federal government. The fourteenth amendment however, has been modified to include the states and says, 'nor shall any state deprive any person of life, liberty or property without due process of the law'. This is in harmony with the provisions in the bill of rights. Due process may be applied before adverse government action is taken or sometimes after government action is taken, depending on the specific situations of due process. In reference to Beermann (2010), the core due process rights include: notice, oral hearing, right to counsel, right to confront evidence against one's position and the right to a neutral decision maker (p.121). The right to notice requires that the defendant should be notified in advance of the issues, time and the place of the hearings. Due process also entitles a criminal defendant the right to oral hearing, which includes the right to present an oral testimony or argument, as well as hear in advance of the adverse action to be taken by the government in the event that the criminal is convicted.
The right to counsel requires that the defendant has a right to be assisted by an attorney or at least by a trained aide. Cross examining witnesses and presenting evidence to undercut the government's case, forms the defendant's right to confront the evidence against the prosecution. In addition the decision maker in the case should not be in any way prejudiced or biased, but rather neutral.
In Mathews V. Eldridge, the Supreme Court held that the due process clause of the Fifth Amendment does not require any evidentiary hearing prior to the termination of disability benefits (Schultz, 2005, p.276). The initial termination of Eldridge's benefits without hearing did not violate due process. The court indicated that due process was 'flexible' and called for 'such procedural protections as the particular situation demands'. 'The courts found that there were numerous numerous safeguards to prevent errors in making decisions to terminate disability benefits' and argued that, 'at some point that benefit or additional safeguard to the individual affected by the administrative action and to society, in terms of increased assurance that the action is just, may be outweighed by the cost'.
The Supreme Court came up with a way of determining what process is due. According to Beermann (2010), the court established that once it has been determined that an action will deprive a person of a protected interest, the following three factors will determine the level of process that will be used: the strength of the private interest affected by the government action, the risk of an erroneous deprivation if additional procedure is not applied and the government's interest in proceeding with no other that the one already in use (p.121). In reference to Schultz (2005), the due process methodology established in Mathews effectively severed the connection of administrative due process to the methodology of criminal due process (p.277).The consequence of Mathews has had an enormous impact on the direction of procedural rights in the criminal process.
The administrative procedure act authorizes claims for specific relief against the federal government. One of the purposes of the act is to restate judicial review. The party seeking judicial review must have standing to sue. According to Beermann (2010), the plaintiff must be injured by the defendant and must be in a position to profit from a favorable ruling (p.40). Due process procedures stipulated in the law apply even if an agency is required at a hearing. The determination is made with the sensitivity to the laid down procedures in the law. According to Richardson (1995), elements common to administrative hearings include: prior notice of hearing, opportunity to examine and cross-examine witnesses, presentation of documentary evidence, the presences of an impartial decision maker and the right to being given a written explanation detailing the reason for granting or rejecting the relief requested (p.300).
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It should be noted, however, that not all the above mentioned elements are applicable and that hearing procedures can differ depending on the subject matter of the hearing, as well as the regulations and requirements imposed by the reviewing courts.
The first step is to identify the interests of the offended party that are protected by due process, which can be life, liberty, or property. Government requires that the agency applies its policy to deal with the cases first before being referred to the courts. In this way the administrative procedure act compels decision makers to give adequate explanation that will warrant probing by administrative appellate bodies and federal courts. APA will always refer to initial decisions and recommended decisions. Recommended decisions are those that a higher in the agency must review before it becomes the agency's final decision. In reference to Richardson (1995), Secondly, just like in a court trial, formal agency adjudications are decided based on the evidence of record (p.305). The recordings consist of pleadings, depositions and other discovery, testimony at trial and all document adduced as evidence at trial.
Due process must be observed in all cases conducted by the agencies. The agencies are supposed to follow the procedures and substantive laws of due process as provided in the law. The law also requires that the evidence provided must be relevant and material. According to Richardson (1995), any oral or documentary evidence may be received, 'but the agency as a matter of policy, shall provide for the exclusion of the irrelevant, immaterial or unduly repetitious evidence (p.312). Limiting the number of witnesses who testify at hearing is one of the ways of limiting repetitious evidence. The decision makers have to also ascertain that the witnesses are credible and give the defendant access to agency information. Through the privacy act and the freedom of information act. In conclusion, it is noteworthy that agency adjudication and court trials follow due process, but agencies have 'flexible' due process in that it has policies that they use concurrently with the due process provisions in making decisions.