Due process

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While due process is most often associated with the U.S. Constitution, the concept is English: "due process of law should be observed. Most U.S. lawyers, even academics, tend to give the impression that the phrase 'due process' is a U.S. invention. Although discussion of due process of law today most commonly occurs in the context of constitutional theory, many of its fundamental principles actually originated in Magna Carta, which laid the foundation centuries ago."[1] it is also used in American state and local law, as well as in other countries, especially those under common law. It can be summarized as an assumption that judicial and quasi-judicial procedures must operate within legal codes and with fairness.[2]

One well-known checklist was developed by Judge Henry Friendly:[3]

  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.

References

  1. Lord Gordon Slynn (2004), "The Development of Human Rights in the United Kingdom", Fordham International Law Journal 28 (2), pp. 478-479
  2. Peter Strauss, Due Process, Legal Information Institute, Cornell University
  3. Henry Friendly (1975), "Some kind of hearing", University of Pennsylvania Law Review 123: 1267