legal aspects of criminal justice system
Due process is one of the most familiar phrases in legal jargon . In fact , this is the only phrase which is stated twice in the Constitution both in the Fifth and the Fourteenth Amendment (Strauss Cochran 2007 . It has been used most often , but what does it actually mean ? Due process is defined as the exercise of government power under the rule of law with due regard for the essential and fundamental fairness rights of individuals (Stevens , 2003 . It is based in the premise that all legal proceedings must be fair and just
to the parties involved , granted that an occasion for objection is given (Lectric Law Library , 2005 Due process has two types : procedural and substantive . This essay aims to distinguish between the two , and discuss how criminal defendants have the right to be present at the grand jury 's adjudication , in relation to the of due process
The main difference between procedural and substantive due process is marked by the question that each process answers . While the procedural due process deals with how the law is just , substantive due process asks why such law is just (Stevens , 2003 . The procedural due process is the determinant of fairness in the Constitution (Stevens , 2003 . It questions the vagueness of a particular law , or if the said law is fairly applied to all (Mount , 2006 . From this process , a decision is derived through a thorough consideration of error and interests (Stevens , 2003 . Lastly , this process is closely identified with the question of legitimacy (Stevens , 2003 . Legitimacy , in this case speaks of the perception of fairness manifested by the legal system (Stevens , 2003 . Since procedural due process is the basis for the Constitution , the kinds of freedom that are established in the Constitution are the kinds of freedom inherent in the said due process This includes freedom of assembly , freedom to vote , freedom to travel , freedom from search and seizure , freedom of property , freedom from bodily invasion ' etc (Stevens , 2003 . Moreover , the procedural due process is manifested in the Due Process Clause of the Fifth Amendment and the Fourteenth Amendment (Lectric Law Library , 2005 . The application of the former involves the federal government , while the latter covers all the states (Lectric Law Library , 2005
Unlike its counterpart , substantive due process does not measure fairness by what is indicated in the Constitution in fact , it goes beyond it (Stevens , 2003 . Substantive due process deals with the rights not included in the Constitution in the words of Charles Black they are the unnamed rights (as cited in Strauss and Cochran , 2007 A certain law may have been passed through a procedural due process but it can be considered unconstitutional by substantive due process , if it was found to be unreasonable (Mount , 2006 . One example would be the Roe v Wade abortion case in Texas (Mount , 2006 . A law was found to be in violation of due process . It was established that it is only in the third trimester of pregnancy when the state...