Who is Afforded Due Process in the United States?

Recently, President Trump announced that undocumented immigrants must be immediately, with no judges or court cases, be sent home. Immigration issues have been front and center in the news for months and this latest position by the Trump administration has prompted many questions about the power of the government, what is due process in general, and who is afforded due process under the law.

In short, due process is a right under the Constitution that permits an individual to exercise all legal rights and court processes under the laws. It also allows for a method to challenge the government before an impartial judge.

For example, if you are charged with speeding in New York State, due process permits you to challenge the speeding ticket before a neutral judge. One can only be found guilty if they are afforded this due process procedure and the government can prove the case.

Anyone in the United States has the right to due process, including noncitizens. Regarding illegal immigration, there is a federal law permitting expedited removal without a lawyer, judge, or hearing only under certain specific conditions. Otherwise, due process will still apply.

Due process importantly serves as a set of rules and procedures to protect people from one-sided court systems and ensure the fair administration of justice. This is the hallmark of our system of government.

Due Process in Criminal Court

In criminal court, due process is the procedure by which an accused has their case adjudicated. For example, in a driving while intoxicated (DWI) case, a charge is brought by a police officer — who acts on behalf of the government — against a motorist. The motorist is immediately allowed to consult with an attorney to protect their interests. The motorist is given paperwork regarding the charge, called an Accusatory Instrument, and directed to the Court that handles charges in that geographical jurisdiction. Once in Court, the government is represented, usually by a District Attorney, and an impartial judge hears the case. At every step, there are laws and procedures governing the burden of proof, license suspension, constitutional rights, and an avenue for appeal to another higher court.

Due Process in Civil Court

In Civil Court, such as car accident cases, family court cases, and divorce cases, every person is afforded due process. For example, in a divorce case, a lawsuit is brought by one spouse against the other for divorce. Each party is entitled to an attorney to have their interests protected. Due process in divorce court most often consists of the right to have all issues in a divorce case — such as division of marital debts, assets, and child custody/support — resolved before an impartial judge. Due process also permits an avenue for appeal in all civil cases.

What is the Most Important Part of Due Process?

The most important part of due process is the ability to hire an attorney to navigate the laws and procedure you are subject to in criminal or civil court. An attorney is trained in the laws and how due process works in your specific situation, removing the guesswork from the situation.

Our attorneys at Proto, Sachs & Brown, LLP have decades of experience in Federal and State Court. We understand the specifics of due process in both criminal and civil proceedings. We can be most helpful when we are called early in the case, which permits us more time to establish a sound legal strategy. Our goal is to protect your rights and fight for you to obtain the best possible result in your case.

If you or a loved one is charged with a crime, DWI, traffic ticket, or have a civil matter such as a family court case or a divorce case, call us at 914.840.5104 today. We take the necessary time to explain your case and the due process you are afforded under the law. For your convenience, we have offices located throughout Westchester County, in White Plains, Peekskill, and Mount Kisco, New York. We are available for a meeting or telephone conference and our initial consultation are always free.