What is the legal concept of due process?

Answer 1

Law scholars argue over this all the time. "Due process" merely means "the process or procedure that is due to a defendant in our legal system." You have to look to the U.S. Constitution and cases, as well as statutes, regulations and rules of court for the standards that are to be applied.

But what if the rules, cases and statutes don't apply? Say you have an "investigator" in a child abuse case who actually plants the ideas and facts that the child was abused or just says, over and over, "You can trust me, say you were abused, it's OK." There is no statute or court rule that says anything about this. It has to be wrong, but how can the defendant raise the issue?

It's not the trial that is the problem. It's accepting what is most likely a false accusation and allowing the system to use it to find someone to be a perpetrator and to punish him (or her)? There is now scientific evidence that a child will make a false accusation unless the inquirer is careful not to force or coach a response.

Courts have held that there must be a right not to be falsely convicted by well-meaning people following the law. That's when they reach for substantive due process.

When the government tries to regulate other activities by statute or regulation, including such things as the right to raise children, the right to die, the right to vote, the right to be considered competent, the courts apply the idea of substantive due process to reach their results.

There are always legal scholars and judges who insist that there can be no such thing as "substantive due process." Process has to be procedural, not substantive. That caused the U. S. Supreme Court to reach for a different concept in Griswold v Connecticut, finding a right to privacy in the "penumbra of the Bill of Rights."

Answer 2

The court makes due process decisions on a case-by-case basis