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Explain why it is important that a criminal law specifically define what conduct it prohibits.

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Our courts have held that criminal laws cannot be vague and cannot be overreaching.  Calling a law “vague” means that the reader is uncertain or unclear of the idea that the writer is trying to convey.  Think about what it would be like if our laws were “vague” and why the courts have said that they need to be specific.


The Concept of
Due Process

Nor be deprived of life, liberty, or property, without due process of law.

—Excerpt from the Fifth Amendment, U.S. Constitution

Nor shall any State deprive any person of life, liberty, or property, without due
process of law.

—Excerpt from the Fourteenth Amendment, U.S. Constitution


The concept of due process is difficult to understand, but its understand-
ing is essential to understanding constitutional law’s impact on criminal jus-
tice. There are two due process clauses in the U.S. Constitution. Generally,
the due process clause in the Fifth Amendment is considered as a restraint
on the federal government, and the due process clause in the Fourteenth
Amendment applies to states and local governments. In the criminal justice
area, due process is classified as either procedural due process or substantive
due process. Procedural due process refers to the means or methods by which
an individual exercises his or her due process rights. Substantive due process
refers to the actual rights themselves, such as the right to a fair hearing or
right to notice.

As noted in Chapter 1, the Supreme Court has held that the protections
contained in the U.S. Constitution’s Bill of Rights were restraints on the federal
government and not on the states. The due process clause of the Fourteenth
Amendment has, however, been construed to provide most of those Bill of
Rights’ protections to individuals involved in a state justice system.

Defining Due Process

What constitutes due process is not an easy question to answer. Probably the
easy explanation of what constitutes due process is the statement by Justice
Felix Frankfurter in his concurring opinion in the Supreme Court case Joint
Anti-Fascist Refugee Committee v. McGrath (1951, pp. 162–63):

The requirement of “due process” is not a fair-weather or timid assurance. It
must be respected in periods of calm and in times of trouble; it protects aliens






























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34 Constitutional Law and Criminal Justice

Photo 2.1 Justice Frankfurter (November 15, 1882–February 22, 1965) was born to
a Jewish family in Vienna, Austria. He immigrated with his family to the United
States in 1894, and grew up on New York City’s Lower East Side. He attended New
York Law School, but in 1902 transferred to Harvard Law School, where he became
an editor of the Harvard Law Review. He was appointed an associate justice by
President Franklin Roosevelt in 1939 and served until 1962. (Photograph by Harris
and Ewing, Collection of the Supreme Court of the United States.)

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The Concept of Due Process 35

as well as citizens. But “due process,” unlike some legal rules, is not a technical
conception with a fixed content unrelated to time, place and circumstances.
Expressing as it does in its ultimate analysis respect enforced by law for that
feeling of just treatment which has been evolved through centuries of Anglo-
American constitutional history and civilization, “due process” cannot be
imprisoned within the treacherous limits of any formula. Representing a
profound attitude of fairness between man and man, and more particularly
between the individual and government, “due process” is compounded of his-
tory, reason, the past course of decisions, and stout confidence in the strength
of the democratic faith which we profess. Due process is not a mechanical
instrument. It is not a yardstick. It is a process. It is a delicate process of
adjustment inescapably involving the exercise of judgment by those whom the
Constitution entrusted with the unfolding of the process.

Other notable explanations of the due process concept are listed below:

• “The essential elements of due process of law are notice, an opportu-
nity to be heard, and the right to defend in an orderly proceeding”
(Fiehe v. R. E. Householder Co., 1929, p. 7).

• “Due process of law implies and comprehends the administration of
laws equally applicable to all under established rules which do not
violate fundamental principles of private rights, and in a competent
tribunal possessing jurisdiction of the cause and proceeding upon
justice. It is founded upon the basic principle that every man shall
have his day in court, and the benefit of the general law which pro-
ceeds only upon notice and which hears and considers before judg-
ment is rendered” (State v. Green, 1950, p. 903).

• “Aside from all else, ‘due process’ means fundamental fairness and
substantial justice” (Black’s Law Dictionary, 1961, p. 500).

Early History of Due Process Clause

The concept of due process can be traced back to English common law (Orth,
2003). The Magna Carta was signed in 1215 at Runnymede by King John. The
Magna Carta’s Article 32 provided, in part, that “no freeman shall be taken,
or imprisoned, or disseised, or outlawed, or exiled, or any wise destroyed; nor
shall we go upon him, nor send upon him, but by the lawful judgment of his
peers or by the law of the land.” According to Lord Coke (pronounced Cook),
the words “due process of law” are equivalent in meaning to the words “law
of the land,” contained in Article 32 (Levy, 1988, pp. 304–5).

In 1246, the church in England introduced its inquisitional oath proce-
dure, whereby members of the church were required to state under oath as to
whether or not they had committed certain acts of treason against the king
or the church. When Henry II became king, he condemned the procedure as

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36 Constitutional Law and Criminal Justice

repugnant to the ancient customs and in violation of the law of the land. In
1354, the English Parliament reenacted and revised Article 32 of the Magna
Carta. The revised article for the first time used the phrase “by due process of
law” (Levy, 1988, pp. 303–4).

One of the first American cases involving the concept of due process was
the 1693 case of Sir Thomas Lawrence. Sir Lawrence was the secretary of the
Maryland colony, a judge, and a member of the governor’s council. After he
denounced the Maryland colonial government, he was accused of having in
his possession a treasonable letter. The council summoned him for an exami-
nation and demanded that he produce the letter. When he refused to produce
it, the council had him searched and found the letter. He was convicted of
unspecified crimes, deprived of his office, and jailed for treason without a
trial. Lawrence appealed his conviction to the state assembly. The assembly
freed him and restored him to his office holding that his treatment violated
the “law of the land” (Levy, 1988).

States and the Fourteenth Amendment

As noted in Chapter 1, the Supreme Court held in Barron v. Baltimore (1833)
that the first ten amendments to the federal constitution were limitations
solely on the federal government and were not limitations on the power of a
state. When the Fourteenth Amendment was ratified in 1868, the courts begin
to use the due process clause of that amendment to apply most of the limita-
tions and individual protections contained in the Bill of Rights against the
states and local governments. The Fourteenth Amendment was designed as
an antislavery amendment. It is the first section of the amendment that con-
tains the due process clause. Section 1 of the amendment reads as follows:

All persons born or naturalized in the United States, and subject to the juris-
diction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privi-
leges or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.

The first case in which the Supreme Court considered the relationship
between the Fourteenth Amendment and the Bill of Rights was Hurtado v.
California (1884). An “information” was filed by the State of California against
defendant Hurtado, charging him with murder. In California, an accused
may be charged by an information, which is a sworn statement charging the
defendant with a violation of a specified crime or crimes. Without any inves-
tigation by a grand jury, the defendant was arraigned and pleaded not guilty.
He was found guilty by a verdict of murder in the first degree and was then

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The Concept of Due Process 37

sentenced to death. The defendant appealed the judgment on the ground that
he was not legally indicted by or presented to a grand jury in violation of the
Fifth Amendment, and that the proceedings violated due process of law, as
they were in conflict with the Fourteenth Amendment of the Constitution.
In Hurtado, the Supreme Court stated that the words “due process of law” in
the Fourteenth Amendment do not necessarily require an indictment by a
grand jury in a prosecution by a state for murder. The Hurtado case pointed
out that the Court was not going to accept all the individual protections in
the Bill of Rights as necessary requirements to constitute due process.

The first case to apply one of the guarantees of the Bill of Rights to
the states was Chicago, Burlington, and Quincy R.R. v. Chicago (1897). The
Supreme Court held in the case that the “due process of law” required the
state to pay compensation to the owner of private property taken for public
use. In the case, the city had taken land from the railroad company for the
purpose of building a public street.

The guarantees of freedom of speech and press were applied against a state
in Gitlow v. New York (1925). The Supreme Court stated in Gitlow (at p. 666):

For present purposes we may and do assume that freedom of speech and of
the press—which are protected by the First Amendment from abridgment by

Photo 2.2 Each Monday when the U.S. Supreme Court is in session, its opin-
ions are announced at its public session on “decision day.” Individuals may obtain
copies of a decision on decision day from a special office in the Supreme Court
building. Two attorneys are currently receiving one of the recent opinions from
the office. (Photograph by Cliff Roberson.)

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38 Constitutional Law and Criminal Justice

Congress—are among the fundamental personal rights and “liberties” pro-
tected by the due process clause of the Fourteenth Amendment from impair-
ment by the States.

Application of the Bill of Rights to the States

From the date of the Hurtado case, the Supreme Court has struggled with the
concept of due process and determining which Bill of Rights protections are
necessary to constitute due process in state criminal courts. The approaches
to this issue include the following:

• The fundamental rights
• Justice Hugo Black’s total incorporation
• Selective incorporation

In the Hurtado case, the Court adopted the “fundamental rights interpre-
tation” of the Fourteenth Amendment’s due process clause. Under the funda-
mental rights concept, the Fourteenth Amendment is viewed as incorporating
those rights included in the Bill of Rights that are so rooted in the traditions
and conscience of the people to be considered as fundamental rights. The right
to a grand jury indictment was not included in those rights, even though that
was one of the fundamental rights set forth in the Magna Carta.

The fundamental rights interpretation was used by Justice Benjamin
Cardozo in Snyder v. Massachusetts (1934). Snyder was charged with mur-
der and attempted robbery of a gas station in Somerville, Massachusetts. His
counsel argued on appeal that the denial of his request to be present when the
jury viewed the crime scene was a denial of due process under the Fourteenth
Amendment. The counsel contended that Snyder had a right to be present,
and the failure of the trial court to allow his presence put him at a disadvan-
tage despite the fact that Snyder’s defense counsel was present. The Supreme
Court denied the appeal. Justice Cardozo stated, in part:

A state may regulate the procedure of its courts in accordance with its own
conception of policy and fairness unless it offends some principle of justice
ranked as fundamental.

… Due process of law requires that the proceedings shall be fair, but fairness
is a relative, not an absolute concept. It is fairness with reference to particular
conditions or particular results. The due process clause does not impose upon
the states a duty to establish ideal systems for the administration of justice,
with every modern improvement and with provision against every possible
hardship that may befall. (pp. 103–4).

The fundamental rights interpretation prevailed until the 1960s; there
was a notable shift from what constitutes a fundamental right from 1930 to

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The Concept of Due Process 39

1960. As the Supreme Court became more involved in state criminal trials,
the Court determined that more of the rights contained in the Bill of Rights
were fundamental. In 1932 in Powell v. Alabama, the Court held that the
right to counsel was a fundament right for indigents who did not understand
the process.

In 1937, the Court backtracked and held in Palko v. Connecticut that the
due process clause did not include the protection against double jeopardy.

Photo 2.3 Associate Justice Benjamin N. Cardozo (May 24, 1870–July 9, 1938)
was a well-known American lawyer and jurist, remembered for his significant
influence on the development of American common law in the 20th century.
Although Cardozo served on the Supreme Court of the United States from 1932
until his death in 1938, the majority of his landmark decisions were delivered
during his 18-year tenure on the New York Court of Appeals. (Photograph by
Harris and Ewing, Collection of the Supreme Court of the United States.)

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40 Constitutional Law and Criminal Justice

The Palko decision was, however, overruled in Benton v. Maryland (1969). In
Benton, a Maryland state court tried the accused on charges of burglary and
larceny. He was found not guilty of larceny, but was convicted of the bur-
glary and was sentenced to ten years in prison. Because both the grand and
trial juries in the case had been unconstitutionally selected, the Maryland
Court of Appeals returned the case to the trial court for a new trial. Benton
was reindicted and retried on both charges. At the second trial, Benton con-
tended that it was a violation of his protection against double jeopardy to be
tried again on the larceny charge because he was found not guilty of it at the
first trial. He was found guilty of both offenses and given concurrent sen-
tences of 15 years on the burglary count and 5 years for larceny.

The Supreme Court reversed Benton’s conviction in an opinion written
by Justice Marshall. The Court stated that the double jeopardy prohibition of
the Fifth Amendment represents a fundamental ideal in our constitutional
heritage, and it applies to the states through the Fourteenth Amendment.

The total incorporation approach was championed by Justice Hugo Black.
He contended that the due process clause of the Fourteenth Amendment should
be read to include all the protections contained in the Bill of Rights. In his dis-
senting opinion in Adamson v. California (1947, pp. 71–72), Black stated:

In my study of the historical events that culminated in the Fourteenth
Amendment, and the expressions of those who sponsored and favored, as
well as those who opposed its submission and passage, it persuades me that
one of the chief objects that the provisions of the Amendment’s first section,
separately, and as a whole, were intended to accomplish was to make the Bill
of Rights applicable to the states. With full knowledge of the import of the
Barron decision, the framers and backers of the Fourteenth Amendment pro-
claimed its purpose to be to overturn the constitutional rule that case had
announced. This historical purpose has never received full consideration or
exposition in any opinion of this Court interpreting the Amendment.

The total incorporation approach never received the support of a majority
of the Court. But between the years 1947 and 1969, the Supreme Court by the
process of selective incorporation incorporated almost all of the important
guarantees of the Bill of Rights. The total incorporation approach’s criticism
of the fundamental rights approach, however, probably led to the demise of
the fundamental rights approach.

Even though the Palko case was later overruled, it is considered as the
case that introduced the selective incorporation approach. The selected
incorporation approach, which is used today, is a compromise between the
total incorporation and the fundamental rights approaches. The selective
approach accepts the premise from the fundamental rights approach that
not all rights contained in the Bill of Rights are fundamental to due process.

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The Concept of Due Process 41

Photo 2.4 Associate Justice Hugo LaFayette Black (February 27, 1886–September
25, 1971) was a politician and jurist. Justice Black represented the state of
Alabama in the United States Senate from 1926 to 1937, and served as an associ-
ate justice of the Supreme Court of the United States from 1937 to 1971. He was
regarded as one of the most influential Supreme Court justices in the 20th cen-
tury. Black was appointed by President Franklin D. Roosevelt. He was the first
of nine Roosevelt nominees to the Court, and with the exception of William O.
Douglas, he outlasted them all. Justice Black is noted for his advocacy of a literal-
ist reading of the United States Constitution and of the position that the liberties
guaranteed in the Bill of Rights were imposed on the states (“incorporated”) by
the Fourteenth Amendment. (Photograph by Harris and Ewing, Collection of the
Supreme Court of the United States.)

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42 Constitutional Law and Criminal Justice

Whereas the fundamental approach looked only to the character of the
specific right in a particular case, the selective incorporation approach requires
that the Court examine the total right guaranteed by a particular Bill of Rights
provision to determine if that provision is fundamental to due process. For
example, under the fundamental rights approach, if there was a claim that a
certain action by the police violated the defendant’s rights again self-incrim-
ination, the Court would examine whether that particular aspect of the right
was a fundamental right of the defendant. Under the selective incorporation
approach, the Court would look at the entire clause against self-incrimination
to determine if self-incrimination in general was a due process right.

The following Bill of Rights protections have been selectively incorpo-
rated by the Fourteenth Amendment and are held enforceable against the
states to the same standards that the rights protect the individual from fed-
eral encroachment:

First Amendment:
Free speech (Gitlow v. New York, 1925)
Freedom of press (Near v. Minnesota, 1931)
Freedom to assembly (Dejonge v. Oregon, 1937)

Fourth Amendment:
General right to privacy (Griswold v. Connecticut, 1965)
Protection against unreasonable searches and seizures (Wolf v.

Colorado, 1949).
Exclusionary rule (Mapp v. Ohio, 1961)
Requirement of probable cause to arrest (Terry v. Ohio, 1961)

Fifth Amendment:
Protection against self-incrimination (Malloy v. Hogan, 1968)
Protection against double jeopardy (Benton v. Maryland, 1969)

Sixth Amendment:
Right to trial by jury in serious cases (Duncan v. Louisiana, 1968)
Right to speedy trial (Klopfer v. North Carolina, 1967)
Right to be informed of nature of charges (Connally v. General

Construction Co., 1926)
Right to confront and cross-examine adverse witnesses (Pointer v.

Texas, 1965)
Right to subpoena witnesses in a criminal case (Washington v.

Texas, 1967)
Eighth Amendment:

Protection against “cruel and unusual” punishment (Robinson v.
California, 1962)

The following rights, although required in federal criminal proceedings,
have not been imposed on the states:

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The Concept of Due Process 43

Fifth Amendment:
Right to grand jury indictment (Hurtado v. California, 1884)

Sixth Amendment:
Right to jury trial in minor criminal cases (Duncan v. Louisiana, 1968)

Eighth Amendment:
Prohibition against excessive bail (The Court has never decided this

issue, but indicated in Schilb v. Kuebel (1971) that it would apply
to the states.)

Regarding the prohibition against excessive bail, Justice Harry Blackmun
in Schilb v. Kuebel (p. 485) stated:

Bail, of course, is basic to our system of law, and the Eighth Amendment’s pro-
scription of excessive bail has been assumed to have application to the States
through the Fourteenth Amendment. But we are not at all concerned here with
any fundamental right to bail or with any Eighth Amendment–Fourteenth
Amendment question of bail excessiveness.

Due Process beyond the Bill of Rights

Does the due process clause of the Fourteenth Amendment provide additional
protections other than those rights set forth in the Bill of Rights? Stated in
a different manner, can police conduct violate the due process requirements
of the Fourteenth Amendment without violating one of the specific protec-
tions listed in the Bill of Rights? This issue was addressed by the Supreme
Court in the case of Rochin v. California (1952). Defendant Rochin was con-
victed of possession of morphine. Rochin, on appeal, claimed that the evi-
dence against him was obtained in violation of the due process clause of the
Fourteenth Amendment.

Having “some information that Rochin was selling narcotics,” three dep-
uty sheriffs of the County of Los Angeles, on the morning of July 1, 1949,
entered the two-story dwelling house in which Rochin lived with his mother,
common-law wife, brothers, and sisters. Finding the outside door open, they
entered and then forced open the door to Rochin’s room on the second floor.
Inside they found the petitioner sitting partly dressed on the side of the bed,
upon which his wife was lying. On a “night stand” beside the bed the depu-
ties spied two capsules. When asked “Whose stuff is this?” Rochin seized
the capsules and put them in his mouth. A struggle ensued, in the course of
which the three officers “jumped upon him” and attempted to extract the
capsules. The force they applied proved unavailing against Rochin’s resis-
tance. He was handcuffed and taken to a hospital. At the direction of one of

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44 Constitutional Law and Criminal Justice

the officers, a doctor forced an emetic solution through a tube into Rochin’s
stomach against his will. This “stomach pumping” produced vomiting. In the
vomited matter were found two capsules that proved to contain morphine (p.
187). (This case was decided by the Court before the exclusionary rule was
imposed upon the states by the Mapp v. Ohio (1961) decision.)

Court’s Opinion
Justice Flex Frankfurter delivered the opinion of the Court. He stated that
“even though the concept of due process of law is not final and fixed, these
limits are derived from considerations that are fused in the whole nature of
our judicial process” (p. 171). According to the justice, the considerations are
deeply rooted in reason and in the compelling traditions of the legal profes-
sion. The due process clause places upon the Supreme Court the duty of exer-
cising a judgment, within the narrow confines of judicial power in reviewing
State convictions, upon interests of society pushing in opposite directions.
Justice Frank Frankfurter stated in his opinion:

Due process of law, according to the justice, thus conceived is not to be derided
as resort to a revival of “natural law.” To believe that this judicial exercise of
judgment could be avoided by freezing “due process of law” at some fixed
stage of time or thought is to suggest that the most important aspect of consti-
tutional adjudication is a function for inanimate machines and not for judges,
for whom the independence safeguarded by Article III of the Constitution was
designed and who are presumably guided by established standards of judicial
behavior. Even cybernetics has not yet made that haughty claim. To practice the
requisite detachment and to achieve sufficient objectivity no doubt demands
of judges the habit of self-discipline and self-criticism, incertitude that one’s
own views are incontestable and alert tolerance toward views not shared. But
these are precisely the presuppositions of our judicial process. They are pre-
cisely the qualities society has a right to expect from those entrusted with
ultimate judicial power.

Applying these general considerations to the circumstances of the pres-
ent case, we are compelled to conclude that the proceedings by which this
conviction was obtained do more than offend some fastidious squeamishness
or private sentimentalism about combating crime too energetically. This is
conduct that shocks the conscience. Illegally breaking into the privacy of the
petitioner, the struggle to open his mouth and remove what was there, the
forcible extraction of his stomach’s contents—this course of proceeding by
agents of government to obtain evidence is bound to offend even hardened
sensibilities. They are methods too close to the rack and the screw to permit of
constitutional differentiation (pp. 171–72).

The Supreme Court found no distinction between a verbal confession
extracted by physical abuse and a confession wrested from a defendant’s

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The Concept of Due Process 45

body by physical abuse. Moreover, the Court found that the police officers’
conduct, by illegally violating the defendant’s privacy, struggling to open
his mouth, and forcibly extracting his stomach’s contents, shocked the con-
science. The Court ruled that the coerced evidence was inadmissible under
the due process clause of the Fourteenth Amendment—and that the due pro-
cess clause included more protections than those specifically listed in the Bill
of Rights.

The test formulated by Justice Frankfurter in Rochin provides that it is
a violation of due process when the police conduct departs from the funda-
mental standards of decency and fairness of the English-speaking peoples
and shocks the judicial conscience (Dunne, 1977, p. 288). The abortion case,
Roe v. Wade (1973), which held that women have certain abortion rights, dis-
cusses the right of privacy and includes that the right of privacy was incorpo-
rated into the due process clause of the Fourteenth Amendment.

Procedural Due Process

Procedural due process refers to the means or methods by which an indi-
vidual exercises his or her due process rights. As the Supreme Court noted
in Fuentes v. Shevin (1972), the central meaning of procedural due process is
clear: “Parties whose rights are to be affected are entitled to be heard; and in
order that they may enjoy that right they must first be notified.” The Court
also stated that it was equally fundamental that the right to notice and an
opportunity to be heard “must be granted at a meaningful time and in a
meaningful …

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