Civil Due Process, Criminal Due Process

Abstract

Procedural due process has the comfortable feel of an old, familiar legal doctrine. If defining the substantive standards imposed by due process can seem challenging, procedural due process seems straightforward by comparison: a person may not constitutionally be deprived of "life, liberty or property" by governmental action without notice and a meaningful opportunity to be heard. These core procedural rules seem indisputable. In the American adversary tradition, after all, it is commonly said that "no better instrument has been devised for arriving at truth" than a contest between parties, presided over by a neutral arbiter. And yet, in criminal proceedings, even procedural due process is not quite so simple. In particular, this Article explores an anomalous divergence between civil and criminal due process rules, under which key notice-and-hearing rights that must be granted to civil litigants are not constitutionally required for criminal defendants in the pretrial stages of a criminal case, even if both are threatened with comparable losses.