Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction 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 privileges 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.

Beyond the requirements of notice and a hearing before an impartial decision maker,1 due process may also require other procedural protections such as an opportunity for confrontation and cross-examination of witnesses, discovery, a decision based on the record, or the opportunity to be represented by counsel.

With respect to confrontation and cross-examination of witnesses, the Supreme Court has held that “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” 2 Where the “evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealously,” a party’s right to show that it is untrue depends on the rights of confrontation and cross-examination. The Court has thus “been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny.” 3

With respect to discovery, the Court has held that criminal defendants have a due process right to discover exculpatory evidence held by the government4 but has not directly confronted the questions of whether and when due process requires discovery in civil or administrative proceedings. However, in one case the Court observed in dictum that “where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.” 5 Some federal agencies have adopted discovery rules modeled on the Federal Rules of Civil Procedure, and the Administrative Conference of the United States has recommended that all do so.6 There appear to be no cases, however, holding that they must.7

The Supreme Court has also held that due process requires decisions to be based on the record before the decision maker. Although this issue arises principally in the area of administrative law, it applies generally.8 The Court has explained that a decision maker’s conclusion “must rest solely on the legal rules and evidence adduced at the hearing. . . . [T]he decision maker should state the reasons for his determination and indicate the evidence he relied on, though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law.” 9

In some civil and administrative cases, due process requires that a party have the option to be represented by counsel.10 In the 1970 case Goldberg v. Kelly, the Court held that a government agency must permit a welfare recipient who has been denied benefits to be represented by and assisted by counsel.11 In a subsequent case, the Court established a presumption that an indigent litigant does not have the right to appointed counsel unless his “physical liberty” is threatened.12 The Court has also held the fact that an indigent litigant may have a right to appointed counsel in some civil proceedings where incarceration is threatened does not mean that counsel must be made available in all such cases. Rather, the Court considers the circumstances in individual cases, and may hold that appointment of counsel is not required if the state provides appropriate alternative safeguards.13

Footnotes

1

See Amdt14.S1.5.4.3 Notice of Charge and Due Process; Amdt14.S1.5.4.4 Opportunity for Meaningful Hearing; Amdt14.S1.5.4.5 Impartial Decision Maker.

2

Goldberg v. Kelly, 397 U.S. 254, 269 (1970). See also ICC v. Louisville & Nashville R.R., 227 U.S. 88, 93–94 (1913). Cf. § 7(c) of the Administrative Procedure Act, 5 U.S.C. § 556(d).

3

Greene v. McElroy, 360 U.S. 474, 496–97 (1959). But see Richardson v. Perales, 402 U.S. 389 (1971) (where authors of documentary evidence are known to petitioner and he did not subpoena them, he may not complain that agency relied on that evidence). Cf. Mathews v. Eldridge, 424 U.S. 319, 343–45 (1976).

4

Brady v. Maryland, 373 U.S. 83 (1963); see also Amdt14.S1.5.5.6 Evidentiary Requirements in Criminal Cases.

5

Greene v. McElroy, 360 U.S. 474, 496 (1959), quoted with approval in Goldberg v. Kelly, 397 U.S. 254, 270 (1970).

6

Recommendations and Reports of the Administrative Conference of the United States 571 (1968–1970).

7

At least one federal appeals court has held that federal agencies cannot adopted discovery rules absent congressional authorization. FMC v. Anglo-Canadian Shipping Co., 335 F.2d 255 (9th Cir. 1964).

8

The exclusiveness of the record is fundamental in administrative law. See Section 7(d) of the Administrative Procedure Act, 5 U.S.C. § 556(e). To succeed on a challenge on this ground, a person must show not only that the agency used ex parte evidence but also it caused prejudice. Market Street R.R. v. Railroad Comm’n, 324 U.S. 548 (1945) (agency decision supported by evidence in record, its decision sustained, disregarding ex parte evidence).

9

Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (citations omitted).

10

In contrast to the procedural due process requirements for civil and administrative proceedings discussed in this section, criminal defendants have a right to counsel under the Sixth Amendment as applied to the states by the Fourteenth Amendment. See Gideon v. Wainwright, 372 U.S. 335 (1963).

11

397 U.S. 254, 270–71 (1970).

12

Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (1981).

13

Turner v. Rogers, 564 U.S. 431 (2011) (denying an indigent defendant appointed counsel in a civil contempt proceeding to enforce a child support order, even though the defendant faced incarceration unless he showed an inability to pay the arrearages, but reversing the contempt order because the procedures followed remained inadequate).