Wrongful death claim
Wrongful death is a claim in tort against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives. Unlike criminal law, private parties may bring the suit. The defendant has fewer due process and Constitutional protections such as immunity or the right to refuse to give testimony. The standard of proof is typically preponderance of the evidence as opposed to clear and convincing or beyond a reasonable doubt. For all the above reasons, it is often easier for a family to seek retribution against someone for wrongful death in tort than a proper criminal law conviction.
In the common law, a tort is a civil wrong for which the law provides a remedy. The term comes fromLaw French and means, literally, 'a wrong'.
The "law of torts" is a body of civil law or private law that covers the various legal (money damages) and equitable remedies which the law provides for civil wrongs arising from extra-contractual liability, i.e., other than those wrongs which arise from a breach of contractual obligations. The majority of legal claims (and the lawsuits that they are brought in) are torts.
In common law, many torts originated in the criminal law, and there is still some overlap between crime and tort. For example, in English law an assault is both a crime and a tort (a form of trespassto the person).
The dfference that grew up between the two is that in tort it is the victim who will normally initiate any court action and who aims to have a wrong compensated (for example by the payment of damages) or prevented (for example by injunctive relief); while in crime actions are normally begun by a public body or their representative, their main focus being the punishment of the crime. Another distinction is that incarceration is available as a penalty for crimes, but not for torts.
Having said that, many jurisdictions retain an punitive element as a part of the law of tort viaexemplary damages, and some torts may have a public element, for example public nuisance, with actions being maintained by a public body. While criminal law is primarily punitive, again many jurisdictions have evolved forms of compensation that may be ordered by criminal courts.
Due process of law is a legal concept that ensures the government will respect all of a person's legal rights instead of just some or most of those legal rights, when the government deprives a person of life, liberty, or property. Due process has also been interpreted as placing limitations onlaws and legal proceedings in order to guarantee fundamental fairness, justice, and liberty. The legal systems of many nations embrace some variant of this, such as the concept of fundamental justice inCanada.
Due Process in the United States
The Fifth Amendment contains a guarantee of basic due process applicable only to actions of thefederal government--"No person shall be...deprived of life, liberty, or property, without due process of law..." The 14th Amendment contains the same verbiage expressly applied to the States. TheSupreme Court has interpreted the two clauses identically, so under the federal Constitution, there is no substantial difference in protection from federal or State action. However, State constitutions also have their own guarantees of due process that may, by their own terms or by the interpretation of that State's judiciary, extend even more protection to individuals than under federal law.
The Due Process Clause of the U.S. Constitution is descended from a similar clause of the Magna Carta in which the King of England agreed (in the year 1215 A.D.) that "No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his peers, or by the Law of the Land." Thus, the core historical meaning of the Due Process Clause is that the government cannot deprive anyone if the Law of the Land forbids it. In other words, neither the King nor an American President may take away your life, liberty, or property if the law denies him that power.
Due Process under the federal Constitution has additionally been interpreted as a restraint on the ways that legislatures may alter the law, although some judges over the years have objected to stretching the Due Process Clause beyond what was intended by Magna Carta. As a limitation on Congress, the Due Process Clause has been interpreted by the majority of the Supreme Court to have both procedural and substantive components, meaning that it imposes restrictions on legal procedures--the ways in which laws may operate--and also on legal substance--what laws may attempt to do or prohibit. The distinction between substance and procedure is difficult in both theory and practice to establish. Moreover, the substantive component of due process has proven to be very controversial, because it gives the U.S. Supreme Court considerable power to strike down state and federal statutes in order to legalize activities that a majority of the judges don't think should have been criminalized in the first place.
Procedural Due Process
Procedural due process is essentially based on the concept of procedural fairness. As a bare minimum, it includes an individual's right to be adequately notified of charges or proceedings involving him, and the opportunity to be heard at these proceedings. In criminal cases, fair procedures help to ensure that an accused person will not be subjected to cruel and unusual punishment, which occurs when an innocent person is wrongly convicted.
Criminal prosecutions and civil cases are governed by explicit guarantees of rights under the Bill of Rights and as incorporated under the Fourteenth Amendment to the States (see below). However, when the Constitution has not laid out the specific procedures that must be followed in other government proceedings, due process provides a minumum floor of protection to the individual thatstatutes, regulations, and enforcement actions must at least meet (but can exceed), in order to ensure that no one is deprived of life, liberty, or property arbitrarily and without opportunity to affect the judgment or result. This minimum protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being punished, which would be tantamount to cruel and unusual punishment.
Procedural due process places limits on the assertion of personal jurisdiction over a defendant to alawsuit, limiting the locations where that defendant may be hauled into court. This is of particular relevance in cases involving business transactions conducted across state lines, where the defendant may not have set foot in the other state, but still conducted affairs with the other state's residents through correspondence, the shipment of goods, or indirect agents. This limitation also applies to jurisdiction over foreign defendants in U.S. courts.
In a somewhat complicated line of cases, the Supreme Court has required that the defendant had established minimum contacts with the jurisdiction wishing to act as a forum for the litigation, such that the defendant should not be surprised that he was subject to suit in that location. The defendant must have purposefully availed himself of the privilege of conducting business within that jurisdictionintentionally directing his activities at that state and its residents. Simply put, the defendant's actions determine where he can be sued, rather than the actions or movement of the plaintiff. Courts are still working out how this applies to lawsuits regarding internet activity and business, though they appear to be in agreement that the "passive" posting of a website is not enough to establish widespread jurisdiction wherever someone wants to sue the web author over the contents.
A court in one state must have a means of notifying the resident of another (or of a foreign country), to comply with the notice requirement of due process. This is typically done through "long-arm statutes" that provide for service of process upon the defendant in another jurisdiction through agents located or sent there. Because out-of-state defendants can't always be located easily, some state or local laws may allow for service by publication. An example of this would be printing a notice of the lawsuit in a newspaper published where the defendant is believed to reside. Because the failure of a defendant to appear in court results in a default judgment against him, such measures must be sufficiently calculated to give actual notice to the defendant to satisfy due process.
Substantive Due Process
Though on its face, the idea that due process is not only procedural but substantive seems paradoxical, the Court has endorsed that view. Note that the boundary between substance and procedure is far from exact. The Supreme Court has held for much of its history that due process must include limits not only on how people are put on trial (procedures), but also limits on what kind of control majorities can have over minorities and individuals (substance). The court has viewed the due process clause as embracing those fundamental rights that are "implicit in ordered liberty." Just what these rights are is not always clear. Substantive due process has protected such rights as marriage and raising children, and the extension of much of the Bill of Rights over the States. However, what are seen as past abuses and present excesses of this doctrine continue to spur debate over its use.
The idea of substantive due process was developed in the nineteenth century, rather than being part of the legacy of Magna Carta. James Madison explained as follows, when he proposed the Bill of Rights to Congress in 1789: "Magna Carta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed." Magna Carta forbade the King from disobeying Parliament, and the framers of the Bill of Rights (including Madison) understood that Magna Carta did not forbid Parliament from doing anything.
Substantive due process has a checkered past in the U.S., as it was first applied by the Supreme Court in the infamous Dred Scott v. Sandford which partly caused the Civil War. Dred Scott was aslave who claimed that passing into territory where slavery was prohibited destroyed his owner's property rights over him. However, the Supreme Court held that due process protections of property restricted certain types of laws that would take away property, not merely the procedure by which it was taken. After the Fourteenth Amendment applied due process restrictions to states, the Supreme Court used this same doctrine to protect a liberty of contract so as to routinely strike down economic and labor regulations, as in Lochner v. New York. Some believe this jurisprudence contributed to the unregulated economic policies that (some economists argue) may have spawned the Great Depression.
As judges became more deferential to legislative judgment in the area of commerce, substantive due process shifted away from upholding laissez faire economics to recognizing individual rights considered to be fundamental liberty interests. This has included the Incorporation of most of the Bill of Rights under the Fourteenth Amendment to apply to the laws and actions of States, as well as the recognition of rights concerning family and privacy not elsewhere in the text of the Constitution. Substantive due process has notably been invoked to invalidate laws in such areas as abortion inRoe v. Wade, and most recently in Lawrence v. Texas regarding the rights of homosexuals to sexual intimacy.
The same criticisms of the doctrine continue as in the past: that justices are reading their personal views into the Constitution instead of interpreting it. However, the disagreements are much more concerned with what, based on tradition and history, should be embraced under such protections of fundamental liberty rather than whether there are such unspoken guarantees in the Constitution in the first place. Although two current Supreme Court Justices, Thomas and Scalia, believe that due process should only limit legislators with respect to procedural fairness (Scalia in particular has called substantive due process a "judicial usurpation"), even they have joined Court opinions that do not challenge the doctrine, and have in their dissents taken more to arguing over how substantive due process should be employed based on Court precedent. In other words, the main debate in recent decades within the Court over substantive due process has been more about where to apply it, and less about whether it should be applied at all.