737 Exactly what procedures are needed to satisfy due process, however, will vary depending on the circumstances and subject matter involved. 738 A basic threshold issue respecting whether due process is satisfied is whether the government conduct being examined is a part of a criminal or civil proceeding. 739 The appropriate framework for assessing procedural rules in the field of criminal law is determining whether the procedure is offensive to the concept of fundamental fairness. 740 In civil contexts, however, a balancing test is used that evaluates the governmentвЂ™s chosen procedure with respect to the private interest affected, the risk of erroneous deprivation of that interest under the chosen procedure, and the government interest at stake. Relevance of Historical Use.-The requirements of due process are determined in part by an examination of the settled usages and modes of proceedings of the common and statutory law of England during pre-colonial times and in the early years of this country. 742 In other words, the antiquity of a legal procedure is a factor weighing in its favor. However, it does not follow that a procedure settled in English law and adopted in this country is, or remains, an essential element of due process of law. If that were so, the procedure of the first half of the seventeenth century would be вЂњfastened upon American jurisprudence like a strait jacket, only to be unloosed by constitutional amendment.вЂќ 743 Fortunately, the states are not tied down by any provision of the Constitution to the practice and procedure that existed at the common law, but may avail themselves of the wisdom gathered by the experience of the country to make changes deemed to be necessary.

Non-Judicial Proceedings.-A court proceeding is not a requisite of due process. 745 Administrative and executive proceedings are not judicial, yet they may satisfy the Due Process Clause.

746 Moreover, the Due Process Clause does not require de novo judicial review of the factual conclusions of state regulatory agencies, 747 and may not require judicial review at all. 748 Nor does the Fourteenth Amendment prohibit a state from conferring judicial functions upon non-judicial bodies, or from delegating powers to a court that are legislative in nature. 749 Further, it is up to a state to determine to what extent its legislative, executive, and judicial powers should be kept distinct and separate. The Requirements of Due Process.-Although due process tolerates variances in procedure вЂњappropriate to the nature of the case,вЂќ 751 it is nonetheless possible to identify its core goals and requirements.

Judicial consent scene