Collateral Attack

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As a general proposition a litigant gets one chance to present his case to a trial court; if he is dissatisfied with the result, he may appeal. What he cannot do, however, is to attack it "collaterally," starting the lawsuit all over again at the bottom, not so much asserting error in the first proceeding as ignoring it or trying to have the second trial court undo its results. This common law doctrine forbidding collateral attack exists independently of the Constitution, which makes no direct mention of it. But the Constitution is frequently incomprehensible without some reference to its common law background. In this instance the document at three points implicates the doctrine of collateral attack. One section, the full faith and credit clause, seems to forbid collateral attack in civil cases (except where due process may require otherwise); the habeas corpus clause, by contrast, seems to require it in at least some criminal cases.

What constitutes collateral attack is itself often a difficult question; different jurisdictions attach different significance to their judgments. As a general proposition, though, the full faith and credit clause requires that State A give the judgments of State B the same effect State B would; to that extent the clause prohibits collateral attack in the interstate context. (A federal statute imposes the same requirements on federal courts.) The due process clause, however, limits the full faith and credit clause; if the courts of the state rendering the first judgment lacked jurisdiction over the defendant, the full faith and credit clause does not bar collateral attack. Due process requires that a defendant be able collaterally to attack a judgment rendered by a court that lacked authority over him. The due process clause, however, requires a court to permit collateral attack only when the party using it has not previously litigated the issue of jurisdiction; if he has, that question, like all others, is closed. Moreover, one who engages in litigation without raising the question of jurisdiction is generally treated as if he had done so and lost; the justification for such treatment is that the litigant had an opportunity to do so: due process does not require giving a second chance to one who has actually engaged in a lawsuit. The operation of this proposition leaves open to collateral attack only those judgments entered without any participation by the defendant—default judgments.

Collateral attack is thus available but is rather tightly circumscribed in civil cases; those held in detention on criminal charges have a somewhat wider scope of collateral attack available to them. The habeas clause requires federal courts (and arguably also those of the states) to entertain challenges to detention. Interpreting the federal statutes implementing the clause, federal courts have permitted those in custody to complain of various basic constitutional defects in the trials leading to their conviction; courts in some circumstances have permitted such collateral attack even though the asserted constitutional defect could have been raised in a direct appeal. To that extent present habeas practice, like the due process clause, requires courts to permit collateral attack. Unlike the due process clause, however, the habeas statute has been interpreted to permit litigants in some circumstances to raise again issues already litigated in the criminal trial.

At one level, then, the Constitution appears to issue contradictory commands: recognize judgments as conclusive—except when they are not. At another level the contradiction disappears, for both commands flow from the same impulse: under normal conditions only direct attack by appeal is permissible, but when the basic prerequisites of proper adjudication are absent (the basis of judicial authority or the incidents of a fair criminal trial), the normal rules must give way.

Stephen C. Yeazell


American Law Institute 1971 Restatement of the Law 2d, Conflicts of Laws. St. Paul, Minn.: American Law Institute Publishers.

Eisenberg, Theodore 1981 Civil Rights Legislation. Charlottesville, Va.: Michie Co.

Note 1957 The Value of the Distinction between Direct and Collateral Attacks on Judgments. Yale Law Journal 66:526–544.