Collateral Attack

Collateral Attack in the United States

A challenge to a court decision in a special proceeding. Collateral attack is like an appeal, but it occurs in an auxiliary or secondary proceeding. The most common challenge to a judgment occurs directly. An appeal or a petition for a new trial is a direct attack. It takes place in the court from which the original judgment was obtained or follows directly from it. Collateral attack, on the other hand, is an action in a separate proceeding and typically in another court.

Analysis and Relevance

Pursuit of a habeas corpus petition is a remedy sought by collateral attack. What occurs in these cases is that federal courts are requested to examine the adequacy of state criminal convictions. The habeas corpus petition thus essentially creates a second avenue of appellate review for state prisoners. The habeas corpus remedy in such cases was created by statute in 1867, but produced very few petitions until after World War II. In the 1980s, nearly 10,000 petitions were filed annually, making this kind of collateral review a matter of substantial consequence. Critics of this practice argue that it extends habeas corpus beyond its historic purpose, is unnecessarily duplicative, and creates federal-state tensions. Accordingly, the U.S. Supreme Court has attempted to limit collateral review to cases where state courts did not provide a full opportunity to raise certain constitutional issues.

Notes and References

Definition of Collateral Attack from the American Law Dictionary, 1991, California

Collateral Attack in the United States