Constitutional Bedrock

Notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Service by publication is constitutionally suspect when better methods are available.

A party has the right to be physically present when their interests are adjudicated. In criminal cases this is absolute (Illinois v. Allen, 1970). In civil cases, it is protected when fundamental interests (custody, liberty) are at stake. Proceedings held without proper notice or presence of the affected party are voidable or void.

In criminal cases, testimonial hearsay is inadmissible unless the declarant is unavailable AND the defendant had a prior opportunity to cross-examine. This replaced the old "reliability" test entirely. No judicial determination of "reliability" can substitute for cross-examination.

A law is unconstitutionally vague if it (1) fails to give ordinary people fair notice of what conduct is prohibited, or (2) is so standardless that it invites arbitrary enforcement. Laws touching First Amendment freedoms are held to a higher vagueness standard. (Grayned v. City of Rockford, 1972; Johnson v. United States, 2015.)

Even when specific procedural requirements are met, due process forbids government conduct that "shocks the conscience" (Rochin v. California, 1952) or is fundamentally unfair in totality. This is the backstop that catches abuses not covered by specific rules.

Right to marry (Loving v. Virginia, 1967; Obergefell v. Hodges, 2015). Right to raise children (Meyer v. Nebraska, 1923; Pierce v. Society of Sisters, 1925). Right to bodily integrity. Right to privacy. Right to interstate travel (Saenz v. Roe, 1999). Right to refuse unwanted medical treatment (Cruzan v. Director, 1990).

Habeas does not retry the case. It asks: did the court that convicted/detained have jurisdiction? Were constitutional rights violated in a way that undermines the entire proceeding? Was there a fundamental defect?

State prisoners must exhaust state remedies first (28 U.S.C. Section 2254). Federal prisoners file under 28 U.S.C. Section 2255 (motion to vacate in sentencing court). Non-criminal detainees (immigration, military) file under 28 U.S.C. Section 2241. AEDPA (1996) imposed strict time limits (1 year) and deference standards but did NOT eliminate the right.

Congress cannot strip courts of habeas jurisdiction without providing an adequate substitute. Even "enemy combatants" at Guantanamo Bay retain habeas rights. The political branches cannot eliminate judicial review of detention.

Any criminal prosecution where imprisonment is actually imposed (not just authorized) triggers the right to appointed counsel. Applies to felonies (Gideon) and misdemeanors with actual jail time (Argersinger v. Hamlin, 1972; Scott v. Illinois, 1979). Includes first appeal as of right (Douglas v. California, 1963).

Juveniles facing delinquency proceedings that could result in institutional commitment have the right to appointed counsel. Due process requires that juveniles receive most of the same procedural protections as adults in criminal cases.

No automatic right to counsel in civil contempt for failure to pay child support, BUT due process requires "substitute procedural safeguards" -- notice that ability to pay is the key issue, a form to report finances, a judicial finding of ability to pay. When the opposing party is the government (not a private party), the calculus may differ.

Most civil cases. Family law (divorce, custody) -- no federal constitutional right to counsel (though some states provide by statute). Immigration removal proceedings (though due process requires fundamental fairness). Probation/parole revocation -- case-by-case (Gagnon v. Scarpelli, 1973). Post-conviction collateral review (Pennsylvania v. Finley, 1987).

The right is not just to a warm body but to EFFECTIVE counsel. Two-prong test: (1) Deficient performance -- counsel's representation fell below objective standard of reasonableness; (2) Prejudice -- reasonable probability that but for counsel's errors, result would have been different. Both prongs must be satisfied. Strong presumption of competence.

Any evidence tending to show the defendant is not guilty, or that reduces culpability. Includes: alibi witnesses, forensic evidence inconsistent with guilt, alternative suspects, recantations, evidence of third-party guilt.

Information that could be used to attack the credibility of prosecution witnesses. Includes: prior inconsistent statements, plea deals/cooperation agreements, promises of leniency, witness criminal history, bias/motive to lie, payments to witnesses, psychiatric history affecting perception.

Evidence is "material" if there is a reasonable probability that disclosure would have produced a different result. "Reasonable probability" = probability sufficient to undermine confidence in the outcome. This is NOT a "more likely than not" standard -- it is lower. Cumulative effect of all suppressed evidence is considered together.

Brady applies to evidence in possession of the "prosecution team" -- including police, investigators, forensic labs, and cooperating agencies. The prosecutor cannot avoid Brady by remaining ignorant of what police know. (Kyles v. Whitley: "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf.")

Any direct financial interest in the outcome -- no matter how small -- requires disqualification without inquiry into actual bias. (Tumey v. Ohio: judge received fees only from convictions = automatic DQ.) Includes: stock ownership in a party, financial relationship with counsel, direct pecuniary benefit from outcome.

Due process requires recusal when "the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable." This is an objective test -- not whether the judge IS biased, but whether the risk is constitutionally intolerable. In Caperton: $3 million in campaign contributions from a litigant created unconstitutional probability of bias.

Section 455(a): Must disqualify when "impartiality might reasonably be questioned" (objective reasonable person standard). Section 455(b): Specific grounds -- personal bias, prior involvement as lawyer/witness/prosecutor in the matter, financial interest, family relationship to party/lawyer. Self-executing: judge has affirmative duty to recuse without motion.

Judge who served as prosecutor in the same case, or who has personal knowledge of disputed evidentiary facts, must recuse. BUT: opinions formed from presiding over the case itself (judicial knowledge) generally do not require recusal. (Liteky v. United States, 1994 -- the "extrajudicial source" doctrine.)

Prisoners have a constitutional right of meaningful access to the courts. States must provide either adequate law libraries OR adequate legal assistance. The right is to a reasonably adequate opportunity to present claims -- not to the best possible legal resources. (Lewis v. Casey, 1996 narrowed this: must show actual injury -- that a non-frivolous legal claim was frustrated.)

When the state monopolizes the means for resolving a dispute involving fundamental rights (like divorce -- state grants the marriage, only state can dissolve it), filing fees that prevent indigent access violate due process. Does not apply to all civil cases -- only where judicial process is the exclusive means to vindicate fundamental interests.

Courts must accept filings. Clerks cannot refuse to file documents (even deficient ones -- the court rules on sufficiency, not the clerk). In forma pauperis (IFP) provisions (28 U.S.C. Section 1915) allow filing without prepayment of fees. Frivolous claims may be dismissed but must be received first.

Griffin v. Illinois (1956): state cannot deny appellate review to indigents solely because they cannot afford a trial transcript. Must provide free transcript or adequate substitute. Extends to first appeal as of right. (Does not apply to discretionary appeals -- Ross v. Moffitt, 1974.)

If a court lacks subject matter jurisdiction, its judgment is void -- period. No action of the parties can confer subject matter jurisdiction. It cannot be waived. It can be raised for the first time on appeal, in post-judgment proceedings, or collaterally in another court. Even if both parties agree to jurisdiction, if it does not exist, the judgment is void. (Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 1982 -- subject matter jurisdiction "can never be forfeited or waived.")

Personal jurisdiction is a personal defense that can be waived by appearance, consent, or failure to timely raise. If raised and the court lacked it: judgment is void as to that party. If NOT raised: waived, and judgment is valid. Must be raised in first responsive pleading or pre-answer motion (Fed. R. Civ. P. 12(b)(2), 12(h)(1)).

A judgment entered without proper notice and opportunity to be heard may be void (not merely voidable). This includes: default judgments where service was constitutionally deficient, proceedings where a party was denied right to be heard entirely, and judgments obtained by extrinsic fraud (fraud that prevented participation in the proceeding itself).

The right of parents to direct the upbringing of their children is a fundamental liberty interest protected by substantive due process. A fit parent's decision on visitation/custody/education is presumed valid. The state cannot override a fit parent's decision merely because a judge believes a "better" arrangement exists. Third parties (grandparents, non-parents) bear the burden of overcoming this presumption. Strict scrutiny applies to laws that substantially burden parental rights.

Before the state can permanently sever parental rights, it must prove unfitness by "clear and convincing evidence" -- not mere preponderance. This is the middle standard (between preponderance and beyond reasonable doubt). Rationale: the fundamental nature of the right demands heightened procedural protection against erroneous deprivation. Applies in ALL termination proceedings -- TPR (Termination of Parental Rights).

An unwed father who has established a substantial relationship with his child has constitutional parental rights that cannot be terminated without due process (notice and hearing). The state cannot create an irrebuttable presumption that unwed fathers are unfit. (Stanley v. Illinois, 1972.) However: rights depend on "grasping the opportunity" -- an unwed father who fails to develop a relationship may have diminished protections (Lehr v. Robertson, 1983).

The "best interest" standard is the governing test in custody disputes between parents. It is deliberately flexible -- factors vary by state but typically include: child's wishes, parents' wishes, adjustment to home/school/community, mental/physical health, history of abuse/neglect. The problem: it grants judges nearly unlimited discretion. There is no constitutional definition of "best interest." Different judges can reach opposite conclusions on identical facts. Appellate review is highly deferential (abuse of discretion standard). This makes it the most manipulable standard in family law.

Title IV-D of the SSA Act (42 U.S.C. Section 651 et seq.) provides federal funding to states for child support enforcement. States receive performance-based incentives tied to: paternity establishment, support order establishment, collections, cost-effectiveness. The structural tension: the federal government pays states to collect money, creating institutional incentives that may conflict with due process (e.g., aggressive enforcement without adequate consideration of inability to pay) and equal protection (disparate enforcement patterns). Turner v. Rogers (2011) partially addressed this by requiring procedural safeguards before contempt incarceration for non-payment.