Also known as: fair opportunities
Written by attorneys · grounded in primary & secondary sources — see below
A procedural safeguard requiring that a party receive adequate notice and time to contest evidence, present information, or prepare a response in a legal proceeding.
Floyd Franklin plans to impeach a witness with a twelve-year-old conviction. He files a pretrial motion describing the conviction in detail but omits any statement that he intends to offer it at trial. The opposing party objects that the motion failed to supply reasonable written notice. The court sustains the objection because the lack of explicit intent deprived the adverse party of a fair opportunity to contest use of the evidence.
Fernando Farrell faces civil contempt for unpaid child support and risks incarceration. The state notifies him of the hearing, explains the importance of ability to pay, and requires the court to make an express finding on that issue. Because these steps give Fernando a fair opportunity to present and contest relevant information, due process does not require appointed counsel even though the opposing parent is also unrepresented.
Select any source to read its text and confirm it supports the definition.
Fidelity Trust offers a deceased declarant's timestamped statement under the residual exception. Its counsel emails opposing counsel six weeks before trial naming the declarant and describing the statement's subject but omits the platform URL and full text. The court admits the statement after finding the written notice, even if incomplete, still supplied a fair opportunity to meet the evidence.
An indigent defendant charged with capital murder shows the trial court that his sanity at the time of the offense is a significant issue. The court denies funds for a psychiatric expert. On appeal the denial is reversed because the absence of expert assistance deprived the defendant of a fair opportunity to present a meaningful defense.
Several defendants face capital charges in a highly publicized case. The trial court appoints counsel only days before trial and refuses a continuance. The Supreme Court reverses the convictions because the defendants were denied a fair opportunity to secure and consult with counsel of their choice.
Police conduct a lineup without counsel present and a witness identifies the defendant. At trial the prosecution offers the identification. The court excludes the evidence because the absence of counsel at the lineup deprived the defendant of a fair opportunity to challenge the identification procedure through cross-examination.
The proponent must give the adverse party reasonable written notice of intent to use the conviction so the party has a fair opportunity to contest its use. A motion that merely describes the conviction without stating an intent to offer it at trial fails this requirement.
Supporting sources
No. When the state supplies alternative procedural safeguards such as adequate notice of the importance of ability to pay, a fair opportunity to present and contest relevant information, and an express court finding on ability to pay, due process does not automatically require counsel even if incarceration is possible.
Supporting sources
The notice must be in writing before trial and must include the substance of the statement and the declarant's name. Reasonable notice that identifies the declarant and general subject matter, supplemented before trial, can suffice even if some details are initially omitted.
Supporting sources
…despite repeated requests to see his lawyer. We again noted the necessity of counsel's presence if the accused was to have a fair opportunity to present a defense at the trial itself: "The rule sought by the State here, however, would make the trial no more than an appeal from the interrogation; and the right to use counsel…