A Legal Introduction to Habeas Corpus

01/11/2016 12:06 pm ET Updated Jan 11, 2017

The petitioning of a court to grant a Writ of Habeas Corpus, frequently coupled with a request for an Evidentiary Hearing and a Motion for a New Trial, might be called the "Hail Mary pass" in criminal law. Such a request may additionally be appropriate in non-criminal situations in which illegal detention, such as a violation of child custody orders or alleged unlawful custody of an elderly individual, is asserted.

A "writ" is a court order. "Habeas Corpus" is Latin for "you have the body." This petition essentially requests a court to order that an individual be produced in court and a hearing be conducted concerning the circumstances of her or his detention, probation, or parole. The Writ of Habeas Corpus typically exists independently of other legal procedures and exists after all other appeals have been exhausted. Thus it is not a "direct appeal" but a "collateral appeal." This comment provides a brief and incomplete educational introduction to what is called the "Great Writ."

It may be easy to confuse "habeas corpus" and "corpus delicti." Corpus delicti ("body of the crime" - not a literal body) refers to what must be proven in court to secure a conviction of a given criminal offense. One may be convicted of murder without a body being found. A remedy related to the Writ of Habeas Corpus is the Writ of Coram Nobis ("which things remain in our presence"). Coram Nobis attacks a prior conviction when the defendant is no longer in custody and continues to suffer a deprivation of civil liberties. Always consult an experienced attorney in all criminal law and detention situations.

The following are several highlights from the rich history of habeas corpus. The English history of the Writ of Habeas Corpus exists from at least 1300 and was codified by the English Parliament in the Habeas Corpus Act of 1679. Article I, Section 9, Clause 2 of the U.S. Constitution states: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." President Abraham Lincoln unilaterally suspended it in 1861 and subsequently obtained congressional authorization in 1863. The U.S. Supreme Court held that Guantanamo detainees have habeas corpus rights (Boumediene v. Bush (2008)).

The right of ordinary criminal defendants to petition for a Writ of Habeas Corpus may exist in both state and federal courts. However, a habeas corpus review is restricted or unavailable when claims are based upon evidence contained in a trial record, "record claims," and they were not appropriately appealed in the ordinary trial and appellate process. "Extra-record claims," those involving new or additional evidence, are most likely to be heard. However, habeas corpus and evidentiary hearing claims must typically relate to a deprivation of rights guaranteed by the U.S. Constitution.

Many habeas corpus claims are based upon asserted ineffective assistance of counsel, connected to the Sixth Amendment. This requires a showing of deficient performance that prejudiced the defense, such that the outcome of the case would have been different but for the ineffective performance, considering the total circumstances (Strickland v. Washington (1984)). Trial strategy decisions alone, such as how witnesses are questioned or arguments are made to the jury, or lack of attorney trial experience, are typically insufficient to overturn a conviction. If a guilty plea were made in exchange for a plea bargain and the defendant when asked by the judge if she or he were satisfied with the representation provided by the defense attorney, answered "yes," it is virtually assured that an ineffective assistance of counsel claim will be denied.

Another ground, based upon the U.S. Supreme Court's decision in Brady v. Maryland (1963), is the failure of the prosecution to disclose material, exculpatory evidence to the defense. Evidence is "material" only if there is a reasonable probability that, with disclosure, the trial result would have been different. Related to this claim is an assertion that the prosecution knowingly used false or perjured testimony.

Actual innocence claims based upon newly discovered evidence are addressed in the U.S. Supreme Court's decision in Herrera v. Collins (1993). Federal guarantees of due process are violated when an innocent person is imprisoned. The new evidence must unquestionably establish innocence such that no reasonable juror could have found the defendant guilty if she or he had access to the evidence. If a witness or victim has recanted, a hearing is essential to determine credibility. Scientific advances in forensic evidence, such as DNA, are significant in many evidentiary proceedings.

A variety of constitutional violations may surround the concept of due process. The Fifth and Fourteenth Amendments state that no person shall be "deprived of life, liberty, or property without due process of law." In all of these situations, one must consult experienced legal counsel.

Requests for an evidential hearing, typically coupled with a request for a new trial, are, like habeas corpus petitions, highly complex matters that require experienced legal counsel. Precise wording in the request is somewhat stylized and invariably mentions that it should be granted "in the interest of justice." Sworn statements (affidavits) are part of the package. The judge hearing the request has broad discretion to determine the credibility of witnesses and to make findings of fact and conclusions of law. There is a detailed federal habeas corpus statute at 28 U.S.C. Secs. 2241 - 2266. Many states have similar statutes.

There are many presumptions that favor the finality of criminal convictions. The burden of proof is always on one who challenges the evidence, trial procedures, or conviction. A "harmless error" standard frequently requires a demonstration of "substantial and injurious effect" to overturn a verdict. A judge may have considerable discretion in considering the entire circumstances.

Typically, changes in legal standards will not be applied retroactively to grant a Writ of Habeas Corpus (Teague v. Lane (1989)). That is, "new law" created after the direct review of a conviction cannot be used in habeas corpus to overturn the conviction. However, there are exceptions such as, for example, a specific statement that the new standard applies retroactively, or it decriminalizes the conduct in question or prohibits certain punishments, or it specifically addresses an issue of fundamental fairness at trial.

One must carefully investigate the procedures and deadlines for filing a habeas corpus petition. Federal statutes in general impose a one year deadline from the end of direct appeals or the discovery of new evidence. However, due to procedural matters such as the appropriate location and court to conduct a hearing (venue), the time in with the prosecutor has to answer, the collection of evidence (investigation and discovery), etc., it is possible that a request for a Writ of Habeas Corpus may linger for years in the judicial system, only to be ultimately denied. A prisoner is often limited to one habeas corpus petition. Consequently, it is essential to present all possible claims in the petition.

This comment provides a brief and incomplete educational overview of a complex subject and is not intended to provide legal advice. Always consult experienced legal counsel in all specific criminal law and family law matters.