1. Collateral Proceedings What we seek is the reign of law, based upon the consent of the governed and sustained by the organized opinion of mankind. — Woodrow Wilson, on the League of Nations, in a speech at Mount Vernon, July 4, 1918

2. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Certiorari Habeas Corpus Writ Key terms to understand for this chapter… KEY WORDS

3. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 OBJECTIVES After completing this chapter, you should be able to… Explain the use of writs. Explain the importance of habeas corpus. Explain the use of a writ of certiorari

4. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Legally, a writ is defined as a mandatory precept (order), under seal, issued by a court, and commanding the person to whom it is addressed to do or not to do some act. One might think of a writ as a written order issued by a court directing some other court officer to do or not to do a particular act. A number of writs may be issued by a court. Writs

5. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The writ of habeas corpus has been termed the great writ because its purpose is to obtain the prompt release of one who is being unlawfully detained. –right to this writ is embodied in the US Constitution Statutes of the states read similarly to the following: –“Every person unlawfully imprisoned or restrained of liberty, under any pretense whatever, may request a writ of habeas corpus to inquire into the cause of the imprisonment or restraint. The person who believes that he or she is being unlawfully imprisoned, or someone in that person’s behalf, may petition the appropriate court to have a writ of habeas corpus issued.” Writs Habeas Corpus

6. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The petition must state the place of confinement, the officer/person doing the confining, and facts explaining why the petitioner feels unlawfully imprisoned. If the reason is valid, the writ will be issued and served, the prisoner brought before the court for a hearing to determine if there is sufficient cause for confinement. Burden of proof is on the imprisoned to prove, by a preponderance of evidence, imprisonment is unlawful. If the offense is a bailable one, the person is entitled to post bail pending the habeas corpus hearing. Writs Habeas Corpus

7. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 If the judge concludes the prisoner is being unlawfully detained, an order to release the prisoner will be issued. –the prisoner may not be charged further on the offense unless additional evidence is developed showing reasonable cause for arrest & commitment. (Double Jeopardy issue). If the judge concludes the imprisonment was lawful, the prisoner will remain in custody. Early use of habeas corpus was limited to obtaining immediate release of one unlawfully restrained. –in recent years, the use of this writ has been broadened materially to make it applicable in a number of situations Writs Habeas Corpus

8. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 This writ has been used to determine effectiveness of counsel. The writ is also the way that the death penalty in state criminal trials is traditionally attacked in federal court. –convictions were voided years after defendants were found guilty –the process has also been used to delay imposition of the death penalty Writs Habeas Corpus

9. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 In 1996 the US Congress passed the Antiterrorism and Effective Death Penalty Act. This act establishes limitation periods for the bringing of habeas actions and requires federal courts generally defer to state courts’ determinations. –under the act, a habeas corpus petitioner will normally have one year in which to seek relief Presumption of correctness accorded state courts’ factual findings was also strengthened. Writs Habeas Corpus

10. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 A writ of certiorari is issued by an appellate court to permit review of a decision/judgment by a lower court. –often issued when other means of appeal are not possible The writ is often granted by a state supreme court to establish guidelines for future cases by either trial judges or lower appellate courts. –particularly if there is doubt concerning a law or procedure This writ is automatically issued in most jurisdictions to review a case when the death penalty is imposed. –to determine if the facts warrant a conviction and the imposition of the death penalty Writs Certiorari

11. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The US Supreme Court frequently issues this writ to review the decision of a state appellate court when there may be a possible denial of a US constitutional guarantee. (The US Supreme Court granted Coker a writ of certiorari in order to determine whether the death penalty was excessive for the conviction of rape and, thus, a violation of the Eighth Amendment.) Writs Certiorari

12. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The writ of habeas corpus is termed the great writ. The writ is used to test the legality of confinement. Important topics for this chapter… SUMMARY (cont.)

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