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A Writ of Habeas Corpus |That You Have The Body

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A Writ of Habeas Corpus |That You Have The Body


In its simplest form a writ of habeas corpus requires that a person who is being held in custody to be brought before a judge or a court and that they be able to challenge that custody. The writ of habeas corpus is used to attack an unlawful detention or illegal imprisonment.

The term habeas corpus comes from the Latin meaning “that you have the body” of the detainee brought before the court. Typically, a petition is used when asking for a writ of habeas corpus to be issued. The writ of habeas corpus commands the person in custody to be presented.

A writ of habeas corpus isn’t a remedy in itself, but instead a procedural method used as a guarantee against indefinite detention.


writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court. It aims to determine whether that person is imprisoned lawfully and/or whether they should be released from custody.


Habeas corpus is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful. 


Habeas Corpus – What Is It

In many countries, authorities may incarcerate citizens for months, or perhaps even for years, without ever charging them with a crime. The detained then have no legal means to protest or challenge the imprisonment and are basically without recourse to regain their freedom.

The framers of the U.S. Constitution however wanted to prohibit and prevent this kind of abuse of power so they included a very specific clause in the Constitution to ensure this right, known as habeas corpus.

A writ of habeas corpus is a right.

How Writ of Habeas Corpus Works

A writ of habeas corpus literally means to “produce the body”. It is a court order demanding that a public official deliver the imprisoned individual to the court and present a valid and substantial reason for that person’s detention. This procedure then provides a means for the prisoner or a detainee to dispute the legal basis for his/her confinement. The court often holds a hearing wherein both the inmate and the government can present evidence about whether there is a lawful basis for continuing to hold the person.

Differences Between Direct Appeals and Habeas Corpus

It’s important not to confuse habeas corpus with the right of direct appeal.

A Habeas Corpus and a direct appeal are both used to help detained and/or convicted individuals protect themselves from legal flaws. There are however, some basic differences between the two.

Writ of Habeas Corpus

A Writ of Habeas Corpus can be used to point out court errors and can cover information beyond the court records. This could include new, as yet unseen, evidence. The writ system does not usually require any deadlines and is filed through the court of conviction. A writ of habeas corpus is often seen as a last resort to dispute the legality of the individual’s conviction and subsequent incarceration. Habeas corpus provides a separate avenue for challenging imprisonment and is normally used after a direct appeal has failed.

Direct Appeals

Direct Appeals are intended to correct errors made during an individual’s trial within the confines of court records. Direct Appeals involve deadlines and are filed through an appellate court. Direct appeals are usually the first step toward disputing the outcome of a criminal case and a convicted individual may have the right to appeal more than once. Criminal defendants are always entitled to appeal a conviction or sentence to a higher court.

(READ MORE at brownstonelaw)

Other Writs

  1. Writ of Certiorari – a writ that orders a court to provide records from a case so that a higher court can review the facts.
  2. Writ of Mandamus – an order from a higher court that requires a public official to act within the powers of their position.
  3. Writ of Quo Warranto – this writ demands that an official named within the writ explains how and why they’re authorized to exercise an action or claim a certain power.
  4. Writ of Prohibition – is a legal demand for a subordinate or lower tribunal to cease performing an action it does not have authority to perform.

An example of using A Writ of Habeas Corpus can be seen in the case of John Joubert

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sources to review: | | | brownstonelaw

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