Criminal Procedure

I

INTRODUCTION

Criminal Procedure, body of law regulating the inquiry into whether a person has violated criminal law. Criminal procedure governs the investigation of crimes; the arrest, charging, and trial of accused criminals; and the sentencing of those convicted (found guilty of a crime). It also regulates the convicted person’s possible appeal for review of the trial court’s decision.

II

JUDICIAL SYSTEMS

Legal systems based on the common law tradition, such as those in England, Canada, and the United States, are typically contrasted with civil law systems, which are found in many Western European countries, much of Latin America and Africa, and parts of Asia. Civil law and common law systems have entirely different approaches to criminal procedure. Most countries with civil law systems use what is known as the inquisitorial system. Common law countries use what is called the adversarial system.

A

Inquisitorial System

The inquisitorial process is characterized by a continuing investigation conducted initially by police and then more extensively by an impartial examining magistrate. This system assumes that an accurate verdict is most likely to arise from a careful and exhaustive investigation. The examining magistrate serves as the lead investigator—an inquisitor who directs the fact-gathering process by questioning witnesses, interrogating the suspect, and collecting other evidence. The attorneys for the prosecution (the accuser) and defense (the accused) play a limited role in offering legal arguments and interpretations that they believe the court should give to the facts that are discovered. All parties, including the accused, are expected (but not required) to cooperate in the investigation by answering the magistrate's questions and supplying relevant evidence.

The case proceeds to trial only after completion of the examining phase and the resolution of factual uncertainties, and only if the examining magistrate determines that there is sufficient evidence of guilt. Under the inquisitorial approach, the trial is merely the public finale of the ongoing investigation. At this point, the accused assumes the burden of refuting the prima facie (apparent) case of guilt developed in the examining phase. Critics argue that the inquisitorial system places too much unchecked power in the examining magistrate and judge, who both investigate and adjudicate (legally determine) the case.

B

Adversarial System

In a common law system, an adversarial approach is used to investigate and adjudicate guilt or innocence. The adversarial system assumes that truth—that is, an accurate verdict—is most likely to result from the open competition between the prosecution and the defense. Primary responsibility for the presentation of evidence and legal arguments lies with the opposing parties, not with a judge. Each side, acting in its self-interest, is expected to present facts and interpretations of the law in a way most favorable to its interests. The approach presumes that the accused is innocent, and the burden of proving guilt rests with the prosecution. Through counterargument and cross-examination, each side is expected to test the truthfulness, relevancy, and sufficiency of the opponent's evidence and arguments.

The adversarial system places decision-making authority in the hands of neutral decision makers. The judge ascertains the applicable law and the jury determines the facts. The system emphasizes procedural rules designed to ensure that the contest between the parties is a fair fight. Critics of the adversarial approach argue that the pursuit of winning often overshadows the search for truth. Furthermore, inequalities between the parties in resources and in the abilities of the attorneys may distort the outcome of the adversarial contest.

III

CRIMINAL PROCEDURE IN THE UNITED STATES

The English colonists who came to North America in the 17th century brought their legal traditions with them. After the American Revolution (1775-1783), the English common law—including the adversarial approach to criminal procedure—remained as the basis of law in the United States.

The United States has a federal system, meaning that power is divided between a central authority and many state or local authorities (see Federalism). Thus, there are 51 different sets of criminal procedural law in the United States—that of the federal government and one for each of the 50 states. In addition, separate criminal procedures exist for military courts and for federal territories. The procedures adopted by each state and the federal government vary. However, the shared heritage of the English common law provides significant similarities in the basic structure of the process. Furthermore, the Constitution of the United States imposes some limitations on the states in formulating their criminal procedure.

A

Federal Criminal Procedure

A person prosecuted in the federal courts on a charge of violating a federal criminal law is subject to federal criminal procedure. Federal procedure is governed, first of all, by certain provisions of the U.S. Constitution, especially those contained in the Bill of Rights (the first ten amendments to the Constitution). The Constitution guarantees certain procedural rights that the government must afford a federal criminal defendant, unless the defendant knowingly and voluntarily waives (surrenders) these rights (see Constitution of the United States: Rights of the Accused).

The Fourth Amendment protects citizens from unreasonable searches and seizures and describes how law enforcement officials can obtain warrants (court orders permitting a search or arrest). The Fifth Amendment protects individuals accused of crimes from having to testify against themselves and from being tried more than once for the same offense. It also requires that any criminal charges result from the proceedings of a grand jury—a body of citizens convened to determine whether sufficient evidence exists to have a trial. Finally, the Fifth Amendment requires that government procedures adhere to due process of law, which means basic standards of fairness and equity. Under the Sixth Amendment, a defendant is guaranteed a speedy and public jury trial during which the defendant will get notice of the charges he or she faces and may call witnesses and face his or her accusers. The Sixth Amendment also guarantees that the trial will take place in the district where the alleged crime was committed and that the defendant will have the assistance of legal counsel. The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishments.

These constitutional guarantees provide a starting point for federal criminal procedure. The Federal Rules of Criminal Procedure, issued by the Supreme Court of the United States and enacted by the Congress of the United States in 1945, supplement the constitutional guarantees. The rules contain detailed provisions relating to the pretrial, trial, and appeal stages of federal prosecutions. Other details of federal criminal procedure are covered in federal statutes enacted by the U.S. Congress. Finally, a substantial part of the law of federal criminal procedure is found in the reported decisions of the federal courts.

B

State Criminal Procedure

A person prosecuted in the courts of a particular state on a charge of violating the criminal laws of that state is subject to state criminal procedure. State criminal procedure is found in the constitution, statutes, rules, and judicial decisions of that state. Furthermore, portions of the U.S. Constitution are applicable to state criminal defendants.

State constitutions generally guarantee a state criminal defendant most of the same rights that a federal defendant is provided by the Bill of Rights. Some states have provisions that vary from federal constitutional requirements. For example, in a number of states criminal charges need not result from the proceedings of a grand jury. Instead, a judge determines whether or not the accused person should be tried after reviewing the evidence during a preliminary hearing. States may provide greater rights for criminal defendants than the U.S. Constitution guarantees.

The Supreme Court of the United States has required states to provide to criminal defendants most of the procedural guarantees in the U.S. Constitution. For example, states must recognize the Fifth Amendment right to avoid self-incrimination. In addition to these specific rights, the states are required by the U.S. Constitution to guarantee due process. The 14th Amendment, passed after the American Civil War (1861-1865), reads in part, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Like the 5th Amendment, which applies to federal criminal procedure, the 14th Amendment requires the states to maintain certain minimum standards of fundamental fairness in their laws concerning criminal procedure. For instance, prosecutors may not systematically exclude members of a particular race or gender from a jury. State convictions that result from proceedings that violate the minimum standards required by the 14th Amendment can be set aside by the federal courts through the process of appeal if the state courts themselves do not do so first.

IV

JURISDICTION

For a criminal conviction to be valid, both the sovereign power (the state or federal government) and the specific court that tries the accused must have jurisdiction (authority) over the crime charged. Jurisdiction refers to a court’s authority to hear and decide a case. The jurisdiction of state courts is restricted by the geographical boundaries of the state. Jurisdiction is also limited by the type or subject matter of a case. For example, a family court with jurisdiction over child custody and placement cannot try a murder case.

According to the laws of some states, a crime is committed in only one place and only the sovereign that controls that place has the power to try the accused for the wrongdoing. Therefore, if a woman standing in one state shoots and kills a man who is just over the state line in another state, the murder is committed in the state where the lethal bullet hit the victim. Only the state where the victim was injured has jurisdiction to try the woman. However, some states have enacted statutes conferring jurisdiction on the state where the crime was partly committed.

Because in many instances only the state where the crime was committed may prosecute the accused, laws have been enacted providing a process for acquiring custody of individuals accused of committing a crime in one state who then flee to another state or country. The U.S. Constitution provides for interstate extradition—that is, each state must surrender people who flee to that state upon a request by another state in which the person is accused of committing a crime. Many countries have adopted treaties that specify how suspected criminals who flee from one country to another can be returned to the country from which they fled.

V

PRETRIAL EVENTS

The rules of criminal procedure affect many actions prior to the formal trial of the defendant. Even before a suspect is arrested, certain procedural rules govern the activities of the police and the rights of the suspect. After an arrest is made, a series of events takes place leading up to either release, a guilty plea, or a trial to determine the accused person’s guilt or innocence. All of these events are governed by the rules of criminal procedure. Because each jurisdiction develops its own procedures, the names of the various pretrial proceedings and the order in which they occur vary.

A

Investigation and Arrest

The first step in a criminal prosecution is normally the arrest of the suspect. Arrests can be made with or without a warrant (a document issued by a court prior to an arrest that clearly specifies the nature of the offense for which the suspect is being arrested). An arrest is the process of taking a person into custody for the purpose of charging that person with a crime. An arrest is typically preceded by a prearrest investigation in which the police seek to determine (1) whether a crime was actually committed; and (2) if it was committed, whether there is sufficient information pointing to the guilt of a particular individual to justify arresting that person.

The prearrest investigation may involve, among other techniques, personal observation by a police officer, questioning of witnesses and the suspect, and collecting and examining physical evidence left at the scene of a crime (see Crime Detection). Before questioning a suspect in custody, the police must inform him or her of certain legal rights, including the right to remain silent and the right to have an attorney present during questioning. These Miranda warnings are named after the 1966 Supreme Court case, Miranda v. Arizona, in which the Court declared the necessity of such a procedure.

A judge may issue an arrest warrant if either a police officer or a private person swears under oath that the accused has committed a crime, or that a crime has been committed and there is probable cause for believing the accused committed it. For certain crimes, a summons may be used in place of an arrest. A summons is a formal document notifying a person that he or she is required to appear in court to answer a charge. A police officer may properly make an arrest without a warrant if a felony (serious crime) is committed or attempted in the officer's presence, or if the officer reasonably believes a felony has been committed and that the accused did it. A police officer may also make an arrest for any misdemeanor (minor offense) committed or attempted in the officer's presence. Even a private citizen may properly make a warrantless arrest in certain limited circumstances, but such citizen's arrests are rare.

B

Booking

Once the suspect has been taken into custody and transported to a police facility, he or she is booked. Booking is the clerical process by which an administrative record is made of the arrest. The name and address of the person arrested (sometimes referred to as the arrestee), the time and place of arrest, the name of the arresting officer, and the arrest charge are entered in the police log. Booking can also involve searching, fingerprinting, photographing, and testing the arrestee for drugs and alcohol. If booked on a minor offense, the arrestee may be able to obtain release immediately by posting cash (known as station house bail) as security to ensure his or her appearance before a magistrate at a later date. If arrested on a serious offense, the accused will be placed in a holding facility to await the filing of an initial charging document (complaint) and a first appearance before a judge or magistrate.

C

First Judicial Appearance

Within a reasonable time after the arrest, the accused must be taken before a magistrate and informed of the charge. The magistrate will ascertain that the person before the court is, in fact, the individual referred to in the complaint. The magistrate also will notify the accused of various legal rights, such as the right to remain silent and the right to assistance of counsel. If the accused is indigent (poor) and desires the assistance of an appointed attorney, the process for securing an attorney at the state's expense will be initiated. In some jurisdictions, the government retains a staff of attorneys, known as public defenders, specifically to defend those who cannot afford a private attorney. Public defenders specialize in criminal law. In other areas, the court appoints private lawyers from the community to represent indigent defendants. Some areas have a mix of the two systems.

In most jurisdictions, either before or during the first appearance, the magistrate will review the evidence to ensure that the arrest and complaint are supported by sufficient information to establish probable cause to believe the accused committed the crime charged. If temporary pretrial release was not secured at an earlier stage, the magistrate will consider whether the accused is entitled to be released on bail and, if so, the conditions the accused must meet to gain release from custody pending the trial. If charged with a minor offense, the accused may be asked to enter a plea regarding his or her guilt or innocence, and the magistrate may have the authority to proceed to trial if the defendant has pled not guilty. If the accused is charged with a serious offense, he or she does not enter a plea at the initial appearance.

D

Bail

Bail refers to the security that the accused gives to the court to guarantee his or her appearance at subsequent judicial proceedings. The accused person's promise to return for trial is secured by some form of collateral, such as money or property, that the accused forfeits if he or she does not show up for trial. The bail system attempts to balance the due process rights of the accused with the state's need to ensure that a person accused of a crime will return for trial. The amount of bail is fixed by the judge or magistrate.

Although a money bail system is in place in many states, the trend is to encourage the release of accused persons without attaching financial conditions. If the court believes the accused is likely to return for further proceedings, the court may release the accused on his or her own recognizance—that is, an unsecured promise to return. On the other hand, most jurisdictions either authorize or require magistrates to deny bail for individuals who have demonstrated a high risk of fleeing, such as individuals charged with an offense committed while out of jail on bail, parole, or probation. Similarly, bail is typically unavailable for people charged with offenses that could result in capital punishment (the death penalty). In some jurisdictions, the accused may be preventively detained prior to trial if the prosecution can demonstrate to the court that he or she poses a danger to others.

E

Preliminary Hearing or Indictment

Under federal criminal procedure and in about half of the states, a person must be indicted (formally charged) by a grand jury before a felony trial can take place. Other states provide for a preliminary hearing, also called a preliminary examination, after the initial judicial appearance. In a few states a prosecutor may take a case to a preliminary hearing, or avoid that public process by going to a grand jury, which holds its proceedings in secret.

In both types of proceedings, a neutral body—either a group of citizens or a judge—reviews the case against the accused and decides whether he or she should be tried. These proceedings are designed to review the government's decision to prosecute in order to prevent governmental abuse of power. If, after hearing the evidence, the presiding judge or grand jury finds there is probable cause to believe the accused committed the offense, legal proceedings against the accused continue. If the prosecution's evidence is found insufficient, the charges are dismissed and the accused is released. However, the person can be rearrested and recharged if the prosecutors develop or find further evidence supporting the charge.

The grand jury typically hears only the evidence presented by the prosecution. The accused does not have a right to be present at grand jury proceedings, which are conducted in secret, or to present evidence or cross-examine the prosecution’s witnesses. However, some states permit someone under investigation to present evidence to the grand jury under certain circumstances. If the grand jury finds sufficient evidence to justify a trial on the crime charged, it issues an indictment—a formal document containing a plain statement of the facts constituting the offense charged.

A preliminary hearing is a public, adversarial proceeding in which the prosecution and the defense briefly present their cases to a judge. The accused, represented by counsel, is entitled to challenge the prosecution’s evidence and introduce evidence on his or her own behalf. The judge decides whether sufficient evidence exists to justify a trial. As an alternative to grand jury indictment, the prosecutor can issue an information, a document roughly equivalent to an indictment.

The indictment or information replaces the complaint as the formal charging document in the case. Once the formal accusation has been issued, the accused is referred to as the defendant. A copy of the accusation is given to the defendant before he or she is arraigned.

F

Arraignment on the Indictment or Information

At the arraignment, which takes place in the court in which the defendant will be tried, the indictment or information is read. The defendant is called upon to answer the charge by pleading not guilty, guilty, or nolo contendere (no contest). Before pleading, the defendant may file a formal document, known as a motion, asking the court to dismiss the case. A judge can dismiss the charges if, for example, he or she concludes that the grand jury was not properly assembled or determines that the conduct charged does not constitute a crime. If the defendant does not make such motion or if the court denies the motion, the defendant must enter a plea.

If the defendant pleads guilty, there is no trial and the case is set for sentencing. With the court's permission, the defendant may be allowed to plead nolo contendere. This plea has the same consequences as entering a guilty plea, but it does not require the defendant to admit guilt. A plea of nolo contendere can be especially important if a person charged with a crime also faces a civil lawsuit stemming from the same event. If the defendant pleads guilty to the criminal charge, the plea can be used against the defendant in a civil lawsuit. If the defendant refuses to enter a plea, a not guilty plea is entered. Some states have added a special plea of not guilty by reason of insanity (see Criminal Law: Defenses). If the defendant pleads not guilty, the case is set for trial.

G

Preparation for Trial

The defendant is entitled to a speedy trial, although not so speedy as to deny sufficient time to prepare an adequate defense. The defendant may ask for a postponement if more time is needed. Although the defendant is entitled to be tried in the county or district where the crime was committed, he or she may file a motion asking the court for a change of venue—that is, a move of the trial to a court in another locality. A change of venue is common when a fair trial in the district would be impossible due to pretrial publicity or public hostility to the defendant. Prior to the trial, the prosecutor is required to turn over to the defendant information favorable to him or her on issues that will be tried.

The defense may file a variety of pretrial motions objecting to various aspects of the prosecution. These motions may challenge the sufficiency and form of the charging documents or the composition and conduct of the grand jury. Or they might request that the prosecution share the evidence it has obtained. If the defense believes that the prosecution’s evidence has been obtained illegally, the defendant may file a motion to suppress the evidence. If the court grants such a motion, the prosecutor will not be permitted to introduce the evidence at trial.

VI

TRIAL

A criminal defendant who pleads not guilty is entitled to a public trial and has the right to be present at the trial. During the trial a judge or jury determines whether the defendant is guilty or not guilty based upon the application of criminal law to the facts of the case. The criminal defendant must be given the opportunity to confront and cross-examine the prosecution's witnesses and to present evidence in his or her own defense.

A

Jury

The criminal defendant generally is entitled to a trial by jury in all felony cases and in any misdemeanor case punishable by more than six months imprisonment. A typical state jury trial includes between 6 and 12 jurors, who must decide unanimously whether to acquit or convict. A few states permit conviction on less than a unanimous verdict in some cases. Federal juries consist of 12 persons, and their verdict must be unanimous. The jurors must be impartial and the jury must represent a fair cross-section of the community. The exclusion of prospective jurors solely on the basis of race or gender violates the U.S. Constitution.

Briefly, a jury trial consists of (1) the selection of the jury; (2) opening statements by prosecution and defense attorneys during which each side states what it expects to prove; (3) the presentation of evidence (first by the prosecution, then by the defense) and the questioning of witnesses; (4) closing arguments in which each side states what the evidence has proved or failed to prove; (5) instructions by the trial judge to the jury concerning the law to be applied to the facts that the jury may find; (6) the jury's deliberations and verdict (formal decision); and (7) the sentence, if the verdict is guilty.

B

Evidence

The evidence presented by the prosecution or by the defense may consist of the oral testimony of witnesses, documentary evidence, and physical evidence, such as a murder weapon with the defendant's fingerprints on it. During direct examination, the oral testimony of witnesses is first presented by the party (prosecution or defense) who called the witness. The witness is then subject to a cross-examination, in which the opposing party attempts to discredit the testimony or demonstrate that it is incomplete. Following cross-examination, the original party may conduct a redirect examination of the witness in order to explain away matters brought out on cross-examination. The opposing party may then recross-examine the witness.

The privilege against self-incrimination allows the defendant to decline to take the witness stand in his or her own defense. It also generally entitles the defendant to have the judge instruct the jury that failure to testify shall not be taken as evidence of guilt. The prosecution must not knowingly use perjured (false) testimony against the defendant or suppress evidence favorable to the defendant. Generally speaking, the prosecution may not use evidence obtained in violation of the defendant's constitutional rights. For example, evidence collected during an unreasonable police search or confessions obtained by torture are inadmissible at the trial to prove the defendant’s guilt.

C

Trial Motions

When all of the prosecution's evidence has been presented and the prosecution rests its case, the defense often asks the trial judge to direct the jury to return a verdict of acquittal (not guilty). The defense’s motion for a directed verdict is based on the premise that the prosecution's evidence, even when viewed in the light most favorable to the prosecution, fails to prove that the defendant committed the crime charged. If the motion is granted, the defendant is acquitted. If it is denied, the defendant may then present evidence in opposition to the prosecution's evidence. After the defense rests—that is, finishes presenting its evidence—the defendant may renew the motion for a directed verdict. If the judge again denies the motion, the case goes to the jury after the judge provides instructions concerning the applicable law.

D

Burden of Proof

In criminal cases, the defendant is presumed innocent until the prosecution proves each element of the crime beyond a reasonable doubt. Thus, the law requires the jury to acquit the defendant unless it is convinced of the defendant's guilt beyond a reasonable doubt. The jury in a criminal case may not convict on a finding that the defendant’s guilt is more likely than not. On the other hand, the law does not require absolute certainty. The standard for determining guilt is somewhere in between these two standards of proof.

E

Hung Jury

A jury that is unable to agree on whether to convict or acquit is called a hung jury. In some states the jury must be unanimous in their verdict, whereas other states permit less than unanimous verdicts in some cases. If the jury is unable to reach a verdict, the defendant, not having been acquitted, may be retried later before another jury. A retrial following a hung jury does not violate the Fifth Amendment’s prohibition against double jeopardy, which generally prevents a person from being tried twice for the same offense (see Jeopardy). The prosecution may or may not choose to retry the accused.

VII

MOTIONS AFTER TRIAL

After a guilty verdict is issued, but generally before sentencing, the convicted defendant may make a motion for a new trial on the premise that a mistake prejudicial (harmful) to the defendant was made at the trial. Prejudicial errors include errors in the judge's rulings on the admissibility of evidence or instructions to the jury, or some misconduct by the jury, judge, or prosecutor. The defendant may also move for a new trial based on the argument that the evidence was not sufficient to support the jury's guilty verdict. A motion for a new trial on the basis of newly discovered evidence that, had it been available at the trial, might have resulted in an acquittal may be made after the defendant has been sentenced; however, there is generally a time limit on this. If the trial judge grants the motion for a new trial, the conviction is set aside and the defendant may be tried again by a new jury. If the motion is denied, the defendant will be sentenced.

VIII

SENTENCING

Once guilt has been determined, either by verdict following a trial or by the entry of a guilty plea, the defendant must be sentenced. Generally, the trial judge imposes the sentence, which must be within the statutory limits set by the legislature for the crime in question. In a few states, the jury fixes the sentence. Available sentences include fine, forfeiture (loss of property), restitution, probation, some form of incarceration or deprivation of liberty, or a combination of these. For certain very serious offenses, the convicted offender may be sentenced to death.

The sentencing options available to the judge are often defined by the legislature. In jurisdictions that use indeterminate sentencing, the judge has discretion to set the sentence at a maximum and minimum term within a broad range permitted by law. Parole authorities then determine the actual release date within those limits depending on the prisoner's behavior and progress toward rehabilitation. In contrast, a determinate sentence imposes a fixed term of incarceration with no early release through parole. In jurisdictions that use presumptive sentencing, the judge sentences the offender to a term that falls within a narrow range prescribed by the legislature, and offenders are expected to serve this term. However, a judge may permit a departure from this presumptive sentence—either an increase or decrease in the length of the term—if specific justification is shown. Legislators often spell out in detail the factors that justify a judge's departure from the presumptive sentence. Some states have enacted statutes that provide for long and often mandatory terms of imprisonment upon proof that the defendant has a prior record of criminal activity.

A

Probation

Judges often have the option to place a convicted offender on probation. Probation means the offender will remain in the community (rather than be sent to jail) subject to certain conditions prescribed by statute or by the judge. One condition of probation is supervision by a probation officer. If the offender violates the conditions of probation, probation can be revoked and the offender can be incarcerated. See also Probation.

B

Parole

In many jurisdictions, a defendant sentenced to prison may be eligible for release on parole after a portion of the sentence has been served. Parole authorities grant parole based on factors such as the prisoner’s behavior while in jail and the predicted potential for the prisoner to refrain from further criminal activity. The possibility of parole does not exist for some serious criminal offenders. If parole is granted, the person on parole (known as the parolee) remains under the supervision of a parole officer until the expiration of the sentence or a term otherwise specified by law. If the parolee violates the conditions of parole, the parole authorities may revoke parole, returning the parolee to prison for the remainder of the unexpired sentence.

IX

APPEALS

A convicted criminal may appeal his or her conviction and sentence to a higher court, known as an appellate court. The appellate court will review all or part of the written record of what transpired at the trial to determine whether any error prejudicial to the defendant was made. If any such error occurred, as where the trial court erred in its rulings on the admissibility of evidence or in its instructions to the jury on the law to be applied, the appellate court usually remands (returns) the case for a new trial. Sometimes, however, the error is of a type that leads to a reversal of conviction and the release of the defendant. For example, if the trial court incorrectly refused to declare unconstitutional the statute on which the prosecution was based, the appellate court would nullify the conviction, and the defendant would go free. In such a situation a new trial based on the unconstitutional statute is not permitted. If the appellate court finds no error or deems any errors harmless—that is, not substantial and not prejudicial to the interests of the defendant—it affirms the conviction.

X

HABEAS CORPUS

A person who has been convicted, sentenced to imprisonment, and incarcerated may apply to a court for a writ of habeas corpus, a court order to release the defendant from imprisonment. (Habeas corpus is a Latin phrase meaning “you have the body.”) Through such a writ the individual tests the legality of his or her detention and seeks to redress fundamental defects in the process leading to conviction. The grounds for granting relief (release from detention) under the habeas corpus writ are limited and vary slightly depending on the jurisdiction. Many jurisdictions limit the scope of the habeas corpus writ to situations in which the convicting court lacked jurisdiction over the defendant or over the crime. Others grant relief in circumstances in which the conviction was obtained in violation of the defendant’s constitutional rights and there is no other remedy to correct the violation.