Criminal Writs

Writs involve review by appellate courts, but they're different than appeals.

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Writs are an exception to the typical appeals process. As explained below, a defendant can ask a higher court to issue a writ outside of the appellate process to rectify certain wrongs that occurred at the trial court level.

The word “writ” traces its roots to English common law. In Old English, writ means a letter, often written by an attorney. In olden times, it was a name for an action in the courts. There were different kinds of writs for different actions: writs to recover land or personal property, to enforce judgments, and to seek damages for broken conracts. Most of the common law writs have been abolished and replaced by the civil actions we know today.

In another sense, the word “writ” meant, and still means, an order. For example, an “original writ” in old England was a letter from the king to the local sheriff ordering someone who committed a wrong to either make repairs to the person wronged or appear in court to face formal accusations. In this context, the original writ is most like our “summons,” which orders a party to appear in court.

Today, a writ is an order from a higher court to a lower court or to a governmental official, such as a prison warden. Defendants may seek several types of writs from appellate judges directed at the trial court or at a lower appellate court. (Many states have two levels of appellate courts: an intermediate appellate court and the state Supreme Court.)

Writ or Appeal?

Writs are usually considered extraordinary remedies, meaning that they are allowed only when the defendant has no other adequate remedy, such as an appeal. In other words, a defendant may take a writ to contest a point that cannot be appealed. For example, any one of the following scenarios may prohibit an appeal, but justify a writ:

  • The issue goes beyond the trial record. For example, a defendant may be able to obtain a writ of habeas corpus reversing a conviction on the basis of newly discovered evidence. A defendant who learns of exculpatory evidence after trial might seek this writ.
  • The defendant needs immediate relief. In some cases, a final judgment (conviction or acquittal) hasn’t yet been entered in the trial court, but the defendant (or prosecutor in some instances) needs relief at once to prevent injustice or unnecessary expense. For example, suppose that, before trial, a defendant facing a possession-of-drugs-for-sale charge brings a motion to suppress evidence of the drugs in question. He argues that police officers illegally searched his home, where they found the drugs. The judge denies the motion to suppress. Even though the case hasn’t yet gone to trial, the defendant may be able to petition for a writ of mandamus to compel the trial judge to suppress the evidence.
  • The defendant has already appealed unsuccessfully. In some cases, defendants can file a writ after an appeal or file multiple writs. For example, a defendant in a state prosecution might be able to file a petition for writ of habeas corpus asking an appellate court—perhaps even a federal appellate court—to reverse a conviction even though his appeals of that conviction have already failed.

Consult a Lawyer

Writs, like appeals, are complex and involve intricate details. If you have been convicted of a crime and think you have a basis to challenge it or otherwise think you might be entitled to a writ, consult an experienced criminal defense attorney.

For more on a related topic, see The Writ of Habeas Corpus.

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