Legal Ease by Shane Givens
Sept. 8, 2011

What does "habeas corpus" mean?

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Occasionally, I will have someone ask me the meaning of the oft-used, but not so well known legal term “habeas corpus”. Habeas corpus is a Latin term which literally means “you may have the body.”

In its original use, a petition for habeas corpus was filed to request that the custodian of a prison be ordered to bring a prisoner to a court to testify in a legal matter. This use of a petition for habeas corpus still exists. It is used when a prisoner is in the custody of another county or penal system and the prisoner's presence is required for a legal proceeding. Typically, a prisoner will be transported to the local jurisdiction by the county sheriff's department, which will be responsible for guarding the prisoner during court proceedings and returning the prisoner at the conclusion of the proceedings.

However, when most people think of a “writ of habeas corpus” they have something more significant in mind -- a petition demanding that the custodian of a prisoner explain in court the lawful basis upon which the prisoner has been detained. Requesting this type of “writ” (the legal term for a court order) is generally considered to be an “extraordinary remedy”, meaning that the prisoner has exhausted all other avenues of relief or appeal.

A petition for habeas corpus typically includes the following: the identity of the prisoner; the identity of the prisoner's custodian; the time, date and place of the requested court hearing, and' the issues to be addressed at that time by the court. In short, the writ places the burden of proof on those detaining the person to justify the detention.

Once a court has been served with a petition for habeas corpus, depending upon the nature of the petition, the judge might grant a writ, deny the petition, or schedule a hearing. If the writ is granted, the document may be served upon the custodian of the prisoner demanding that the prisoner be produced in court.
If a writ of habeas corpus is issued, the prisoner will be brought to court at the scheduled date and time. The purpose of such a hearing is not to determine whether or not a prisoner is innocent, but is instead to determine if the legal basis asserted for the imprisonment is lawful. If the detention is unlawful, the prisoner must be released.

Whether or not detention is lawful, if the charge against a prisoner is valid the prisoner may be subjected to trial on that charge. For example, a prisoner might file a petition for habeas corpus alleging detention on the basis of an unlawfully excessive bail. But even if the reviewing court finds the bail excessive and grants relief the prisoner would still have to stand trial on the underlying charge. 

This column is intended for general information purposes only. The answers to most legal problems rely on specific facts of a particular situation; therefore, it is very important to see a lawyer when these situations arise. 

Please e-mail questions for future columns to givenslaw@tds.net.