Key Takeaways

  • A writ of error is a common law remedy allowing a higher court to review and correct legal errors in a lower court’s judgment.
  • There are two primary types:
    • Writ of error coram nobis/vobis: addresses fundamental factual errors, such as death, infancy, or incapacity of a party at the time of trial.
    • General writ of error: corrects legal mistakes in trial proceedings not otherwise amendable by statute.
  • Modern use of writs of error has declined, with many jurisdictions replacing them with statutory appeals or habeas corpus, but coram nobis and coram vobis remain available in rare, extraordinary cases.
  • A successful petition requires showing that the error was fundamental, not previously raised, and would have likely changed the outcome of the case.
  • French law has a similar mechanism called demande en cassation, which focuses on the legality of the judgment itself rather than re-litigating the case.

Legal Definition of Writ of Error

A writ issued out of a court of competent jurisdiction, directed to the judge of a court of record in which final judgment has been given, and commanding them, in some cases, themselves to examine the record; in others to send it to another court of appellate jurisdiction, therein named, to be examined in order that some alleged error in the proceeding may be corrected.

The first is called a writ of error (coram nobis or vobis). When an issue in fact has been decided, there is not in general any appeal except by motion for a new trial; and although a matter of fact should exist which was not brought into the issue, as for example, if the defendant neglected to Plead a release, which he might have pleaded, this is no error in the proceedings, though a mistake of the defendant. But there are some facts which affect the validity and regularity of the proceeding itself, and to remedy these errors the party in interest may sue out the writ of error (coram vobis).

The death of one of the parties at the commencement of the suit; the appearance of an infant in a personal action, by an attorney, and not by guardian; the coverture of either party, at the commencement of the suit, when her husband is not joined with her, are instances of this kind. The second species is called, generally, writ of error, and is the more common. Its object is to review and correct an error of the law committed in the proceedings, which is not amendable, or cured at common law, or by some of the statutes of amendment or jeofail.

Writ of Error Coram Vobis

While coram nobis is directed to the same court that issued the judgment, a writ of error coram vobis is addressed to an appellate court. It serves the same essential purpose—correcting errors of fact that would have changed the outcome—but requires the higher court’s intervention. This writ is extremely rare and typically used only when the lower court is no longer able to act, such as after its judgment has been fully executed.

Writ of Error Coram Nobis

A writ of error coram nobis is a request made to the same court that issued the judgment, asking it to correct a fundamental factual error that, had it been known, would have prevented the judgment. Examples include:

  • A conviction based on false testimony later proven to be perjured.
  • A defendant unaware of a crucial defense due to fraud or mistake.
  • A conviction where the defendant was legally incompetent at the time of trial.

Courts strictly limit coram nobis petitions. The error must not have been raised earlier on direct appeal, and the petitioner must demonstrate diligence in bringing the claim. This writ is considered extraordinary relief and is granted only when no other remedy is available.

Historical Development and Modern Use

Historically, the writ of error was a central mechanism in common law courts for reviewing trial court judgments. Over time, many states and the federal system replaced it with appeals and habeas corpus procedures, but it continues to exist in limited circumstances. Today, a writ of error is most often associated with post-conviction relief in criminal cases, particularly through its specialized forms, such as coram nobis and coram vobis. These writs allow courts to reconsider judgments when fundamental facts were overlooked or unknown during the original proceedings.

Demande en Cassation

In the French law the demande en cassation is somewhat similar to our proceeding in error; according to some of the best writers on French law, it is considered as a new suit, and it is less an action between the original parties, than a question between the judgment and the law. It is not the action which is to be judged, but the judgment. A writ of error is in the nature of a suit or action, when it is to restore the party who obtains it to the possession of anything which is withheld from him, not when its operation is entirely defensive.

Requirements for a Successful Petition

Whether filing for a writ of error, coram nobis, or coram vobis, certain requirements must be met:

  1. Fundamental Error – The mistake must go to the heart of the case, such as a constitutional violation or factual impossibility.
  2. No Other Remedy – Relief cannot be sought through a direct appeal, habeas corpus, or another statutory process.
  3. Due Diligence – The petitioner must show they acted promptly once the error was discovered.
  4. Material Impact – The error must have likely changed the judgment’s outcome.

Because of these strict standards, courts often deny writs of error unless the petitioner shows extraordinary circumstances.

Frequently Asked Questions

  1. What is a writ of error in simple terms?
    A writ of error is a legal order allowing a higher or the same court to review and correct a mistake in a prior judgment.
  2. How is a writ of error different from an appeal?
    An appeal reviews trial court rulings broadly, while a writ of error corrects only specific legal or factual mistakes not otherwise fixable.
  3. What is the difference between coram nobis and coram vobis?
    Coram nobis is filed in the same court that issued the judgment, while coram vobis is directed to an appellate court for correction.
  4. Can a writ of error be used in civil cases?
    Yes, though it is more commonly associated with criminal law, writs of error may apply in civil cases involving serious procedural or factual errors.
  5. Is a writ of error still used today?
    Its use has largely declined, but it remains available in extraordinary cases when no other legal remedy exists.

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