Coram nobis

The writ of coram nobis (also known as "writ of error coram nobis", "writ of coram vobis", or "writ of error coram vobis") is a legal order allowing a court to correct its original judgment upon discovery of a fundamental error that did not appear in the records of the original judgment's proceedings and would have prevented the judgment from being pronounced. The term "coram nobis" is Latin for "before us" and the meaning of its full form, "quae coram nobis resident", is "which [things] remain in our presence". The writ of coram nobis originated in the English court of common law in the English legal system during the sixteenth century.
The writ of coram nobis still exists today in a few courts in the United States. In 1907, the writ became obsolete in England and replaced by other means of correcting errors; however, the writ survives in the United States in various forms in the federal courts, in sixteen state courts, and the District of Columbia courts. For those courts with the authority to issue a writ of coram nobis, the rules and guidelines differ – sometimes significantly. Each state is free to operate its own coram nobis procedures independent of other state courts as well as the federal court system. In other words, the criteria required to issue the writ in one state (or federal) court system are different from the criteria required to issue the writ in a different court system. A writ can be granted only by the court where the original judgment was entered, so those seeking to correct a judgment must understand the criteria required for that specific court.
History.
England.
The "writ of error coram nobis" originated in England over 500 years ago. The name of the writ combines three terms: writ, writ of error, and coram nobis. Writ is an official written command. Writ of error provides a superior court the means to correct errors of a lower court. Writ of error "coram nobis" is a variation of the writ of error and provides a court the means to correct its own errors.
Writ.
Sometime before the tenth century, officials in England began utilizing writs to convey orders. A "writ" was simply a short written command issued by a person in authority. It was customary for the sender to seal this written command as proof of its authenticity. In the days when writing was a rare art, a writ was revered because the person receiving the command was unlikely to deny or question its legitimacy. The Norman Conquest of England in 1066 led to the establishment of a strong, centralized monarchy. The first Norman King of England, William the Conqueror, modified writs to become mainly framed in Latin, increased the number of writs to cover additional royal commands, and established the "Curia Regis " in England. The "Curia Regis", a Latin term meaning "royal council", consisted of the King of England and his loyal advisors. The "Curia Regis" accompanied the King as he travelled. This council administered all of the King's governmental activities, including judicial matters.
One of the most important members of the "Curia Regis" was the Lord Chancellor. The Lord Chancellor led the chancery. Chancery is a general term for a medieval writing office that was responsible for the production of official documents. The Lord Chancellor wrote writs on behalf of the King, maintained all official documents, and acted as the keeper of the royal seal. This position, in effect, placed the Lord Chancellor as the head of the English legal system. The King, however, was the ultimate leader of the kingdom; therefore, the Lord Chancellor issued writs under the guidance of what he believed to be the best interests of the King. Between the twelfth and thirteenth centuries, the Lord Chancellor had a large control over issuance of all original writs. An original writ began a legal proceeding, while a judicial writ was issued during a legal proceeding.
Writ of error.
One such "original" writ was the writ of error. In medieval England, a "petition of error" requested higher courts to review the legality of an order or sentence (similar to what is now known as an appeal). Petitioners brought a petition of error before the Lord Chancellor. Due to his position and close relationship with the law, the Lord Chancellor could naturally determine if the petition provided sufficient evidence of an error and, if so, the type of writ most appropriate to correct the error. If a lower court committed an error of law, the Lord Chancellor would issue a writ of error. A writ of error required the lower court to deliver the "records" of the case to a superior court where the court reviewed the case for legal errors. Because a writ of error was only available for a higher court to determine if a lower court committed an error of law, courts needed another type of writ to correct its own decision upon an error of fact. To rectify this issue, the Lord Chancellor created a new writ - the writ of error "coram nobis". Thus, the original writ of "coram nobis" provided the means to correct errors that the writ of error could not correct. Unlike the writ of error, the writ of "coram nobis":
Writ of error "coram nobis".
"Coram nobis" is Latin for "before us". Initially, when the Lord Chancellor issued orders on behalf of the King and the royal court, the word "us" simply referred to the King, the Lord Chancellor, and other judges of this court. The royal court originated within the "Curia Regis", which began during the twelfth and thirteenth centuries, under the realm of Henry the Second (Henry II). Henry II made writs available for purchase by private individuals seeking justice, thus initiating a vast expansion of writs within the common law. The increased demand of judicial maters before the "Curia Regis" in the twelfth century led to the establishment of two central courts: the Court of King's Bench and the Court of Common Pleas. These courts became the superior courts to all other courts in England, including local and tribunal courts such as the Hundred Courts and Court of Piepowders.
Over time, the authority to issue writs shifted from the Lord Chancellor to the courts. Although the King was no longer part of the court issuing the writ, the name ""coram nobis" continued because courts associated the name with its function rather than its original Latin meaning. Thus, in English law, the definition of "coram nobis"" evolved and is now redefined as a remedy for a court to correct its own error.
Abolition in English courts.
The first case involving the writ of "coram nobis" is unknown due to incomplete historical records prior to the sixteenth century; however, the first recorded case involving the writ of "coram nobis" occurred in 1561 in the case of "Sir Gilbert Debenham and Another v. Bateman". Until 1705, the writ of error was originally a matter entirely up to the discretion of either the monarch or those with the authority to make decisions on behalf of the monarch; but in 1705, the court held that the writ was a matter of right instead of a matter of discretion. Despite making writs of error a matter of right, courts rarely used these writs because of their cumbersome and impractical procedure. A writ of error moved the record from the original court to a higher court; however, the record only contained information on the arraignment, the plea, the issue, and the verdict. The record did not include the most material parts of a trial, including the evidence and the judge's direction to the jury. As a result, England abolished all writs of error, including the writs of "coram nobis" and "coram vobis", and replaced them with appellate procedures encompassing all rights previously available through these writs. Thus, the abolition of the writ of "coram nobis" in England was due mostly to administration difficulties with the writ of error, and not because of administration difficulties with the writ of "coram nobis" itself. The law abolishing the writ in civil cases was the Common Law Procedure Act 1852. The laws abolishing the writ in criminal cases was the Criminal Appeal Act of 1907.
United States.
After arriving in North America in the seventeenth century, English settlers established English colonies. Within these colonies, the settlers created colonial courts that adhered to the English legal system and issued writs in the same manner as English courts. After the United States obtained independence from England, state governments, as well as the federal government, provided courts the authority to continue to rely upon writs as a source of law unless issuing the writ violated the state or federal constitution or if either the state or federal government subsequently enacted a statute restricting the writ. The purpose of allowing courts to issue writs was to fill a void whenever the state constitution, state statutes, the U.S. Constitution or federal statutes did not address an issue to be decided before the court. Writs were especially important when the federal government, as well as each state, first established its judicial system. During those times, there were very few (if any) statutes or case laws for courts to rely upon as guidance. In those circumstances, the English writs provided fledgling federal and state courts an important source of law.
Over time, writs became significantly less important as Congress and state legislatures enacted more statutes and further defined rules for its judiciary. Writs also evolved independently in the federal judicial system and each state's judicial system so that a writ within one judicial systems may have a vastly different purpose and procedures from the same writ in other judicial systems. Different characteristics of a writ from one judicial system to another is the result of the federal system of government prescribed within the United States Constitution. Federalism in the United States is a mixed system of government that combines a national federal government and state governments. While federal courts are superior to state courts in federal matters, the Constitution limits the reach of federal courts; thereby, providing state courts general sovereignty and law-making authority over a wider range of topics. This sovereignty allows each judicial system to decide whether to adopt writs and the function and purpose of each writ it adopts. Thus, the use and application of writs, including the writ of coram nobis, can vary within each of these judicial systems.
Legislation authorizes a judicial system to issue the writ of coram under one of two conditions:
Coram nobis in United States federal courts.
In 1789, Congress passed the Judiciary Act to establish the judicial courts in the United States. This Act also allows courts to issue writs, including the writ of coram nobis. Originally, federal courts applied the writ of coram nobis only to correct technical errors, such as those made by a clerk of the court in the records of the proceedings. The 1914 Supreme Court case "United States v. Mayer", expanded the scope of the writ of coram nobis to include fundamental errors, but the Court declined in this case to decide whether federal courts are permitted to issue the writ of coram nobis. In 1954, the Supreme Court determined in "United States v. Morgan" that federal courts are permitted to issue the writ of coram nobis to correct fundamental errors, such as those where discovery of new information is sufficient to prove a convicted felon is actually innocent. Since the "Morgan" case, federal courts traditionally issue a writ of coram nobis whenever a former federal prisoner petitions the original sentencing court to set aside the conviction based upon new information that was not available when the petitioner was in-custody and where this new information demonstrates that the conviction was a result of a fundamental error.
History of the writ of coram nobis in federal courts from 1789 to 1954.
The Judiciary Act of 1789.
The history of the writ of coram nobis in United States federal courts began in 1789 when Congress enacted the Judiciary Act. Under Section 14 of the Judiciary Act, federal courts have the authority to issue a writ whenever the court deems it necessary to achieve justice and whenever no congressional law covers the issues before the court. This section was known as the "All-Writs Provision" of the Judiciary Act until 1948 when it became more commonly known as the "All-Writs Act" after Congress modified the Judicial Code and consolidated this provision into . Under the All Writs Act, federal district courts have the "power to issue writs of scire facias, habeas corpus, and all other writs not specifically provided for by statute". Congress had not specifically provided by statute the authority for federal courts to issue a writ of coram nobis; therefore, the All Writs Act provides federal courts this authority.
The first case in a federal court to address the writ of coram nobis was "Strode v. The Stafford Justices" in 1810. In this case, the Supreme Court Chief Justice John Marshall wrote the opinion in this Circuit Court case and held that the writ of coram nobis is distinguishable from the writ of error and therefore not subject to the writ of error's statute of limitations. The first Supreme Court case mentioning the writ of coram nobis (using the term coram vobis) is the 1833 case, "Pickett's Heirs v. Legerwood". In this case, the Court determined that the writ was available to correct its own errors, but the same remedy was also available using the preferred method of submitting a motion to the court. Eighty years later, in 1914, the Supreme Court reached a similar conclusion in "United States v. Mayer". Thus, while federal courts confirmed the writ of coram nobis was available to federal courts, this remedy was rarely necessary or appropriate in federal courts throughout the nineteenth century for the following two reasons:
1946 amendments to the Rules of Civil Procedure.
In 1946, Congress amended the Federal Rules of Civil Procedure and specifically abolished the writ of coram nobis in federal civil cases. Prior to enactment of these amendments, Congress reviewed all relief previously provided for civil cases through the writ of coram nobis and adopted those avenues of relief into the rules; therefore, eliminating the need for the writ in federal civil cases. In the amendment, Congress expressly abolished the writ of coram nobis in Rule 60(b). Later, in 2007, Congress restructured the format of Rule 60, and moved the language expressly abolishing the writ of coram nobis in civil proceedings from Rule 60(b) to Rule 60(e) in the Federal Rules of Civil Procedure.
History of post-conviction remedies available to former federal prisoners from 1789 to 1954.
Post-conviction remedies for former federal prisoners prior to 1867.
In 1790, one year after Congress passed the Judiciary Act establishing federal courts, Congress enacted the Crimes Act which created the first comprehensive list of federal offenses. From 1790 until 1867, there are few, if any, records of individuals challenging a federal criminal conviction after completion of the prison sentence. Two primary reasons explains the absence of any challenges to a conviction by former federal prisoners:
The Habeas Corpus Act of 1867.
The American Civil War is historically significant upon the rights of former federal prisoners in two ways. First, Congress enacted the Habeas Corpus Act of 1867 to prevent abuses following the civil war. This Act expanded the writ of habeas corpus to any person, including former prisoners. Second, states began imposing more collateral consequences upon those convicted of crimes; thus, providing more reasons why a person would want to have a wrongful conviction overturned. The loss of voting privileges was one of the most significant collateral consequence of a felony conviction. In 1800, no state prohibited convicted felons from voting; but by end of the U.S. Civil War, nearly 80% of state legislatures had passed laws barring felons the right to vote.
Slavery was legal in the United States until the 1860s. In the 1860 U.S. presidential election, Republicans, led by Abraham Lincoln, supported the elimination of slavery. This controversial issue was the catalyst for the American Civil War that began in 1861 following the election of Lincoln and concluded in 1865. On March 3, 1865, President Lincoln signed a joint resolution declaring wives and children of persons in the armed forces to be free; and on December 18, 1865 the Thirteenth Amendment to the United States Constitution became effective. This Amendment abolished slavery and involuntary servitude in the United States. The purpose of the Habeas Act was to provide "what legislation is necessary to enable the courts of the United States to enforce the freedom of the wife and children of soldiers of the United States, and also to enforce the liberty of all persons".
The Habeas Corpus Act of 1867 expanded the jurisdiction of the writ of habeas corpus to "any person". One year later, the Supreme Court implied that this Act had no custody requirements. The Court said the Act "is of the most comprehensive character. It brings within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the National Constitution, treaties, or laws. It is impossible to widen this jurisdiction." The Court's interpretation of this act seemed to eliminate the writ of coram nobis in criminal cases because any person challenging a conviction, regardless of whether the person is in prison or not, could have raised the claim through the writ of habeas corpus.
Although the Act expanded habeas jurisdiction to "any person", it also required that an application for the writ include "facts concerning the detention of the party applying, [and] in whose custody he or she is detained". In 1885, the Supreme Court read these application requirements as an intent by Congress to restrict the writ of habeas corpus to only those who were physically restrained in jail. Thus, the Court foreclosed the writ of habeas corpus to those no longer in custody.
"United States v. Morgan" (1954) provides writ of coram nobis to former federal prisoners.
In 1948, Congress passed legislation that would lead to the official recognition of the writ of coram nobis in federal courts. The Act of June 25, 1948 combined two pieces of legislation:
The Act of June 25, 1948 reworded the habeas corpus sections of the United States Code to provide only those individuals in-custody (as a result of a criminal conviction in federal court) access to the writ of habeas corpus. For those who had been convicted of a federal crime but were no longer in custody, the question was whether the 1948 Act abolished all post-conviction review of a former prisoner's conviction.
In 1952 Robert Morgan, a former federal prisoner who had completed his sentence, petitioned to have his conviction overturned based on information he claimed to be unavailable at the time of his conviction. The district court denied his petition because Morgan was no longer in custody for the conviction he sought to overturn. Morgan appealed that decision. In 1953, the appellate court disagreed with the district court and determined that the writ of coram nobis was available to Morgan. The government appealed the appellate court's decision to the US Supreme Court.
The first question in "United States v. Morgan" was whether Congress intended to abolish any post-conviction remedies to former prisoners when it restricted the writ of habeas corpus to prisoners only. If the Supreme Court decided that Congress did not intend to abolish any post-conviction remedies to former prisoners, then the second question in "United States v. Morgan" was whether the writ of coram nobis was available to challenge a conviction after completion of the petitioner's sentence. On January 4, 1954, the Supreme Court announced its decision. The Court first determined that Congress did not intend within the 1948 Act to eliminate all reviews of criminal convictions for petitioners who had completed their sentence. Although the 1948 Act restricted former prisoners from challenging a conviction with a writ of habeas corpus, the Court determined by reviewing the legislative notes that Congress did not intend to abolish post-conviction challenges to a sentence from former prisoners. Justice Stanley Reed, who authored the majority opinion for the Court, wrote;
[T]he purpose of § 2255 was "to meet practical difficulties" in the administration of federal habeas corpus jurisdiction. ... Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions. We know of nothing in the legislative history that indicates a different conclusion. We do not think that the enactment of § 2255 is a bar to this motion, and we hold that the District Court has power to grant [the writ of coram nobis]. Although Congress did restrict the writ of habeas corpus to prisoners, the Court determined that the All Writs Act provides federal courts the authority to issue a writ of coram nobis to former prisoners whenever new evidence proves the underlying conviction was a result of a fundamental error. Thus, "Morgan" officially recognized the writ of coram nobis as the sole means for post-incarceration judicial review of federal convictions.
Source of rules and procedures governing coram nobis proceedings.
"United States v. Morgan" provides broad, general guidance to courts on the rules and procedures in coram nobis proceedings, but since the "Morgan" case in 1954, the Supreme Court and Congress seldom provide lower courts additional guidance. Thus, Appellate courts generally fill in the gaps and provide guidance for rules and procedures unclarified by Congress and the Supreme Court; however, the interpretations of rules and procedures of coram nobis may differ in each appellate court. Thus, for a former federal prisoner who is attempting to decide whether to file a petition for the writ of coram nobis, it is necessary to understand the source of the rules and procedures.
The United States Constitution is the supreme law of the United States. Article One of the Constitution creates the legislature and provides Congress the means to create and enact laws. Article Three of the Constitution creates the judiciary and provides courts the means to interpret laws. Other than the writ of habeas corpus, the Constitution has no language permitting or restricting courts from issuing specific writs, including the writ of coram nobis.
Congressional enactments.
The United States Congress enacts laws or statutes, and codifies these statutes in the United States Code. In contrast to the writ of habeas corpus, Congress has seldom enacted statutes regulating the writ of coram nobis. Statutes enacted by Congress regulating the writ of coram nobis are:
United States Supreme Court decisions.
Following the Constitution and Congressional statutes, the next highest source for direction and guidance of rules and procedures is the United States Supreme Court. The Supreme Court is the highest federal court. Lower courts, such as federal appellate courts and federal district courts, must follow the decisions of the Supreme Court. The Supreme Court has discretionary appellate jurisdiction, meaning the Court chooses to hear cases for reasons it deems "compelling reasons" (such as resolving a conflict in the interpretation of a federal law or resolving an important matter of law). Federal courts, including the Supreme Court, cannot override any law enacted by Congress unless the law violates the Constitution. Federal courts also cannot repeal a statute unless Congress clearly intended to repeal the statute.
In 1954, "United States v. Morgan" provides writ of coram nobis to former federal prisoners. The Court determined coram nobis relief "should be allowed ... only under circumstances compelling such action to achieve justice". Specifically, the circumstances must include all three of these conditions:
Since 1954, the Supreme Court granted review of only one other coram nobis case. In 2009, the Court clarified that Article I military courts have jurisdiction to entertain coram nobis petitions to consider allegations that an earlier judgment of conviction was flawed in a fundamental respect. Other than providing military courts the authority to issue the writ, the Supreme Court has declined to provide federal courts additional guidance in coram nobis proceedings. Appellate courts have occasionally criticized the Supreme Court for failing to provide this additional guidance. The Seventh Circuit called the writ of coram nobis, "a phantom in the Supreme Court's cases" and contends "Two ambiguous decisions on the subject in the history of the Supreme Court are inadequate." The Sixth Circuit took a similar stance saying, "The Supreme Court has decided only one coram nobis case in the last forty-two years, "Morgan", and that opinion is ambiguous concerning whether proof of an ongoing civil disability is required." The First Circuit wrote that its decision of time limitations "derives from the Morgan Court's cryptic characterization of coram nobis as a 'step in the criminal case. In another case, the First Circuit writes, "The metes and bounds of the writ of coram nobis are poorly defined and the Supreme Court has not developed an easily readable roadmap for its issuance."
Federal courts of appeals decisions.
While the United States Supreme Court is the highest court in the United States federal court system, the United States courts of appeals, or circuit courts, are the intermediate appellate courts. There are thirteen U.S. courts of appeals. Eleven courts of appeals are numbered First through Eleventh and have geographical boundaries of various sizes. For example, the Fifth Circuit Court of Appeals consists of all federal courts in only three states: Louisiana, Mississippi and Texas, while the Ninth Circuit Court of Appeals consists of nine western states and two U.S. territories. There is also a Court of Appeals for the District of Columbia and a Court of Appeals for the Federal Circuit. Other tribunals also have "Court of Appeals" in their titles, such as the Court of Appeals for the Armed Forces, which hears appeals in court-martial cases.
Congressional statutes and Supreme Court decisions are controlling over courts of appeals. Absent statutory rules or Supreme Court case law, a court of appeals decision establishes a binding precedent for the courts in its circuit; however, a court of appeals decision is not binding for courts in other circuits. Generally, when a court of appeals hears an issue raised for the first time in that court, it arrives at the same conclusion as other courts of appeals on identical issues raised before those courts. However, whenever the courts of appeals arrive at different conclusions on the same issue, it creates a "circuit split". The Supreme Court receives thousands of petitions each year, but only agrees to hear fewer than 100 of these cases. One of the most compelling reasons for the Supreme Court to accept a case is to resolve a circuit split. Currently, a circuit split exists in coram nobis cases involving the definition of "adverse consequences". The Supreme Court determined in "United States v. Morgan" that a petition for a writ of coram nobis must demonstrate that adverse consequences exist from the criminal conviction. Some courts of appeals determined adverse consequences occur with any collateral consequence of a conviction while other courts of appeals have limited "adverse consequences" to only a few collateral consequence of a conviction.
Federal district court decisions.
District courts must abide by congressional statutes, Supreme Court decisions, and decisions of the court of appeals in the federal judicial circuit in which the district court is located. Whenever a district court hears an issue that is not specifically addressed by statute or by case law of a higher court, district courts often "develop the record". In case of an appeal, the higher courts have the district court's reasoned decision as guidance. A developed record not only greatly facilitates the process of appellate review but also ensures that the district court has carefully considered the issues and applied the applicable law.
Criteria for the writ.
Rules for petitioners.
Writs of coram nobis are rare in U.S. federal courts due to the stringent criteria for issuance of the writ. "Morgan" established the following criteria required in a coram nobis petition in order for a federal court to issue the writ:
U.S. state courts.
Only sixteen state courts and District of Columbia courts recognize the availability of writs of coram nobis or coram vobis. Each state is free to operate its own coram nobis procedures independent of other state courts as well as the federal court system. The writ of coram nobis is not available in a majority of states because those states have enacted uniform post-conviction acts that provide a streamlined, single remedy for obtaining relief from a judgment of conviction, and that remedy is available to petitioners who are no longer in custody. States that have replaced writs of coram nobis with remedies within their post-conviction proceedings are also independent of other state courts as well as the federal court system. These proceedings enacted by state legislatures may either be more or less stringent than the writs it replaced or the post-conviction proceedings of other states.
Availability.
The following table provides whether each state's courts are authorized to issue a writ of coram nobis (or a writ of coram vobis), or provides the state statute which replaced or abolished the writ.
Alabama.
Alabama state courts strictly follow the common law definition of the writ of "coram nobis" where the writ may only be issued to correct errors of fact. The writ may not be issued to correct errors of law. The writ has only been applied to juveniles. The Alabama Court of Criminal Appeals provided the following background and guidelines for "coram nobis" petitions for state courts in Alabama (citations and quotations removed):
Arkansas.
Arkansas state courts may issue a writ of coram nobis for only four types of claims: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. The Supreme Court of Arkansas provides the following background and guidelines of coram nobis petitions for state courts in Arkansas (citations and quotations removed):
California.
California state courts strictly follow the common-law definition of the writ of coram nobis where the writ may only be issued to correct errors of fact. The writ may not be issued to correct errors of law. The Supreme Court of California provided the following background and guidelines of coram nobis petitions for state courts in California (citations and quotations removed): 
Connecticut.
Connecticut state courts strictly follow the common-law definition of the writ of coram nobis where the writ may only be issued to correct errors of fact. The writ may not be issued to correct errors of law. The Supreme Court of Connecticut provided the following background and guidelines of coram nobis petitions for state courts in Connecticut (citations and quotations removed):
District of Columbia.
District of Columbia courts were established in 1970. The court's authority is derived from the United States Congress rather than from the inherent sovereignty of the states. District of Columbia courts may issue the writ of coram nobis to correct either errors of fact or errors of law. The District of Columbia Court of Appeals provided the following background and guidelines of coram nobis petitions for District of Columbia courts (citations and quotations removed):
Maryland.
Maryland state courts may issue the writ of coram nobis to correct either errors of fact or errors of law. The Maryland Court of Appeals provided the following background and guidelines of coram nobis petitions for state courts in Maryland (citations and quotations removed):
Nebraska.
Nebraska state courts strictly follow the common-law definition of the writ of coram nobis where the writ may only be issued to correct errors of fact. The writ may not be issued to correct errors of law. The Supreme Court of Nebraska provided the following background and guidelines of coram nobis petitions for state courts in Nebraska (citations and quotations removed):
Nevada.
Nevada state courts strictly follow the common-law definition of the writ of coram nobis where the writ may only be issued to correct errors of fact. The writ may not be issued to correct errors of law. The Supreme Court of Nevada provided the following background and guidelines of coram nobis petitions for state courts in Nevada (citations and quotations removed):
New Hampshire.
New Hampshire courts may issue a writ of coram nobis to correct errors of fact. It is currently undetermined whether the writ may be issued to correct errors of law. The New Hampshire Supreme Court provided the following background and guidelines of coram nobis petitions for state courts in New Hampshire (citations and quotations removed):
New York.
New York state courts may issue a writ of coram nobis only for claims of ineffective assistance of appellate counsel. The Court of Appeals of the State of New York provided the following background and guidelines of coram nobis petitions for state courts in New York (citations and quotations removed):
Oregon.
In November 2018, the Oregon Court of Appeals determined that the writ of coram nobis is available in rare cases where newly discovered evidence provides clear and convincing evidence of actual innocence. The Oregon Court of Appeals provided the following background and guidelines of coram nobis petitions for state courts in Oregon (citations and quotations removed):
South Dakota.
South Dakota state courts strictly follow the common-law definition of the writ of coram nobis where the writ may only be issued to correct errors of fact. The writ may not be issued to correct errors of law. The Supreme Court of South Dakota provided the following background and guidelines of coram nobis petitions for state courts in South Dakota (citations and quotations removed):
Tennessee.
Tennessee courts may issue a writ of coram nobis only for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment had it been presented at the trial. The Supreme Court of Tennessee provided the following background and guidelines of coram nobis petitions for state courts in Tennessee (citations and quotations removed):
Vermont.
Vermont state courts strictly follow the common-law definition of the writ of coram nobis where the writ may only be issued to correct errors of fact. The writ may not be issued to correct errors of law. The Supreme Court of Vermont provided the following background and guidelines of coram nobis petitions for state courts in Vermont (citations and quotations removed):
Virginia.
Virginia state courts strictly follow the common-law definition of the writ of coram vobis where the writ may only be issued to correct errors of fact. The writ may not be issued to correct errors of law. The Supreme Court of Virginia provided the following background and guidelines of coram vobis petitions for state courts in Virginia (citations and quotations removed):
West Virginia.
West Virginia state courts may issue the writ of coram nobis to correct either errors of fact or errors of law. The Supreme Court of Appeals of West Virginia provided the following background and guidelines of coram nobis petitions for state courts in West Virginia (citations and quotations removed):
Wisconsin.
Wisconsin state courts strictly follow the common-law definition of the writ of coram nobis where the writ may only be issued to correct errors of fact. The writ may not be issued to correct errors of law. The Court of Appeals of Wisconsin provided the following background and guidelines of coram nobis petitions for state courts in Wisconsin (citations and quotations removed):
Notable cases.
Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu.
Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu are best known for their principled resistance to the internment of Japanese Americans during World War II. All three had their convictions overturned through writs of coram nobis, and they were each awarded the Presidential Medal of Freedom.
After the bombing of Pearl Harbor on December 7, 1941, President Franklin D. Roosevelt's administration concluded that Japanese Americans living in the West Coast were a security threat, even though the Federal Bureau of Investigation and the Office of Naval Intelligence had argued the opposite, and thus authorized the military to secure areas from which "any or all persons may be excluded". As a result, Japanese Americans were subject to curfew and other restrictions before being forced into internment camps. Hirabayashi, Yasui, and Korematsu, who were not acquainted with each other at the time, each defied the internment and were convicted for their resistance. Their convictions would be affirmed by the U.S. Supreme Court between 1943 and 1944. Four decades after the Court's rulings, lawyers, including civil rights attorney, Peter Irons, re-opened their wartime convictions on the basis of newly discovered evidence of governmental misconduct. The new evidence indicated the government intentionally withheld "The Ringle Report", a report drafted by the Office of Naval Intelligence, which would have undermined the administration's position of the military actions, as it finally concluded that most Japanese Americans did not pose a national security threat during WWII.
Gordon Hirabayashi was born in April 1918 in Seattle, Washington. He was a senior student at the University of Washington at the time when Japanese Americans were ordered to report to internment camps. Although he first considered accepting internment, he ultimately defied it. In May 1942, Hirabayashi turned himself in to the FBI. After being convicted in October 1942 for the curfew violation, he was sentenced to 90 days in prison. He also served a one-year sentence at McNeil Island Penitentiary for Selective Service violations when he refused to answer questions which singled out Japanese Americans on the basis of race alone. He appealed to the Supreme Court where, in 1943, his conviction was upheld in "Hirabayashi v. United States". In 1987, the United States Court of Appeals for the Ninth Circuit granted a writ of coram nobis which effectively overturned his criminal conviction. Hirabayashi died in January 2012, and he posthumously received the Presidential Medal of Freedom in May 2012.
Minoru Yasui was born in 1916 in Hood River, Oregon. He attended law school at the University of Oregon and became the first Japanese American lawyer in Oregon in 1939. Upon the declaration of war, Yasui attempted to report for military duty, but his services were refused nine times. After hearing the news of internment, Yasui planned his legal challenge to the government's policies. In March 1942, he deliberately disobeyed the military implemented curfew in Portland, Oregon by walking around the downtown area and then presenting himself at a police station after 11:00 pm in order to test the curfew's constitutionality. He was convicted in November 1942. Yasui appealed to the Supreme Court where, in 1943, his conviction was upheld in "Yasui v. United States". In January 1984, his conviction was overturned when the U.S. District Court in Oregon granted his writ of coram nobis. Yasui died in 1986, and he posthumously received the Presidential Medal of Freedom in November 2015.
Fred Korematsu was born in 1919 in Oakland, California. He attempted to enlist with the United States Navy when called for military duty under the Selective Training and Service Act of 1940, but he was rejected due to stomach ulcers. In March 1942, when Japanese Americans were ordered to report to assembly centers, he refused and went into hiding in the Oakland area. He was arrested in May 1942, and held at the Presidio of San Francisco military detention center until his conviction in September 1942. The U.S. Supreme Court in December 1944 upheld his conviction in "Korematsu v. United States". In November 1983, the U.S. District Court in San Francisco formally granted the writ of coram nobis and vacated his conviction. He was awarded the Presidential Medal of Freedom in 1998, and died in March 2005.
George Stinney.
In December 2014, a writ of "coram nobis" was granted by a federal court to posthumously vacate the conviction of George Stinney, a 14-year-old black boy who was convicted of murder and executed in June 1944. Stinney was convicted in 1944 in a one-day trial of the first-degree murder of two white girls: 11-year-old Betty June Binnicker and 8-year-old Mary Emma Thames. After being arrested, Stinney was said to have confessed to the crime; however, there was no written record of his confession apart from notes provided by an investigating deputy, and no transcript of the brief trial. On June 16, 1944, Stinney was executed as a result of the conviction. On December 17, 2014, Stinney's conviction was posthumously vacated 70 years after his execution, because the federal court judge ruled that he had not been given a fair trial; he had no effective defense and therefore his Sixth Amendment rights had been violated.
United Kingdom.
The common law writ of error "contra nobis" and its equitable equivalent, the supplemental bill of review, do not appear to have survived the reforms to English law made in the last quarter of the nineteenth century.
Writs of error as a separate proceeding were abolished by section 148 of the Common Law Procedure Act 1852 (15 & 16 Vict., c.76), which instead provided that "the Proceeding to Error Shall be a Step in the Cause". Error was finally abolished 23 years later in 1875, when Schedule I, Order 58, rule 1 of the Supreme Court of Judicature Act 1873 was brought into force and the Court of Appeal was created.
Fresh evidence.
The modern practice at English law where a litigant seeks to rely upon evidence not known at trial is to bring an appeal.
In civil proceedings, CPR 52.11(1)(b) contains a presumption that civil appeals shall be limited to a review of a decision of the lower court, and CPR 52.11(2)(b) contains a presumption that the Court of Appeal shall not receive fresh evidence. The Court of Appeal will exercise its discretion to hear fresh evidence according to the over-riding objective in civil cases to deal with cases justly: however, three key criteria laid down by the Court of Appeal in "Ladd v Marshall" continue to be of relevance:
Moreover, where it is "necessary to do so in order to avoid real injustice", in "exceptional" circumstances, and where "there is no alternative effective remedy", CPR 52.17(1) permits both the High Court and the Court of Appeal to re-open a final determination of an appeal.
In criminal proceedings, the Court of Appeal also has a discretion to admit fresh evidence on appeal. If it does so, the Court must ask itself whether, in light of the fresh evidence, the conviction is unsafe.
Special case of fraud.
Soon after the passage of the Judicature Acts, it was thought that, when a judgment had been obtained by wilful fraud of the victorious party, the aggrieved party's proper recourse was to bring a new action for fraud, because to try the alleged fraud required original jurisdiction, which the Court of Appeal did not have.
In so ruling, Jessell MR made specific references to the supplemental bill of review, the equitable equivalent of the writ of error "contra nobis." However, the Court drew an analogy with the old law, rather than preserving it: in agreeing with Jessell MR, James LJ observed, "if it is true that there was a fraud practised upon the Court, by which the Court was induced to make a wrong decree, the way to obtain relief will be to bring a "fresh action" to set aside the decree on the ground of fraud" [emphasis added].
Since the coming into force of the Civil Procedure Rules, the law has evolved further. In "Noble v Owens", the Court of Appeal held that the modern position is that it is now not necessary to commence a fresh action to cure a judgment fraudulently obtained. Instead, the powers of the Court of Appeal under CPR 52.10 are sufficiently broad to permit the Court of Appeal to refer the determination of the issue of fraud to a Judge of the High Court as part of the appeal proceedings, with a consequent saving of costs.
In criminal cases, the Court of Appeal has allowed appeals and quashed convictions on the basis of misconduct by Crown witnesses analogous to fraud, e.g., where prosecution witnesses had subsequently been convicted for giving perjured evidence during the original trial; or where police officers who took confessions from the appellants had subsequently been discredited in later proceedings.
Recent attempts to resurrect the procedure.
In "Cinpres Gas Injection Ltd v Melea Ltd", an unsuccessful attempt was made to resurrect the supplemental bill of review. Jacob LJ, giving the judgment of the Court of Appeal, held that an attempt to invoke the old bill of review could not succeed because, for generations, applications for rehearing on the basis of fresh evidence had been made to the Court of Appeal and, if the bill of review procedure had survived the Judicature Acts, it had long since lapsed. The judge observed that "it would make for better justice in principle for a prior decision to be impugnable on the grounds for which a bill of review once lay, namely that there was fresh evidence not discoverable by reasonable diligence, which 'entirely changes the aspect of the case (para. [100]). However, he also observed that the Court of Appeal had not been asked to consider its powers under CPR 52.17 to re-open a final appeal in "exceptional circumstances" and therefore could not say whether such an application would have succeeded.
Moreover, in a Northern Ireland case, "Walsh's Application", in which an application was made for a writ of error "coram nobis" following an unsuccessful judicial review, Weatherup J followed the Court of Appeal in "Cinpres" by observing, "While the Writ developed at Common Law, I doubt if the procedure survived the appeals process introduced by the Judicature (Ireland) Act 1875", before referring to the provision of that Act dealing with the abolition of proceedings in error. The court concluded that it did not have the jurisdiction to alter the decision made on judicial review.
The above cases indicate that the Judicature Acts and the Civil Procedure Rules provide for a comprehensive system of appeals which effectively ousts the function served by the former bill of review and writ of error "coram nobis", which may now be extinct in England, Wales and Northern Ireland.