# Habeus Corpus VS In Absentia **URL:** \ **Category:** Factual Questions\ **Created:** [May 18, 2020, 6:57am UTC](https://boards.straightdope.com/t/habeus-corpus-vs-in-absentia/854018 "2020-05-18T06:57:04Z")\ **Posts on this page:** 10\ **Page:** 1
**Author:** ![duffer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duffer/32/1026_2.png) [@duffer](https://boards.straightdope.com/u/duffer)\ **Post date:** [May 18, 2020, 6:57am UTC](https://boards.straightdope.com/t/habeus-corpus-vs-in-absentia/854018/1 "2020-05-18T06:57:04Z")
Can anyone explain in simple terms the difference? On the surface HC seems to dictate a person needs to be in court for criminal proceedings, while IA allows for conviction without the person being involved at all. Thanks ---
**Author:** ![PatrickLondon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/patricklondon/32/4422_2.png) [@PatrickLondon](https://boards.straightdope.com/u/PatrickLondon)\ **Post date:** [May 18, 2020, 7:22am UTC](https://boards.straightdope.com/t/habeus-corpus-vs-in-absentia/854018/2 "2020-05-18T07:22:33Z")
I understand habeus corpus to mean that someone can’t be imprisoned without trial or at least review by a court, not that there can’t be a trial if that someone has absconded from the jurisdiction, which is when there might be a trial in absentia. Of course, if a system is such that the prosecution can get away with declaring that someone must be tried in absentia when they know full well that that someone is already in their custody, or has been lost somewhere after coming into their custody, then it’s so tyrannical and/or shambolic as to make habeus corpus a dead letter anyway ---
**Author:** ![Melbourne](https://avatars.discourse-cdn.com/v4/letter/m/b5e925/32.png) [@Melbourne](https://boards.straightdope.com/u/Melbourne)\ **Post date:** [May 18, 2020, 11:19am UTC](https://boards.straightdope.com/t/habeus-corpus-vs-in-absentia/854018/3 "2020-05-18T11:19:11Z")
My magistrates courts will proceed with the trial if you have been properly served notice. If you don’t turn up (IA), that’s your problem. They will get a bit ratty if the prison service presents a different man with the same name as the person that should be appearing (HC). But the magistrates tend to get a bit ratty over anything. Actually proceeding with a serious charge (in a higher court), or if the summons hasn’t been properly served, would, from my observation, be very rare in my courts. I mean, why bother? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [May 18, 2020, 12:54pm UTC](https://boards.straightdope.com/t/habeus-corpus-vs-in-absentia/854018/4 "2020-05-18T12:54:03Z")
Habeas corpus isn’t trial procedure. It’s purpose is to ensure that a detained person can apply to the courts to test the legality of the detention. A habeas application can occur before or after trial. The normal rule of trial procedure is that the accused must be present at trial. That’s not based on hsbeas, but on the trial rules themselves, plus constitutional guarantees of a public trial. In some rare cases, where the accused voluntarily refuses to participate, a trial can be held in absent is, again depending on the trial rules in that particular jurisdiction. ---
**Author:** ![whorfin](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@whorfin](https://boards.straightdope.com/u/whorfin)\ **Post date:** [May 18, 2020, 1:52pm UTC](https://boards.straightdope.com/t/habeus-corpus-vs-in-absentia/854018/5 "2020-05-18T13:52:49Z")
Exactly. Historically, the writ of Habeas Corpus literally commanded the jailor to physically bring a prisoner to court and prove out that they are legally detained (as in the latin and old english forms below). Note that this was not a test of guilt or innocence, but whether there was a _prima facie_ case–i.e. sufficient grounds to detain the person pending trial. The early english writ gave a detained person the ability to quickly challenge the legality of their detention, rather than having to wait for the next court session. Wikipedia has the old latin and English forms of the writ– > [@](#): > > Praecipimus tibi quod corpus A.B. in prisona nostra sub custodia tua detentum, ut dicitur, una cum die et causa captionis et detentionis suae, quocumque nomine praedictus A.B. censeatur in eadem, habeas coram nobis … ad subjiciendum et recipiendum ea quae curia nostra de eo adtunc et ibidem ordinare contigerit in hac parte. Et hoc nullatenus omittatis periculo incumbente. Et habeas ibi hoc breve. > > We command you, that the body of A.B. in our prison under your custody detained, as it is said, together with the day and cause of his taking and detention, by whatever name the said A.B. may be known therein, you have at our Court … to undergo and to receive that which our Court shall then and there consider and order in that behalf. Hereof in no way fail, at your peril. And have you then there this writ. > [@](#): > > Victoria by the Grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, > > To J.K., Keeper of our Gaol, in the Island of Jersey, and to J.C. Viscount of said Island, Greeting. > > We command you that you have the body of C.C.W. detained in our prison under your custody, as it is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called or known, in our Court before us, at Westminster, on the 18th day of January next, to undergo and receive all and singular such matters and things which our said Court shall then and there consider of in this behalf; and have there then this Writ.[8] > [@Northern\_Piper](#): > > Habeas corpus isn’t trial procedure. It’s purpose is to ensure that a detained person can apply to the courts to test the legality of the detention. A habeas application can occur before or after trial. > > The normal rule of trial procedure is that the accused must be present at trial. That’s not based on hsbeas, but on the trial rules themselves, plus constitutional guarantees of a public trial. > > In some rare cases, where the accused voluntarily refuses to participate, a trial can be held in absent is, again depending on the trial rules in that particular jurisdiction. ---
**Author:** ![duffer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duffer/32/1026_2.png) [@duffer](https://boards.straightdope.com/u/duffer)\ **Post date:** [May 18, 2020, 4:23pm UTC](https://boards.straightdope.com/t/habeus-corpus-vs-in-absentia/854018/6 "2020-05-18T16:23:28Z")
I had overlooked that HC isn’t a part of a formal trial. Thanks for clearing it up everyone. ������ ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [May 18, 2020, 5:21pm UTC](https://boards.straightdope.com/t/habeus-corpus-vs-in-absentia/854018/7 "2020-05-18T17:21:57Z")
Habeas Corpus is also sometimes used in child custody cases. When one party wrongfully retains possession of a child–say, refuses to return the child after visitation–in some circumstances a Writ of Habeas Corpus is issued to have the child brought before the court. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [May 18, 2020, 8:51pm UTC](https://boards.straightdope.com/t/habeus-corpus-vs-in-absentia/854018/8 "2020-05-18T20:51:45Z")
In Canada, habeas is sometime used by prison inmates to challenge the terms of their detention within the prison. Nothing to do with the initial trial. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [May 18, 2020, 8:54pm UTC](https://boards.straightdope.com/t/habeus-corpus-vs-in-absentia/854018/9 "2020-05-18T20:54:09Z")
> [@duffer](#): > > I had overlooked that HC isn’t a part of a formal trial. Thanks for clearing it up everyone. �� Glad to be of service. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 19, 2020, 5:25am UTC](https://boards.straightdope.com/t/habeus-corpus-vs-in-absentia/854018/10 "2020-05-19T05:25:29Z")
> [@PatrickLondon](#): > > I understand habeus corpus to mean that someone can’t be imprisoned without trial or at least review by a court… In addition to the other excellent answers, I will expound on it a bit. Habeas corpus is confusing to many people because they learned the term in history class as part of the Constitution. You also hear about it in death penalty appeals. But it is one of vast application that is at the cornerstone of liberty, and has been called “The Great Writ.” The short version, as others have said, is that you or _any third party on behalf of you_ can go to a court, allege that you are being illegally imprisoned by your jailer. What you mentioned (imprisoned without trial) is indeed an illegal imprisonment and one that the Constitution was most concerned with, but there are many other reasons like the child custody cases that **Oakminster** mentioned. In the death penalty context, or in the most common case in the United States, a post-conviction relief context (which is also subsumes the death penalty cases) you are alleging that your imprisonment is unlawful because of constitutional issues like prosecutorial misconduct, ineffective assistance of counsel, or newly discovered evidence of actual innocence. IOW, just to pick one, ineffective assistance of counsel, you are alleging that your jailer is illegally holding you because at your trial you were denied effective assistance of counsel, which violates the Sixth Amendment, which therefore makes your continued imprisonment illegal. The cases, at least in my state, are even styled this way: State of West Virginia ex rel John Doe (prisoner) v. Richard Roe, Warden, State Correctional Facility. In other words, the wonderful people of West Virginia, committed to law and constitutional order, are joined with prisoner Doe in having his unjust oppressor, Warden Roe, bring him to the bar of the Court so that Warden Roe may explain his unlawful custody of prisoner Doe. Prior to about sixty years ago, Warden Roe would simply show the court the valid judgment of conviction, the judge would say okay and everyone goes home. Starting in the 1960s-ish (in earnest) courts would look behind that document of conviction and ensure its fairness: did he have competent representation, did the prosecutor disclose all relevant evidence, have new facts come to light which makes that conviction unjust. It is still a very high standard to meet and very few actually prevail, but I practiced a lot of post-conviction stuff and if you like criminal law, it is very interesting and rewarding, IMHO.