A writ of error is an order requested by a party for a judge to reconsider the case. A writ of error is mainly used to correct an error of law (not fact) and to ensure that the legal proceedings and judgments adhere to the correct legal standards and procedures.
There are mainly two types of writs of error. The writ of error coram nobis is issued by the court in which the original decision was rendered. A court grants a writ of error coram nobis to review errors made during its own legal proceedings. The writ of error coram vobis, on the other hand, is issued by a supervening court (usually an appellate court) to a lower court where the original judgment was rendered. For example, an appellate court can demand that a lower court convey the record of a case to the appellate court so that the record may be reviewed for alleged errors of law committed during a judicial proceeding. See, e.g. Worcester v. Georgia, 31 U.S. 515 (1832). The difference can be understood through the meanings of the Latin terms. Coram nobis means “before us,” whereas coram vobis means “before you.”
Traditionally, the writ of certiorari was largely a pathway to a writ of error. The core difference between the two writs was that the writ of error limited review to legal questions whereas the writ of certiorari gave the court power to review both legal and factual questions. See Harris v. Barber, 129 U.S. 366 (1889).
Since then, the Federal court system has largely done away with the writ of error. In civil cases, the writ of error has been expressly abolished by Rule 60 of the Federal Rules of Civil Procedure (FRCP). Prior to the enactment of subsections 60(b)(4)-(6), relief from judgment was available under the writ system authorized by 28 U.S.C. § 1651, the All Writs Act. Relief from judgment in civil cases is now governed by Rule 59 and Rule 60 of the FRCP rather than the writ system.
In criminal cases, the Federal Rules of Appellate Procedure provide an alternative to the writ of error. In 1948, 28 U.S.C. § 2255 was enacted to provide a post-conviction remedy consistent with the writ of error coram nobis and § 1651, the All Writs Act. The remedy provided by § 2255 differs from the writ of habeas corpus in that it is requested by motion rather than a separate petition. For this reason, a § 2255 motion is considered to be a continuation of the criminal case whose judgment is under attack rather than a new civil action.
Although § 2255 does not expressly abolish the writ of error, the writ no longer plays a significant role in criminal proceedings. According to the Supreme Court, "it has become difficult to conceive of a situation in which the writ would be necessary or appropriate." See Carlisle v. United States, 517 U.S. 416, 429 (1996).
[Last updated in July of 2024 by the Wex Definitions Team]