Glossary of Legal Terms
- A -
abandonment - A parent's or custodian's act of leaving a child without adequate care, supervision, support or parental contact for an excessive period of time. Also, the desertion of one spouse by the other with the intent to terminate the marriage relationship.
abstract of record - A short, abbreviated form of the case as found in the record.
accessory - A person who assists in the commission of a crime, either before or after the fact.
action in personam - An action against the person, founded on personal liability, in contrast to action in rem, an action for the recovery of a specific object, usually an item of personal property such as an automobile.
adjudication - Giving or pronouncing a judgment or decree, or the rendering of a decision on a matter before a court.
admissible evidence - Evidence which can legally and properly be used in court.
admission - A statement tending to establish the guilt or liability of the person making the statement.
adversary system - The system of trial practice in the United States and some other countries in which each of the opposing, or adversary, parties has the opportunity to present and establish opposing contentions before the court.
affidavit- A written and sworn statement witnessed by a notary public or another official possessing the authority to administer oaths. Affidavits may be admitted into evidence.
agent - One who has authority to act for another.
alibi - A defense claim that the accused was somewhere else at the time a crime was committed.
allegation - The assertion, declaration, or statement of a party to an action, made in a pleading, establishing what the party expects to prove.
Alternative Dispute Resolution (ADR) - Methods of resolving disputes outside of official court proceedings. These methods include mediation arbitration, and conciliation.
amicus curiae - A friend of the court; a nonparty who interposes, with the permission of the court, and volunteers information upon some matter before the court.
annual review - Yearly judicial review, usually in juvenile dependency cases, to determine whether the child requires continued court supervision or placement.
answer - A pleading by which defendant responds to the plaintiff's complaint.
appeal - The bringing of a case to a higher court for review of a lower court's order or judgment.
appearance - The formal proceeding by which defendant submits to the jurisdiction of the court.
appellant - The party appealing a final decision or judgment.
appellate court - A court which hears appeals from a lower court.
appellate jurisdiction - The appellate court has the right to review and revise the lower court decision.
appellee - The party against whom an appeal is taken.
arraignment - In a misdemeanor case, the initial appearance before a judge at which the criminal defendant enters a plea; in a felony case, the proceeding after the indictment or bindover at which the defendant comes before a judge in District Court, is informed of the charges, enters a plea, and has a date set for trial or disposition. In Juvenile Court, the first hearing after a petition has been filed.
arrest of judgment - Postponing the effect of a judgment already entered.
assault - A willful attempt to illegally inflict injury on or threaten a person.
assumption of risk - In tort law, a defense to a personal injury suit. The essence of the defense is that the plaintiff assumed the known risk of whatever dangerous condition caused the injury.
attorney fees - The fees charged by an attorney. A party is not entitled to recover attorney fees unless authorized to do so by contract between the parties or by statute.
attorney of record - Attorney whose name appears in the permanent records or files of a case.
- B -
bail - In criminal cases, a sum of money posted by or on behalf of a defendant to guarantee his appearance in court after being released from jail;
bail bond - An obligation signed by the defendant, with sureties, to secure his/her presence in court;
bail bondsman - A person who posts bail in exchange for a fee, usually 10 percent of the total bail.
bailiff - A court officer whose duties are to keep order in the courtroom and to have custody of the jury.
battered child syndrome (B.C.S.) - Physical condition of a child indicating that external or internal injuries result from acts committed by a parent or custodian. Also termed Parent Infant Trauma Syndrome (P.I.T.S.).
battery - Actual physical violence, whether serious or minor, inflicted on a person. (A mere threat is called assault, whereas the completed act is called battery).
bench trial - Trial without a jury in which the judge decides the case.
bench warrant - An order issued by the court for the arrest of a person.
beyond a reasonable doubt - Entirely convinced; in a criminal case the defendant's guilt must be proven to the jury to this extent. This is the highest burden of proof any party has in any proceeding
bind over - A judge's decision to hold a criminal defendant for trial.
brief - A lawyer's written statement of a client's case filed in court. It usually contains a summary of the facts in the case, the pertinent laws, and an argument of how the law applies to the facts supporting the client's position.
burden of proof - The duty to establish a claim or allegation by admissible evidence. This is usually the duty of the plaintiff in a civil case and always is the duty of the state in a criminal case.
burglary - The unlawful breaking into or entering of a building or dwelling with the intent to commit a serious crime or theft.
- C -
calendar - A court's list of cases for arraignment, hearing, trial or arguments.
caption - The heading or introductory clause of papers connected with a case in court, which shows the names of the parties, name of the court, docket number of the case, etc.
case law - The law made by courts interpreting cases and laws as opposed to law made by legislatures. In the American system, the primary sources of law are 1) constitutions, 2) statutes/regulations, and 3) case law.
cause of action - A claim in law in fact sufficient to justify a legal right to sue.
certification - Generally used to refer to the process of transferring a minor's case from the Juvenile Court to the adult court for trial. Usually reserved for capital or first degree felonies or for chronic offenders.
certiorari - See writ of certiorari.
challenge to the array - Questioning the qualifications of an entire jury panel, usually on the grounds of partiality or some fault in the process of summoning the panel.
chambers - A judge's private office in the courthouse.
change of venue - The removal of a suit begun in one county or district to another for trial, or from one court to another in the same county or district. In criminal cases, for example, a change of venue will be permitted if the court feels the defendant cannot receive a fair trial where the court is located.
charge - The statement accusing a person of committing a particular crime. Also the judge's instructions to the jury on its duties, on the law involved in the case and on how the law in the case must be applied.
child abuse - Any form of cruelty to a child's physical, moral or mental well-being.
circumstantial evidence - All evidence of an indirect nature. Testimony not based on actual personal knowledge or observation of the facts in controversy.
citation - An order of the court requiring the appearance of a defendant on a particular day to answer to a particular charge.
civil case - A lawsuit brought to enforce, redress, or protect private rights or to gain payment for a wrong done to a person or party by another person or party. In general, all types of actions other than criminal proceedings.
clerk of the court - Court official who keeps court records, files pleadings, motions, and judgments, and administers the oath to jurors and witnesses.
code - A collection, compendium or revision of laws, rules and regulations enacted by the legislature, i.e., Utah Code Annotated.
codicil - A supplement or an addition to a will. It may explain, modify, add to, subtract from, qualify, alter, restrain or revoke provisions in the existing will.
commit - To send a person to prison or jail in criminal proceedings, or to another institution in civil cases by authority of a court.
common law - General provisions of law existing before codification or interpretation by courts.
commutation - The change of a punishment from a greater degree to a lesser degree, as from death to life imprisonment. In Utah this may be done by the Board of Pardons.
comparative negligence - The degree to which a person contributed to his/her own injury, damage or death. Usually measured in terms of percentage. Contributory negligence is the failure to exercise care by a plaintiff, which contributed to the plaintiff's injury.
competency - A witness's ability to observe, recall and recount under oath what happened. Criminal defendants must also be competent to stand trial; they must understand the nature of the proceedings and have the ability to assist their lawyers.
complainant - Synonymous with "plaintiff," or, in criminal cases, the complaining witness.
complaint - The first pleading on the part of the plaintiff in a civil action.
concurrent jurisdiction - The jurisdiction of two or more courts, each authorized to deal with the same subject matter.
concurrent sentence - Sentence under which two or more prison or jail terms are served simultaneously, and the prisoner is entitled to discharge when the longest term specified expires (i.e., sentences of 1 to 15 years and 0 to 5 years means a maximum sentence of 15 years). Differs from a consecutive sentence, which is when the sentences are served back-to-back. (A 1 to 15 and 0 to 5 consecutive sentence could mean up to 20 years).
condemnation - The legal process by which real estate of a private owner is taken for public use without the owner's consent, but the owner receives "just compensation."
conditional release - A release from custody which imposes regulations on the activities and associations of the defendant. If a defendant fails to meet the conditions, the release is revoked.
contempt of court - Any act involving disrespect to the court or failure to obey its rules or orders. Comtempt of court carries a maximum of 30 days in jail.
continuance - A court order postponing proceedings.
contract - An oral or written agreement between two or more parties which is enforceable by law.
conviction - In a criminal case, a finding that the defendant is guilty.
corpus delicti - The substance or foundation of a crime; the substantial fact that a crime has been committed, e g., the corpse of a homicide victim, the charred remains of a burned house.
corroboration - Confirmation or support of a witness' statement or other fact.
corroborating evidence - Evidence supplementary to that already given and tending to strengthen or confirm it.
court reporter - A court official who records testimony and arguments, and transcribes it into a permanent record of all court proceedings.
costs - An allowance for expenses in prosecuting or defending a suit. Ordinarily this does not include attorney fees.
counterclaim - A claim presented by a defendant in a civil proceeding in opposition to the claim of a plaintiff.
courts of record - Courts whose proceedings are permanently recorded, and which have the power to fine or imprison for contempt. In Utah, they include the Supreme Court, the Court of Appeals, district courts and juvenile courts. Courts not of record are those of lesser authority whose proceedings are not permanently recorded, i.e., the Justice Courts.
criminal case - A case brought by the government against a person accused of committing a crime.
criminal insanity - Lack of mental capacity to do or abstain from doing a particular act; inability to distinguish right from wrong.
cross-claim - In a civil proceeding, if there are two or more defendants, one defendant can raise a claim against another defendant.
cross-examination - The questioning of a witness by the lawyer for the opposing side. This may be done by leading questions, questions which suggest the answer.
custody - The right to or responsibility for a child's care and control, carrying with it the duty of providing food, shelter, medical care, education and discipline.
- D -
damages - Money that a court orders paid to party (usually the plaintiff) who has suffered a loss by another party who caused the loss (usually the defendant).
declaratory judgment - One which declares the rights of the parties or expresses the opinion of the court on a question of law, without ordering anything to be done.
decree - A decision or order of the court. A final decree is one which fully and finally disposes of the litigation. An interlocutory decree is a preliminary decree which is not final.
defamation - The making of false, derogatory statements about a person's character, morals, abilities, business practices or financial status. (Includes libel, which is written, and slander, which is spoken).
default - Occurs when a defendant fails to respond to the plaintiff's complaint within the time allowed, or fails to appear at the trial. The court may then enter a default judgment.
defendant - The accused in a criminal case; the person from whom money or other recovery is sought in a civil case.
deferred sentence - The court retains jurisdiction to sentence the defendant at a later time.
deliberation - The jury's decision-making process after hearing the evidence and closing arguments and being given the court's instructions.
delinquency - The commission of an illegal act by a juvenile.
dependent child - A child who is homeless or without proper care through no fault of the parent, guardian, or custodian.
deposition - The taking of testimony of a witness under oath outside of court, usually transcribed in writing by a court reporter, or less frequently, recorded on videotape.
deprivation of custody - The court transfers legal custody of a person from parents or legal guardian to another person, agency or institution. It may be temporary or permanent.
detention hearing - In Juvenile Court, a judicial hearing, usually held after the filing of a petition, to determine interim custody of a minor pending a judgment.
direct evidence - Evidence in the form of testimony from a witness who actually saw, heard, or touched the subject of interrogation.
direct examination - The first questioning of a witness by the attorney for the party on whose behalf the witness is called. Usually proceeds with open ended, non leading questions.
directed verdict - In civil cases in which there is insufficient basis for any other conclusion, the judge may direct the jury to render a specific verdict. Criminal defendants may also ask the court to rule in their favor rather than submitting the case to the jury.
discovery - The process through which parties to an action are allowed to obtain relevant information known to other parties or nonparties before trial.
dismissal without prejudice - A dismissal which permits the plaintiff to sue again on the same cause of action or the state to proceed again. Dismissal with prejudice bars the right to subsequently bring an action on the same cause.
disposition - The order of a Juvenile Court determining what is to be done with a minor already adjudged to be within the court's jurisdiction. In criminal or civil cases, the settlement of a case.
dispositional report - In Juvenile Court, a written report relating to the child's mental, physical, and social history, submitted by the juvenile probation department or other designated agency to assist the judge in determining a proper disposition.
dissent - A term commonly used to denote the disagreement of one or more judges of a court of appeals with the decision of the majority.
diversion - Procedures for handling relatively insignificant juvenile problems informally, without referral to Juvenile Court. In criminal cases, the formal continuance of a case for a certain length of time, usually a year, with the goal of dismissal if the defendant meets certain conditions.
docket - A brief entry or the book containing such entries of any proceeding in court.
domicile - That place where a person has his true and permanent home. A person may have several residences, but only one domicile.
double jeopardy - Common law and constitutional prohibition (5th Amendment) against more than one prosecution for the same crime.
due process - The guarantee of due process requires that no person be deprived of life, liberty, or property without a fair and adequate process. In criminal proceedings (as well as juvenile) this guarantee includes the fundamental aspects of a fair trial, including the right to adequate notice in advance of the trial, the right to counsel, the right to confront and cross-examine witnesses, the right to refuse self-incriminating testimony, and the right to have all elements of the crime proven beyond a reasonable doubt.
- E -
embezzlement - The fraudulent appropriation by a person to his own use or benefit of property or money entrusted to him by another.
eminent domain - The power to take private property for public use by the state and municipalities.
en banc - A proceeding in which the entire membership of an appellate court participates in the decision, rather than leaving the decision to a smaller "panel" of the court's members. In Utah, the Court of Appeals is prohibited from sitting en banc.
enjoin - See injunction.
entrapment - In criminal procedures, a complete defense. The defendant must show that officers induced the defendant to commit a crime not contemplated by him, for the purpose of instituting a criminal prosecution against him.
equity, courts of - Courts which administer a legal remedy according to the system of equity, as distinguished from courts of common law. The English system upon which most American states modeled their court systems included two separate sets of courts: equity and law. Although Utah has now combined the two in a single system, court continue to refer to their powers in equity as distinct from their functions as courts of law. Equitable powers are flexible and try to do justice. Courts of law are rigid and must act strictly according to the law.
escheat - In American law, the right of the state to an estate left vacant, to which no one makes a valid claim. Property of a decedent who had no will and no heirs escheats to the state.
escrow - A writing, deed, money, stock, or other property is given to a third person to hold until all conditions in a contract are fulfilled.
estate - A collective term meaning all real and personal property owned by a person.
estoppel - A person's own act, or acceptance of facts, which preclude later claims to the contrary.
et al - An abbreviation of et alii, meaning "and others," ordinarily used in lieu of listing all names of persons involved in a proceeding.
et seq - An abbreviation for et sequentes, or et sequentia, "and the following," ordinarily used in referring to a section of statutes.
evidence - Testimony, records, documents, material objects, or other things presented at a trial to prove the existence or nonexistence of a fact.
exclusionary rule - A rule by which evidence that was obtained illegally cannot be used in a criminal trial against a defendant. Also, in criminal cases, a rule which prevents witnesses from observing each other testify or from discussing testimony during the course of the proceedings.
exclusion of witnesses - An order of the court requiring all witnesses to remain outside the courtroom until each is called to testify, except the plaintiff or defendant. The witnesses are ordered not to discuss their testimony with each other and may be held in contempt if they violate the order.
exclusive jurisdiction - The matter can only be filed in one court.
executor - A person assigned to carry out the provisions of a will.
exhibit - A paper, document or other article presented and offered into evidence in court during a trial or hearing to prove the facts of a case.
ex parte - By or for one party only. Ordinarily courts are not allowed to engage in communications with one party only (ex parte communications). Both parties must be heard.
expert testimony - Testimony given in relation to some scientific, technical or professional matter by experts, i.e., persons qualified to speak authoritatively by reason of their special training, skill or familiarity with the subject.
ex post facto - After the fact, ordinarily used in reference to constitutional prohibition on ex post facto laws. For example, a person cannot be punished for conduct committed before a criminal law was enacted.
expungement - A court order allowing the destruction or sealing of records of minors or adults, after the passage of a specified period of time or when the person reaches a specified age and has not committed another offense.
extradition - The surrender by one state to another of an individual accused or convicted of an offense outside its own territory, and within the territorial jurisdiction of the other.
extraordinary writ - A writ, often issued by an appellate court, making available remedies not regularly within the powers of lower courts. They include writs of habeas corpus, mandamus, prohibition and quo warranto.
- F -
false arrest - Any unlawful physical restraint of another's personal liberty, whether or not carried out by a peace officer.
false pretenses - Representation of some fact or circumstance which is not true and is calculated to mislead, whereby a person obtains another's money or goods.
fee simple absolute - The most complete, unlimited form of ownership of real property.
felony - A felony is a major crime for which the maximum imprisonment is more than one year in a state correctional institution. The court may also impose a fine. Felonies are classified into four categories: capital, 1st degree, 2nd degree, and 3rd degree.
fiduciary - A person who has assumed a special relationship to another person or another person's property, such as a trustee, administrator, executor, lawyer, or guardian. The fiduciary must exercise the highest degree of care to maintain and preserve the person's rights and/or property which are within his/her charge.
Fifth Amendment - Among other rights, the Fifth Amendment to the U.S. Constitution guarantees that a person cannot be compelled to present self-incriminating testimony in a criminal (or juvenile) proceeding.
fine - A sum of money paid as part of a penalty of conviction for a particular criminal offense.
fitness hearing - A hearing held in Juvenile Court to determine the fitness of a minor for retention in Juvenile Court, and the minor's amenability to Juvenile Court resources. Must be held before any evidence is heard on a petition for detention. Such a hearing is a prerequisite to transfer of a minor's case to adult court. Also called certification hearing.
forcible entry and detainer - Ordinarily refers to a summary proceeding for restoring possession of land to one who has been wrongfully deprived of possession.
foreclosure - A termination of all rights of the mortgagor or his grantee in the property covered by the mortgage.
forfeiture - The concept of forfeiture is used in a variety of settings in the legal system. For example, property such as an automobile or house that is used in the commission of a crime i.e., selling a controlled substance, may be forfeited to the state in a civil proceeding.
foster care - A form of substitute care, usually in a home licensed by a public agency, for children whose welfare requires removal from their homes.
foundation - In a trial, a foundation must be laid to establish the basis for the admissibility of certain types of evidence. For example, an expert witnesses' qualifications must be shown before expert testimony will be admissible.
Fourteenth Amendment - Among other matters, the 14th Amendment to the U.S. Constitution prohibits states from depriving any person of life, liberty, or property without adequate due process.
Fourth Amendment - The 4th Amendment to the U.S. Constitution protects every person against unreasonable search and seizure by government officials.
fraud - An intentional perversion of truth; deceitful practice or device resorted to with intent to deprive another of property or other right.
- G -
garnishee - A person holding a judgment debtor's property, such as debtor's employer (holding wages) or bank (holding an account).
garnishment - A court order to take part of a person's wages, before he gets them, and apply the amount taken to pay a debt owed to a creditor.
grand jury - A group of citizens impaneled to hear evidence and decide whether a defendant should be charged with a crime. The grand jury is used frequently in federal courts, but rarely in Utah state courts.
guardian ad litem - In Utah State Court proceedings, a lawyer appointed by a court to look after the interests of an infant, child or incompetent person during court proceedings.
guardian - A guardian has the authority to consent, on behalf of an infant, child or incompetent, to marriage, enlistment in the armed forces, or major medical, surgical, or psychiatric treatment. Includes legal custody.
- H -
habeas corpus - Latin phrase meaning "you have the body"; A civil proceeding used to review the legality of a prisoner's confinement in criminal cases. Habeas corpus actions are commonly used as a means of reviewing state or federal criminal convictions. The petitioner alleges the convictions violated state or federal constitutional rights. State habeas proceedings start in state District Court; federal habeas proceedings start in federal District Court. Lower court decisions may be appealed to appellate courts.
harmless error - An error committed by a lower court during a trial, but not prejudicial to the rights of the party and for which the appellate court will not reverse the judgment.
hearing - A formal proceeding (generally less formal than a trial) with definite issues of law or of fact to be heard.
hearing de novo - A full new hearing.
hearsay - Second-hand evidence, generally consisting of a witness's testimony that he/she heard someone else say something.
holographic will - A will entirely written, dated and signed by the testator in his/her own handwriting.
hostile witness - A witness who displays antagonism toward the party who called him to testify, or who is a witness for the opposing party. The examining party is allowed to conduct direct examination as if it were cross-examination.
hung jury - A jury which cannot agree on a final verdict. If a jury is hung, the court declares a mistrial and the case may be re-tried.
hypothetical question - A form of question generally used for expert witnesses. The examiner states a factual foundation (often based on disputed facts) and asks the expert to draw conclusions based on the hypothetical foundation. The hypothetical question includes only facts already in evidence.
- I -
immunity - Legal protection from liability. There are many categories of immunity in civil and criminal law. For example, sovereign immunity protects government agencies from civil liability and judicial immunity protects judges acting in their official capacities.
impanel - To seat a jury. When voir dire is finished and both sides have exercised their challenges, the jury is impanelled. The jurors are sworn in and the trial is ready to proceed.
impeachment of witness - An attack on the credibility of a witness.
inadmissible/incompetent evidence - Information which is so unreliable it cannot be admitted under the established rules of evidence.
in camera - In a judge's chambers; in private.
incarceration - Imprisonment; confinement in a jail or penitentiary.
incest - The crime of sexual intercourse between a male and a female who are so closely related they would not legally be allowed to marry.
indeterminate sentence - An indefinite sentence of imprisonment, within a specified range (e.g. "5 to life") with the Board of Pardons later determining the exact term to be served.
indictment - An accusation of a criminal offense made by a grand jury.
information - The first paper filed in criminal prosecution which states the crime of which the defendant is accused.
injunction - A court order forbidding or requiring a certain action.
in loco parentis - "In the place of the parent"; refers to actions of a custodian, guardian or other person acting in the parent's place.
instruction - A direction given by the judge to the jury concerning the law to be applied in the case.
inter alia - Among other things.
interlocutory appeal - An appeal to an appellate court of a temporary or provisional order of a trial court. The appellate court is not required to hear the appeal.
interrogatories - In the discovery phase of civil litigation, these written questions are submitted by one party to another party and must be answered in writing under oath.
interstate compact - A contract between member states to supervise juveniles on probation or parole, and to return delinquent juveniles who have escaped or nondelinquent juveniles who have run away, from one state to another.
intervention - A proceeding in a civil suit by which a third person is permitted by the court to join as a party to the suit.
intestate - The status of a person who dies without leaving a will.
irrelevant - Evidence not sufficiently related to the matter in issue.
- J -
judge pro tempore - A lawyer appointed by the Utah Supreme Court to sit temporarily as a judge. A judge pro tempore has all the authority of a regularly appointed judge.
judgment - The official decision of a court disposing of a case.
judgment creditor - The party in whose favor a judgment has been rendered.
judgment debtor - The party against whom a judgment has been rendered.
jurisdiction - The legal authority of a court to hear a case or conduct other proceedings; power of the court over persons involved in a case and the subject matter of the case.
jurisprudence - Formal study of the principles on which legal rules are based and the means by which judges guide their decision making.
jury commissioner - An officer charged with the duty of selecting the names to be put into a jury wheel, or of drawing the panel of jurors for a particular term of court.
- L -
law and motion - A setting before a judge at which time a variety of motions, pleas, sentencings, orders to show cause or procedural requests may be presented. Normally, evidence is not taken. Defendants must be present.
leading question - One which virtually instructs a witness how to answer or puts into his mouth words to be echoed back; one which suggests to the witness the answer desired. Ordinarily prohibited on direct examination, although allowed on cross-examination.
levy - A seizure; the obtaining of money by legal process through seizure and sale of property.
liability - A legal responsibility, obligation, or debt.
libel - See defamation.
lien - A claim against property for payment of a debt. Common types of liens include the mechanic's lien, the judgment lien, and the mortgage lien.
lis pendens - A pending suit.
litigant - A party to a lawsuit; one engaged in litigation.
locus delicti - The place of the offense.
- M -
malfeasance - Unlawful conduct.
malicious prosecution - A meritless (civil or criminal) action instituted solely to harass the defendant. Such misuse of the judicial process may be the basis for an action against the original plaintiff/prosecutor.
malpractice - A lawsuit brought against a professional person, such as a doctor, lawyer or engineer, for injury or loss caused by the defendant's negligence in providing professional services.
mandamus - A writ by which a court commands the performance of a particular act.
manslaughter - A person recklessly causes the death of another, or acting under extreme emotional disturbance, causes the death of another, or acting under circumstances when a person reasonably believes the circumstances provide a legal justification or excuse for his conduct constitutes manslaughter.
material evidence - Evidence which is relevant to the issues in a case.
mens rea - Literally, "guilty mind." The intent required to commit the crime. One of the two basic requirements, along with the guilty act (actus reus) which constitute a crime.
Miranda rule - The rule, pronounced in Miranda v. Arizona, that confessions are inadmissible in a criminal prosecution if the police do not advise the suspect in custody of certain rights before questioning. The rights include:
- a. The right to remain silent and to refuse to answer any questions;
- b. The right to know that anything the suspect says can and will be used against the suspect in a court of law;
- c. The right to consult with an attorney and to have an attorney present during questioning;
- d. The right to have counsel appointed at public expense, prior to any questioning if the suspect cannot afford counsel.
misdemeanor - A minor offense, lower than a felony, which is punishable by a county jail term of up to one year and/or a fine, but not prison. Misdemeanors are classified into three categories: Class A, B, and C.
mistrial - A trial which is void because of some error.
mitigating circumstance - A circumstance which may be considered to reduce the degree of moral culpability, although it does not entirely justify or excuse an offense.
moot - A moot point is one that need not be decided, due to a change of circumstances.
moral turpitude - Conduct contrary to honesty or good morals.
motion - A formal request presented to a court.
multiplicity of actions - Numerous and unnecessary attempts to litigate the same issue.
- N -
ne exeat - A writ which forbids the person to whom it is addressed to leave the country, the state or the jurisdiction of the court.
negligence - Failure to exercise the care that an ordinarily prudent person would exercise in the same circumstances.
no bill - This phrase, endorsed by a grand jury on an indictment, means that, in the opinion of the jury, evidence was insufficient to warrant the return of a formal charge.
no-fault divorce - A kind of divorce in which the parties need not cast blame on one another for the failure of the marriage.
nolle prosequi - A formal entry upon the record by the plaintiff in a civil suit, or the prosecuting officer in a criminal case, declaring the case will not be prosecuted.
nolo contendere - A Latin phrase meaning "I will not contest it." A plea in a criminal case which does not require the defendant to admit guilt, but the defendant does not contest the facts on which the charge is based. Some judges refuse to accept such pleas in criminal cases.
nominal party - One who is joined as a party or defendant merely because the technical rules of pleading require his presence in the record.
non compos mentis - Not of sound mind; insane.
not guilty plea - Complete denial of guilt. In criminal cases, a necessary stage of the proceedings required to preserve all legal issues.
not guilty by reason of insanity - The jury or the judge must determine that the defendant, because of mental disease or defect, could not form the intent required to commit the offense.
- O -
objection - The act of taking exception to some statement or procedure in trial or other proceeding. Used to call the court's attention to improper evidence or procedure.
of counsel - A phrase commonly applied to counsel employed to assist in the preparation or management of the case, or its presentation on appeal, but who is not the principal attorney for the party.
opinion evidence - Witnesses are normally required to confine their testimony to statements of fact and are not allowed to give their opinions in court. However, if a witness is qualified as an expert in a particular field, he or she may be allowed to state an opinion as an expert based on certain facts.
order to show cause - Court order requiring a party to appear and show cause why the court should not take a particular course of action. If the party fails to appear or to give sufficient reasons why the court should take no action, the court will take the action. In criminal cases, the defendant must show why probation should not be revoked.
ordinance - A written law enacted by the legislative body of a county, city, or town.
original jurisdiction - The court in which a matter must first be filed.
- P -
pardon - Action by an official of an executive branch of government relieving a criminal from a conviction.
Parent Infant Trauma Syndrome (P.I.T.S.) - See Battered Child Syndrome
parole - A procedure in which a parole board releases a convict on good behavior before the maximum sentence expires.
parol evidence - Oral or verbal evidence (rather than written). The parol evidence rule limits the admissibility of parol evidence which would directly contradict the clear meaning of terms of a written contract.
parties - The persons who are actively involved in the prosecution or defense of a legal proceeding, including the plaintiff or prosecution, the defendant and any "third party defendant".
peremptory challenge - Each party to a suit tried to a jury has the right to peremptorily "challenge" (reject) a certain number of prospective jurors without giving a reason. By contrast, the parties have unlimited rights to challenge jurors for good cause, but the judge must approve "for cause challenges." Parties may not exercise peremptory challenges on the basis of race or gender.
perjury - Lying while under oath.
petition - A civil pleading filed to initiate a matter in Juvenile Court, setting forth the alleged grounds for the court to take jurisdiction of the case and asking the court to do so and intervene.
petit jury - The ordinary jury of twelve (or fewer) persons for the trial of a civil or criminal case. So called to distinguish it from the grand jury.
plaintiff - A person who files a lawsuit.
plea - The defendant's formal response to a criminal charge (guilty, not guilty, nolo contendere, not guilty by reason of insanity, and guilty and mentally ill).
plea bargaining - A process whereby the prosecutor and defense attorney negotiate a mutually satisfactory disposition of the case. The court and the defendant must approve of any settlements. For example, a guilty plea may be exchanged for a lesser charge or a sentencing recommendation, or for dismissal of one or more of the charges in a multi-count information, or for dismissal of another case.
pleading - The formal allegations by the parties of their respective claims and defenses.
polling the jury - A practice whereby the jurors are asked individually on the record whether they agreed, and still agree, to the verdict.
power of attorney - A written instrument authorizing another (not necessarily a lawyer) to act as one's agent or attorney.
praecipe - A document describing property to be seized.
precedent - A rule of law that is established by an appellate court in an earlier case serves as binding precedent in all subsequent similar cases.
prejudicial evidence - Evidence which might unfairly sway the judge or jury to one side or the other. For example, photographs of a gory murder scene might inflame a jury without providing useful evidence. May be excluded in criminal cases if prejudicial effect outweighs probative value.
prejudicial error - Synonymous with "reversible error"; an error which warrants the appellate court in reversing the judgment before it.
preliminary hearing - A probable cause hearing which screens felony criminal cases by deciding whether there is enough evidence to warrant a trial. If the judge determines there is sufficient evidence, the defendant is "bound over" for trial. The defendant may waive this hearing.
preliminary injunction - In civil cases when it is necessary to preserve the status quo prior to trial, the court may issue a preliminary injunction or temporary restraining order ordering a party to carry out a specified activity.
preliminary inquiry - In Juvenile Court, an investigation and study conducted by the probation department upon receiving a referral to determine whether further action should be taken.
premeditation - The planning of a crime preceding the commission of the act, rather than committing the crime on the spur of the moment.
preponderance of evidence - Evidence which is (even minimally) of greater weight or more convincing than the evidence which is offered in opposition to it. This is the standard by which a plaintiff must prove his/her case in a civil suit.
presentence report - An investigation conducted at the request of the court after a person has been found guilty of a crime. The purpose is to provide the court with extensive background information to determine the appropriate sentence. On felonies, usually done by the Department of Corrections, Division of Adult Probation & Parole (AP & P).
presentment (first appearance) - In felony cases, the first appearance before a judge at which the defendant is formally notified of the charges and a date is set for a preliminary hearing. No plea is entered at this stage. If, after the preliminary hearing, the case is bound over to the District Court, the defendant will enter a plea during arraignment in District Court. (Presentment is often incorrectly called arraignment.)
prima facie - Literally, "on its face." A fact presumed to be true unless disproved by some other evidence. In a criminal case, when the prosecution rests, the state's case is said to be prima facie, if the evidence so far introduced is sufficient to convict.
privileged communications - Confidential communications to certain persons that are protected by law against any disclosure, including forced disclosure in legal proceedings. Communications between lawyer and client, physician and patient, psychotherapist and patient, priest, minister or rabbi and penitent are typically privileged.
probable cause - A judicial finding that there exists reasonable grounds for belief that a person should be arrested or searched.
probate - The process of proving the validity of a will.
probation - A sentence releasing a convicted criminal into the community or a treatment facility under the supervision of a probation officer, requiring compliance with certain conditions. If the conditions are not met, the court orders an "Order to Show Cause" hearing as to why probation should not be revoked and the sentence imposed.
pro se - For himself; in his own behalf. One who does not retain a lawyer and appears for himself in court.
prosecutor - The name of the public officer who is appointed in each county to conduct criminal prosecutions on behalf of the state or people.
protective custody - In child abuse and neglect cases, the emergency removal of child from his home when the child would be in imminent danger if allowed to remain with the parent(s) or custodian(s).
protective supervision - A court order following a judgment on the ground of neglect or abuse, whereby the child is permitted to remain in his home, and supervision and assistance to correct the neglect or abuse is provided by the probation department or other agency designated by the court.
proximate cause - In a civil tort action such as a medical malpractice suit, the plaintiff must show that an act or omission of the defendant was a proximate cause of the plaintiff's injury or loss. Similarly, in a criminal action, the state must prove beyond a reasonable doubt that the defendant's action was the direct cause of the crime.
public defender - Lawyers regularly employed by the government to represent people accused of crimes who cannot afford to hire their own. The term may also be used to refer to a private firm receiving public money to defend indigent criminal defendants.
punitive damages - Money awarded to an injured person, over and above the measurable value of the injury, in order to punish the person who hurt him.
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quash - To overthrow; vacate; to annul or void a summons, indictment, bindover order or subpoena.
quid pro quo - What for what; something for something; giving one valuable thing for another.
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reasonable doubt - A person accused of a crime is entitled to acquittal if, in the minds of the jury or judge, his or her guilt has not been proved beyond a "reasonable doubt"; the jurors are not entirely convinced of the person's guilt.
rebuttal evidence - Evidence given to explain, contradict, or disprove facts offered by the adverse party. In criminal cases, the state has the opportunity to rebut the defendant's case because it has the burden of proof.
recidivism - The continued, habitual or compulsive commission of law violations after first having been convicted of prior offenses.
recognizance - A kind of bail, consisting of a written promise to appear in court when required. Generally, when there is no good reason to suppose the accused in a criminal case will not appear when required or the accused is not a significant risk to the community, he or she will be released on his or her own recognizance.
redirect examination - Follows cross-examination, and is conducted by the party who first examined the witness.
referral - In Juvenile Court, a written report submitted by a law enforcement officer or other person who has reason to believe a juvenile has committed a crime that would place the child within the jurisdiction of the Juvenile Court.
relevant - Evidence that helps to prove a point or issue in a case.
remand - "To send back"; For example, an appellate court may remand a case to a lower court for retrial or for some change in disposition.
removal, order of - An order by a court directing the transfer of a case to another court. For example, when a case is proper for jurisdiction in federal court, the federal court may remove the case from the state court in which it was originally filed.
reporting statutes - State laws requiring certain designated persons (physicians, nurses, teachers) to report to the authorities suspected cases of child abuse and injuries.
res ipsa loquitur - Literally, "a thing that speaks for itself." In tort law, the doctrine which holds a defendant guilty of negligence without an actual showing that he or she was negligent. Its use is limited in theory to cases in which the cause of the plaintiff's injury was entirely under the control of the defendant, and the injury presumably could have been caused only by negligence.
res judicata - A rule of civil law that once a matter has been litigated and final judgment has been rendered by the trial court, the matter cannot be relitigated by the parties in the same court, or any other trial court. A court will use res judicata to deny reconsideration of a matter.
respondeat superior - Literally, "a superior (or master) must answer." The doctrine which holds that employers are responsible for the acts and omissions of their employees and agents, when done within the scope of the employees' duties.
respondent - 1) the person who is the subject of a petition, 2) the prevailing party in a court case against whom an appeal is taken.
rest - A party is said to "rest" or "rest his case" when he/she has presented all the evidence he/she intends to offer.
restitution - Court-ordered payment to restore goods or money to the victim of a crime by the offender.
restraining order - Similar to an injunction, commanding the party to leave the other party alone, usually in a divorce proceeding.
retainer - The fee which the client pays when he/she retains an attorney.
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sealing - The closure of court records to inspection, except to the parties.
search and seizure, unreasonable - In general, an examination, without authority of law, of one's premises or person to find stolen property or contraband.
search warrant - An order issued by a judge or magistrate commanding a sheriff, constable, or other officer to search a specified location.
self-defense - The protection of one's person or property against some injury attempted by another. The law of "self defense" justifies an act done in the reasonable belief of immediate danger. When acting in justifiable self-defense, a person may not be punished criminally nor held responsible for civil damages.
sentence - The judgment formally pronounced by the court upon the defendant after conviction in a criminal prosecution, imposing the punishment to be inflicted.
suspended sentence - A sentence ordered by the court but not imposed, which gives the defendant an opportunity to complete probation.
sentence, deferred - The court retains jurisdiction to sentence the defendant at a later time.
separate maintenance - Allowance ordered to be paid by one spouse to the other for support while the spouses are living apart but not divorced.
service of process - Notifying a person that he or she has been named as a party to a lawsuit or has been accused of some offense. Process consists of a summons, citation or warrant, to which a copy of the complaint is attached. Subpoenas are court orders which, if properly served, compel the attendance of the witness in court.
slander - See Defamation.
small claims - A civil dispute in which the amounts of money involved is less than $2,000. Persons usually are not represented by lawyers in small claims proceedings. Small claims are litigated in the small claims division of the District Court, or in the Justice Court.
sovereign immunity - The doctrine that a government or governmental agency cannot be sued without consent.
specific performance - A mandatory order in equity. Where monetary damages would be inadequate compensation for the breach of a contract, the contractor will be compelled to perform specifically what the contract called for.
standard of proof - There are essentially three standards of proof applicable in most court proceedings. In criminal and delinquency cases, the offense must be proven beyond a reasonable doubt, the highest standard. In civil cases and neglect and dependency proceedings, the lowest standard applies by a mere preponderance of the evidence (more likely than not). In some civil cases, and in juvenile proceedings such a permanent termination of parental rights, an intermediate standard applies: proof by clear and convincing evidence.
stare decisis - The doctrine that, when a court has once laid down a principle of law applicable to a certain set of facts, it will adhere to that principle and apply it to future cases where the facts are substantially the same. This is a defining characteristic of the common law system followed in the U.S., Great Britain, and a few other nations.
status offense - Refers to misbehavior which would not be criminal if committed by an adult (e.g., truancy, runaway, etc.), but is defined as an offense when committed by a minor because of the minor's status.
statute - A law passed by the state legislature.
statute of limitations - A certain time allowed by statute in which litigation must be brought. In criminal cases, prosecution is barred if not brought within the statute of limitations.
stay - A stopping or arresting of a judicial proceeding by order of a court (e.g., a stay of enforcement of a judgment).
stipulation - An agreement by attorneys on opposite sides of a case as to any matter pertaining to the proceedings or trial. It is not binding unless agreed to by the parties, and most stipulations must be in writing.
subpoena - An official order to appear in court (or at a deposition) at a specific time. Failure to obey a subpoena to appear in court is punishable as a contempt of court.
subpoena duces tecum - A special form of subpoena which commands a witness to produce certain documents or records in a trial or at a deposition.
substantive law - The law dealing with rights, duties and liabilities, as contrasted with procedural law, which governs the technical aspects of enforcing civil or criminal laws.
summons - A notice to the named person that an action has been commenced against him in court and that he is required to appear, on the day named, and answer the complaint.
suppression hearing - A hearing on a criminal defendant's motion to prohibit the prosecutor's use of evidence alleged to have been obtained in violation of the defendant's rights. This hearing is held outside of the presence of the jury, either prior to or at trial. The judge must rule as a matter of law on the motion.
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temporary restraining order - See preliminary injunction.
termination of parental rights - A judicial proceeding freeing a child from all custody and control by parents, so the child can be adopted by others.
testate - One who has died leaving a will or one who has made a will.
testator - The person who makes a will. (female: testatrix)
testimony - Information or evidence given by a witness under oath.
tort - An injury or wrong committed, either with or without force, to the person or property of another, for which civil liability may be imposed.
transcript - The official record of proceedings in a trial or hearing.
trial - A judicial examination of issues between parties to an action.
trial by declaration or informal traffic hearing - Persons who receive a traffic citation have an option to appear before a judge in an informal hearing called Trial by Declaration. At this hearing, there are no prosecutors, police or witnesses present. The person simply tells the judge his/her side of the story and the judge takes what action he/she determines is appropriate. If the defendant disagrees with the judge at the informal hearing, he/she may request and receive a formal trial.
trial de novo - A new trial or retrial held in an appellate court in which the whole case is heard as if no trial had been heard in the lower court or administrative agency.
trust - A transaction in which the owner of real property or personal property (the trustor or settlor) gives ownership to a trustee, to hold and to manage it for the benefit of a third party, called the "beneficiary."
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undue influence - Whatever destroys free will and causes a person to do something he would not do if left to himself. For example, a strong willed family member might be found to have used undue influence on an elderly person's drawing up of a will.
unlawful detainer - A detention of real estate without the consent of the owner or other person entitled to its possession.
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venue - The particular county, city or geographical area in which a court with jurisdiction may hear and determine a case. A change of venue, i.e., a change to a court in a different area may be sought under some circumstances.
verdict - The formal and unanimous decision or finding made by a jury.
voir dire -"To speak the truth". The questioning of potential jurors by the judge and the lawyers to determine any biases, prejudices or other reasons for disqualification.
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waive - To give up a right or claim voluntarily.
waiver of immunity - A means authorized by statutes by which a witness, in advance of giving testimony or producing evidence, may renounce the fundamental constitutional right that no person shall be compelled to be a witness against himself/herself.
warrant - A written order issued and signed by a judge or magistrate which allows the police to search a place and seize specified items found there (search warrant), or to arrest or detain a specified person (arrest warrant).
willful - A "willful" act is one done intentionally, as distinguished from an act done carelessly or inadvertently.
with prejudice - A dismissal "with prejudice" bars the right to bring or maintain another action on the same claim or cause.
without prejudice - A dismissal "without prejudice" allows a new suit to be brought on the same cause of action.
witness - One who testifies under oath to what he/she has seen, heard or otherwise observed.
writ - A directive issued by the court commanding a named person to perform a specified act.
writ of certiorari - A procedure requesting appellate review. It is discretionary. If the writ is denied, the higher court refuses to hear the appeal and the judgment in the lower court stands unchanged. If the writ is granted, the higher court hears the appeal.