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Glossary
of Legal Terms
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- abandoned property – Property over which the owner has given up dominion and control with no intention of recovering it.
- acquittal - Criminal Law The legal and formal certification of the innocence of a person who has been charged with crime; a deliverance or setting free a person from a charge of guilt; finding of not guilty. Acquittals in fact are those which take place when the jury, upon trial, finds a verdict of not guilty. Acquittals in law are those which take place by mere operation of law; as where a man has been charged merely as an accessory, and the principal has been acquitted.
- adjudicate - To settle in the exercise of judicial authority. To determine finally.
- affidavit - A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.
- aggravated assault – A person is
guilty of aggravated assault if he: attempts to cause serious bodily
injury to another, or causes such injury purposely, knowingly or
recklessly under circumstances manifesting extreme indifference to the
value of human life; or, attempts to cause or purposely or knowingly cause
bodily injury to another with a deadly weapon.
- aid and abet - Help, assist, or facilitate the commission of a crime, promote the accomplishment thereof, help in advancing or bringing it about, or encourage, counsel, or incite as to its commission. It comprehends all assistance rendered by words, acts, encouragement, support, or presence, actual or constructive, to render assistance, if necessary.
- a.k.a. - also known as
- alternative dispute resolution - Term refers to procedures for settling disputes by means other than litigation; e.g., by arbitration, mediation, mini-trials. Such procedures, which are usually less costly and more expeditious, are increasingly being used in commercial and labor disputes, divorce actions, in resolving motor vehicle and medical malpractice tort claims, and in other disputes that would likely otherwise involve court litigation.
- answer - Pleading The response of a defendant to the plaintiff's complaint, denying in part or in whole the allegations made by the plaintiff.
- appeal - Resort to a superior (i.e. appellate) court to review the decision of an inferior (i.e. trial) court or administrative agency.
- arraignment -
Procedure whereby the accused is brought before the court to plead to the
criminal charge against him in the indictment or information. The charge
is read to him and he is asked to plead "guilty" or "not
guilty."
- assault - Any willful attempt or
threat to inflict injury upon the person of another, when coupled with an
apparent present ability so to do, and any intentional display of force
such as would give the victim reason to fear or expect immediate bodily
harm, constitutes an assault. An assault may be committed without actually
touching, or striking, or doing bodily harm, to the person of
another. Frequently used to
describe illegal force which is technically a battery. For crime of
assault victim need not be apprehensive of fear if the outward gesture is
menacing and defendant intends to harm, though for tort of assault,
element of victim’s apprehension is required. In some jurisdictions degrees of the
offense are established as first, second and even third degree assault.
- attorney - Attorney at law Person admitted to practice law in his respective state and authorized to perform both civil and criminal legal functions for clients, including drafting of legal documents, giving of legal advice, and representing such before courts, administrative agencies, boards, etc.
- bail - v.To procure release of one charged with an offense by insuring his future attendance in court and compelling him to remain with jurisdiction of court. n.Monetary amount for or condition of pretrial release from custody, normally set by a judge at the initial appearance. The purpose of bail is to ensure the return of the accused at subsequent proceedings. If the accused is unable to make bail, or otherwise unable to be released on his or her own recognizance, he or she is detained in custody. Bail bond. A three-party contract which involves state, accused and surety under which surety guarantees state that accused will appear at subsequent proceedings.
- bailiff - A court officer or attendant who has charge of a court session in the matter of keeping order and custody of the jury.
- burden of proof - In the law of evidence, the necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a cause.
- caption - The heading or introductory part of a pleading, motion, deposition, or other legal instrument which indicates the names of the parties, name of the court, docket or file number, title of the action, etc.
- certified copy - A copy of a document or record, signed and certified as a true copy by the officer to whose custody the original is intrusted.
- change – An alteration; a modification or addition; substitution of one thing for another. Exchange of money against money of a different denomination.
- change of venue - The removal of a suit begun in one county or district to another county or district for trial, though the term is also sometimes applied to the removal of a suit from one court to another court of the same county or district. In criminal cases a change of venue will be permitted if for example the court feels that the defendant cannot receive a fair trial in a given venue because of prejudice. In civil cases a change may be permitted in the interests of justice or for the convenience of the parties.
- clean hands
doctrine - Under this doctrine,
equity will not grant relief to a party, who, as actor, seeks to set
judicial machinery in motion and obtain some remedy, if such party in
prior conduct has violated conscience or good faith or other equitable
principle.
- clerk - Officer of court who files pleadings, motions, judgments, etc., issues process, and keeps records of court proceedings. A law clerk assists an attorney or judge with legal research, brief writing, and other legal tasks. Is commonly a recent law school graduate or law student.
- codicil - A supplement or an addition to a will; it may explain, modify, add to, subtract from, qualify, alter, restrain or revoke provisions in existing will.
- compel – To urge forcefully; under extreme pressure.
- complaint - The original or initial pleading by which an action is commenced under codes or Rules of Civil Procedure. Such complaint (whether it be the original claim, counterclaim, cross-claim, or third-party claim) shall contain: (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which he deems himself entitled. The complaint, together with a summons, is required to be served on the defendant. In criminal law, a charge, preferred before a magistrate having jurisdiction, that a person named (or an unknown person) has committed a specified offense, with an offer to prove the fact, to the end that a prosecution may be instituted.
- conclude - To finish; determine; to estop; to prevent.
- concurrent sentences - Two or more terms of imprisonment, all or part of each term of which is served simultaneously and the prisoner is entitled to discharge at the expiration of the longest term specified.
- conflict of interest - Term used in connection with public officials and fiduciaries and their relationship to matters of private interest or gain to them. Ethical problems connected therewith are covered by statutes in most jurisdictions and by federal statutes on the federal level. The Code of Professional Responsibility and Model Rules of Professional Conduct set forth standards for actual or potential conflicts of interest between attorney and client. Generally, when used to suggest disqualification of a public official from performing his sworn duty, term "conflict of interest" refers to a clash between public interest and the private pecuniary interest of the individual concerned. A conflict of interest arises when a government employee's personal or financial interest conflicts or appears to conflict with his official responsibility.
- conformed copy - An exact copy of a document on which has been written explanations of things that could not or were not copied; e.g. written signature that might be replaced on conformed copy with notation that it was signed by the person whose signature appears on the original.
- consecutive sentences - When one sentence of confinement is to follow another in point of time, the second sentence is deemed to be consecutive.
- conservator - A guardian; protector; preserver. Person appointed by a court to manage the estate of one who is unable to manage property and business affairs effectively.
- consolidation of actions - The act or process of uniting several actions into one trial and judgment, by order of a court, where all the actions are between the same parties, pending in the same court, and involving substantially the same subject-matter, issues, and defenses; or the court may order that one of the actions be tried, and the others decided without trial according to the judgment in the one selected.
- contempt of court - Any act which is calculated to embarrass, hinder, or obstruct court in administration of justice, or which is calculated to lessen its authority or its dignity. Contempts are, generally, of two kinds, direct and constructive. Direct contempts are those committed in the immediate view and presence of the court (such as insulting language or acts of violence) or so near the presence of the court as to obstruct or interrupt the due and orderly course of proceedings. Constructive (or indirect) contempts are those which arise from matters not occurring in or near the presence of the court, but which tend to obstruct or defeat the administration of justice, and the term if chiefly used with reference to the failure or refusal of a party to obey a lawful order, injunction, or decree of the court laying upon him a duty of action or forbearance. A court of the United States has power to punish by fine or imprisonment.
- contested case - A court or administrative proceeding that is opposed by another party or interested person.
- contract - An agreement between two or more persons which creates an obligation to do or not to do a particular thing.
- conviction - In a general sense, the result of a criminal trial which ends in a judgment or sentence that the accused is guilty as charged. Summary conviction The conviction of a person usually for a minor misdemeanor), as the result of his trial before a magistrate or court, without a jury.
- corroborate - To strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence. The testimony of a witness is said to be corroborated when it is shown to correspond with the representation of some other witnesses, or to comport with some facts otherwise known or established.
- counsel of record - Attorney whose appearance has been filed with court papers.
- counsel, right to - Constitutional right of criminal defendant to court appointed attorney if he is financially unable to retain private counsel; guaranteed by Sixth and Fourteenth Amendments to U.S. Constitution, and as well by court rule and statute. Such right to counsel exists with respect to felonies; misdemeanors when the sentence is to a jail term, and to juvenile delinquency proceedings. The extent of this right extends from the time that judicial proceedings have been initiated against the accused, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment, through to sentencing and appeal. There is no absolute right to appointed counsel in postconviction proceedings.
- count - In pleading, the plaintiff's statement of a cause of action; a separate and independent claim. Used also to signify the several parts of an indictment, each charging a distinct offense. "Count" and "charge" when used relative to allegations in an indictment or information are synonymous.
- counterclaim - A claim presented by a defendant in opposition to or deduction from the claim of the plaintiff.
- court administrator - Generally, a non-judicial officer whose responsibility is the administration of the courts as to budgets, juries, judicial assignments, calendars and non-judicial personnel.
- court reporter - A person who transcribes by shorthand, stenographically takes down, or electronically records testimony during court proceedings, or at trial related proceedings such as depositions.
- custody of children - The care, control and maintenance of a child which may be awarded by a court to one of the parents as in a divorce or separation proceeding. Divided custody is where child lives with each parent part of the year with reciprocal visitation privileges; in divided custody, parent with whom child is living has complete control over child during that period. Joint custody involves both parents sharing responsibility and authority with respect to the children; it may involve joint "legal" custody and joint "physical" custody. Such includes physical sharing of child in addition to both parents participating in decisions affecting child's life, e.g. education, medical problems, recreation, etc; "joint custody" does not mean fifty-fifty sharing of time, since each case depends on child's age, parent's availability and desires, and other factors. Temporary custody Awarding of custody of a child to a parent temporarily, pending the outcome of a separation or divorce action. Uniform Child Custody Jurisdiction Act A uniform law adopted in all states to deal with multi-state child custody and visitation disputes.
- default-judgment - Judgment entered against a party who has failed to defend against a claim that has been brought by another party. Under Rules of Civil Procedure, when a party against whom a judgment for affirmative relief is sought has failed to plead (i.e. answer) or otherwise defend, he is in default and a judgment by default may be entered either by the clerk or the court.
- defendant - The person defending or denying; the person against whom relief or recovery is sought in an action or suit or the accused in a criminal case.
- de novo trial - Trying a matter anew; the same as if it had been heard before and as if no decision had been previously rendered.
- deposition - The testimony of a witness taken upon oral question or written interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly authenticated, and intended to be used in preparation and upon the trial of a civil action or criminal prosecution.
- directed verdict - In a case in which the party with the burden of proof has failed to present a prima facie case for jury consideration, the trial judge may order the entry of a verdict without allowing the jury to consider it, because, as a matter of law, there can be only one such verdict. A directed verdict may be granted either on the court's own initiative or on the motion of a party.
- direct examination - The first interrogation or examination of a witness, on the merits, by the party on whose behalf he is called. The first examination of a witness upon a matter that is not within the scope of a previous examination of the witness.
- discovery - In a general sense, the ascertainment of that which was previously unknown. Trial practice The pre-trial devices that can be used by one party to obtain facts and information about the case from the other party in order to assist the party's preparation for trial. In criminal proceedings, "discovery" emphasizes right of defense to obtain access to evidence necessary to prepare its own case.
- dismissal - An order or judgment finally disposing of an action, suit, motion, etc., without trial of the issues involved.
- dismissal without prejudice - Term meaning dismissal without prejudice to the right of the complainant to sue again on the same cause of action.
- dismissal with prejudice - Term meaning an adjudication on the merits, and final disposition, barring the right to bring or maintain an action on the same claim or cause.
- disposition - The final settlement of a matter, and with reference to decisions announced by court, judge's ruling is commonly referred to as disposition, regardless of level of resolution. In a criminal procedure, the sentencing or other final settlement of a criminal case.
- divorce - The legal separation of man and wife, effected by the judgment or decree of a court, and either totally dissolving the marriage relation, or suspending its effects so far as concerns the cohabitation of the parties.
- double jeopardy - Fifth Amendment guarantee, enforceable against states through Fourteenth Amendment, protects against second prosecution for same offense after acquittal or conviction, and against multiple punishments for same offense.
- doubt - Uncertainty of mind; the absence of a settled opinion or conviction; the attitude of mind towards the acceptance of or belief in a proposition, theory, or statement, in which the judgment is not at rest but inclines alternately to either side. Reasonable doubt This is a term often used, probably quite well understood, but not easily defined. It does not mean a mere possible doubt, because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge. Proof "beyond a reasonable doubt" is not beyond all possible or imaginary doubt, but such proof as precludes every reasonable hypothesis except that which it tends to support. A "reasonable doubt" is such a doubt as would cause a reasonable and prudent man in the graver and more important affairs of life to pause and hesitate to act upon the truth of the matter charged.
- duces tecum - (Lat. Bring with you.) The name of certain species of writs, of which the subpoena duces tecum is the most usual, requiring a party who is summoned to appear in court to bring with him some document, piece of evidence, or other thing to be used or inspected by the court.
- due process of law - Law in its regular course of administration through courts of justice. A course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the enforcement and protection of private rights.
- et al. - An abbreviation for et alii, "and others."
- et seq. - An abbreviation for et sequentes (masculine and femine plural) or et sequentia (neuter), "and the following." Thus a reference to "p. 1, et seq." means "page first and the following pages."
- et ux - An abbreviation for ex uxor,--"and wife."
- evidence - Any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their contention.
- execution - Carrying out some act or course of conduct to its completion. Execution upon a money judgment is the legal process of enforcing the judgment, usually by seizing and selling property of the debtor. Writ of execution Formal process issued by court generally evidencing the debt of the defendant to the plaintiff and commanding the officer to take the property of the defendant in satisfaction of the debt.
- executor - A person appointed by a testator to carry out the directions and requests in his will, and to dispose of the property according to his testamentary provisions after his decease. "Personal representative" includes "executor."
- executrix - A female executor.
- exhibit - n. A paper or document produced and exhibited to a court during a trial or hearing, or to a person taking depositions, or to auditors, arbitrators, etc., as a voucher, or in proof of facts, or as otherwise connected with the subject-matter, and which, on being accepted, is marked for identification and annexed to the deposition, report, or other principal document, or filed of record, or otherwise made a part of the case. Paper, document, chart, map, or the like, referred to and made a part of an affidavit, pleading or brief. An item of physical/tangible evidence which is to be or has been offered to the court for inspection.
- exoneration - The removal of a burden, charge, responsibility, or duty.
- ex parte - On one side only; by or for one party; done for, in behalf of, or on the application of, one party only. A judicial proceeding, order, injunction, etc., is said to be ex parte when it is taken or granted at the instance and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested.
- expert - One who is knowledgeable in specialized field, that knowledge being obtained from either education or personal experience.
- expungement of record - Process by which record of criminal conviction is destroyed or sealed after expiration of time.
- extradition - The surrender by one state or country to another of an individual accused or convicted of an offense outside its own territory and within the territorial jurisdiction of the other, which being competent to try and punish him, demands the surrender.
- felony - A crime of a graver or more serious nature than those designated as misdemeanor; e.g. aggravated assault (felony) as contrasted with simple assault (misdemeanor). Under many state statutes, any offense punishable by death or imprisonment for a term exceeding one year.
- garnishment - A proceeding whereby a plaintiff creditor, i.e., garnishor, seeks to subject to his or her claim the property or money of a third party, i.e., garnishee, owed by such party to defendant debtor, i.e., principal defendant.
- Green River ordinance - Type of local licensing law which protects persons from unwanted peddlers and salespersons who call on homes and business establishments.
- guardian - A person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person, who, for defect of age, understanding, or self-control, is considered incapable of administering his own affairs. One who legally has responsibility for the care and management of the person, or the estate, or both, of a child during its minority.
- guilty plea - Formal admission in court as to guilt of having committed criminal act charged which a defendant may make if he or she does so intelligently and voluntarily, i.e., accused can only make such plea after he or she has been fully advised of rights and court has determined that accused understands such rights and is making plea voluntarily. It is equivalent to and is binding as a conviction after trial on the merits, and it has the same effect in law as a verdict of guilty and authorizes imposition of punishment prescribed by law.
- habeas corpus - Lat. (You have the body.) The name given to a variety of writs (of which there were anciently the emphatic words), having for their object to bring a party before a court or judge. The primary function of the writ is to release from unlawful imprisonment. The office of the writ is not to determine prisoner's guilt or innocence, and only issue which it presents is whether prisoner is restrained of his liberty by due process.
- hearing - A proceeding of relative formality, generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and evidence presented.
- hearsay - A term applied to that species of testimony given by a witness who relates, not what he knows personally, but what others have told him, or what he has heard said by others. The very nature of the evidence shows its weakness, and, as such, hearsay evidence is generally indadmissable unless it falls within one of the many exceptions which provides for admissibility.
- hung jury – A jury so irreconcilably divided in opinion that they cannot agree upon any verdict by the required unanimity.
- in camera - In chambers; in private. A judicial proceeding is said to heard in camera either when the hearing is had before the judge in his private chambers or when all spectators are excluded from the courtroom.
- incapacitated person - Any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.
- in custody - A suspect is "in custody" for purpose of determining necessity of Miranda warnings if police, by word or conduce, have manifested to suspect that he is not free to leave.
- indictment - An accusation in writing and presented by a grand jury, legally convoked and sworn, to the court in which it is impaneled, charging that a person therein named has done some act, or been guilty of some omission, which by law is a public offense, punishable on indictment.
- indigent defendant - A person indicted or complained of who is without funds or ability to hire a lawyer to defend him is, in most instances, entitled to appointed counsel to represent him at every stage of the criminal proceedings, through appeal, consistent with the protection of the Sixth and Fourteenth Amendments to U.S. Cons.
- in forma pauperis - In the character or manner of a pauper. Describes permission given to a poor person (i.e. indigent) to proceed without liability for court fees or costs.
- information - An accusation exhibited against a person for some criminal offense, without an indictment. An accusation in the nature of an indictment, from which it differs only in being presented by a competent public officer on his oath of office, instead of a grand jury on their oath.
- infraction - A breach, violation, or infringement; as of a law, a contract, a right or duty. A violation of a statute for which the only sentence authorized is a fine and which violation is expressly designated as an infraction.
- injunction - A court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury.
- in limine – On or at the threshold; at the very beginning; preliminarily. Any motion, whether used before or during trial, by which exclusion is sought of anticipated prejudicial evidence.
- inquest - The inquiry by a coroner or medical examiner, sometimes with the aid of a jury, into the manner of the death of any one who has been killed, or has died suddenly under unusual or suspicious circumstances, or by violence, or while in prison.
- in re - In the affair; in the matter of; concerning, regarding. This is the usual method of entitling a judicial proceeding in which there are not adversary parties, but merely some res concerning which judicial action is to be taken, such as a bankrupt's estate, an estate in probate court, a proposed public highway, etc.
- inter alia – Among other things. A term anciently used in pleading, especially in reciting statutes, where the whole statute was not set forth at length.
- interrogatories - A set or series of written questions drawn up for the purpose of being propounded to a party, witness, or other person having information or interest in the case.
- intestate - To die without a will. A person is said to die intestate when he dies without making a will, or dies without leaving anything to testify what his wishes were with respect to the disposal of his property after his death. Under such circumstances, state law prescribes who will receive the decedent's property. The laws of intestate succession generally favor the surviving spouse, children, and grandchildren and then move to parents and grandparents and to brothers and sisters.
- joint and several liability - Describes the liability of copromisors of the same performance when each of them, individually, has the duty of fully performing the obligation, and the obligee can sue all or any of them upon breach of performance.
- joint tenancy – An estate in fee-simple, fee-tail, for life, for years, or at will, arising by purchase or grant to two or more persons. Joint tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession. The primary incident of joint tenancy is survivorship, by which the entire tenancy on the decease of any joint tenant remains to the survivors, and at length to the last survivor. Type of ownership of real or personal property by two or more persons in which each owns an undivided interest in the whole and attached to which is the right of survivorship. Single estate in property owned by two or more persons under one instrument or act. An estate held by two or more persons jointly, each have an individual interest in the whole and an equal right to its enjoyment during his or her life.
- jurisdiction – A term of comprehensive import embracing every kind of
judicial action. It is the power of the court to decide a matter in
controversy and presupposes the existence of a duly constituted court with
control over the subject matter and the parties. Jurisdiction defines the
powers of courts to inquire into facts, apply the law, make decisions, and
declare judgment. The legal right by which judges exercise their
authority. It exists when court has cognizance of class of cases involved,
proper parties are present, and point to be decided is within powers of
court. Power and authority of a court to hear and determine a judicial
proceeding; and power to render particular judgment in question. The right
and power of a court to adjudicate concerning the subject matter in a
given case. The term may have different meanings in different
contexts. Areas of authority; the
geographic area in which a court has power or types of cases it has power
to hear.
- jury - A certain number of men and women selected according to law, and sworn (jurati) to inquire of certain matters of fact, and declare the truth upon evidence to be laid before them. Grand jury Body of citizens, the number of whom varies from state to state, whose duties consist in determining whether probable cause exists that a crime has been committed and whether an indictment should be returned against one for such a crime. It is an accusatory body and its function does not include a determination of guilt. Petit jury The ordinary jury for the trial of a civil or criminal action; so called to distinguish it from the grand jury.
- jury commissioner - An officer charged with the duty of selecting the names to be put into the jury wheel, or of drawing the panel of jurors for a particular term of court.
- jury instructions - A direction given by the judge to the jury concerning the law of the case; a statement made by the judge to the jury informing them of the law applicable to the case in general or some aspect of it; an exposition or the rules or principles of law applicable to the case or some branch or phase of it, which the jury are bound to accept and apply.
- jury trial - Trial of matter or cause before jury as opposed to trial before judge.
- juvenile - A young person who has not yet attained the age at which he or she should be treated as an adult for purposes of criminal law.
- legal custody –
Restraint of or responsibility for a person according to law, such
as a guardian’s authority over the person or property, or both, of
his ward.
- magistrate's courts - The jurisdiction of these courts of limited jurisdiction differs from state to state. Such may be divisions of courts of general jurisdiction, and may have concurrent jurisdiction with other courts. Commonly their jurisdiction is restricted to the handling of minor offenses, small claims or preliminary hearings.
- material – Important; more or less necessary; having influence or effect; going to the merits; having to do with matter, as distinguished from form. Representation relating to matter which is so substantial and important as to influence party to whom made is “material.”
- may - Word "may" usually is employed to imply permissive, optional or discretional, and not mandatory.
- mediation - Private, informal dispute resolution process in which a neutral third person, the mediator, helps disputing parties to reach an agreement. The mediator has no power to impose a decision on the parties.
- minor - An infant or person who is under the age of legal competence. A term derived from the civil law, which described a person under a certain age as less than so many years. In most states, a person is no longer a minor after reaching the age of 18 (though state laws might still prohibit certain acts until reaching a greater age; e.g. purchase of liquor).
- misdemeanor - Offenses lower than felonies and generally those punishable by fine, penalty, forfeiture or imprisonment otherwise that in penitentiary.
- mistrial – An erroneous, invalid, or nugatory trial. A trial of an action which cannot stand in law because of want of jurisdiction, or a wrong drawing of jurors, or disregard of some other fundamental requisite before or during trial. Trial which has been terminated prior to its normal conclusion. A device used to halt trial proceedings when error is so prejudicial and fundamental that expenditure of further time and expense would be wasteful if not futile. The judge may declare a mistrial because of some extraordinary event (e.g. death of juror, or attorney), for prejudicial error that cannot be corrected at trial, or because of a deadlocked jury. “Mistrial” is equivalent to no trial and is a nugatory trial while “new trial” recognizes a completed trial which for sufficient reasons has been set aside so that the issues may be tried de novo.
- modification - A change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact.
- moot - A subject for argument; unsettled; undecided. A moot point is one not settled by judicial decisions.
- motion - An application made to a court or judge for purpose of obtaining a rule or order directing some act to be done in favor of the applicant.
- motion in limine - A pretrial motion requesting court to prohibit opposing counsel from referring to or offering evidence on matters so highly prejudicial to moving party that curative instructions cannot prevent predispositional effect on jury.
- motion to suppress - Device used to eliminate from the trial of a criminal case evidence which has been secured illegally, generally in violation of the Fourth Amendment (search and seizure), the Fifth Amendment (privilege against self incrimination), or the Sixth Amendment (right to assistance of counsel, right to confrontation etc.), of U.S. Constitution.
- nolle prosequi - A formal entry upon
the record, by the a plaintiff in a civil suit, or, more commonly, by the
prosecuting attorney in a criminal action, by which he declares that he
"will no further prosecute" the case, either as to some of the
defendants, or altogether. The voluntary withdrawal by the prosecuting
attorney of present proceedings on a criminal charge.
- nolo contendere - Latin phrase
meaning "I will not contest it"; a plea in a criminal case which
has a similar legal effect as pleading guilty. Type of plea which may be
entered with leave of court to a criminal complaint or indictment by which
the defendant does not admit or deny the charges, though a fine or
sentence may be imposed pursuant to it. The principal difference between a
plea of guilty and a plea of nolo contendere is that the latter may not be
used against the defendant in a civil action based upon the same acts. As
such, this plea is particularly popular in antitrust actions (e.g. price
fixing) where the likelihood of civil actions following in the wake of a
successful antitrust prosecution is very great. A defendant may plead nolo
contendere only with the consent of the court. Such a plea shall be
accepted by the court only after due consideration of the views of the
parties and the interest of the public in the effective administration of
justice.
- non-judicial day - Day on which process cannot ordinarily issue or be executed or returned, and on which courts do not usually sit.
- not guilty - Plea entered by the accused to criminal charge. If the defendant refuses to plead, the court will enter a plea of not guilty. Also, the form of the verdict in criminal cases where the jury acquits the defendant; i.e. finds him "not guilty."
- nunc pro tunc - Lat. Now for then. A phrase applied to acts allowed to be done after the time when they should be done, with a retroactive effect, i.e., with the same effect as if regularly done.
- paternity suit - A court action to determine whether a person is the father of a child born out of wedlock for the purpose, commonly, of enforcing support obligations.
- per diem - By the day; an allowance or amount of so much per day. Generally, as used in connection with compensation, wages or salary, means pay for a day’s service.
- peremptory challenge - The right to challenge a juror without assigning, or being required to assign, a reason for the challenge. In most jurisdictions each party to an action, both civil and criminal, has a specified number of such challenges and after using all his peremptory challenges he is required to furnish a reason for subsequent challenges.
- plaintiff - A person who brings an action; the party who complains or sues in a civil action and is so named on the record. The prosecution (i.e. State or United States) in a criminal case.
- plea bargaining - The process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge.
- power of attorney - An instrument in writing whereby one person, as principal, appoints another as his agent and confers authority to perform certain specified acts or kinds of acts on behalf of principal.
- preliminary hearing - The hearing by a judge to determine whether a person charged with a crime should be held for trial. Preliminary hearing before magistrate is, basically, a first screening of the charge; its function is not to try the defendant, nor does it require the same degree of proof or quality of evidence as is necessary for an indictment or for conviction at trial. Its function is to determine whether there is sufficient evidence to hold an accused for trial.
- pre-nuptial agreement - One entered into by prospective spouses prior to marriage but in contemplation and in consideration thereof; by it, the property or other financial rights of one or both of the prospective spouses are determined or are secured to one or both of them or to their children.
- preponderance of evidence - As standard of proof in civil cases, is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not. Preponderance of evidence may not be determined by the number of witnesses, but by the greater weight of all evidence, which does not necessarily mean the greater number of witnesses, but opportunity for knowledge, information possessed, and manner of testifying determines the weight of testimony.
- pre-sentence report - The report prepared from the presentence investigation, which is designed to assist the judge in passing sentence on a convicted defendant. Presentence reports vary in scope and focus, but typically contain at least the following items: (1) complete description of the situation surrounding the criminal activity; (2) offender's educational background; (3) offender's employment background; (4) offender's social history; (5) residence history of the offender; (6) offender's medical history; (7) information about environment to which the offender will return; (8) information about any resources available to assist the offender; (9) probation officer's view of the offender's motivations and ambitions; (10) full description of the defendant's criminal record; and (11) recommendation as to disposition.
- presumption of innocence - A hallowed principle of criminal law to the effect that the government has the burden of proving every element of a crime beyond a reasonable doubt and that the defendant has no burden to prove his innocence.
- pre-trial conference - Procedural device used prior to trial to narrow issues to be tried, to secure stipulations as to matters and evidence to be heard, and to take all other steps necessary to aid in the disposition of the case.
- prima facie evidence - Evidence good and sufficient on its face. Such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient.
- probable cause - Reasonable cause; having more evidence for than against.
- probable cause hearing - That procedural step in the criminal process at which the judge or magistrate decides whether a complaint should issue or a person should be bound over to a grand jury on a showing of probable cause.
- probate - Court procedure by which a will is proved to be valid or invalid; though in current usage this term has been expanded to generally refer to the legal process wherein the estate of a decedent is administered. Generally, the probate process involves collecting a decedent's assets, liquidating liabilities, paying necessary taxes, and distributing property to heirs. These activities are carried out by the executor or administrator of the estate, usually under the supervision of the probate court or other court of appropriate jurisdiction.
- probation - Sentence imposed for commission of crime whereby a convicted criminal offender is released into the community under the supervision of a probation officer in lieu of incarceration. It is not a matter of right, but rather is an act of grace and clemency available only to those defendants found eligible by the court. In determining whether the defendant is entitled to a sentence of probation, the court looks to such matters as the nature and circumstances of the offense, the history and characteristics of the defendant, and the need for the sentence imposed.
- pro bono - Lit. For the good; used to describe work or services (e.g. legal services) done or performed free of charge.
- pro se - For one's own behalf; in person. Appearing for oneself, as in the case of one who does not retain a lawyer and appears for himself in court.
- prosecuting attorney - The name of the public officer who is appointed or elected in each judicial district, circuit, or county, to conduct criminal prosecutions on behalf of the State or people.
- protection order - Order issued by court in domestic violence or abuse cases to, for example, protect spouse from physical harm by other spouse or child from abuse by parent(s). Such order may be granted immediately by court in cases where immediate and present danger of violence or abuse is shown. Such emergency orders are granted in ex parte type proceeding and are temporary in duration pending full hearing by court with all parties involved.
- public defender - An attorney appointed by a court or employed by a government agency whose work consists primarily in defending indigent defendants in criminal cases.
- quash - To overthrow; to abate; to vacate; to annul; to make void; e.g. to quash an indictment.
- quiet title action – A proceeding to establish the plaintiff’s title to land by bringing into court an adverse claimant and there compelling him either to establish his claim or be forever after estopped from asserting it.
- reasonable cause - As basis for arrest without warrant, is such state of facts as would lean man of ordinary care and prudence to believe and conscientiously entertain honest and strong suspicion that person sought to be arrested is guilty of committing a crime.
- reasonable doubt - The standard used to determine the guilt or innocence of a person criminally charged. To be guilty of a crime, one must be proved guilty "beyond a reasonable doubt." Reasonable doubt is such a doubt as would cause prudent men to hesitate before acting in matters of importance to themselves.
- remand - To send back. The act of an appellate court when it sends a case back to the trial court and orders the trial court to conduct limited new hearings or an entirely new trial, or to take some further action. When a prisoner is brought before a judge on habeas corpus, for the purpose of obtaining liberty, the judge hears the case, and either discharges him or remands him.
- remittitur - The procedural process by which an excessive verdict of the jury is reduced. If money damages awarded by a jury are grossly excessive as a matter of law, the judge may order the plaintiff to remit a portion of the award.
- respondent - In appellate practice, the party who contends against an appeal; the party against whom the appeal is taken, i.e. the appellee.
- restraining order - An order in the nature of an injunction which may issue upon filing of an application for an injunction forbidding the defendant from doing the threatened act until a hearing on the application can be had. It is distinguishable from an injunction, in that the former is intended only as a restraint until the propriety of granting an injunction can be determined and it does no more than restrain the proceeding until such determination.
- retainer - In the practice of law, when a client hires an attorney to represent him, the client is said to have retained the attorney. This act of employment is called the retainer. The retainer agreement between the client and attorney sets forth the nature of services to be performed, costs, expenses, and related matters.
- retaining fee - A fee given to counsel on engaging his services.
- satisfaction of judgment - A document such as an execution enforced by the judgment creditor and indicating that the judgment has been paid.
- search warrant - An order in writing, issued by a justice or other magistrate, in the name of the state, directed to a sheriff, constable, or other officer, authorizing him to search for and seize any property that constitutes evidence of the commission of a crime, contraband, the fruits of crime, or things otherwise criminally possessed; or, property designed or intended for use or which is or has been used as the means of committing a crime. A warrant may be issued upon an affidavit or sworn oral testimony.
- seizure - The act of taking possession of property, e.g., for a violation of law or by virtue of an execution of a judgment. The act performed by an officer of the law, under the authority and exigence of a writ, in taking into the custody of the law the property, real or personal, of a person against whom the judgment of a competent court has passed, condemning him to pay a certain sum of money, in order that such property may be sold, by authority and due course of law, to satisfy the judgment.
- sentence - The judgment formally pronounced by the court or judge upon the defendant after his conviction in a criminal prosecution, imposing the punishment to be inflicted, usually in the form of a fine, incarceration, or probation.
- sequester - v. To separate or isolate; e.g. to sequester jurors is to isolate them from contact with the public during the course of a sensational trial.
- set aside – To reverse, vacate, cancel,
annul, or revoke a judgment, order, etc.
- settlement - Act or process of adjusting or determining; an adjusting; an adjustment between persons concerning their dealings or difficulties; an agreement by which parties have disputed matters between them reach or ascertain what is coming from one to the other; arrangement of difficulties; composure of doubts or differences; determination by agreement; and liquidation.
- shall - As used in statutes, contracts, or the like, this word is generally imperative or mandatory.
- side-bar - Refers to position at side of the judge's bench where trial counsel and judge discuss matters out of hearing of jury.
- simple - Pure, unmixed; not compounded; not
aggravated; not evidenced by sealed writing or record. As to simple Assault; Average; Battery; Blockade; Bond; Confession;
Contract; Deposit; Imprisonment; Interest; Larceny; Obligation; and Trust.
- simple assault - An assault unaccompanied by any circumstances of aggravation. A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon; or (c) attempts by physical menace to put another in fear if imminent serious bodily injury. An unlawful attempt coupled with present ability to commit violent injury on person of another.
- small claims court - A special court which provides expeditious, informal, and inexpensive adjudication of small claims. Jurisdiction of such courts is usually limited to collection of small debts and accounts. Proceedings are very informal with parties normally representing themselves.
- statute - n. A formal written enactment of a legislative body, whether federal, state, city, or county.
- stay - n. A stopping; the act of arresting a judicial proceeding by the order of a court. A stay is a suspension of the case or some designated proceedings within it.
- stipulation - A material condition, requirement, or article in an agreement. The name given to any agreement made by the attorneys engaged on opposite sides of a cause (especially if in writing), regulating any matter incidental to the proceedings or trial, which falls within their jurisdiction.
- striking a jury - The selecting or nominating a jury out of the whole number returned as jurors on the panel. It is especially used of the selection of a special jury, where a panel is prepared by the proper officer, and the parties, in turn, strike off a certain number of names, until the list is reduced to twelve. A jury thus chosen is called a "struck jury."
- subpoena - A subpoena is a command to appear at a certain time and place to give testimony upon a certain matter. A subpoena duces tecum requires production of books, papers and other things.
- summary judgment - Procedural device available for prompt and expeditious disposition of controversy without trial when there is no dispute as to either material fact or inferences to be drawn from undisputed facts, or if only question of law is involved. Federal Rule of Civil Procedure 56 permits any party to a civil action to move for a summary judgment on a claim, counterclaim, or cross-claim when he believes that there is no genuine issue of material fact and that he is entitled to prevail as a matter of law. The motion may be directed toward all or part of a claim or defense and it may be made on the basis of the pleadings or other portions of the record in the case or it may be supported by affidavits and a variety of outside material.
- summons - Instrument used to commence a civil action or special proceeding and is a means of acquiring jurisdiction over a party. In criminal law, an alternative to arrest generally used for petty or traffic offenses; a written order notifying an individual that he or she has been charged with an offense. A summons directs the person to appear in court to answer the charge.
- suppression of evidence - The ruling of a trial judge to the effect that evidence sought to be admitted should be excluded because it was illegally acquired.
- suspect classifications - The Court will employ the “strict scrutiny” standard under the Equal Protection Clause in determining the legitimacy of classifications that are based upon a trait which itself seems to contravene established constitutional principles so that any purposeful use of the classification may be deemed “suspect.” Examples include race, sex, national origin and alienage (with exceptions).
- suspended sentence - A conviction of a crime followed by a sentence that is given formally, but not actually served. A suspended sentence in criminal law means that in effect that defendant is not required at the time sentence is imposed to serve the sentence.
- tenant in common –
Tenants who hold the same land together by several and distinct titles,
but by unity of possession, because none knows his own severalty, and therefore
they all occupy promiscuously. Where two or more hold the same land, with
interests accruing under different titles, or accruing under the same
title, but at different periods, or conferred by words of limitation
importing that the grantees are to take in distinct shares.
- testify - To bear witness; to give evidence as a witness; to make a solemn declaration, under oath or affirmation, in a judicial inquiry, for the purpose of establishing or proving some fact.
- testimony - Evidence given by a competent witness under oath or affirmation; as distinguished from evidence derived from writings, and other sources.
- third party complaint - A complaint filed by the defendant against a third-party (i.e., a person not presently a party to the lawsuit). This complaint alleges that the third party is or may be liable for all or part of the damages which the plaintiff may win from the defendant.
- trial - A judicial examination and determination of issues between parties to action, whether they be issues of law or fact, before a court that has jurisdiction. Trial by court or judge Trial before judge alone, in contrast to trial before jury and judge. A jury waived trial. Trial by jury A trial in which the issues of fact are to be determined by the verdict of the jury, duly selected, impaneled, and sworn. Trial de novo A new trial or retrial had in which the whole case is retried as if no trial whatsoever had been had in the first instance. A trial of the entire case anew, both on law and on facts
- undue
influence – Persuasion,
pressure, or influence short of actual force, but stronger than mere advice,
that so overpowers the dominated party's free will or judgment that he or
she cannot act intelligently and voluntarily, but acts, instead, subject
to the will or purposes of the dominating party. Any improper or wrongful
constraint, machination, or urgency of persuasion whereby the will of a
person is overpowered and he is induced to do or forbear
an act which he would not do or would do if left to act freely. Influence
which deprives person influenced of free agency or destroys freedom of his
will and renders it more the will of another than his own. Misuse of
position of confidence or taking advantage of a person's weakness,
infirmity, or distress to change improperly that person's actions or
decisions. Term refers to conduct by which a person, through his power
over mind of testator, makes the latter's desires conform to his own,
thereby overmastering the volition of the testator. Parrisella v.
Fotopulos, 111
- unlawful detainer – The unjustifiable retention of the possession of real property by one whose original entry was lawful and of right, but whose right to the possession has terminated and who refuses to quit, as in the case of a tenant holding over after the termination of the lease and in spite of a demand for possession by the landlord. Actions of “unlawful detainer” concern only right of possession of realty, and differ from ejectment in that no ultimate question of title or estate can be determined.
- vacate - To annul; to set aside; to cancel or rescind. To render an act void; as, to vacate an entry of record, or a judgment. As applied to a judgment or decree it is not synonymous with "suspend" which means to stay enforcement of judgment or decree.
- venue - Formerly spelled visne. The particular county, or geographical area, in which a court with jurisdiction may hear and determine a case.
- verdict - From the Latin "veredictum," a true declaration. The formal decision or finding made by a jury, impaneled and sworn for the trial of a cause, and reported to the court (and accepted by it), upon the matters or questions duly submitted to them upon the trial. In criminal cases the verdict shall be unanimous, and shall be returned by the jury to the judge in open court. In civil cases the parties may stipulate that a verdict of a stated majority of the jurors shall be taken as a verdict of the jury. Directed verdict Verdict ordered by the judge as a matter of law when he rules that the party with the burden of proof has failed to make out a prima facie case. The judge under these circumstances orders the jury to return a verdict for the other party. Motion for judgment of acquittal is used in place of directed verdict in criminal cases. Split verdict A verdict in which one party prevails on some claims in issue while the other party prevails on other claims. In criminal law, a verdict finding a defendant guilty of one charge but innocent of another, or finding one defendant guilty while acquitting a codefendant.
- versus - Lat. Against. In the title of a cause, the name of the plaintiff is put first, followed by the word "versus," then the defendant's name. The word is commonly abbreviated "vs." or "v."
- voir dire - L. Fr. To speak the truth. This phrase denotes the preliminary examination which the court and attorneys make of the prospective jurors to determine their qualification and suitability to serve as jurors.
- waiver - The intentional or voluntary relinquishment of a known right or such conduct as warrants as inference of the relinquishment of such right. The term is often used in the context of waiving one's right to counsel (for example, Miranda warning) or waiving certain steps in the criminal justice process (for example the preliminary hearing). Essential to waiver is the voluntary consent of the individual.
- warrant - n. An order by which the drawer authorizes one person to pay a particular sum of money. Arrest warrant A written order of the court which is made on behalf of the state, or United States, and is based upon a complaint issued pursuant to statute and/or court rule and which commands law enforcement officer to arrest a person and bring him before magistrate.
- will - n. Wish; desire; pleasure; inclination; choice; the faculty of conscious, and especially of deliberate, action. An instrument by which a person makes a disposition of his real and personal property, to take effect after his death, and which by its own nature is ambulatory and revocable during his lifetime. Holographic will One that is entirely written, dated, and signed by the testator himself. Sometimes spelled "olographic." Joint will One where the same instrument is made the will of two or more persons and is jointly signed by them. Living will A document which governs the withholding or withdrawal of life-sustaining treatment from an individual in the event of an incurable or irreversible condition that will cause death within a relatively short time, and when such person is no longer able to make decisions regarding his or her medical treatment. Reciprocal will One in which two or more persons make mutual or reciprocal provisions in favor of each other. Also known as a "mutual," "double," or "counter" will.
- without prejudice - Where an offer or admission is made "without prejudice," or a motion is denied or a suit dismissed "without prejudice," it is meant as a declaration that no rights or privileges of the party concerned are to be considered as thereby waived or lost except in so far as may be expressly conceded or decided. A dismissal "without prejudice" allows a new suit to be brought on the same cause of action.
- with prejudice - Phrase "with prejudice," as used in context in which an action is dismissed with prejudice, means an adjudication on merits and final disposition, barring right to bring or maintain an action on same claim or cause. Addition of the words "with prejudice" to order granting motion to dismiss complaint indicates finality for purposes of appeal.
- witness - n. In general, one who, being present, personally sees or perceives a thing; a beholder, spectator, or eyewitness. One who is called to testify before a court. Character witness In criminal cases, the accused is entitled to use character evidence in presenting defense. The accused is entitled to show character traits inconsistent with the crime charged. Material witness In criminal trial, a witness whose testimony is crucial to either the defense or prosecution. Witness to will One who has attested the will by subscribing his name thereto. The trend in state statutes is to require two witnesses to attest the signing of the will.
- writ - A written court order or a judicial process, directing that a sheriff or other judicial officer do what is commanded by the writ; or giving authority and commission to have it done.
- writ of attachment - An order to seize a debtor's property so as to secure the claim of a creditor.
- writ of execution - A writ to put in force the judgment or decree of a court. Formal written command of a court directing a sheriff or other official officer to enforce a judgment through process of execution.