Adams Law Office PLLC
2 W. 6th St. Suite 500
Tulsa, Oklahoma 74119
918.587.8700
Serving Tulsa County, Creek County, Craig County, McIntosh County, Mayes County, Muskogee County, Okmulgee County, Osage County, Pawnee County, Payne County, Rogers County, Wagoner County, and Washington County.
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Glossary of some commonly used legal terms
Sometimes deciphering legal terms can be like learning a new language. Below are some commonly used terms and their definitions.
Addict - means any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction.
Accessory - a second-string player who helps in the commission of a crime by driving the getaway car, providing the weapons, assisting in the planning, providing an alibi, or hiding the principal offender after the crime. Usually the accessory is not immediately present during the crime, but must be aware that the crime is going to be committed or has been committed. Usually an accessory's punishment is less than that of the main perpetrator, but a tough jury or judge may find the accessory just as responsible.
Acquit - what a jury or judge sitting without a jury does at the end of a criminal trial if the jury or judge finds the accused defendant not guilty.
Acquittal - what an accused criminal defendant receives if he/she is found not guilty. It is a verdict (a judgment in a criminal case) of not guilty.
Adjudication - the act of giving a judicial ruling such as a judgment or decree.
Admissible evidence - evidence which the trial judge finds is useful in helping the trier of fact (a jury if there is a jury, otherwise the judge), and which cannot be objected to on the basis that it is irrelevant, immaterial, or violates the rules against hearsay and other objections. Sometimes the evidence which a person tries to introduce has little relevant value (usually called probative value) in determining some fact, or prejudice from the jury's shock at gory details may outweigh that probative value. In criminal cases the courts tend to be more restrictive on letting the jury hear such details for fear they will result in "undue prejudice." Thus, the jury may only hear a sanitized version of the facts in prosecutions involving violence.
Admission - a statement made by a party to a lawsuit or a criminal defendant, usually prior to trial, that certain facts are true. An admission is not to be confused with a confession of blame or guilt, but admits only some facts.
Agent - means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, or dispenser; except that such term does not include a common or contract carrier, public warehouseman, or employee of the carrier or warehouseman, when acting in the usual and lawful course of the carrier's or warehouseman's business.
Aggravated assault - the crime of physically attacking another person which results in serious bodily harm and/or is made with a deadly or dangerous weapon such as a gun, knife, sword, ax or blunt instrument. Aggravated assault is usually a felony punishable by a term in state prison.
Alias - a name used other than the given name of a person or reference to that other name, which may not be an attempt to hide his/her identity (such as Harry for Harold, initials or a maiden name).
Alibi - an excuse used by a person accused or suspected of a crime.
Allegation - a statement of claimed fact contained in a complaint (a written pleading filed to begin a lawsuit), a criminal charge, or an affirmative defense (part of the written answer to a complaint). Until each statement is proved it is only an allegation. Some allegations are made "on information and belief" if the person making the statement is not sure of a fact.
Amicus curiae - Latin for "friend of the court," a party or an organization interested in an issue which files a brief or participates in the argument in a case in which that party or organization is not one of the litigants. For example, the American Civil Liberties Union often files briefs on behalf of a party who contends his constitutional rights have been violated, even though the claimant has his own attorney. Friends of the Earth or the Sierra Club may file a supporting amicus curiae brief in an environmental action in which they are not actually parties. Usually the court must give permission for the brief to be filed and arguments may only be made with the agreement of the party the amicus curiae is supporting, and that argument comes out of the time allowed for that party's presentation to the court.
Anabolic steroid - means any drug or hormonal substance, chemically and pharmacologically related to testosterone
made legally based on a warrant issued by a court after receiving a sworn statement of probable cause to believe there has been a crime committed by this person, for an apparent crime committed in the presence of the arresting officer, or upon probable cause to believe a crime has been committed by that person. Once the arrest has been made, the officer must give the arrestee his/her rights ("Miranda rights") at the first practical moment, and either cite the person to appear in court or bring him/her in to jail.
Arson - the felony crime of intentionally burning a house or other building. The perpetrators range from mentally ill pyromaniacs to store owners hoping to get insurance proceeds. Historically, arson meant just the burning of a house, but now covers any structure. A death resulting from arson is murder.
Assault - the threat or attempt to strike another, whether successful or not, provided the target is aware of the danger. The assaulter must be reasonably capable of carrying through the attack. In some states if the assault is with a deadly weapon (such as sniping with a rifle), the intended victim does not need to know of the peril. Other state laws distinguish between different degrees (first or second) of assault depending on whether there is actual hitting, injury or just a threat. "Aggravated assault" is an attack connected with the commission of another crime, such as beating a clerk during a robbery or a particularly vicious attack. 2) n. the act of committing an assault, as in "there was an assault down on Third Avenue." Assault is both a criminal wrong, for which one may be charged and tried, and civil wrong for which the target may sue for damages due to the assault, including for mental distress.
Attempt - to actually try to commit a crime and have the ability to do so. This means more than just thinking about doing a criminal act or planning it without overt action. It also requires the opportunity and ability. Attempts can include attempted murder, attempted robbery, attempted rape, attempted forgery, attempted arson, and a host of other crimes. The person accused cannot attempt to commit murder with an unloaded gun or attempt rape over the telephone. The attempt becomes a crime in itself, and usually means one really tried to commit the crime, but failed through no fault of himself or herself. Example: if a husband laces his wife's cocktail with cyanide, it is no defense that by chance the intended victim decided not to drink the deadly potion. One defendant claimed he could not attempt rape in an old Model A coupe because it was too cramped to make the act possible. The court threw out this defense. Sometimes a criminal defendant is accused of both the crime (e.g. robbery) and the attempt in case the jury felt he tried but did not succeed.
Attorney-client privilege - the requirement that an attorney may not reveal communications, conversations and letters between himself/ herself and his/her client, under the theory that a person should be able to speak freely and honestly with his/her attorney without fear of future revelation. In a trial, deposition, and written questions (interrogatories), the attorney is required and the client is entitled to refuse to answer any question or produce any document which was part of the attorney-client contact. The problem sometimes arises as to whether the conversation was in an attorney-client relationship. If a man tells his neighbor who happens to be an attorney that he embezzled funds, is he doing so while seeking legal advice or just chatting over the fence (which is the test)? If a document was prepared as part of the legal preparation for a client, it usually is a "work product" and is also privileged. Similar privileges exist between pastor and parishioner and doctor and patient.
Appeal - to ask a higher court to reverse the decision of a trial court after final judgment or other legal ruling. After the lower court judgment is entered into the record, the losing party (appellant) must file a notice of appeal, request transcripts or other records of the trial court (or agree with the other party on an "agreed-upon statement"), file briefs with the appeals court citing legal reasons for over-turning the ruling, and show how those reasons (usually other appeal decisions called "precedents") relate to the facts in the case. No new evidence is admitted on appeal, for it is strictly a legal argument. The other party (Respondent or appellee) usually files a responsive brief countering these arguments. The appellant then can counter that response with a final brief. If desired by either party, they will then argue the case before the appeals court, which may sustain the original ruling, reverse it, send it back to the trial court, or reverse in part and confirm in part.
Appear - for a party or an attorney to show up in court.
Argumentative - the characterization of a question asked by the opposing attorney which does not really seek information but challenges the truthfulness or credibility of the witness. Since such a question is not allowable, often it is the basis of an objection before the question is answered, much like irrelevant, immaterial or hearsay. The definition of argumentative is somewhat vague, and different judges hear it differently. A simple example would be "Do you believe you should pay your mistress' rent before catching up with delinquent child support?" or "Do you think that bloody glove just walked over there?"
Arraignment - the hearing in which a person charged with a crime is arraigned in his or her first appearance before a judge. This is the initial appearance of a criminal defendant (unless continued from an earlier time) in which all the preliminaries are taken care of.
Arrest - to take or hold a suspected criminal with legal authority, as by a law enforcement officer.
Back-to-back life sentences - slang for consecutive life terms imposed by a judge when there were two crimes committed by the defendant, both of which can result in punishment of a life term, such as two murders, or a murder and a rape involving aggravated assault. The purpose of making the sentences subsequent ("back-to-back") and not "concurrent" (served at the same time) is to lessen the chance of parole, since if parole were permissible after 25 years, the defendant would then begin the second "life" sentence and would wait another 25 years for a parole hearing.
Bail - the money or bond put up to secure the release of a person who has been charged with a crime. For minor crimes bail is usually set by a schedule which will show the amount to be paid before any court appearance (arraignment). For more serious crimes the amount of bail is set by the judge at the suspect's first court appearance. The theory is that bail guarantees the appearance of the defendant in court when required. While the Constitution guarantees the right to reasonable bail, a court may deny bail in cases charging murder or treason, or when there is a danger that the defendant will flee or commit mayhem. In some traffic matters the defendant may forfeit the bail by non-appearance since the bail is equivalent to the fine. 2) v. to post money or bond to secure an accused defendant's release. This is generally called "bailing out" a prisoner.
Battery - the actual intentional striking of someone, with intent to harm, or in a "rude and insolent manner" even if the injury is slight. Negligent or careless unintentional contact is not battery no matter how great the harm. Battery is a crime and also the basis for a lawsuit as a civil wrong if there is damage. It is often coupled with "assault" (which does not require actual touching) in "assault and battery."
Bench warrant - a warrant issued by a judge, often to command someone to appear before the judge, with a setting of an amount of bail to be posted. Often a bench warrant is used in lesser matters to encourage the party to appear in court.
Beyond a reasonable doubt - part of jury instructions in all criminal trials, in which the jurors are told that they can only find the defendant guilty if they are convinced "beyond a reason- able doubt" of his or her guilt. Sometimes referred to as "to a moral certainty," the phrase is fraught with uncertainty as to meaning, but try: "you better be damned sure." By comparison it is meant to be a tougher standard than "preponderance of the evidence," used as a test to give judgment to a plaintiff in a civil (non-criminal) case.
Bifurcation - the act of a judge in dividing issues before a trial so that one issue will be ruled upon before hearing evidence on the other issue.
Breaking and entering - 1) the criminal act of entering a residence or other enclosed property through the slightest amount of force (even pushing open a door), without authorization. If there is intent to commit a crime, this is burglary. If there is no such intent, the breaking and entering alone is probably at least illegal trespass, which is a misdemeanor crime. 2) the criminal charge for the above.
Brief - a written legal argument, usually in a format prescribed by the courts, stating the legal reasons for the suit based on statutes, regulations, case precedents, legal texts, and reasoning applied to facts in the particular situation. A brief is submitted to lay out the argument for various petitions and motions before the court (sometimes called "points and authorities"), to counter the arguments of opposing lawyers, and to provide the judge or judges with reasons to rule in favor of the party represented by the brief writer.
Burglary - the crime of breaking and entering into a structure for the purpose of committing a crime. No great force is needed (pushing open a door or slipping through an open window is sufficient) if the entry is unauthorized. Contrary to common belief, a burglary is not necessarily for theft. It can apply to any crime, such as assault or sexual harassment, whether the intended criminal act is committed or not. Originally under English common law burglary was limited to entry in residences at night, but it has been expanded to all criminal entries into any building, or even into a vehicle.
Capital offense - any criminal charge which is punishable by the death penalty, called "capital" since the defendant could lose his/her head (Latin for caput). Crimes punishable by death vary from state to state and country to country. In 38 American states these offenses may include first degree murder (premeditated), murder with special circumstances (such as intentional, multiple, involved with another crime, with guns, of a police officer, or a repeat offense), and rape with additional bodily harm, and the federal crime of treason. A charge of a capital offense usually means no bail will be allowed.
Capital punishment - execution (death) for a capital offense. The U.S. Supreme Court has vacillated on the application of capital punishment, ruling in the Furman decision (1972) that capital punishment was a violation of the Eighth Amendment's prohibition against "cruel and unusual punishment" in certain cases, and then reinstated it in 1976. New York, which once led the nation in executions, abolished capital punishment but reinstated it in 1995. There is no capital punishment in Alaska, Hawaii, Iowa, Kansas, Massachusetts, Maine, Minnesota, Michigan, North Dakota, Rhode Island, Vermont, West Virginia and the District of Columbia. There have been no federal executions in more than 30 years. Texas, Florida, Louisiana, Georgia, Virginia, and Alabama have held the most executions in recent years. Means of capital punishment used in the United States include lethal injection, electrocution, gas chamber, hanging, and firing squad. All capital offenses require automatic appeals, which means that approximately 2,500 men and women are presently on "death row" awaiting their appeals or death.
Carnal knowledge - from Latin carnalis for "fleshly:" sexual intercourse between a male and female in which there is at least some slight penetration of the woman's vagina by the man's penis. It is legally significant in that it is a necessary legal characteristic or element of rape, child molestation, or consensual sexual relations with a female below the age of consent ("statutory rape"). Age of consent varies from 14 to 18, depending upon the state.
Case law - reported decisions of appeals courts and other courts which make new interpretations of the law and, therefore, can be cited as precedents. These interpretations are distinguished from "statutory law," which is the statutes and codes (laws) enacted by legislative bodies; "regulatory law," which is regulations required by agencies based on statutes; and in some states, the common law, which is the generally accepted law carried down from England. The rulings in trials and hearings which are not appealed and not reported are not case law and, therefore, not precedent or new interpretations.
Challenge for cause - a request that a prospective juror be dismissed because there is a specific and forceful reason to believe the person cannot be fair, unbiased or capable of serving as a juror. Causes include acquaintanceship with either of the parties, one of the attorneys or a witness, the potential juror's expression during voir dire (questioning of the prospective jurors) of inability to be unbiased due to prior experience in a similar case (having been convicted of drunk driving, being a battered wife, etc.), any obvious prejudice, or inability to serve (such as being mentally disturbed). The judge determines if the person shall be dismissed. Challenges and dismissal for cause differ from peremptory challenges, which each side may use to dismiss potential jurors without stating any reason.
Charge - 1) in a criminal case, the specific statement of what crime the party is accused (charged with) contained in the indictment or criminal complaint. 2) in jury trials, the oral instructions by the judge to the jurors just before the jury begins deliberations. This charge is based on jury instructions submitted by attorneys on both sides and agreed upon by the trial judge.
Closing argument - the final argument by an attorney on behalf of his/her client after all evidence has been produced for both sides. The lawyer for the plaintiff or prosecution (in a criminal case) makes the first closing argument, followed by counsel for the defendant, and then the plaintiff's attorney can respond to the defense argument. Unlike the "opening statement," which is limited to what is going to be proved, the "closing argument" may include opinions on the law, comment on the opposing party's evidence, and usually requests a judgment or verdict (jury's decision) favorable to the client.
Commutation - the act of reducing a criminal sentence resulting from a criminal conviction by the executive clemency of the Governor of the state, or President of the United States in the case of federal crimes. This is not the same as a pardon, which wipes out the conviction or the actual or potential charge (as when President Gerald R. Ford pardoned ex-President Richard M. Nixon even without charges having been officially made-a rare instance). A pardon implies either that the conviction was wrong, that there has been complete rehabilitation of the party, or that he/she has lived an exemplary life for many years and deserves to have his/her name cleared in old age. Commutation implies the penalty was excessive or there has been rehabilitation, reform or other circumstances such as good conduct or community service. Commutation is sometimes used when there is evidence that the defendant was not guilty, but it would prove embarrassing to admit an outright error by the courts.
Competent - sufficiently mentally able to stand trial, if he/she understands the proceedings and can rationally deal with his/her lawyer. This is often broadly interpreted by psychiatrists whose testimony may persuade a court that a party is too psychotic to be tried. If the court finds incompetency then the defendant may be sent to a state mental facility until such time as he/she regains sanity. At that time a trial may be held, but this is rare
Concealed weapon - a weapon, particularly a handgun, which is kept hidden on one's person, or under one's control (in a glove compartment or under a car seat). Carrying a concealed weapon is a crime in most states unless the party with the weapon is a law enforcement officer or has a permit to carry a concealed weapon. A permit is usually issued by local law enforcement under guidelines of need-such as being a carrier of large amounts of cash in business-and having a record free of convictions, arrests or improper activity.
Concurrent sentences - sentences for more than one crime which are to be served at one time. When a criminal defendant is convicted of two or more crimes, a judge sentences him/her to a certain period of time for each crime. Then out of compassion, leniency, plea bargaining or the fact that the several crimes are interrelated, the judge will rule that the sentences may all be served at the same time, with the longest period controlling.
Confess - in criminal law, to voluntarily state that one is guilty of a criminal offense. This admission may be made to a law enforcement officer or in court either prior to or upon arrest, or after the person is charged with a specific crime. A confession must be truly voluntary (not forced by threat, torture, or trickery) and cannot be admitted in trial unless the defendant has been given the so-called Miranda warnings at the time of arrest or when it is clear he/she is the prime suspect, all based on the Fifth Amendment prohibition against self-incrimination. The Miranda warnings are: the right to remain silent, the right to have an attorney present and that one can be appointed, and that his/her statements may be used against the defendant in court.
Consent - a voluntary agreement to another's proposition.
Conspiracy - when people work together by agreement to commit an illegal act. A conspiracy may exist when the parties use legal means to accomplish an illegal result, or to use illegal means to achieve something that in itself is lawful. To prove a conspiracy those involved must have agreed to the plan before all the actions have been taken, or it is just a series of independent illegal acts. A conspiracy can be criminal for planning and carrying out illegal activities.
Contempt of court - there are essentially two types of contempt: a) being rude, disrespectful to the judge or other attorneys or causing a disturbance in the courtroom, particularly after being warned by the judge; b) willful failure to obey an order of the court. This latter can include failure to pay child support or alimony. The court's power to punish for contempt (called "citing" one for contempt) includes fines and/or jail time (called "imposing sanctions"). Incarceration is generally just a threat and if imposed, usually brief. Since the judge has discretion to control the courtroom, contempt citations are generally not appealable unless the amount of fine or jail time is excessive. "Criminal contempt" involves contempt with the aim of obstruction of justice, such as threatening a judge or witness or disobeying an order to produce evidence.
Continuance - a postponement of a date of a trial, hearing or other court appearance to a later fixed date by order of the court, or upon a stipulation (legal agreement) by the attorneys and approved by the court or (where local rules permit) by the clerk of the court. In general courts frown on too many continuances and will not allow them unless there is a legitimate reason.
Controlled substance - a drug which has been declared by federal or state law to be illegal for sale or use, but may be dispensed under a physician's prescription. The basis for control and regulation is the danger of addiction, abuse, physical and mental harm (including death), the trafficking by illegal means, and the dangers from actions of those who have used the substances.
Convict - to find guilty of a crime after a trial. 2) n. a person who has been convicted of a felony and sent to prison.
Count - each separate statement in a complaint which states a cause of action which, standing alone, would give rise to each separate charge in a criminal action. In a criminal case each count would be a statement of a different alleged crime.
Culpable - sufficiently responsible for criminal acts or negligence to be at fault and liable for the conduct. Sometimes culpability rests on whether the person realized the wrongful nature of his/her actions and thus should take the blame.
Cumulative sentence - when a criminal defendant has been found guilty of more than one offense, the judge may sentence him/her to prison for successive terms for each crime (e.g. five years for burglary, three years for possession of stolen property, which add up and accumulate to eight years). The other choice would be to sentence the defendant to a concurrent sentence, in which the lesser term would be merged with the longer, they would run at the same time, and thus result in a five-year term in the example.
Custody - law enforcement officials' act of holding an accused or convicted person in criminal proceedings, beginning with the arrest of that person.
Dangerous weapon - any gun, knife, sword, crossbow, slingshot or other weapon which can cause bodily harm to people (even though used for target shooting). If a person is harmed by such a weapon that is left unguarded, improperly used, or causes harm even to a person who plays with it without permission, the victim or his/her survivors can sue for negligence and possibly win a judgment.
Date rape - forcible sexual intercourse by a male acquaintance of a woman, during a voluntary social engagement in which the woman did not intend to submit to the sexual advances and resisted the acts by verbal refusals, denials or pleas to stop, and/or physical resistance. The fact that the parties knew each other or that the woman willingly accompanied the man are not legal defenses to a charge of rape.
Deadly weapon - any weapon which can kill. This includes not only weapons which are intended to do harm like a gun or knife, but also blunt instruments like clubs, baseball bats, monkey wrenches, an automobile or any object which actually causes death.
Defendant - the party sued in a civil lawsuit or the party charged with a crime in a criminal prosecution. In some types of cases (such as divorce) a defendant may be called a respondent.
Deliver or delivery - mean the actual, constructive, or attempted transfer of a controlled substance or a listed chemical, whether or not there exists an agency relationship.
Depressant or stimulant substance - means -
(A) a drug which contains any quantity of barbituric acid or any of the salts of barbituric acid; or
(B) a drug which contains any quantity of
(i) amphetamine or any of its optical isomers;
(ii) any salt of amphetamine or any salt of an optical isomer of amphetamine; or (iii) any substance which the Attorney General, after investigation, has found to be, and by regulation designated as, habit forming because of its stimulant effect on the central nervous systems; or
(C) lysergic acid diethylamide; or
(D) any drug which contains any quantity of a substance which the Attorney General, after investigation, has found to have, and by regulation designated as having, a potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect.
Detoxification treatment - means the dispensing, for a period not in excess of one hundred and eighty days, of a narcotic drug in decreasing doses to an individual in order to alleviate adverse physiological or psychological effects incident to withdrawal from the continuous or sustained use of a narcotic drug and as a method of bringing the individual to a narcotic drug-free state within such period.
Direct examination - the first questioning of a witness during a trial or deposition (testimony out of court), as distinguished from cross-examination by opposing attorneys and redirect examination when the witness is again questioned by the original attorney.
Dismissal - 1) the act of voluntarily terminating a criminal prosecution or a lawsuit or one of its causes of action by one of the parties. 2) a judge's ruling that a lawsuit or criminal charge is terminated. 3) an appeals court's act of dismissing an appeal, letting the lower court decision stand. 4) the act of a plaintiff dismissing a lawsuit upon settling the case. Such a dismissal may be dismissal with prejudice, meaning it can never be filed again, or dismissal without prejudice, leaving open the possibility of bringing the suit again if the defendant does not follow through on the terms of the settlement.
Dispense - means to deliver a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner, including the prescribing and administering of a controlled substance and the packaging, labeling or compounding necessary to prepare the substance for such delivery. The term ''dispenser'' means a practitioner who so delivers a controlled substance to an ultimate user or research subject.
Distribute - means to deliver (other than by administering or dispensing) a controlled substance or a listed chemical. The term ''distributor'' means a person who so delivers a controlled substance or a listed chemical.
Drug Enforcement Administration - means the Drug Enforcement Administration in the Department of Justice.
Drug offense - means an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, or depressant or stimulant substances.
Duress - the use of force, false imprisonment or threats (and possibly psychological torture or "brainwashing") to compel someone to act contrary to his/her wishes or interests. If duress is used to get someone to sign an agreement or execute a will, a court may find the document null and void. A defendant in a criminal prosecution may raise the defense that others used duress to force him/her to take part in an alleged crime.
Entrapment - in criminal law, the act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead. The key to entrapment is whether the idea for the commission or encouragement of the criminal act originated with the police or government agents instead of with the "criminal." Entrapment, if proved, is a defense to a criminal prosecution. The accused often claims entrapment in so-called "stings" in which undercover agents buy or sell narcotics, prostitutes' services or arrange to purchase goods believed to be stolen.
Equal protection of the law - the right of all persons to have the same access to the law and courts and to be treated equally by the law and courts, both in procedures and in the substance of the law.
Estoppel - a bar or impediment (obstruction) which precludes a person from asserting a fact or a right or prevents one from denying a fact. Such a hindrance is due to a person's actions, conduct, statements, admissions, failure to act or judgment against the person in an identical legal case. Estoppel includes being barred by false representation or concealment (equitable estoppel), failure to take legal action until the other party is prejudiced by the delay (estoppel by laches), and a court ruling against the party on the same matter in a different case (collateral estoppel).
Evidence - every type of proof legally presented at trial (allowed by the judge) which is intended to convince the judge and/or jury of alleged facts material to the case. It can include oral testimony of witnesses, including experts on technical matters, documents, public records, objects, photographs and depositions (testimony under oath taken before trial). It also includes so-called "circumstantial evidence" which is intended to create belief by showing surrounding circumstances which logically lead to a conclusion of fact. Comments and arguments by the attorneys, statements by the judge and answers to questions which the judge has ruled objectionable are not evidence. Charts, maps and models which are used to demonstrate or explain matters are not evidence themselves, but testimony based upon such items and marks on such material may be evidence. Evidence must survive objections of opposing attorneys that it is irrelevant, immaterial or violates rules against "hearsay" (statements by a party not in court), and/or other technicalities.
Exclusionary rule - the rule that evidence secured by illegal means and in bad faith cannot be introduced in a criminal trial. The technical term is that it is "excluded" upon a motion to suppress made by the lawyer for the accused. It is based on the constitutional requirement that "…no [person] can be deprived of life, liberty, or property, without due process of law" (Fifth Amendment to the Constitution, applied to the states by 14th Amendment). A technical error in a search warrant made in good faith will not cause exclusion of the evidence obtained under that warrant. In 1995 the U. S. Supreme Court ruled that evidence obtained with a warrant that had been canceled could be admitted if the law enforcement officer believed it was still in force. However, evidence which was uncovered as a result of obtaining other evidence illegally will be excluded, under the "fruit of the poisonous tree doctrine." Thus, if an illegal wire tap reveals the location of other evidence, both the transcript of the wire tap conversation and the evidence to which the listeners were directed will be excluded.
Exculpatory - applied to evidence which may justify or excuse an accused defendant's actions and which will tend to show the defendant is not guilty or has no criminal intent.
Expert witness - a person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case. It is an exception to the rule against giving an opinion in trial, provided that the expert is qualified by evidence of his/her expertise, training and special knowledge. If the expertise is challenged, the attorney for the party calling the "expert" must make a showing of the necessary background through questions in court, and the trial judge has discretion to qualify the witness or rule he/she is not an expert, or is an expert on limited subjects. Experts are usually paid handsomely for their services and may be asked by the opposition the amount they are receiving for their work on the case. In most jurisdictions, both sides must exchange the names and addresses of proposed experts to allow pre-trial depositions.
Extradition - the surrender by one state or country of a person charged with a crime in another state or country. Formally, the request of the state (usually through the Governor's office) claiming the right to prosecute is made to the Governor of the state in which the accused is present. Occasionally a Governor will refuse to extradite (send the person back) if he/she is satisfied that the prosecution is not warranted, despite a constitutional mandate that "on demand of the Executive authority of the State from which [a fugitive from justice] fled, be delivered up, to be removed to the State having jurisdiction of the crime." The defendant may "waive extradition" and allow himself/herself to be taken into custody and returned to the state where charges are pending. International extradition is more difficult and is governed in many cases by treaty. While most countries will extradite persons charged with serious crimes, some will not, others refuse to extradite for certain crimes, set up legal roadblocks, or, as in Canada's case, will not extradite if the accused may get the death penalty.
Eyewitness - a person who has actually seen an event and can so testify in court.
Fact - an actual thing or happening, which must be proved at trial by presentation of evidence and which is evaluated by the finder of fact (a jury in a jury trial, or by the judge if he/she sits without a jury).
False arrest - physically detaining someone without the legal right to do so. Quite often this involves private security people or other owners or employees of retail establishments who hold someone without having seen a crime committed in their presence or pretend that they are police officers. While they may be entitled to make a "citizen's arrest" they had better be sure that they have a person who has committed a crime, and they must call law enforcement officers to take over at the first opportunity. Other common false arrest situations include an arrest by a police officer of the wrong person or without probable cause to believe a crime has been committed and/or without a warrant. Only when the arresting party knowingly holds someone who has not committed a crime, is the false arrest itself a crime. However, probable false arrest can be the basis of a lawsuit for damages, including mental distress and embarrassment.
False imprisonment - depriving someone of freedom of movement by holding a person in a confined space or by physical restraint including being locked in a car, driven about without opportunity to get out, being tied to a chair or locked in a closet. It may be the follow-up to a false arrest (holding someone in the office of a department store, for example), but more often it resembles a kidnapping with no belief or claim of a legal right to hold the person. Therefore, false imprisonment is often a crime and if proved is almost always the basis of a lawsuit for damages.
Felony - 1) a crime sufficiently serious to be punishable by death or a term in state or federal prison, as distinguished from a misdemeanor which is only punishable by confinement to county or local jail and/or a fine. 2) a crime carrying a minimum term of one year or more in state prison, since a year or less can be served in county jail. However, a sentence upon conviction for a felony may sometimes be less than one year at the discretion of the judge and within limits set by statute. Felonies are sometimes referred to as "high crimes" as described in the U.S. Constitution.
Felony murder doctrine - a rule of criminal statutes that any death which occurs during the commission of a felony is first degree murder, and all participants in that felony or attempted felony can be charged with and found guilty of murder. A typical example is a robbery involving more than one criminal, in which one of them shoots, beats to death or runs over a store clerk, killing the clerk. Even if the death were accidental, all of the participants can be found guilty of felony murder, including those who did no harm, had no gun, and/or did not intend to hurt anyone. In a bizarre situation, if one of the holdup men or women is killed, his/her fellow robbers can be charged with murder.
First degree murder - although it varies from state to state, it is generally a killing which is deliberate and premeditated (planned, after lying in wait, by poison or as part of a scheme), in conjunction with felonies such as rape, burglary, arson, or involving multiple deaths, the killing of certain types of people (such as a child, a police officer, a prison guard, a fellow prisoner), or certain weapons, particularly a gun. The specific criteria for first degree murder, are established by statute in each state and by the U.S. Code in federal prosecutions. It is distinguished from second degree murder in which premeditation is usually absent, and from manslaughter, which lacks premeditation and suggests that at most there was intent to harm rather than to kill.
Forcible entry - the crime of taking possession of a house or other structure or land by the use of physical force or serious threats against the occupants. This can include breaking windows or doors or using terror to gain entry, as well as forcing the occupants out by threat or violence after having come in peacefully.
Forgery - the crime of creating a false document, altering a document, or writing a false signature for the illegal benefit of the person making the forgery.
Fraud - the intentional use of deceit, a trick or some dishonest means to deprive another of his/her/its money, property or a legal right.
Fruit of the poisonous tree - in criminal law, the doctrine that evidence discovered due to information found through illegal search or other unconstitutional means (such as a forced confession) may not be introduced by a prosecutor. The theory is that the tree (original illegal evidence) is poisoned and thus taints what grows from it. For example, as part of a coerced admission made without giving a prime suspect the so-called "Miranda warnings" (statement of rights, including the right to remain silent and what he/she says will be used against them), the suspect tells the police the location of stolen property. Since the admission cannot be introduced as evidence in trial, neither can the stolen property.
Fugitive from justice - a person convicted or accused of a crime who hides from law enforcement in the state or flees across state lines to avoid arrest or punishment. Under Article IV, Section 2 of the U.S. Constitution, Governors are required to "deliver up" and return any fugitives from justice to the state where they allegedly committed the crime, a process called extradition.
Gag order - a judge's order prohibiting the attorneys and the parties to a pending lawsuit or criminal prosecution from talking to the media or the public about the case. The supposed intent is to prevent prejudice due to pre-trial publicity which would influence potential jurors. A gag order has the secondary purpose of preventing the lawyers from trying the case in the press and on television, and thus creating a public mood (which could get ugly) in favor of one party or the other. Based on the "freedom of the press" provision of the First Amendment, the court cannot constitutionally restrict the media from printing or broadcasting information about the case, so the only way is to put a gag on the participants under the court's control.
Gross negligence - carelessness which is in reckless disregard for the safety or lives of others, and is so great it appears to be a conscious violation of other people's rights to safety. It is more than simple inadvertence, but it is just shy of being intentionally evil.
Guilty - having been convicted of a crime or having admitted the commission of a crime by pleading "guilty" (saying you did it). A defendant may also be found guilty by a judge after a plea of "no contest," or in Latin nolo contendere. The term "guilty" is also sometimes applied to persons against whom a judgment has been found in a lawsuit for a civil wrong, such as negligence or some intentional act like assault or fraud, but that is a confusing misuse of the word since it should only apply to a criminal charge.
Habeas corpus -(hay-bee-us core-puss) n. Latin for "you have the body," it is a writ (court order) which directs the law enforcement officials (prison administrators, police or sheriff) who have custody of a prisoner to appear in court with the prisoner to help the judge determine whether the prisoner is lawfully in prison or jail. The writ is obtained by petition to a judge in the county or district where the prisoner is incarcerated, and the judge sets a hearing on whether there is a legal basis for holding the prisoner. Habeas corpus is a protection against illegal confinement, such as holding a person without charges, when due process obviously has been denied, bail is excessive, parole has been granted, an accused has been improperly surrendered by the bail bondsman or probation has been summarily terminated without cause. Historically called "the great writ," the renowned scholar of the Common Law, William Blackstone, called it the "most celebrated writ in English law." It may also be used as a means to contest child custody and deportation proceedings in court. The writ of habeas corpus can be employed procedurally in federal district courts to challenge the constitutionality of a state court conviction.
Hearing - any proceeding before a judge or other magistrate (such as a hearing officer or court commissioner) without a jury in which evidence and/or argument is presented to determine some issue of fact or both issues of fact and law. While technically a trial with a judge sitting without a jury fits the definition, a hearing usually refers to brief sessions involving a specific question at some time prior to the trial itself, or such specialized proceedings as administrative hearings. In criminal law, a "preliminary hearing" is held before a judge to determine whether the prosecutor has presented sufficient evidence that the accused has committed a crime to hold him/her for trial.
Hearsay - 1) second-hand evidence in which the witness is not telling what he/she knows personally, but what others have said to him/her. 2) a common objection made by the opposing lawyer to testimony when it appears the witness has violated the hearsay rule. 3) scuttlebutt or gossip.
Heat of passion - in a criminal case, when the accused was in an uncontrollable rage at the time of commission of the alleged crime. If so, it may reduce the charge, indictment or judgment down from murder to manslaughter, since the passion precluded the defendant having premeditation or being fully mentally capable of knowing what he/she was doing.
Homicide - the killing of a human being due to the act or omission of another. Included among homicides are murder and manslaughter, but not all homicides are a crime, particularly when there is a lack of criminal intent. Non-criminal homicides include killing in self-defense, a misadventure like a hunting accident or automobile wreck without a violation of law like reckless driving, or legal (government) execution. Suicide is a homicide, but in most cases there is no one to prosecute if the suicide is successful. Assisting or attempting suicide can be a crime.
Hostile witness - technically an "adverse witness" in a trial who is found by the judge to be hostile (adverse) to the position of the party whose attorney is questioning the witness, even though the attorney called the witness to testify on behalf of his/her client. When the attorney calling the witness finds that the answers are contrary to the legal position of his/her client or the witness becomes openly antagonistic, the attorney may request the judge to declare the witness to be "hostile" or "adverse." If the judge declares the witness to be hostile (i.e. adverse), the attorney may ask "leading" questions which suggest answers or are challenging to the testimony just as on cross examination of a witness who has testified for the opposition.
Hung jury - slang for a hopelessly deadlocked jury in a criminal case, in which neither side is able to prevail. Usually it means there is no unanimous verdict (although in Oregon and Louisiana 10 of 12 jurors can convict or acquit). If the jury is hung the trial judge will declare a mistrial. A new trial from scratch, with a new jury panel, is required. The prosecutor can decide not to re-try the case, particularly if a majority of the jury favored acquittal.
Immaterial - a commonly heard objection to introducing evidence in a trial on the ground that it had nothing substantial to do with the case or any issue in the case. It can also apply to any matter (such as an argument or complaint) in a lawsuit which has no bearing on the issues to be decided in a trial. The public is often surprised at what is immaterial, such as references to a person's character or bad deeds in other situations.
Immediate precursor - means a substance - (A) which the Attorney General has found to be and by regulation designated as being the principal compound used, or produced primarily for use, in the manufacture of a controlled substance; (B) which is an immediate chemical intermediary used or likely to be used in the manufacture of such controlled substance; and (C) the control of which is necessary to prevent, curtail, or limit the manufacture of such controlled substance. Serious bodily injury - means bodily injury which involves - (A) a substantial risk of death; (B) protracted and obvious disfigurement; or (C) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
Immunity - exemption from penalties, payments or legal requirements, granted by authorities or statutes. Generally there are three types of immunity at law: a) a promise not to prosecute for a crime in exchange for information or testimony in a criminal matter, granted by the prosecutors, a judge, a grand jury or an investigating legislative committee; b) public officials' protection from liability for their decisions (like a city manager or member of a public hospital board); c) governmental (or sovereign) immunity, which protects government agencies from lawsuits unless the government agreed to be sued; d) diplomatic immunity which excuses foreign ambassadors from most U.S. criminal laws.
Impeach - to discredit the testimony of a witness by proving that he/she has not told the truth or has been inconsistent, by introducing contrary evidence, including statements made outside of the courtroom in depositions or in statements of the witness heard by another.
Incompetent evidence - testimony, documents or things which one side attempts to present as evidence during trial, which the court finds (usually after objection by the opposition) are not admissible because they are irrelevant or immaterial to the issues in the lawsuit. Thus, trial lawyers often object with: "incompetent, irrelevant and immaterial," figuring that covers the waterfront of most objections.
Incontrovertible evidence - evidence introduced to prove a fact in a trial which is so conclusive, that by no stretch of the imagination can there be any other truth as to that matter. Examples: a fingerprint which shows someone had been present in a room, or a blood test which scientifically proves that a person is not the parent of a child.
Incriminate - to make a statement in which one admits that he/she has committed a crime or gives information that another named person has committed a crime. Under the Fifth Amendment to the Constitution, a person cannot be forced to give any information which would tend to incriminate himself/herself. Thus, he/she can refuse to answer any question which he/she feels might be a self-accusation or lead to information which would be so.
Indeterminate sentence - the prison term imposed after conviction for a crime which does not state a specific period of time or release date, but just a range of time, such as "five-to-ten years." It is one side of a continuing debate as to whether it is better to make sentences absolute (subject to reduction for good behavior) without reference to potential rehabilitation, modification or review in the future.
Injunction - a writ (order) issued by a court ordering someone to do something or prohibiting some act after a court hearing.
Inquest - an investigation and/or a hearing held by the coroner (a county official) when there is a violent death either by accident or homicide, the cause of death is not immediately clear, there are mysterious circumstances surrounding the death, or the deceased was a prisoner. Usually an autopsy by a qualified medical examiner from the coroner's office is a key part of the inquest. In rare cases a jury may be used to determine the cause of death.
Insanity defense - the claim of a defendant in a criminal prosecution that he/she was insane when the crime was committed, usually only temporarily.
Intent - mental desire and will to act in a particular way, including wishing not to participate. Intent is a crucial element in determining if certain acts were criminal. Occasionally a judge or jury may find that "there was no criminal intent." Example: lack of intent may reduce a charge of manslaughter to a finding of reckless homicide or other lesser crime.
Interrogation - questioning of a suspect or witness by law enforcement authorities. Once a person being questioned is arrested (is a "prime" suspect), he/she is entitled to be informed of his/her legal rights, and in no case may the interrogation violate rules of due process.
Intoxication - 1) the condition of being drunk as the result of drinking alcoholic beverages and/or use of narcotics. In the eyes of the law this definition may differ depending on the situation to which it is applied. 2) as it applies to drunk driving (DUI, DWI) the standard of intoxication varies by state between .08 and .10 alcohol in the bloodstream, or a combination of alcohol and narcotics which would produce the same effect even though the amount of alcohol is below the minimum. 3) as it applies to public drunkenness the standard is subjective, meaning the person must be unable to care for himself, be dangerous to himself or others, be causing a disturbance or refuse to leave or move along when requested. 4) a defense in a criminal case in which the claim is made by the defendant that he/she was too intoxicated to form an intent to commit the crime or to know what he/she was doing, where the amount of intoxication is subjective but higher than for drunk driving. There is also the question if the intoxication was an intentional aforethought to the crime ("I wanted to get drunk so I had the nerve to kill her"). Unintentional intoxication can show lack of capacity to form an intent and thus reduce the possible level of conviction and punishment, as from voluntary (intentional) manslaughter down to involuntary (unintentional but through a wrongful act) manslaughter. However, in vehicular manslaughter, the intoxication is an element in the crime, whether getting drunk was intentional or not, since criminal intent was not a factor.
Involuntary - without intent, will or choice. Participation in a crime is involuntary if forced by immediate threat to life or health of oneself or one's loved ones and will result in dismissal or acquittal.
Irrelevant - not important, pertinent, or germane to the matter at hand or to any issue before the court. This is the most common objection raised by attorneys to questions asked or to answers given during testimony in a trial. The objection is made as soon as an alert attorney believes the opposition is going into matters which are not concerned with the facts or outside the issues of the lawsuit. It is often stated in the trio: "Irrelevant, immaterial and incompetent" to cover the bases. The judge must then rule on the relevancy of the question. If the question has been answered before the lawyer could say "objection," the judge may order that answer stricken from the record. Blotting it from a jury's memory or conscience, though, is impossible.
Jeopardy - peril, particularly danger of being charged with or convicted of a particular crime. The U.S. Constitution guarantees in the Fifth Amendment that no one can "be twice put in jeopardy of life or limb" for the same offense. Thus, once a person has been acquitted, he/she may not be charged again for that crime. However, if there was a mistrial, hung jury or reversal of conviction on appeal (but the defendant was not declared innocent in the ruling), the defendant may be charged with the crime again and tried again.
Jump bail - to fail to appear for a court appearance after depositing (posting) bail with the intention of avoiding prosecution, sentencing or going to jail. Posting bail guarantees that the accused person will give up the money if he/she does not show up in court. It allows the accused person to remain free pending the final decision on his/her criminal case. In some circumstances a criminal defendant can be declared to have jumped bail even before missing an appearance in court, if it is discovered he/she has left the state, the country, disappeared or made plans to flee. At that point the court can revoke the bail and issue a warrant for the defendant's arrest. It is also called "skipping" bail.
Jurisdiction - the authority given by law to a court to try cases and rule on legal matters within a particular geographic area and/or over certain types of legal cases. It is vital to determine before a lawsuit is filed which court has jurisdiction. State courts have jurisdiction over matters within that state, and different levels of courts have jurisdiction over lawsuits involving different amounts of money. For example, Superior Courts (called District or County Courts in several states) generally have sole control of lawsuits for larger sums of money, domestic relations (divorces), probate of estates of deceased persons, guardianships, conservatorships and trials of felonies. In some states (like New York) probate and certain other matters are within the jurisdiction of so-called Surrogate Courts. Municipal courts (or other local courts) have jurisdiction over cases involving lesser amounts of money, misdemeanors (crimes not punishable by state prison), traffic matters and preliminary hearings on felony charges to determine if there is sufficient evidence to warrant a trial by the Superior Court.
Jury trial - a trial of a lawsuit or criminal prosecution in which the case is presented to a jury and the factual questions and the final judgment are determined by a jury. This is distinguished from a "court trial" in which the judge decides factual as well as legal questions, and makes the final judgment.
Justifiable homicide - a killing without evil or criminal intent, for which there can be no blame, such as self-defense to protect oneself or to protect another or the shooting by a law enforcement officer in fulfilling his/her duties. This is not to be confused with a crime of passion or claim of diminished capacity, which refer to defenses aimed at reducing the penalty or degree of crime.
Juvenile court - a special court or department of a trial court which deals with under-age defendants charged with crimes or who are neglected or out of the control of their parents. The normal age of these defendants is under 18, but juvenile court does not have jurisdiction in cases in which minors are charged as adults. The procedure in juvenile court is not always adversarial (although the minor is entitled to legal representation by a lawyer). It can be an attempt to involve parents or social workers and probation officers in the process to achieve positive results and save the minor from involvement in future crimes. However, serious crimes and repeated offenses can result in sentencing juvenile offenders to prison, with transfer to state prison upon reaching adulthood with limited maximum sentences. Where parental neglect or loss of control is a problem, the juvenile court may seek out foster homes for the juvenile, treating the child as a ward of the court.
Juvenile delinquent - a person who is under age (usually below 18), who is found to have committed a crime in states which have declared by law that a minor lacks responsibility and thus may not be sentenced as an adult. However, the legislatures of several states have reduced the age of criminal responsibility for serious crimes or for repeat offenders to as low as 14.
Kidnapping - the taking of a person against his/her will (or from the control of a parent or guardian) from one place to another under circumstances in which the person so taken does not have freedom of movement, will, or decision through violence, force, threat or intimidation. Although it is not necessary that the purpose be criminal (since all kidnapping is a criminal felony) the capture usually involves some related criminal act such as holding the person for ransom, sexual and/or sadistic abuse, or rape. It includes taking due to irresistible impulse and a parent taking and hiding a child in violation of court order. An included crime is false imprisonment. Any harm to the victim coupled with kidnapping can raise the degree of felony for the injury and can result