The following pages contain legal terminology and related terms you will need to be familiar with. These pages contain words particular to our cases as parents. "Please be advised that the information provided to you as a courtesy may not reflect current revisions, amendments and/or changes in your states statutes and codes. You must go to your government website to check for and download those revisions and/or amendments yourself". (If you can't find a definition on this page Go To this page now and search terms. However, the most widely used legal dictionary is Black's Law Dictionary)
abstract n. in general, a summary of a record or document, such as an abstract of judgment or abstract of title to real property.
accusation n. 1) in legal terms accusation means officially charging someone with a crime either by indictment by a grand jury or filing charges by a District Attorney. 2) in lay terms any claim of wrongdoing by another person.
ad litem adj. legal Latin meaning "for the purposes of the legal action only." Most often the term applies to a parent who files a lawsuit for his or her minor child as "guardian at litem" (guardian just for the purposes of the lawsuit) or for a person who is incompetent. Either at the time the lawsuit is filed or shortly thereafter, the parent petitions the court to allow him/her to be guardian ad litem, which is brought ex parte (without a noticed hearing) and is almost always granted. A person acting ad litem has the responsibility to pursue the lawsuit and to account for the money recovered for damages. If a child in such a lawsuit reaches majority (18 in most states) while the suit is pending, the ad litem guardianship terminates and the "new" adult can run his/her own lawsuit. Some courts require an order terminating the guardianship ad litem upon proof of coming of age. (See: guardian ad litem)
administrative law judge n. a professional hearing officer who works for the government to preside over hearings and appeals involving governmental agencies. They are generally experienced in the particular subject matter of the agency involved or of several agencies. Formerly called "hearing officers," they discovered that there was more prestige and higher pay in being called "judge."
admission n. 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. In civil cases, each party is permitted to submit a written list of alleged facts and request the other party to admit or deny whether each is true or correct. Failure to respond in writing is an admission of the alleged facts and may be used in trial. (See: confession, admission against interest)
admission against interest n. an admission of the truth of a fact by any person, but especially by the parties to a lawsuit, when a statement obviously would do that person harm, be embarrassing, or be against his/her personal or business interests. A third party can quote in court an admission against interest even though it is only hearsay. (See: hearsay, admission)
adopt v. 1) to take on the relationship of parent to child of another person, particularly (but not necessarily) a minor, by official legal action. 2) to accept or make use of, such as to adopt another defendant's argument in a lawsuit. (See: adoption)
adoption n. the taking of a child into one's family, creating a parent to child relationship, and giving him or her all the rights and privileges of one's own child, including the right to inherit as if the child were the adopter's natural child. The adoption procedure varies depending on whether the child comes through an agency which handles adoptions or comes from a stranger or a relative, and on the age of the child and the adoptive parent or parents. The hopeful adoptive parent must file a petition, which may be handled by the adoption agency. Natural parents must either give binding written permission for the adoption or have abandoned the child for a lengthy period of time. An investigation will be made by a county office (probation or family services) as to the future parents' suitability to adoption, their relationship status, their home situation, and their health, as well as the best interests of the child. If the child is old enough to understand the procedure he or she may have a say in the adoption. Finally there is a hearing before a local court judge (called "surrogate" in some states) and an adoption order made. In many states a new birth certificate can be issued, with the adoptive parents listed as the parents. If there is an adoption of an adult, the adopting adult usually must be several years older, based on the state law. In recent years, there has been much controversy over adoption by single parents, including gays and lesbians, with the tendency toward allowing such adoptions, provided all other criteria beneficial to the child met. (See: adopt)
affirmative defense n. when a defendant files an answer, in addition to denying some or all of the allegations, he/she can state what are called "affirmative defenses." These defenses can contain allegations, take the initiative against statements of facts contrary to those stated in the original complaint against them, and include various defenses based on legal principles. Many of these defenses fall into the "boilerplate" (stated in routine, non-specific language) category, but one or more of the defenses may help the defendant.
allegation n. 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. (See: complaint)
Amicus curiae or amicus curić (plural amici curiae) is a legal Latin phrase, literally translated as "friend of the court", that refers to someone, not a party to a case, who volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it. The information may be a legal opinion in the form of a brief, testimony that has not been solicited by any of the parties, or a learned treatise on a matter that bears on the case. The decision whether to admit the information lies with the discretion of the court.(Read More)
answer n. in law, a written pleading filed by a defendant to respond to a complaint in a lawsuit filed and served upon that defendant. An answer generally responds to each allegation in the complaint by denying or admitting it, or admitting in part and denying in part. The answer may also comprise "affirmative defenses" including allegations which contradict the complaint or contain legal theories (like "unclean hands," "contributory negligence" or "anticipatory breach") which are intended to derail the claims in the complaint. Sometimes the answer is in the form of a "general denial," denying everything. The answer must be in typed form, follow specific rules of pleading established by law and the courts, and be filed with the court and served on the defendant within a specific statutory time (e.g. 30 days after service of the complaint). If the complaint is verified as under penalty of perjury, the answer must be also. There is a fairly steep filing fee for each defendant filing an answer. In short, if served a complaint, one should see a lawyer as soon as possible to prevent a default judgment. (See: complaint, general denial, verification, demurrer)
approach the bench v. an attorney's movement from the counsel table to the front of the bench (the large desk at which the judge sits) in order to speak to the judge off the record and/or out of earshot of the jury. Since the bench area is the sacred territory of the judge the attorney must ask permission as "may I approach the bench," or simply, "may I approach." If the judge consents, then opposing counsel must be allowed to come forward and participate in the conversation. The purpose can range from explaining the order of witnesses, a technical problem or the need to take a recess to go to the restroom.
attorney n. 1) an agent or someone authorized to act for another. 2) a person who has been qualified by a state or Federal court to provide legal services, including appearing in court. Each state has a bar examination which is a qualifying test to practice law. The examinations vary in difficulty, but cannot be taken until the applicant is a graduate of an accredited law school (with a three-year minimum course of study) or has fulfilled extensive other training. Passage of the bar examination qualifies the attorney for that state only and for the Federal Courts located in that state (and other Federal courts upon request). Some states will accept attorneys from other states, but many will not grant this "reciprocity" and require at least a basic test for out-of-state attorneys. Attorneys from other states may practice in a limited way, but cannot appear (except on a single case with court permission) in state courts (but in federal courts). Graduation from law school does not make one an attorney. There are also patent attorneys who can practice in Federal patent courts only and have both legal and engineering training. Most patent attorneys today are regular attorneys who specialize.
attorney-client work-product The work-product doctrine is more inclusive than attorney-client privilege. Unlike the attorney-client privilege, which includes only communications between an attorney and the client, work-product includes materials prepared by persons other than the attorney him/her self: The materials may have been prepared by anybody as long as they were prepared with an eye towards the realistic possibility of impending litigation. Additionally, it includes materials collected for the attorney such as interrogatories, signed statements, other information acquired for the prosecution or defense of a case, "memoranda, briefs, communications . . . other writings prepared by counsel for his/her own use in prosecuting the client's case . . . mental impressions, conclusions, opinions, or legal theories."
However, the work-product doctrine is also less powerful than the attorney-client privilege because it is not a privilege, and therefore may be overcome by a showing of necessity, as described above.
Example Statement: "Contents of this document, whether on computer hard drive and/or hardcopy are protected by Attorney/Client Work-Product and anything on (in) this should be considered protected as such. Any access or disclosure of the Attorney/Client Work-Product by unauthorized persons in an attempt to hamper a person's defense of him or herself or their family can and/or will be subject to legal action." (Added 06/10-GPC-Wiki- http://en.wikipedia.org/wiki/Work-product_doctrine )
Attorney General n. in each state and the Federal government the highest ranking legal officer of the government. The Federal Attorney General is chief of the Department of Justice appointed by the President with confirmation required by the Senate, and a member of the Cabinet. He or she is in charge of Federal prosecutions (including overseeing the numerous regional United States Attorneys), and numerous cases and matters in which the Federal government has a legal interest, particularly when the Federal government is a party or Federal regulations are at issue. The Attorney General also has oversight of the Federal Bureau of Investigation and other law enforcement operations of the Justice Department. Although elected, state Attorneys General have similar functions within their states, although the supervision of local prosecutions is seldom exercised unless there is some gross mismanagement. Different legislatures have assigned varying functions to the state departments of justice, including consumer protection, environmental law, supervision of trusts and non-profit corporations, and other issues in which the state government may have a particular interest in protecting the citizenry. (See: Solicitor General)
appeal 1) v. 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. There are Federal Courts of Appeal in ten different "circuits," and above them is the Supreme Court which selectively hears only a few appeals at the highest level. 2) n. the name for the process of appealing, as in "he has filed an appeal." (See: attorney)
arraignment n. the hearing in which a person charged with a crime is arraigned in his or her first appearance before a judge. This is the first appearance of a criminal defendant (unless continued from earlier time) in which all the preliminaries are taken care of.
bail 1) n. 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. (See: bail bond, bail bondsman, own recognizance)
bail bond n. a bond provided by an insurance company through a bail bondsman acting as agent for the company, to secure the release from jail of an accused defendant pending trial. Usually there is a charge of 10 percent of the amount of the bond (e.g. $100 for a $1,000 bond) and often the defendant must put up some collateral like a second deed of trust or mortgage on one's house. Upon acquittal, conviction, or other conclusion of the case, the bail bond is "exonerated" and returned to the insurance company. If the person who has been bailed out disappears and does not appear in court, the bond funds will be forfeit unless the defendant is found and returned. (See: bail, bail bondsman)
bail bondsman n. a professional agent for an insurance company who specializes in providing bail bonds for people charged with crimes and awaiting trial in order to have them released. The offices of a bail bondsman (or woman) are usually found close to the local court house and jail, his/her advertising is found in the yellow pages, and some make "house calls" to the jail or hand out cards in court. Bail bondsmen usually charge the suspect a fee of 10 percent of the amount of the bond. If a bail bondsman has reason to believe a person he/she bailed out is about to flee, he may revoke the bond and surrender his client to jail. (See: bail, bail bond)
bench n. 1) general term for all judges, as in "the bench," or for the particular judge or panel of judges, as in an order coming from the "bench." 2) the large, usually long and wide desk raised above the level of the rest of the courtroom, at which the judge or panel of judges sit. (See: judge, court, witness stand, sidebar, approach the bench)
beyond a reasonable doubt adj. 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 reasonable 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. (See: reasonable doubt, moral certainty, conviction) (added 4/08-GPC)
Bill of Rights n. The first 10 amendments to the Federal Constitution demanded by several states in return for ratifying the constitution, since the failure to protect these rights was a glaring omission in the Constitution as adopted in convention in 1787. Adopted and ratified in 1791, the Bill of Rights are:
capital offense n. 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 some 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. (See: capital punishment, bail)
capital punishment n. 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, has abolished capital punishment. 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, Alabama and Arkansas 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 rows" awaiting their appeals or death. (See: capital offense)
caption n. the first section of any written legal pleading (papers) to be filed, which contains the name, address, telephone number of the attorney, the person or persons the attorney represents, the court name, the title of the case, the number of the case, and the title of the documents (complaint, accusation, answer, motion, etc.). Each jurisdiction has its own rules as to the exact format of the caption. [note: there should be a sample]Castle doctrine - (also known as a Castle Law or a Defense of Habitation Law) is an American legal doctrine that designates a person's abode (or, in some states, any place legally occupied, such as a car or place of work) as a place in which the person has certain protections and immunities and may in certain circumstances use force, up to and including deadly force, to defend against an intruder without becoming liable to prosecution. Typically deadly force is considered justified, and a defense of justifiable homicide applicable, in cases "when the actor reasonably fears imminent peril of death or serious bodily harm to himself or another". The doctrine is not a defined law that can be invoked, but a set of principles which is incorporated in some form in the law of most states. (From wiki; added 06/12) States with Castle Doctrine Statutes (Site)
Certiorari -To be
informed of - A writ of common law origin
issued by a superior court to an inferior court requiring the latter to produce a certified record of a particular case tried therein. The writ is issued in order that the court issuing the writ may inspect the proceedings and determine whether there have been any
chancery n. a court that can order acts performed. Today chancery courts are merged with law courts in most states. (See: equity)
charge n. 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. 3) a fee for services.
circumstantial evidence n. evidence in a trial which is not directly from an eyewitness or participant and requires some reasoning to prove a fact. There is a public perception that such evidence is weak ("all they have is circumstantial evidence"), but the probable conclusion from the circumstances may be so strong that there can be little doubt as to a vital fact ("beyond a reasonable doubt" in a criminal case, and "a preponderance of the evidence" in a civil case). Particularly in criminal cases, "eyewitness" ("I saw Frankie shoot Johnny") type evidence is often lacking and may be unreliable, so circumstantial evidence becomes essential. Prior threats to the victim, fingerprints found at the scene of the crime, ownership of the murder weapon, and the accused being seen in the neighborhood, certainly point to the suspect as being the killer, but each bit of evidence is circumstantial.
collaterals n. term used by Child Protective Agency personnel. A list of references given to your worker of names to be called. References, such as people you know and see you with your children; or any providers that are providing services to our children. (added 9/08-GPC from member's post: term seen on an investigative report as explained by a CPS worker to the foster parent involved in the case)
common law (also known as case law or precedent) is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions. The body of precedent is called "common law" and it binds future decisions. In cases where the parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts.
In practice, common law systems are considerably more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems.
Common law legal systems are in widespread use, particularly in England where it originated in the Middle Ages, and in nations or regions that trace their legal heritage to England as former colonies of the British Empire, including the United States, Malaysia, Singapore, Bangladesh, Pakistan, Sri Lanka, India, Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Zimbabwe, Hong Kong, and Australia.
This article is about the general legal concept. For the book by Oliver Wendell Holmes, Jr.,see The Common Law. For the former ABC television series, see Common Law (1996 TV series). For the upcoming USA Network television series, see Common Law (2012 TV series). (Added by GPC 10/11) Needs further editing of links
complaint n. the first document filed with the court (actually with the County Clerk or Clerk of the Court) by a person or entity claiming legal rights against another. The party filing the complaint is usually called the plaintiff and the party against whom the complaint is filed is called the defendant or defendants. Complaints are pleadings and must be drafted carefully (usually by an attorney) to properly state the factual as well as legal basis for the claim, although some states have approved complaint forms which can be filled in by an individual. A complaint also must follow statutory requirements as to form. For example, a complaint must be typed on a specific type of paper or on forms approved by the courts, name both the party making the claim and all defendants, and should state what damages or performance is demanded (the prayer). When the complaint is filed, the court clerk will issue a summons, which gives the name and file number of the lawsuit and the address of the attorney filing the complaint, and instructs the defendant that he/she/it has a specific time to file an answer or other response. A copy of the complaint and the summons must be served on a defendant before a response is required. A complaint filing must be accompanied by a filing fee payable to the court clerk, unless a waiver based on poverty is obtained. (See: pleading, caption, answer, service of process, summons, in forma pauperis)
compound question n. When more than one question is combined in what seems to be a single question asked of a witness during a trial or deposition. A compound question can be objected to by opposing counsel since it is confusing to the witness, who is entitled to answer each question separately. If the objection is sustained the question must be withdrawn and asked in a series of separate questions. (See: objection)
concurrent sentence n. 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 v. 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 5th 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. (See: confession, Miranda warning, self-incrimination, Bill of Rights)
confession n. the statement of one charged with a crime that he/she committed the crime. Such an admission is generally put in writing (by the confessor, law enforcement officers or their stenographer) and then read and signed by the defendant. If the defendant cannot read English, he/she has the right to have his/her confession read aloud or translated. It can be used against the defendant in trial (and his/her codefendants) if it is truly voluntary. (See: confess, Miranda warning, self-incrimination, Bill of Rights)
conflict of interest n. a situation in which a person has a duty to more than one person or organization, but cannot do justice to the actual or potentially adverse interests of both parties. This includes when an individual's personal interests or concerns are inconsistent with the best for a customer, or when a public official's personal interests are contrary to his/her loyalty to public business. An attorney, an accountant, a business adviser or realtor cannot represent two parties in a dispute and must avoid even the appearance of conflict. He/she may not join with a client in business without making full disclosure of his/her potential conflicts, he/she must avoid commingling funds with the client, and never, never take a position adverse to the customer.( Additional information from Wiki.)
counsel 1) n. a lawyer, attorney, attorney-at-law, counselor, counselor-at-law, solicitor, barrister, advocate or proctor (a lawyer in admiralty court), licensed to practice law. In the United States they all mean the same thing. 2) v. to give legal advice. 3) v. in some jurisdictions, to urge someone to commit a crime, which in itself is a crime.
county attorney in the United States is the chief legal officer for a county or local judicial district. Many states that do not have county attorneys have instead state's attorneys or Commonwealth's Attorney; and many counties have District Attorneys. In many states this is an elected position.
court n. any official tribunal (court) presided over by a judge or judges in which legal issues and claims are heard and determined. In the United States there are essentially two systems: Federal courts and state courts. The basic Federal court system has jurisdiction over cases involving Federal statutes, constitutional questions, actions between citizens of different states, and certain other types of cases. Its trial courts are District Courts in one or more districts per state, over which there are District Courts of Appeal (usually three-judge panels) to hear appeals from judgments of the District Courts within the "circuit." There are 10 geographic circuits throughout the nation. Appeals on constitutional questions and other significant cases are heard by the Supreme Court, but only if that court agrees to hear the case. There are also special Federal courts such as bankruptcy and tax courts with appeals directed to the District Courts.
Each state has local trial courts, which include courts for misdemeanors (non-penitentiary crimes), smaller demand civil actions (called municipal, city, justice or some other designation), and then courts, usually set up in each county, (variously called Superior, District, County, Common Pleas courts) to hear felonies (crimes punished by state prison terms), estates, divorces, and major lawsuits. The highest state court is called the State Supreme Court, except in New York and Maryland, which call them Court of Appeals. Some 29 states have intermediate appeals courts which hear appeals from trial courts which will result in final decisions unless the state supreme court chooses to consider the matter. Trial courts for felonies and significant civil matters go by such names as district courts, county courts, superior courts, courts of common pleas, circuit courts, among other designations. Below them to handle lesser matters and criminal misdemeanors are municipal, city, police and justice courts. Some states have specialty courts such as family, surrogate, and domestic relations. Small claims courts are an adjunct of the lowest courts handling lesser disputes (although California's limit is $5,000) with no representation by attorneys, and short and somewhat informal trials conducted by judges, commissioners or lawyers.
The great number of law cases and lawyers' procedural maneuvers has clogged courts' calendars and has induced many states or local courts to set up mediation, arbitration, mandatory settlement conferences and other formats to encourage settlement or early judgments without the cost and wait of full court trials.
death penalty n. the sentence of execution for murder and some other capital crimes. (See: capital punishment)
defamation (of character) n. the act of making untrue statements about another which damages his/her reputation. If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander. Public figures, including officeholders and candidates have to show that the defamation was made with malicious intent and was not just fair comment. Damages for slander may be limited to actual (special) damages unless there is malice. Some statements such as an accusation of having committed a crime, having a feared disease, or being unable to perform one's occupation are called libel per se or slander and can more easily lead to large money awards in court and even punitive damage recovery by the person harmed. Most states provide for a demand for a printed retraction of defamation and only allow a lawsuit if there is no such admission of error. (See: fair comment)
defense n. 1) a general term for the effort of an attorney representing a defendant during trial and in pre-trial maneuvers to defeat the party suing or the prosecution in a criminal case. 2) a response to a complaint, called an affirmative defense, to counter, defeat, or remove all or a part of the contentions of the plaintiff. (See: affirmative defense)
demurrer n. (dee-muhr-ur) a written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit. A hearing before a judge (on the law and motion calendar) will then be held to determine the validity of the demurrer. Some causes of action may be defeated by a demurrer while others may survive. Some demurrers contend that the complaint is unclear or omits an essential element of fact. If the judge finds these errors, he/she will usually sustain the demurrer (state it is valid), but "with leave to amend" in order to allow changes to make the original complaint good. An amendment to the complaint cannot always overcome a demurrer, as in a case filed after the time allowed by law to bring a suit. If after amendment the complaint is still not legally good, a demurrer will be granted. In rare occasions, a demurrer can be used to attack an answer to a complaint. Some states have substituted a motion to dismiss for failure to state a cause of action for the demurrer.
demonstrative evidence n. actual objects, pictures, models and other devices which are supposedly intended to clarify the facts for the judge and jury: how an accident occurred, actual damages, medical problems, or methods used in committing an alleged crime. Many of these are not supposed to be actual evidence, but "aids" to understanding. A model of a knee or a photograph of an accident scene obviously help, but color photos of an operation in progress or a bullet-riddled body can excite the passions of a jury. The borderline balance between legitimate aids and evidence intended to enflame a juror's emotions is in the hands of the trial judge. (See: evidence)
deponent n. a person testifying (stating answers in response to questions) at a deposition. (See: depose, deposition)
depose v. 1) to ask questions of a witness or a party to a lawsuit at a deposition (testimony outside of the courtroom before trial). 2) to testify at a deposition. (See: deponent, deposition)
deposition n. the taking and recording of testimony of a witness under oath before a court reporter, in a place away from the courtroom before trial. A deposition is part of permitted pre-trial discovery (investigation), set up by an attorney for one of the parties to a lawsuit demanding the sworn testimony of the opposing party (defendant or plaintiff), a witness to an event, or an expert intended to be called at trial by the opposition. If the person requested to testify (deponent) is a party to the lawsuit or someone who works for an involved party, notice of time and place of the deposition can be given to the other side's attorney, but if the witness is an independent third party, a subpoena must be served on him/her if he/she is reluctant to testify. The testimony is taken down by the court reporter, who will prepare a transcript if requested and paid for, which assists in trial preparation and can be used in trial either to contradict (impeach) or refresh the memory of the witness, or be read into the record if the witness is not available. (See: deponent, depose, discovery)
discovery n. the entire efforts of a party to a lawsuit and his/her/its attorneys to obtain information before trial through demands for production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene, and the petitions and motions employed to enforce discovery rights. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets from the other (except for constitutional protection against self-incrimination). Often much of the fight between the two sides in a suit takes place during the discovery period. (See: deposition, interrogatories)
disposition n. the court's final determination of a lawsuit or criminal charge.
district attorney (D.A.) n. an elected official of a county or a designated district with the responsibility for prosecuting crimes. The duties include managing the prosecutor's office, investigating alleged crimes in cooperation with law enforcement, and filing criminal charges or bringing evidence before the Grand Jury that may lead to an indictment for a crime. In some states a District Attorney is officially entitled County Attorney or State's Attorney. United States Attorneys are also called Federal District Attorneys and are prosecutors for districts (there are several in larger states) within the Department of Justice are appointed by the President and serve at his/her pleasure.
due process of law n. a fundamental principle of fairness in all legal matters, both civil and criminal, especially in the courts. All legal procedures set by statute and court practice, including notice of rights, must be followed for each individual so that no prejudicial or unequal treatment will result. While somewhat indefinite the term can be gauged by its aim to safeguard both private and public rights against unfairness. The universal guarantee of due process is in the Fifth Amendment to the U. S. The American Constitution which provides "No person shall...be deprived of life, liberty, or property, without due process of law," and applied to all states by the 14th Amendment. From this basic principle flow many legal decisions determining both procedural and substantive rights. (Related Reading: 1)Due process information from Wiki; 2)Proposed Due Process Act California)(Rev:12/09 GPC)
dying declaration n. the statement of a mortally injured person who is aware he/she is about to die, telling who caused the injury and possibly the circumstances ("Frankie shot me"). Although hearsay since the dead person cannot testify in person, it is admissible in homicide cases on the theory that a dying person has no reason not to tell the truth.
enjoin v. for a court to order that someone either do a specific act, cease a course of conduct, or be prohibited from committing a certain act. To obtain such an order, called an injunction, a private party or public agency has to file a petition for a writ of injunction, serve it on the party he/she/it hopes to be enjoined, allowing time for a written response. Then a court hearing is held in which the judge will consider evidence, both written and oral, listen to the arguments and then either grant the writ or deny it. If granted the court will issue a final or permanent injunction. A preliminary injunction or temporary injunction are orders made by the court while the matter is being processed and considered, based on the petition and any accompanying declarations, either of which is intended to keep matters in status quo (as they are) or prevent possible irreparable harm (like cutting trees, poisoning a stream, or moving out of the country with a child or money) until a final decision is made. (See: injunction)
equitable adj. 1) just, based on fairness and not legal technicalities. 2) refers to positive remedies (orders to do something, not money damages) employed by the courts to solve disputes or give relief. (See: equity)
equity n. 1) a venerable group of rights and procedures to provide fairness, unhampered by the narrow strictures of the old common law or other technical requirements of the law. In essence courts do the fair thing by court orders such as correction of property lines, taking possession of assets, imposing a lien, dividing assets, or injunctive relief (ordering a person to do something) to prevent irreparable damage. The rules of equity arose in England when the strict limitations of common law would not solve all problems, so the King set up courts of chancery (equity) to provide remedies through the royal power. Most eastern states had courts of equity or chancery separate from courts of law, and others had parallel systems of law and equity with different procedural rules. Now most states combine law and equity and treat both under "one cause of action." 2) the net value of real property, determined by subtracting the amount of unpaid debts secured by (against) the property from the appraised value of the property. (See: equitable, chancery, enjoin, injunction, writ)
evidence n. 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, violates rules against "hearsay" (statements by a party not in court), and/or other technicalities. (See: circumstantial evidence, hearsay, demonstrative evidence, object, relevancy, deposition)
exculpatory evidence n is the evidence favorable to the defendant in a criminal trial, which clears or tends to clear the defendant of guilt. It is the opposite of inculpatory evidence, which tends to prove guilt. Police or prosecutor must disclose to the defendant any exculpatory evidence they possess. Failure to disclose can result in the dismissal of a case. In the Brady v. Maryland decision, the U.S. Supreme Court held that such a requirement follows from constitutional due process and is consistent with the prosecutor's duty to seek justice. (added 9/08-GPC)
ex·punge (expungement of records)
exigent circumstance, in the American law of criminal procedure, allows law enforcement to enter a structure without a warrant, or if they have a "knock and announce" warrant, without knocking and waiting for refusal under certain circumstances. It must be a situation where people are in imminent danger, evidence faces imminent destruction, or a suspect will escape.
In the criminal procedure context, exigent circumstance means:
Exigent circumstances may make a warrantless search constitutional if probable cause exists.... (Read More) (Added 07/10) ( http://en.wikipedia.org/wiki/Exigent_circumstance_in_United_States_law )
Related Information: Example of Warrant Training from Orange County, CA: Download
fabrication of evidence n Currently no definition found in Wikipedia
fair comment n. a statement of opinion (no matter how ludicrous) based on facts which are correctly stated, and which does not allege dishonorable motives on the part of the target of the comment. The U. S. Supreme Court has ruled that to protect free speech, statements made about a public person (politician, officeholder, movie star, author, etc.), even though untrue and harmful, are fair comment unless the victim can prove the opinions were stated maliciously---with hate, dislike, intent and/or desire to harm. Thus, a public figure may not sue for defamation based on published opinions or alleged information which would be the basis of a lawsuit if said or published about a private person not worthy of opinion or comment. Fair comment is a crucial defense against libel suits which is put up by members of the media. (See: defamation, libel, public figure, slander)
felony n. 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. (See: sentence, misdemeanor)
foster child n. a child without parental support and protection, placed with a person or family to be cared for, usually by local welfare services or by court order. The foster parent(s) do not have custody, nor is there an adoption, but they are expected to treat the foster child as they would their own in regard to food, housing, clothing and education. Most foster parents are paid by the local government or a state agency.
fraud upon the court
In the United States, when an officer of the
is found to have fraudulently presented facts to court so that the court
is impaired in the impartial performance of its legal task, the act,
known as "fraud upon the court", is a crime deemed so severe and
fundamentally opposed to the operation of justice that it is not subject
to any statute of limitation.
fruit of the poisonous tree n. 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), 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. (See: Miranda Warning)
Guardian ad litem (United States) Guardians ad litem are often appointed in divorce cases or in parenting time disputes to represent the interests of the minor children. Guardians ad litem are also used in other family matters involving grandparents obtaining custody or grandparenting time as well as protection orders where one parent is attempting to get an order against another party with a legal connection to the mother of the child. The kinds of people appointed as a guardian ad litem vary by state, ranging from volunteers to social workers to regular attorneys to others with the appropriate qualifications. The two divorcing parents are usually responsible for paying the fees of the guardian ad litem, even though the guardian ad litem is not responsible to them at all. In some states, the county government pays the fee of that attorney. The guardian ad litem's only job is to represent the minor children's best interests.
Guardians ad litem are also appointed in cases where there has been an allegation of child abuse, child neglect, PINS, juvenile delinquency, or dependency. In these situations, the guardian ad litem is charged to represent the best interests of the minor child which can differ from the position of the state or government agency as well as the interest of the parent or guardian. These guardians ad litem vary by jurisdiction and can be volunteer advocates or attorneys. (Ref: Wiki, GPC add 01/10)
They are also appointed in guardianship cases for adults (see also conservatorship). For example, parents may start a guardianship action to become the guardians of a developmentally disabled child when the child turns 18. Or, children may need to file a guardianship action for a parent when the parent has failed to prepare a power of attorney and now has dementia.
Guardians ad litem can be appointed by the court to represent the interests of mentally ill or disabled persons.
general denial n. a statement in an answer to a lawsuit or claim by a defendant in a lawsuit, in which the defendant denies everything alleged in the complaint without specifically denying any allegation. It reads: "Defendant denies each and every allegation contained in the complaint on file herein," or similar inclusive language. (See: complaint, answer)
grand jury n. a jury in each county or federal court district which serves for a term of a year and is usually selected from a list of nominees offered by the judges in the county or district. The traditional 23 members may be appointed or have their names drawn from those nominated. A grand jury has two responsibilities: 1) to hear evidence of criminal accusations in possible felonies (major crimes) presented by the District Attorney and decide whether the accused should be indicted and tried for a crime. Since many felony charges are filed by the District Attorney in a municipal or other lower court which holds a preliminary hearing to determine if there is just cause for trial instead of having the Grand Jury hear the matter, this function is of minor importance in many jurisdictions. 2) to hear evidence of potential public wrong-doing by city and county officials, including acts which may not be crimes but are imprudent, ineffective or inefficient, and make recommendations to the county and cities involved. Example: a grand jury may recommend that a new jail is needed, find that there is evidence of favoritism in the sheriff's office, that some city council members are profiting by overlooking drug dealing by city staffers, or that judges are not carrying a full load of cases to be tried. (See: indictment, charge, preliminary hearing)
guarantee 1) v. to pledge or agree to be responsible for another's debt or contractual performance if that other person does not pay or perform. Usually, the party receiving the guarantee will first try to collect or obtain performance from the debtor before trying to collect from the one making the guarantee (guarantor). 2) the promise to pay another's debt or fulfill contract obligations if that party fails to pay or perform. 3) n. occasionally, the person to whom the guarantee is made. 4) a promise to make a product good if it has some defect. (See: guarantor)
guarantor n. a person or entity that agrees to be responsible for another's debt or performance under a contract, if the other fails to pay or perform. (See: guarantee)
guardian ad litem n. a person appointed by the court only to take legal action on behalf of a minor or an adult not able to handle his/her own affairs. Duties may include filing a lawsuit for an injured child, defending a lawsuit, or filing a claim against an estate. Usually a parent will file a petition to be appointed the guardian ad litem of a child hurt in an accident at the same time the lawsuit is filed. (See: ad litem)Habeas corpus ( / /; Latin: "may you have the body") is a writ, or legal action, through which a prisoner can be released from unlawful detention, that is, detention lacking sufficient cause or evidence. The remedy can be sought by the prisoner or by another person coming to the prisoner's aid. Habeas corpus originated in the English legal system to assist wealthy landowners, but it is now available in many nations. It has historically been an important legal instrument safeguarding individual freedom of certain individuals against arbitrary state action. It is a writ requiring a person to be brought before a judge. (See More Discussion on wiki)
hearsay n. 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. (See: Hearsay in United States law ) (Related Reading)
hearsay exceptions May want to add this to your knowledge base. Here is a link for further explaination http://www.courts.state.nh.us/rules/evid/evid-803.htm (added 08/09-GPC-will be expanding)
hearsay rule n. the basic rule that testimony or documents which quote persons not in court are not admissible. Because the person who supposedly knew the facts is not in court to state his/her exact words, the trier of fact cannot judge the demeanor and credibility of the alleged first-hand witness, and the other party's lawyer cannot cross-examine (ask questions of) him or her. However, as significant as the hearsay rule itself are the exceptions to the rule which allow hearsay testimony such as: a) a statement by the opposing party in the lawsuit which is inconsistent with what he/she has said in court (called an "admission against interest"); b) business entries made in the regular course of business, when a qualified witness can identify the records and tell how they were kept; c) official government records which can be shown to be properly kept; d) a writing about an event made close to the time it occurred, which may be used during trial to refresh a witness' memory about the event; e) a "learned treatise" which means historical works, scientific books, published art works, maps and charts; f) judgments in other cases; g) a spontaneous excited or startled utterance ("oh, God, the bus hit the little girl"); h) contemporaneous statement which explains the meaning of conduct if the conduct was ambiguous; i) a statement which explains a person's state of mind at the time of an event; j) a statement which explains a person's future intentions ("I plan to....") if that person's state of mind is in question; k) prior testimony, such as in deposition (taken under oath outside of court), or at a hearing, if the witness is not available (including being dead); l) a declaration by the opposing party in the lawsuit which was contrary to his/her best interest if the party is not available at trial (this differs from an admission against interest which is admissible in trial if it differs from testimony at trial); m) a dying declaration by a person believing he/she is dying; n) a statement made about one's mental set, feeling, pain or health, if the person is not available---most often applied if the declarant is dead ("my back hurts horribly," and then dies); o) a statement about one's own will when the person is not available; p) other exceptions based on a judge's discretion that the hearsay testimony in the circumstances must be reliable. (See: hearsay, admission against interest, dying declaration)
immaterial adj. 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. (See: irrelevant)
incompetent adj. 1) referring to a person who is not able to manage his/her affairs due to mental deficiency (lack of I.Q., deterioration, illness or psychosis) or sometimes physical disability. Being incompetent can be the basis for appointment of a guardian or conservator (after a hearing in which the party who may be found to be incompetent has been interviewed by a court investigator and is present and/or represented by an attorney) to handle his/her person and/or affairs (often called "estate"). 2) in criminal law, the inability to understand the nature of a trial. In these cases defendant is usually institutionalized until such time as he/she regains sanity and can be tried. 3) a generalized reference to evidence which cannot be introduced because it violates various rules against being allowed, particularly because it has no bearing on the case. It may be irrelevant (not sufficiently significant) or immaterial (does not matter to the issues
indeterminate sentence n. 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. (See: sentence)
indictment n. a charge of a felony (serious crime) voted by a grand jury based upon a proposed charge, witnesses' testimony and other evidence presented by the public prosecutor (District Attorney). To bring an indictment the grand jury will not find guilt, but only the probability that a crime was committed, that the accused person did it, and that he/she should be tried. District Attorneys often only introduce key facts sufficient to show the probability, both to save time and to avoid revealing all the evidence. The Fifth Amendment to the U. S. Constitution provides that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment of a Grand Jury..." However, while grand juries are common in charging Federal crimes, many states use grand juries sparingly, and use the criminal complaint, followed by a "preliminary hearing" held by a lower court judge or other magistrate, who will determine whether or not the prosecutor has presented sufficient evidence that the accused has committed a felony. If the judge finds there is enough evidence, he/she will order the case sent to the appropriate court for trial. (See: grand jury, indictable offense, preliminary hearing, felony)
indictable offense n. a crime (offense) for which a grand jury rules that there is enough evidence to charge defendant with a felony (a crime punishable by death or a term in the state penitentiary). These crimes include murder, manslaughter, rape, kidnapping, grand theft, robbery, burglary, arson, conspiracy, fraud, and other major crimes, as well as attempts to commit them. (See: indictment)
in forma pauperis (in form-ah paw-purr-iss) adj. Latin for "in the form of a pauper," referring to a party to a lawsuit who gets filing fees waived by filing a declaration of lack of funds (has no money to pay). These declarations are most often found in divorces by young marrieds, or poor defendants who have been sued. Additional Info:>> (added 06/10-GPC) In the character or manner of being a pauper. Describes permission given to a poor person (i.e. indigent) to proceed without liability for court fees or costs. An indigent will not be deprived of his rights to litigate and appeal; Federal Rules of Appellate Procedure 24.
information n. an accusation or criminal charge brought by the public prosecutor (District Attorney) without a grand jury indictment. This "information" must state the alleged crimes in writing and must be delivered to the defendant at the first court appearance (arraignment). If the accusation is for a felony, there must be a preliminary hearing within a short period (such as five days) in which the prosecution is required to present enough evidence to convince the judge holding the hearing that the crime or crimes charged were committed and the defendant is likely to have committed them. If the judge becomes convinced, the defendant must face trial, and if the judge does not, the case against the defendant is dismissed. Sometimes it is a mixed bag, in that some of the charges in the information are sufficient for trial and the case is sent (remanded) to the appropriate court, and some are dismissed. (See: grand jury, indictment, charge, preliminary hearing, accusation, felony)
injunction n. a writ (order) issued by a court ordering someone to do something or prohibiting some act after a court hearing. The procedure is for someone who has been or is in danger of being harmed, or needs some help (relief) or his/her attorney, to a) petition for the injunction to protect his/her rights; to b) get an "order to show cause" from the judge telling the other party to show why the injunction should not be issued; c) serve (deliver or have delivered) the order to show cause on the party whom he/she wishes to have ordered to act or be restrained ("enjoined"); d) appear at a scheduled hearing in which both sides attempt to convince the judge why the injunction should or should not be granted. If there is danger of immediate irreparable harm at the time the petition is filed, a judge may issue a temporary injunction which goes into affect upon it being served (deliver or have delivered) to the other party. This temporary injunction will stay in force until the hearing or sometimes until the outcome of a lawsuit is decided in which an injunction is one of the parts of the plaintiff's demands (in the "prayer"). A final and continuing injunction is called a permanent injunction. Examples of injunctions include prohibitions against cutting trees, creating nuisances, polluting a stream, picketing which goes beyond the bounds of free speech and assembly, or removing funds from a bank account pending determination of ownership. So-called "mandatory" injunctions which require acts to be performed, may include return of property, keeping a gate to a road unlocked, clearing off tree limbs from a right-of-way, turning on electricity or heat in an apartment building, or depositing disputed funds with the court. (See: injunctive relief, writ)
injunctive relief n. a court-ordered act or prohibition against an act or condition which has been requested, and sometimes granted, in a petition to the court for an injunction. Such an act is the use of judicial (court) authority to handle a problem, and is not a judgment for money. Whether the relief will be granted is usually argued by both sides in a hearing rather than in a full-scale trial, although sometimes it is part of a lawsuit for damages and/or contract performance. Historically, the power to grant injunctive relief stems from English equity courts rather than damages from law courts. (See: injunction, writ, equity, permanent injunction)
in loco parentis, n. Latin for "in the place of a parent" or "instead of a parent," refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent. Originally derived from British common law, it is applied in two separate areas of the law.
The in loco parentis doctrine is distinct from the doctrine of parens patriae, the psychological parent doctrine, and adoption. In the United States, the parental liberty doctrine imposes constraints upon the operation of the in loco parentis doctrine. (Added 04/09-GPC-Wiki- http://en.wikipedia.org/wiki/In_loco_parentis )
interrogation n. 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. (See: Miranda Warning)
interrogatories n. as part of the pre-trial discovery process, either party to a lawsuit may send a set of written questions to the other party. These questions (interrogatories) must be answered in writing under oath or under penalty of perjury within a specified time (such as 30 days). Several states ask basic "form" interrogatories on a printed form, with an allowance for "supplemental" interrogatories specifically relevant to the lawsuit. Normal practice is for the lawyers to prepare the questions and for the answering party to have help from his/her/its attorney in understanding the meaning (sometimes hidden) of the questions and to avoid wording in his/her answers which could be interpreted against the party answering. Objections as to relevancy or clarity may be raised either at the time the interrogatories are answered or when they are used in trial. Most states limit the number of interrogatories that may be asked without the court's permission to keep the questions from being a means of oppression rather than just a source of information. While useful in getting basic information, they are much easier to ask than answer and are often intentionally burdensome. In addition the parties may request depositions (pre-trial questioning in front of a court reporter) or send "requests for admissions" which must be answered in writing. (See: discovery, deposition)
judge 1) n. an official with the authority and responsibility to preside in a court, try lawsuits, and make legal rulings. Judges are almost always attorneys. In some states, "justices of the peace" may need only to pass a test, and federal and state "administrative law judges" are often lawyer or non-lawyer hearing officers specializing in the subject matter upon which they are asked to rule. The word "court" often refers to the judge, as in the phrase "the court found the defendant at fault," or "may it please the court," when addressing the judge. The word "bench" also refers to the judge or judges in general. Judges on appeals courts are usually called "Justices." Judges of courts established by a state at the county, district, city or township level, gain office by election, by appointment by the Governor, or by some judicial selection process in case of a vacancy. Federal Judges are appointed for life by the President of the United States with confirmation by the United States Senate. A Senator of the same party as the President has considerable clout in recommending federal judges from his/her home state. 2) v. to rule on a legal matter, including determining the result in a trial if there is no jury. (See: jurist, court, justice, magistrate, bench, administrative law judge, justice of the peace)
jurist n. although it means any attorney or legal scholar, jurist popularly refers to a judge.
justice n. 1) fairness. 2) moral rightness. 3) a scheme or system of law in which every person receives his/her/its due from the system, including all rights, both natural and legal. One problem is that attorneys, judges, and legislatures often get caught up more in procedure than in achieving justice for all. Example: the adage "justice delayed is justice denied," applies to the burdensome procedures, lack of sufficient courts, clogging the system with meritless cases, and the use of the courts to settle matters which could be resolved by negotiation. The imbalance between court privileges obtained by attorneys for the wealthy and for the person of modest means, the use of delay and "blizzards" of unnecessary paper by large law firms, and judges who fail to cut through the underbrush of procedure all erode justice. 4) an appellate judge, the Chief Justice and Associate Justices of the U. S. Supreme Court, a member of a Federal Court of Appeal, and judges of any of the various state appellate courts.
justice of the peace (J.P.) n. a judge who handles minor legal matters such as misdemeanors, small claims actions, and traffic matters in "justice courts." Dating back to early English Common Law, "JPs" were very common up to the 1950s, but they now exist primarily in rural "justice districts" from which it is unreasonable for the public to travel to the county seat for trials of minor matters. In Nevada Justices of the Peace are lucrative jobs since they perform many of the marriages of elopers from other states, as Nevada has no waiting period from license to wedding. A justice of the peace is usually an attorney, but some states still allow laypersons to qualify by taking a test.
laches n. the legal doctrine that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party (hurt the opponent) as a sort of "legal ambush." Examples: knowing the correct property line, Oliver Owner fails to bring a lawsuit to establish title to a portion of real estate until Nat Neighbor has built a house which encroaches on the property in which Owner has title; Tommy Traveler learns that his father has died, but waits four years to come forward until the entire estate has been distributed on the belief that Tommy was dead; Susan Smart has a legitimate claim against her old firm for sexual harassment, but waits three years to come forward and file a lawsuit, after the employee who caused the problem has died, and the witnesses have all left the company and scattered around the country. The defense of laches is often raised in the list of "affirmative defenses" in answers filed by defendants, but is seldom applied by the courts. Laches is not to be confused with the "statute of limitations" which sets specific periods to file a lawsuit for types of claims (negligence, breach of contract, fraud, etc.)
The burden of proof (Latin: onus probandi) is the obligation to shift the accepted conclusion away from an oppositional opinion to one's own position.
The burden of proof is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, the best translation of which seems to be: "the necessity of proof always lies with the person who lays charges." This is a statement of a version of the presumption of innocence that underpins the assessment of evidence in some legal systems, and is not a general statement of when one takes on the burden of proof. The burden of proof tends to lie with anyone who is arguing against received wisdom, but does not always, as sometimes the consequences of accepting a statement or the ease of gathering evidence in its defense might alter the burden of proof its proponents shoulder. The burden may also be assigned institutionally.
He who does not carry the burden of proof carries the benefit of assumption, meaning he needs no evidence to support his claim. Fulfilling the burden of proof effectively captures the benefit of assumption, passing the burden of proof off to another party. However the incidence of burden of proof is affected by common law, statute and procedure.
The burden of proof is an especially important issue in law and science.
libel 1) n. to publish in print (including pictures), writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others. Libel is the written or broadcast form of defamation, distinguished from slander which is oral defamation. It is a tort (civil wrong) making the person or entity (like a newspaper, magazine or political organization) open to a lawsuit for damages by the person who can prove the statement about him/her was a lie. Publication need only be to one person, but it must be a statement which claims to be fact, and is not clearly identified as an opinion. While it is sometimes said that the person making the libelous statement must have been intentional and malicious, actually it need only be obvious that the statement would do harm and is untrue. Proof of malice, however, does allow a party defamed to sue for "general damages" for damage to reputation, while an inadvertent libel limits the damages to actual harm (such as loss of business) called "special damages." "Libel per se" involves statements so vicious that malice is assumed and does not require a proof of intent to get an award of general damages. Libel against the reputation of a person who has died will allow surviving members of the family to bring an action for damages. Most states provide for a party defamed by a periodical to demand a published retraction. If the correction is made, then there is no right to file a lawsuit. Governmental bodies are supposedly immune for actions for libel on the basis that there could be no intent by a non-personal entity, and further, public records are exempt from claims of libel. However, there is at least one known case in which there was a financial settlement as well as a published correction when a state government newsletter incorrectly stated that a dentist had been disciplined for illegal conduct. The rules covering libel against a "public figure" (particularly a political or governmental person) are special, based on U. S. Supreme Court decisions. The key is that to uphold the right to express opinions or fair comment on public figures, the libel must be malicious to constitute grounds for a lawsuit for damages. Minor errors in reporting are not libel, such as saying Mrs. Jones was 55 when she was only 48, or getting an address or title incorrect. 2) v. to broadcast or publish a written defamatory statement. (See: defamation, slander, libel per se, public figure)
libel per se n. broadcast or written publication of a false statement about another which accuses him/her of a crime, immoral acts, inability to perform his/her profession, having a loathsome disease (like syphilis), or dishonesty in business. Such claims are considered so obviously harmful that malice need not be proved to obtain a judgment for "general damages," and not just specific losses. (See: defamation, libel, slander)
license n. 1) governmental permission to perform a particular act (like getting married), conduct a particular business or occupation, operate machinery or vehicle after proving ability to do so safely, or use property for a certain purpose. 2) the certificate that proves one has been granted authority to do something under governmental license. 3) a private grant of right to use real property for a particular purpose, such as putting on a concert. 4) a private grant of the right to use some intellectual property such as a patent or musical composition. (See: licensee, licensor)
licensee n. a person given a license by government or under private agreement. (See: license, licensor)
licensor n. a person who gives another a license, particularly a private party doing so, such as a business giving someone a license to sell its product. (See: license, licensee)
magistrate n. 1) a generic term for any judge of a court, or anyone officially performing a judge's functions. 2) In a few states, an officer of the court at the lowest level which hears small claims lawsuits, serves as a judge for charges of minor crimes, and/or conducts preliminary hearings in criminal cases to determine if there is enough evidence presented by the prosecution to hold the accused for trial. 3) in Federal Courts, an official who conducts routine hearings assigned by the federal judges, including preliminary hearings in criminal cases. (See: judge, justice of the peace, preliminary hearing)
malice n. a conscious, intentional wrongdoing either of a civil wrong like libel (false written statement about another) or a criminal act like assault or murder, with the intention of doing harm to the victim. This intention includes ill-will, hatred, or total disregard for the other's well-being. Often the mean nature of the act itself implies malice, without the party saying "I did it because I was mad at him, and I hated him," which would be express malice. Malice is an element in first degree murder. In a lawsuit for defamation (libel and slander) the existence of malice may increase the judgment to include general damages. Proof of malice is absolutely necessary for a "public figure" to win a lawsuit for defamation. (See: malice aforethought, malicious prosecution, murder, defamation, libel, slander, public figure)
malice aforethought n. 1) the conscious intent to cause death or great bodily harm to another person before a person commits the crime. Such malice is a required element to prove first degree murder. 2) a general evil and depraved state of mind in which the person is unconcerned for the lives of others. Thus, if a person uses a gun to hold up a bank and an innocent bystander is killed in a shoot-out with police, there is malice aforethought.
malicious prosecution n. filing a lawsuit with the intention of creating problems for the defendant such as costs, attorneys fees, anguish, or distraction when there is no substantial basis for the suit. If the defendant in the lawsuit wins, and has evidence that the suit was filed out of spite and without any legal or factual foundation, he/she may, in turn, sue for damages against the person who filed the original action. If malice is clearly proved against the party who brought the original suit, punitive damages may be awarded along with special and general damages. In recent cases, courts have ruled that an attorney who knowingly assists a client in filing a worthless lawsuit out of malice or spite may be liable for damages along with the client. The suit by the victim to recover damages for a malicious prosecution cannot be filed until the original law suit is decided in favor of the victim. (See: malice)
Miranda warning( Miranda rule, Miranda rights) n. the requirement set by the U. S. Supreme Court in Miranda v. Alabama (1966) that prior to the time of arrest and any interrogation of a person suspected of a crime, he/she must be told that he/she has: "the right to remain silent, the right to legal counsel, and the right to be told that anything he/she says can be used in court against" him/her. Further, if the accused person confesses to the authorities, the prosecution must prove to the judge that the defendant was informed of them and knowingly waived those rights, before the confession can be introduced in the defendant's criminal trial. The warnings are known as "Miranda Rights" or just "rights." The Miranda rule supposedly prevents self-incrimination in violation of the Fifth Amendment to the U. S. Constitution. Sometimes there is a question of admissibility of answers to questions made by the defendant before he/she was considered a prime suspect, raising a factual issue as to what is a prime suspect and when does a person become such a suspect? (See: rights)
misdemeanor n. a lesser crime punishable by a fine and/or county jail time for up to one year. Misdemeanors are distinguished from felonies which can be punished by a state prison term. They are tried in the lowest local court such as municipal, police or justice courts. Typical misdemeanors include: petty theft, disturbing the peace, simple assault and battery, drunk driving without injury to others, drunkenness in public, various traffic violations, public nuisances, and some crimes which can be charged either as a felony or misdemeanor depending on the circumstances and the discretion of the District Attorney. "High crimes and misdemeanors" referred to in the U. S. Constitution are felonies. (See: felony)
molestation n. the crime of sexual acts with children up to the age of 18, including touching of private parts, exposure of genitalia, taking of pornographic pictures, rape, inducement of sexual acts with the molester or with other children, and variations of these acts by pedophiles. Molestation also applies to incest by a relative with a minor family member, and any unwanted sexual acts with adults short of rape. (See: pedophilia, rape)
Motion In parliamentary law, the formal mode in which a member submits a proposed measure or resolve for the consideration and action of the meeting. Fed. Rules of Civil Procedures 7(b).  (added 06/10-GPC)
murder n. the killing of a human being by a sane person, with intent, malice aforethought (prior intention to kill the particular victim or anyone who gets in the way), and with no legal excuse or authority. In those clear circumstances, this is first degree murder. By statute many states make killings in which there is torture, movement of the person (kidnapping) before the killing, as an incident to another crime (as during a hold-up or rape), and the death of a police officer or prison guard all first degree murders with or without premeditation, and with malice presumed. Second degree murder is such a killing without premeditation, as in the heat of passion or in a sudden quarrel or fight. Malice in second degree murder may be implied from a death due to the reckless lack of concern for the life others (such as firing a gun into a crowd, or bashing someone with any deadly weapon). Depending on the circumstances and state laws, murder in the first or second degree may be chargeable to a person who did not actually kill, but was involved in a crime with a partner who actually did the killing or someone died as the result of the crime. (Example: In a liquor store stick-up in which the clerk shoots back at the hold-up man and kills a bystander, the armed robber can be convicted of at least second degree murder. To be murder the victim must die within a year of the attack. Death of an unborn child who is "quick" (fetus is moving) can be murder, provided there was premeditation, malice, and no legal authority. Thus, abortion is not murder under the law. (Example: Jack Violent shoots his pregnant girlfriend, killing the fetus). Manslaughter, both voluntary and involuntary, lacks the element of malice aforethought.
O.R. n. short for "own recognizance," meaning the judge allowed a person accused in a criminal case to go free pending trial without posting bail. A person so released is often referred to as having been "OR-ed." (See: own recognizance)
oath n. 1) a swearing to tell the truth, the whole truth and nothing but the truth, which would subject the oath-taker to a prosecution for the crime of perjury if he/she knowingly lies in a statement either orally in a trial or deposition or in writing. Traditionally, the oath concludes "so help me God," but the approval of a supreme being is often omitted. However, criminal perjury charges are rare, since the person stating the untruth will almost always claim error, mistake, loss of memory, or opinion. At the beginning of any testimony by a witness, the clerk or court reporter administers an oath to the witness. 2) The "swearing in" of a person assuming a public office, sometimes called the "oath of office." 3) sworn commitment of allegiance, as to one's country.
object 1) v. to ask the court not to allow a particular question asked of a witness by the opposing lawyer on the basis that it is either legally not permitted or in its wording is confusing or improper in its "form." An attorney may also object to an answer on the basis that it is not "responsive," to the question, on the basis a witness is limited to answering a question and is not allowed to make unsolicited comments. The trial attorney must be alert and quick in order to object before the witness answers. This is called an "objection" and must be based on a specific list of legal restrictions on questions. 2) n. a particular thing. 3) n. an aim or purpose, as "the object of the contract..." (See: objection)
objection a lawyer's protest about the legal propriety of a question which has been asked of a witness by the opposing attorney, with the purpose of making the trial judge decide if the question can be asked. A proper objection must be based on one of the specific reasons for not allowing a question. These include: irrelevant, immaterial, incompetent (often stated together, which may mean the question is not about the issues in the trial, or the witness is not qualified to answer), hearsay (the answer would be what someone told the witness and is not what he/she knew first-hand), leading (putting words in the mouth of one's own witness), calls for a conclusion (asking for opinion, not facts), compound question (two or more questions asked together), or lack of foundation (referring to a document lacking testimony as to authenticity or source). An objection must be made quickly and loudly to halt the witness before he/she answers. The judge will either "sustain" the objection (ruling out the question) or "overrule" it (allow the question). The judge may ask for an "offer of proof" in which the lawyer asking the question must explain to the court the reason the question is relevant, and what evidence his/her questions will bring out. Badly worded, confusing or compound questions are usually challenged by an objection to the form of the question, which is essentially a demand that the question be withdrawn and reworded. An attorney may "object" to a witness's answer as "nonresponsive" to the question, but the proper request should be that the answer or a comment without a question be "stricken" from the record. (See: object, hearsay, irrelevant, immaterial, incompetent, compound question, sustain)
obscene adj., adv. a highly subjective reference to material or acts which display or describe sexual activity in an obviously disgusting manner, appealing only to "prurient interest," with no legitimate artistic, literary or scientific purpose. Pictures, writings, film or public acts which are found to be obscene are not protected by the free speech guarantee of the First Amendment. However, "one person's obscenity is another person's art," or "I can't define it, but I know it when I see it." (See: pornography)
ombudsman n. is an official, usually (but not always) appointed by the government or by parliament, who is charged with representing the interests of the public by investigating and addressing complaints reported by individual citizens. In some jurisdictions, the Ombudsman is referred to, at least officially, as the 'Parliamentary Commissioner' (e.g., the West Australian state Ombudsman). The word ombudsman and its specific meaning, Swedish in origin, have since been adopted in to English as well as other languages, and ombudsmen have been instituted by other governments and organizations such as the European Union. (See related webpage)
own recognizance (O.R.) n. the basis for a judge allowing a person accused of a crime to be free while awaiting trial, without posting bail, on the defendant's own promise to appear and his/her reputation. The judge may consider the seriousness of the crime charged, the likelihood the defendant will always appear, the length of time the person has lived in the area, his/her reputation in the community, his/her employment, financial burdens, and the demeanor of the accused. In minor crimes, traffic offenses, and technical law violations such as leaky septic systems, judges routinely grant release on one's own recognizance. (See: O.R., bail)
n. a crime consisting of acts or
omissions of a parent (including a step-parent, adoptive parent, or someone
who, in practical terms, serves in a parent's role) which endangers the
health and life of a child or fails to take steps necessary to the proper
raising of a child. The neglect can include leaving a child alone when he or
she needs protection, failure to provide food, clothing, medical attention
or education to a child, or placing the child in dangerous or harmful
circumstances, including exposing the child to a violent, abusive or
sexually predatory person. (http://legal-dictionary.
parens patriae (n) is Latin for "father of the people". In law, it refers to the public policy power of the state to usurp the rights of the natural parent, legal guardian or informal carer, and to act as the parent of any child or individual who is in need of protection, such as a child whose parents are unable or unwilling to take care of him or her, or an incapacitated and dependent individual. In U.S. litigation, parens patriae can be invoked by the state to create its standing to sue; the state declares itself to be suing on behalf of its people. For example, the Hart-Scott-Rodino Antitrust Improvement Act of 1976 (15 USC 15(c)), through Section 4C of the Clayton Act, permits state attorneys general to bring parens patriae suits on behalf of those injured by violations of the Sherman Antitrust Act.(See: in loco parentis)
pedophilia n. an obsession with children as sex objects. Overt acts, including taking sexual explicit photographs, molesting children, and exposing one's genitalia to children are all crimes. The problem with these crimes is that pedophilia is also treated as a mental illness, and the pedophile is often released only to repeat the crimes or escalate the activity to the level of murder. (See: molestation, rape, pornography)
perjury v. also known as forswearing, is the act of lying or making verifiably false statements on a material matter under oath or affirmation in a court of law or in any of various sworn statements in writing. It is important that the false statement be material to the case at hand—that it could affect the outcome of the case. It is not considered perjury, for example, to lie about one's age, unless that person's age is a key factor in proving the case. (added 8/08GPC)
permanent injunction n. a final order of a court that a person or entity refrain from certain activities permanently or take certain actions (usually to correct a nuisance) until completed. A permanent injunction is distinguished from a "preliminary" injunction which the court issues pending the outcome of a lawsuit or petition asking for the "permanent" injunction. (See: injunction, preliminary injunction, temporary injunction)
plausible deniability is also a legal concept. It refers to lack of evidence proving an allegation. Standards of proof vary in civil and criminal cases. In civil cases, the standard of proof is "preponderance of the evidence" whereas in a criminal matter, the standard is "beyond a reasonable doubt." If an opponent lacks incontrovertible proof (evidence) of their allegation, one can "plausibly deny" the allegation even though it may be true. Read HIstory of the term "plausible deniability" (added wiki 6/13GPC)
Pleadings n. In law as practiced in countries that follow the English model, a pleading is a formal written statement filed with a court by parties in a civil action, such as a complaint, a demurrer, or an answer. A complaint is the first pleading filed by a plaintiff which initiates a lawsuit. A complaint sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief. In some situations, a complaint is called a petition, in which case the party filing it is called the petitioner and the other party is the respondent. A demurrer is a pleading filed by a defendant which challenges the legal sufficiency of a complaint; an answer is a pleading which admits or denies the specific allegations set forth in a complaint and constitutes a general appearance by a defendant. A defendant may also file a cross-complaint as well as bringing other parties into a case by the process of impleader. (Added 10/08-GPC)
police n. pl. police
Preponderance of evidence A standard of proof that must be met by a plaintiff if he or she is to win a civil action.
In a civil case, the plaintiff has the burden of proving the facts and claims asserted in the complaint. If the respondent, or defendant, files a counterclaim, the respondent will have the burden of proving that claim. When a party has the Burden of Proof, the party must present, through testimony and exhibits, enough evidence to support the claim. The amount of evidence required varies from claim to claim. For most civil claims, there are two different evidentiary standards: preponderance of the evidence, and clear and convincing evidence. A third standard, proof Beyond a Reasonable Doubt, is used in criminal cases and very few civil cases. (See plausible deniability)
The quantum of evidence that constitutes a preponderance cannot be reduced to a simple formula. A preponderance of evidence has been described as just enough evidence to make it more likely than not that the fact the claimant seeks to prove is true. It is difficult to translate this definition and apply it to evidence in a case, but the definition serves as a helpful guide to judges and juries in determining whether a claimant has carried his or her burden of proof.
The majority of civil claims are subjected to a preponderance of evidence standard. If a court or legislature seeks to make a civil claim more difficult to prove, it may raise the evidentiary standard to one of clear and convincing evidence.
Under some circumstances use of the low preponderance of evidence standard may be a violation of constitutional rights. For example, if a state seeks to deprive natural parents of custody of their children, requiring only proof by a preponderance of evidence is a violation of the parents' due process rights (Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 ). Freedom in matters of family life is a fundamental liberty interest, and the government cannot take it away with only a modest evidentiary standard. However, a court may use a preponderance of evidence standard when a mother seeks to establish that a certain man is the father of her child (Rivera v. Minnich, 483 U.S. 574, 107 S. Ct. 3001, 97 L. Ed. 2d 473 ). Most states use the preponderance of evidence standard in these cases because they have an interest in ensuring that fathers support their children.
per se (purr say) adj. Latin for "by itself," meaning inherently. Thus, a published writing which falsely accuses another of having a venereal disease or being a convicted felon is "libel per se," without further explanation of the meaning of the statement. (See: libel per se)
pleading n. 1) every legal document filed in a lawsuit, petition, motion and/or hearing, including complaint, petition, answer, demurrer, motion, declaration, and memorandum of points and authorities (written argument citing precedents and statutes). Laypersons should be aware that, except possibly for petitions from prisoners, pleadings are required by state or federal statutes and/or court rules to be of a particular form and format: typed, signed, dated, with the name of the court, title and number of the case, name, address and telephone number of the attorney or person acting for himself/herself (in pro per) included. 2) the act of preparing and presenting legal documents and arguments. Good pleading is an art: clear, logical, well-organized, comprehensive, and including all essential facts.
pornography n. pictures and/or writings of sexual activity intended solely to excite lascivious feelings, of a particularly blatant and aberrational kind such as acts involving children, animals, orgies, and all types of sexual intercourse. The printing, publication, sale and distribution of "hard core" pornography is a either a felony or misdemeanor in most states. Since determining what is pornography and what is "soft core" and "hard core" are subjective questions to judges, juries and law enforcement officials it is difficult to define, since the law cases cannot print examples for the courts to follow. (See: obscene)
preliminary hearing n. in criminal law, a hearing to determine if a person charged with a felony (a serious crime punishable be a term in the state prison) should be tried for the crime charged, based on whether there is some substantial evidence that he/she committed the crime charged. A preliminary hearing is held in the lowest local court (municipal or police court), but only if the prosecutor has filed the charge without asking the grand jury for an indictment for the alleged crime. Such a hearing must be held within a few days after arraignment (presentation in court of the charges and the defendant's right to plead guilty or not guilty). Since neither side wants to reveal its trial strategy, the prosecution normally presents only enough evidence and testimony to show the probability of guilt, and defendants often put on no evidence at all at the preliminary hearing, unless there is a strong chance of getting the charges dismissed. If the judge finds sufficient evidence to try the defendant, the case is sent to the appropriate court (variously called superior/county/district/common pleas) for trial. If there is no such convincing evidence, the judge will dismiss the charges. In the "Perry Mason" television series, the courtroom scenes were almost always of preliminary hearings. (See: arraignment, information, grand jury)
probable cause n. sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime. Probable cause must exist for a law enforcement officer to make an arrest without a warrant, search without a warrant, or seize property in the belief the items were evidence of a crime. While some cases are easy (pistols and illicit drugs in plain sight, gunshots, a suspect running from a liquor store with a clerk screaming "help"), actions typical of drug dealers, burglars, prostitutes, thieves, or people with guilt "written across their faces," are more difficult to categorize. "Probable cause" is often subjective, but if the police officer's belief or even hunch was correct, finding stolen goods, the hidden weapon, or drugs may be claimed as self-fulfilling proof of probable cause. Technically, probable cause has to exist prior to arrest, search or seizure. (See: search, search and seizure, Bill of Rights)
Pro se legal representation refers to the instance of a person representing himself or herself without a lawyer in a court proceeding, whether as a defendant or a plaintiff and whether the matter is civil or criminal. Pro se is a Latin phrase meaning "for himself". This status is sometimes known as "propria persona" or "pro per". In England and Wales the comparable status is "Litigant in Person". In the United States, many state court systems and the federal courts are experiencing an increasing proportion of pro se litigants. Learn more (added 10/08-GPC) ((See: Related Site Information))
prosecute v. 1) in criminal law, to charge a person with a crime and thereafter pursue the case through trial on behalf of the government. This is normally the function of the District Attorney (called States Attorney or city prosecutor in some places) and the United States Attorney in federal criminal cases. A state Attorney General may prosecute in crimes of statewide importance, and the United States Attorney General, through the Solicitor General, may prosecute for crimes involving matters of national significance. 2) to conduct any legal action by a lawyer on behalf of a client, including both civil and criminal cases, but most commonly referring to prosecution for crimes. (See: prosecution, prosecutor, District Attorney, Attorney General)
prosecutor n. generic term for the government's attorney in a criminal case, including District Attorney, States Attorney, United States Attorney, Attorney General, Solicitor General, or special prosecutor. A special prosecutor may be assigned to investigate as well as prosecute if necessary when a government official is involved directly or indirectly in the possible criminal activity. (See prosecute, District Attorney, Attorney General, special prosecutor)
prosecution n. 1) in criminal law, the government attorney charging and trying the case against a person accused of a crime. 2) a common term for the government's side in a criminal case, as in "the prosecution will present five witnesses" or "the prosecution rests" (completed its case). (See: prosecute, prosecutor)
public defender n. an elected or appointed public official (usually of a county), who is an attorney regularly assigned by the courts to defend people accused of crimes who cannot afford a private attorney. In larger counties the public defender has a large case load, numerous deputy public defenders and office staff. In each Federal Judicial District there is also a federal public defender, and some states have a state public defender to supervise the provision of attorneys to convicted indigents for appeals.
public figure n. in the law of defamation (libel and slander), a personage of great public interest or familiarity like a government official, politician, celebrity, business leader, movie star, or sports hero. Incorrect harmful statements published about a public figure cannot be the basis of a lawsuit for defamation unless there is proof that the writer or publisher intentionally defamed the person with malice (hate). (See: defamation, libel, slander)
rape 1) n. the crime of sexual intercourse (with actual penetration of a woman's vagina with the man's penis) without consent and accomplished through force, threat of violence or intimidation (such as a threat to harm a woman's child, husband or boyfriend). What constitutes lack of consent usually includes saying "no" or being too drunk or drug-influenced for the woman to be able to either resist or consent, but a recent Pennsylvania case ruled that a woman must do more than say "no" on the bizarre theory that "no" does not always mean "don't," but a flirtatious come-on. "Date rape," involves rape by an acquaintance who refuses to stop when told to. Defense attorneys often argue that there had to be physical resistance, but the modern view is that fear of harm and the relative strengths of the man and the woman are obvious deterrents to a woman fighting back. Any sexual intercourse with a child is rape and in most states sexual relations even with consent involving a girl 14 to 18 (with some variation on ages in a few states) is "statutory rape," on the basis that the female is unable to give consent. 2) v. to have sexual intercourse with a female without her consent through force, violence, threat or intimidation, or with a girl under age. Technically, a woman can be charged with rape by assisting a man in the rape of another woman. Dissatisfied with the typical prosecution of rape cases (in which the defense humiliates the accuser, and prosecutors are unable or unwilling to protect the woman from such tactics), women have been suing for civil damages for the physical and emotional damage caused by the rape, although too often the perpetrator has no funds. Protection services for rape victims have been developed by both public and private agencies. On the other side of the coin, there is the concern of law enforcement and prosecutors that women whose advances have been rejected by a man, or who have been caught in the act of consensual sexual intercourse may falsely cry "rape."
redaction In broad sense, term refers to any revision or editing, but in a legal sense, it has become alteration of a confession to excise any reference by one joint defendant to any codefendant. Com v Guess 266 Pa.Super. 359,404 A.2d 1330, 1338 (Ref: Blacks Law Dictionary. Added: 01/07/09)
relevant adj. having some reasonable connection with, and in regard to evidence in trial, having some value or tendency to prove a matter of fact significant to the case. Commonly an objection to testimony or physical evidence is that it is "irrelevant." (See: objection, irrelevant)
restitution n. 1) returning to the proper owner property or the monetary value of loss. Sometimes restitution is made part of a judgment in negligence and/or contracts cases. 2) in criminal cases, one of the penalties imposed is return of stolen goods to the victim or payment to the victim for harm caused. Restitution may be a condition of granting defendant probation or giving him/her a shorter sentence than normal.
rights n. 1) plural of right, which is the collection of entitlements which a person may have and which are protected by the government and the courts, or under an agreement (contract). 2) slang for the information which must be given by law enforcement officers to a person who is about to be arrested, is a prime suspect in a crime, or is officially accused of a crime. These "rights" are short for "Miranda rights," which the Supreme Court in Miranda v. Arizona (1966), required be read to alleged criminals, including the rights to remain silent and to have an attorney (and if the suspect cannot afford a lawyer, one will be provided), and warning that anything the suspect says can be used against him/her in court. Failure to recite these rights means that a confession may not be used as evidence. (See: Miranda Warning)
rule of law is a legal maxim that suggests that governmental decisions be made by applying known principles. The phrase can be traced back to 17th century and was popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern". Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right.
Despite wide use by politicians, judges and academics, the rule of law has been described as "an exceedingly elusive notion" giving rise to a "rampant divergence of understandings ... everyone is for it but have contrasting convictions about what it is."
At least two principal conceptions of the rule of law can be identified: a formalist or "thin" and a substantive or "thick" definition of the rule of law. Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law. (Added 12/11-GPC-Link-http://en.wikipedia.org/wiki/Rule_of_law ) Related Info: video - "Rule of Law" by Bill of Rights Institute
search v. 1) to examine another's premises (including a vehicle) to look for evidence of criminal activity. It is unconstitutional under the 4th and 14th Amendments for law enforcement officers to conduct a search without a "search warrant" issued by a judge or without facts which give the officer "probable cause" to believe evidence of a specific crime is on the premises and there is not enough time to obtain a search warrant. 2) to trace the records of ownership of real property in what is commonly called a "title search." (See: search and seizure, search warrant, probable cause, abstract)
search and seizure n. examination of a person's premises (residence, business, or vehicle) by law enforcement officers looking for evidence of the commission of a crime, and the taking (seizure and removal) of articles of evidence (such as controlled narcotics, a pistol, counterfeit bills, a blood-soaked blanket). The basic question is whether the search and seizure were "unreasonable" under the 4th Amendment to the Constitution (applied to the states under the 14th Amendment), which provides: "The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Thus, searches and seizures must be under the authority of a search warrant or when the officer has solid facts that give him/her "probable cause" to believe there was evidence of a specific crime in the premises and no time to get a warrant. Evidence obtained in violation of the Constitution is not admissible in court, nor is evidence traced through such illegal evidence. (See: search, search warrant, probable cause, fruit of the poisonous tree)
search warrant n. a written order by a judge which permits a law enforcement officer to search a specific place (eg. 112 Magnolia Avenue, Apartment 3, or a 1991 Pontiac, Texas License number 123ABC) and identifies the persons (if known) and any articles intended to be seized (often specified by type, such as "weapons," "drugs and drug paraphernalia," "evidence of bodily harm"). Such a search warrant can only be issued upon a sworn written statement of a law enforcement officer (including a prosecutor). The 4th Amendment to the Constitution specifies: "...no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." The 14th Amendment applies the rule to the states. Evidence unconstitutionally seized cannot be used in court, nor can evidence traced through such illegal evidence. (See: search, search and seizure, probable cause, fruit of the poisonous tree)
self-incrimination n. making statements or producing evidence which tends to prove that one is guilty of a crime. The 5th Amendment to the U.S. Constitution guarantees that one cannot "be compelled in any criminal case to be a witness against himself..." and the 14th Amendment applies that guarantee to state cases. Thus refusing to testify in court on the basis that the testimony may be self-incriminating is called "taking the Fifth." (See: taking the Fifth, Miranda warning, rights)
sentence 1) n. the punishment given to a person convicted of a crime. A sentence is ordered by the judge, based on the verdict of the jury (or the judge's verdict if there was no jury) within the possible punishments set by state law (or Federal law in convictions for a Federal crime). Popularly, "sentence" refers to the jail or prison time ordered after conviction, as in "his sentence was 10 years in state prison." Technically, a sentence includes all fines, community service, restitution or other punishment, or terms of probation. Defendants who are first offenders without a felony record may be entitled to a probation or pre-sentence report by a probation officer based on background information and circumstances of the crime, often resulting in a recommendation as to probation and amount of punishment. For misdemeanors (lesser crimes) the maximum sentence is usually one year in county jail, but for felonies (major crimes) the sentence can range from a year to the death penalty for murder in most states. Under some circumstances the defendant may receive a "suspended sentence" which means the punishment is not imposed if the defendant does not get into other trouble for the period he/she would have spent in jail or prison, "concurrent sentences" in which the prison time for more than one crime is served at the same time and only lasts as long as the longest term, "consecutive sentences," in which the terms for several crimes are served one after another, and "indeterminate" sentences in which the actual release date is not set and will be based on review of prison conduct. (See: concurrent sentence, suspended sentence, indeterminate sentence, restitution, death penalty)
service of process n. the delivery of copies of legal documents such as summons, complaint, subpoena, order to show cause (order to appear and argue against a proposed order), writs, notice to quit the premises, and certain other documents, usually by personal delivery to the defendant or other person to whom the documents are directed. So-called "Substituted Service" can be accomplished by leaving the documents with an adult resident of a home, with an employee with management duties at a business office, or with a designated "agent for acceptance of service" (often with name and address filed with the state's Secretary of State), or, in some cases, by posting in a prominent place followed by mailing copies by certified mail to the opposing party. In certain cases of absent or unknown defendants, the court will allow service by publication in a newspaper. Once all parties have filed a complaint, answer, or any pleading in a lawsuit, further documents usually can be served by mail or even FAX.
sidebar n. 1) physically, an area in front of or next to the judge's bench (the raised desk in front of the judge) away from the witness stand and the jury box, where lawyers are called to speak confidentially with the judge out of earshot of the jury. 2) a discussion between the judge and attorneys at the bench off the record and outside the hearing of the jurors or spectators. 3) in journalism, a brief story on a sidelight to a news story, such as a biographical sketch about a figure in the news or an anecdote related to the main story, and sometimes enclosed within a box. (See: bench, approach the bench)
slander n. oral defamation, in which someone tells one or more persons an untruth about another which untruth will harm the reputation of the person defamed. Slander is a civil wrong (tort) and can be the basis for a lawsuit. Damages (payoff for worth) for slander may be limited to actual (special) damages unless there is malicious intent, since such damages are usually difficult to specify and harder to prove. Some statements such as an untrue accusation of having committed a crime, having a loathsome disease, or being unable to perform one's occupation are treated as slander per se since the harm and malice are obvious, and therefore usually result in general and even punitive damage recovery by the person harmed. Words spoken over the air on television or radio are treated as libel (written defamation) and not slander on the theory that broadcasting reaches a large audience as much if not more than printed publications. (See: defamation, fair comment)
Solicitor General n. the chief trial attorney in the Federal Department of Justice responsible for arguing cases before the Supreme Court, and ranking second to the Attorney General in the Department.
special prosecutor n. an attorney from outside of the government selected by the Attorney General or Congress to investigate and possibly prosecute a federal government official for wrongdoing in office. The theory behind appointing a special prosecutor is that there is a built-in conflict of interest between the Department of Justice and officials who may have political or governmental connections with that department. The most famous special prosecutor was law professor Archibald Cox, originally chosen to investigate White House (and President Richard Nixon's) involvement in the Watergate scandal. President Nixon demanded that Attorney General Elliot Richardson fire Cox who was being aggressive in his investigation, and Richardson resigned rather than comply, as did Assistant Attorney General William Ruckelshaus. Deputy Attorney General Robert Bork finally discharged Cox.
standard of proof that must be met by a plaintiff if he or she is to win a civil action.
In a civil case, the plaintiff has the burden of proving the facts and claims asserted in the complaint. If the respondent, or defendant, files a counterclaim, the respondent will have the burden of proving that claim. When a party has the Burden of Proof, the party must present, through testimony and exhibits, enough evidence to support the claim. The amount of evidence required varies from claim to claim. For most civil claims, there are two different evidentiary standards: preponderance of the evidence, and clear and convincing evidence. A third standard, proof Beyond a Reasonable Doubt, is used in criminal cases and very few civil cases.
The quantum of evidence that constitutes a preponderance cannot be reduced to a simple formula. A preponderance of evidence has been described as just enough evidence to make it more likely than not that the fact the claimant seeks to prove is true. It is difficult to translate this definition and apply it to evidence in a case, but the definition serves as a helpful guide to judges and juries in determining whether a claimant has carried his or her burden of proof.
The majority of civil claims are subjected to a preponderance of evidence standard. If a court or legislature seeks to make a civil claim more difficult to prove, it may raise the evidentiary standard to one of clear and convincing evidence.
Under some circumstances use of
the low preponderance of evidence standard may be a violation of constitutional
rights. For example, if a state seeks to deprive natural parents of custody of
their children, requiring only proof by a preponderance of evidence is a
violation of the parents'
rights (Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d
599 ). Freedom in matters of family life is a fundamental liberty
interest, and the government cannot take it away with only a modest evidentiary
standard. However, a court may use a preponderance of evidence standard when a
mother seeks to establish that a certain man is the father of her child (Rivera
v. Minnich, 483 U.S. 574, 107 S. Ct. 3001, 97 L. Ed. 2d 473 ). Most
states use the preponderance of evidence standard in these cases because they
have an interest in ensuring that fathers support their children.
statute of limitations n. a law which sets the maximum period which one can wait before filing a lawsuit, depending on the type of case or claim. The periods vary by state. Federal statutes set the limitations for suits filed in Federal courts. If the lawsuit or claim is not filed before the statutory deadline the right to sue or make a claim is forever dead (barred). The types of cases and statute of limitations periods are broken down among: personal injury from negligence or intentional wrongdoing, property damage from negligence or intentional wrongdoing, breach of an oral contract, breach of a written contract, professional malpractice, libel, slander, fraud, trespass, a claim against a governmental entity (usually a short time), and some other variations. In some instances a statute of limitations can be extended ("tolled") based on delay in discovery of the injury or on reasonable reliance on a trusted person (a fiduciary or confidential adviser who has hidden his/her own misuse of someone else's funds or failure to pay). A minor's right to bring an action for injuries due to negligence is tolled until the minor turns 18 (except for a claim against a governmental agency). There are also statutes of limitations on bringing criminal charges, but homicide generally has no time limitation on prosecution. The limitations (depending on the state) generally range from 1 to 6 years except for in Rhode Island which uses 10 years for several causes of action. Louisiana has the strictest limitations, cutting off lawsuit rights at one year for almost all types of cases except contracts. California also has short periods, usually one year, with two years for most property damage and oral contracts and four years for written contracts. There are also statutes of limitations on the right to enforce a judgment, ranging from five to 25 years, depending on the state. Some states have special requirements before a lawsuit can be filed, such as a written warning to a physician in a claim of malpractice, making a demand upon a state agency and then waiting for the claim to be denied or ignored for a particular period, first demanding a retraction before filing a libel suit, and other variations. Vermont protects its ski resorts by allowing only one year for filing a lawsuit for injuries suffered in a skiing accident as an exception to that state's three-year statute of limitations for other personal injuries. (See: laches, toll, demurrer)
summons n. a document issued by the court at the time a lawsuit is filed, stating the name of both plaintiff and defendant, the title and file number of the case, the court and its address, the name and address of the plaintiff's attorney, and instructions as to the need to file a response to the complaint within a certain time (such as 30 days after service), usually with a form on the back on which information of service of summons and complaint is to be filled out and signed by the process server. A copy of the summons must be served on each defendant at the same time as the complaint to start the time running for the defendant to answer. Certain writs and orders to show cause are served instead of a summons since they contain the same information along with special orders of the court. After service to the defendants, the original summons, along with the "return of service" proving the summons and complaint were served, is filed with the court to show that each defendant was served. A summons differs from a subpena, which is an order to witnesses to appear.
suspended sentence n. in criminal law, a penalty applied by a judge to a defendant convicted of a crime, which the judge provides will not be enforced (is suspended) if the defendant performs certain services, makes restitution to persons harmed, stays out of trouble, or meets other conditions. Should the sentenced party fail to follow these requirements, then the suspended sentence may be enforced. (See: sentence)
sustain v. in trial practice, for a judge to agree that a question asked of a witness is objectionable. Thus, an attorney asks the witness a question, and the opposing lawyer objects, saying the question is "irrelevant, immaterial and incompetent," "leading," "argumentative," or some other objection. If the judge agrees he/she will rule "sustained," meaning the objection is sustained (approved) and the question cannot be asked or answered. However, if the judge finds the question proper, he/she will "over-rule" the objection.
taking the Fifth n. the refusal to testify on the ground that the testimony might tend to incriminate the witness in a crime, based on the Fifth Amendment to the Constitution which provides that "No person....shall be compelled to be a witness against himself," applied to state courts by the 14th Amendment. The term became famous during televised Senate committee hearings on organized crime in 1951, when a series of crime bosses "took the Fifth." (See: self-incrimination)
temporary injunction n. a court order prohibiting an action by a party to a lawsuit until there has been a trial or other court action. A temporary injunction differs from a "temporary restraining order" which is a short-term, stop-gap injunction issued pending a hearing, at which time a temporary injunction may be ordered to be in force until trial. The purpose of a temporary injunction is to maintain the status quo and prevent irreparable damage or change before the legal questions are determined. After the trial the court may issue a "permanent injunction" (making the temporary injunction a lasting rule) or "dissolve" (cancel) the temporary injunction. (See: injunction)
toll v. 1) to delay, suspend or hold off the effect of a statute. Examples: a minor is injured in an accident when he is 14 years old, and the state law (statute of limitations) allows a person hurt by negligence two years to file suit for damages. But for a minor the statute is "tolled" until he/she becomes 18 and decides whether or not to sue. Thus the minor has two years after 18 to file suit. State law allows 10 years to collect a judgment, but if the judgment debtor (party who owes the judgment amount) leaves the state the time is "tolled," so the judgment creditor (party to whom judgment is owed) will have extra time to enforce the judgment equal to the time the debtor was out of state. 2) a charge to pass over land, use a toll road or turnpike, cross a bridge, or take passage on a ferry.
trial n. the examination of facts and law presided over by a judge (or other magistrate, such as a commissioner or judge pro tem) with authority to hear the matter (jurisdiction). A trial begins with the calling of the parties to come and be heard and selection of a jury if there is a jury. Each party is entitled to an opening statement by his/her attorney (or the party if he/she is representing himself/herself), limited to an outline of what each side intends to prove (the defense may withhold the opening statement until the defense is ready to present evidence), followed by the presentation of evidence first by the plaintiff or prosecution (in a criminal case), followed by the defense evidence, and then by rebuttal evidence by the plaintiff or prosecution to respond to the defense. At the conclusion of all evidence each attorney (plaintiff or prosecution first) can make a final argument which can include opinion and comment on evidence and legal questions. If it is a jury trial, the judge will give the jury a series of instructions as to the law of the case, based on "jury instructions" submitted by the attorneys and approved, rejected, modified and/or added to by the judge. Then the jury retires to the jury room, chooses a foreperson, and decides the factual questions. If there is no jury, the judge will determine legal issues and decide factual questions and render a judgment. A jury will judge the factual issues and decide the verdict based on the law as given in the instructions by the judge. Final verdict or judgment usually concludes the trial, although in some criminal cases a further trial will be held to determine "special circumstances" (acts which will increase the punishment) or whether the death penalty should be imposed. Throughout a trial there may be various motions on legal issues, some of which may be argued in the judge's chambers. In most criminal cases the exact punishment will be determined by the judge at a hearing held at a later time.
verification n. the declaration under oath or upon penalty of perjury that a statement or pleading is true, located at the end of a document. A typical verification reads: "I declare under penalty of perjury under the laws of the State of California, that I have read the above complaint and I know it is true of my own knowledge, except as to those things stated upon information and belief, and as to those I believe it to be true. Executed January 3, 1995, at Monrovia, California. (signed) Georgia Garner, declarant." If a complaint is verified then the answer to the complaint must be verified. (See: complaint, answer, oath)
wards of the court In law, a ward is someone placed under the protection of a legal guardian. A court may take responsibility for the legal protection of an individual, usually either a child or incapacitated person, in which case the ward is known as a ward of the court, or a ward of the state, in the United States, Australia and New Zealand. In Ireland and the United Kingdom "the" is not used it is thus termed "ward of court". In Canada the legal term is Crown ward. (Added 06/10-GPC-Wiki- http://en.wikipedia.org/wiki/Ward_%28law%29 )
When children enter foster care, they become wards of various government entities dependent on country. In the U.S. they become wards of the respective states in which they reside. The state via the family court stands in loco parentis to the child. Generally this entails assuming all lawful authority to make medical and legal decisions on the child's behalf.
warrant 1) n. an order (writ) of a court which directs a law enforcement officer (usually a sheriff) to arrest and bring a person before the judge, such as a person who is charged with a crime, convicted of a crime but failed to appear for sentencing, owes a fine, or is in contempt of court. A "bench warrant" is an order to appear issued by the court when a person does not appear for a hearing, which can be resolved by posting bail or appearing. A "search warrant" is an order permitting a law enforcement officer to search a particular premises and/or person for certain types of evidence, based on a declaration by a law enforcement official, including a district attorney. 2) v. to claim to a purchaser that merchandise is sound, of good quality, or will perform as it should, or that title to real property belongs to the seller. (See: search warrant, search and seizure, guarantee)
witness stand n. a chair at the end of the judge's bench on the jury box side, usually with a low "modesty screen," where a witness sits and gives testimony after he/she has sworn to tell the truth. When called to testify the witness "takes the stand." Most witness stands are equipped with a microphone linked to an amplifying system so that judge, attorneys and jury can hear the testimony clearly. (See: witness)
work-product doctrine - See attorney-client-work-product (Added 06/10-GPC-Wiki- http://en.wikipedia.org/wiki/Work-product_doctrine )
witness 1) n. a person who testifies under oath in a trial (or a deposition which may be used in a trial if the witness is not available) with first-hand or expert evidence useful in a lawsuit. A party to the lawsuit (plaintiff or defendant) may be a witness. 2) a person who sees an event. 3) a person who observes the signing of a document like a will or a contract and signs as a witness on the document attesting that the document was signed in the presence of the witness. 4) v. to sign a document verifying that he/she observed the execution of the document such as a will. (See: evidence, trial, deposition)
writ n. a written order of a judge requiring specific action by the person or entity to whom the writ is directed.
(Note: Many of these definitions are taken from
Rule 803. Hearsay Exceptions- Availability of Declarant Immaterial.
The following are
not excluded by the hearsay rule, even though the declarant is available
as a witness:
Note: AS 10.06.925, as enacted by ch. 166, § 1, SLA 1988, amended Evidence Rule 803(8) by requiring the court to receive as evidence certain public documents dealing with corporations.
(9) Records of
Vital Statistics. Records or data compilations, in any form, of
birth, fetal deaths, deaths, or marriages, if the report thereof was
made to a public office pursuant to requirements of law.
(Added by SCO 364 effective August 1, 1979; amended by SCO 1153 effective July 15, 1994)
New Information To
So Much Stuff & So Little Time
C.H. wrote <<<<<<<
Date: Tuesday, August 4, 2009, 4:13 PM
As many of you know Carmen Powell's case against
San Diego County Health and Human Services Agency has been accepted by
THE U.S. SUPREME COURT.
It is my understanding that this is the first time in 26 years the U.S. SUPREME COURT has heard a case a case against Health and Human Services. The County of San Diego has a Response due by August 20, 2009.
We are trying to get as many people as possible to file Amicus Curiae or " friend of the court" briefs in this case. PLEASE file a brief and forward to everyone on your list to file a brief and recruit others to file a brief. The more the better.
We want to focus on the lack of "REASONABLE EFFORTS" Without going into to much detail, touch on your individual case and the things that were done wrong by
the agency. THIS DECISION will potentially effect everyone's case so your help is needed.
MH's ANSWER.....Charles and group, because this is the U.S. Supreme court that means that this is our chance to get cases from across the United States heard....this
means that no matter WHAT STATE YOU ARE FROM you can send in your case. I wish is was this simple, but it isn't that simple. First we have to find out who is representing these people in this case. We can't just write to the court in cases like this, we have to make sure we write to the right person. Is this her attorney that is asking for back up as to his charges? Or is it the judge that is asking to see if there are anymore cases out there like it? Big difference ! We need to do some research and find out who is asking. Contact the attorney for the defense of this Carmen Powell and talk to him before we send in our cases Charles and ask him WHO Is asking for these cases.
Then let the group know where to send their cases. You are a good spokesman for the group, you know who we are and what we are all about, you have keen understanding of the law, if you don't want to take this step then maybe Grandpa Chuck would do it. or Nancee is the director for NFPCAR, but someone needs to talk to this attorney first.
BUT IT ALSO MEANS IT NEEDS TO BE A BRIEF SUMMARY OF YOUR CASE. We cannot bombard this judge who has been kind enough to hear the atrocities of CPS with 100 pages from each of us. IF you have completed your law books you have already done your summaries in the FRONT of your law books, just the facts. That would be good to send him. No more than One or Two pages to him, make sure your name, address, and phone numbers are on the top of the page.
THE LINK TO THE CASE AS QUOTED SAY'S:
As many of you know Carmen Powell's case against San Diego County Health and Human Services Agency has been accepted by THE U.S. SUPREME COURT.
It is my understanding that this is the first time in 26 years the U.S. SUPREME COURT has heard a case a case against Health and Human Services.
The County of San Diego has a Response due by August 20, 2009.
We are trying to get as many people as possible to file Amicus Curiae or "friend of the court" briefs in this case.
PLEASE file a brief and forward to everyone on your list to file a brief and recruit others to file a brief. The more the better.
We want to focus on the lack of "REASONABLE EFFORTS" Without going into to much detail, touch on your individual case and the things that were done wrong by the agency.
ATTENTION CHARLES or someone with a BLACKS law book HERE IS THE LINK THAT YOU POSTED: I have copied and pasted it below. Check out the bottom of the
page below......I have copied what needs looked up in BLACKS our members will not know what these Latin and legal terms mean......LOOK THEM UP AND POST THEIR MEANINGS ON GROUP.
*Petition for a** #1. writ of certiorari **and **#2.** **motion for leave to **proceed in** # 3. forma* * pauperis **filed. (Response due **August 20, 2009**)*
*Blacks law book for clarification purposes only. Definitions are as follows;
1. Writ of Certiorari means
2. Motion for leave to proceed
3. in forma pauperis means
When you get into what words mean,
it gets rather interesting; and
more of a reason for having a law dictionary since one word leads to
Under "color of law" leads to the following, ie related definitions>>tort>>sovereign>>immunity:
(Note from GPC: This is actually a very good example of how many of our statutes are organized, ie "see this", and one goes to this, and again it states, "refer to that". That is where having the statutes on your computer is helpful since you can "Cut and Paste" to get your ducks in line.)
That which is in appearance only, and not in
reality, what it purports to
be, hence counterfeit,
feigned, having the appearance of truth. Windle v.
Flinn, 196 Or. 654, 251 P.2d
alteration. One which makes no real or substantial change, but
is introduced only as a subterfuge
or means of evading the patent or
cause or invocation of jurisdiction.
With reference to
actions for malicious prosecution, a "colorable cause or
invocation of jurisdiction" means that a
person, apparently qualified,
has appeared before a justice
and made a complaint under oath and in writing,
stating some facts which in
connection with other facts constitute a criminal offense or bear a
Colorable claim. In bankruptcy law, a claim made by one holding the property as an agent or bailee of the bankrupt; a claim in which as a matter of law, there is no adverseness. See also Color.
In the law of trademarks,
this phrase denotes such a close or ingenious limitation as
to be calculated to deceive
transaction. One presenting an appearance which does not
correspond with the reality, and, ordinarily,
an appearance intended to conceal or to deceive.
Colored. By common usage in America, this term, in such phrases as "colored persons," "the colored race," "colored men," and the like, is used to designate negroes or persons of the African race, including all persons of mixed blood descended from negro ancestry.
color of office. Officer's acts unauthorized by officer's
position, though done in form
that purports that acts are done by reason of official duty
and by virtue of office. See also Color of office.
Color of authority. That semblance or presumption of authority sustaining the acts of a public officer which is derived from his apparent title to the office or from a writ or other process in his hands apparently valid and regular. See Color of law; Color of office.
Color of law.
The appearance or semblance,
without the substance, of legal right. Misuse of
power, possessed by virtue of
state law and made possible only because
wrongdoer is clothed with
authority of state, is action
taken under "color of state
law." Atkins v. Lanning, D.C.Okl., 415 F.Supp. 186, 188.
When used in the context of federal civil rights statutes or criminal law, the term is synonymous with the concept of "state action" under the Fourteenth Amendment, Timson v. Werner, D.C.Ohio, 395 F.Supp. 1344, 1347; and means pretense of law and includes actions of officers who undertake to perform their official duties, Thompson v. Baker, D.C.Ark., 133 F.Supp. 247; 42 U.S. C.A. Â§ 1983. See Tort (Constitutional tort).
Action taken by private
individuals may be "under color of state law" for purposes of
42 U.S.C.A. Â§ 1983 governing
deprivation of civil rights when significant state involvement
attaches to action. Wagner v. Metropolitan Nashville Airport
Authority, C.A.Tenn., 772 F.2d 227, 229.
Acts "under color
of any law" of a State include not
only acts done by State
officials within the bounds or limits of their lawful
authority, but also acts done without
and beyond the bounds of their lawful authority;
provided that, in order for
unlawful acts of an official to
be done "under color of any
law", the unlawful acts must be done while such official is
purporting or pretending to act in the performance of his official
duties; that is to say, the
unlawful acts must consist in an abuse
or misuse of power which is
possessed by the official
only because he is an
official; and the unlawful acts
must be of such a nature or
character, and be committed
under such circumstances, that
they would not have
occurred but for the fact that the person committing
them was an official then and
there exercising his
official powers outside the bounds of lawful authority. 42
U.S.C.A. Â§ 1983..
Color of office. Pretense of official right to do act made by one who has no such right. Kiker v. Pinson, 120 Ga.App. 784, 172 S.E.2d 333, 334. An act under color of office is an act of an officer who claims authority to do the act by reason of his office when the office does not confer on him any such authority. Maryland Cas. Co. v. McCormack, Ky., 488 S.W.2d 347, 352. See also Color of law.
Color of state law. See Color of law.
Color of title.
appearance, semblance, or simulacrum
title. Also termed "apparent title." Any fact,
extraneous to the
act or mere will of the claimant,
which has the
appearance, on its face, of supporting his
claim of a
present title to land, but which, for some defect, in reality falls
short of establishing it. Howth
v. Farrar, C.C.A.Tex., 94 F.2d 654, 658. That which is a
semblance or appearance of title, but is not title in fact
or in law.
McCoy v. Lowrie 42 Wash.
2d 24, 253 P.2d 415, 418.
having a grantor and grantee,
and containing a description of the lands intended to he conveyed,
and apt words for their conveyance,
color of title to
the lands described. Such an instrument purports to be a
conveyance of the of the title, and because it does not, for some
reason, have that effect, it passes only color of the semblance of
Color of Title Act. Federal law which gives Secretary of Interior the right to issue a patent for land, exclusive of minerals, to one who has occupied it adversely and under color of right for period of time for nominal amount of money. 43 U.S.C.A. Â§Â§ 1068-1068B
Wrongful; of the nature of a tort.
The word "tortious" is used
throughout the Restatement,
Second, Torts, to denote the fact that conduct
whether of act or omission is
of such a character as to
subject the actor to liability,
under the principles of the
law of torts. (Â§ 6). To
establish "tortious act" plaintiff
must prove not only existence
of actionable wrong, but
also that damages resulted
there from. James v. Public Finance Corp., 47 C.A.Sd 995, 121
Cal.Rptr. 670, 675. As used in
state long-arm statutes, such acts may afford a
basis for jurisdiction over a
non-domiciliary. E.g. N.Y. CPLR Â§ 302(a)(2)(3).
Formerly certain modes of
conveyance (e.g., feoff-ments, fines, etc.) had the
effect of passing not merely
the estate of the person making the conveyance, but the
whole fee-simple, to the injury of the person really
(from Lat. torquere, to twist, tortus, twisted, wrested
aside). A private or civil
wrong or injury, including
action for bad faith breach of
contract, for which the court will provide a remedy in the
form of an action for damages.
K Mart Corp. v. Ponsock, 103 Nev. 39, 732
P.2d 1364, 1368. A violation
of a duty imposed by general law or otherwise upon all
persons occupying the relation
to each other which is involved in a given transaction.
Coleman v. California Yearly Meeting of Friends Church, 27
Cal.App.2d 579, 81 P.2d 469, 470. There must always be a violation
of some duty owing to
plaintiff, and generally such duty must arise by operation
of law and not by mere agreement of the parties.
A legal wrong committed upon the person or property independent of contract. It may be either (1) a direct invasion of some legal right of the individual; (2) the infraction of some public duty by which special damage accrues to the individual; (3) the violation of some private obligation by which like damage accrues to the individual.
Federal Tort Claims Act; Government tort; Husband-wife tort actions;
Joint tort-feasors; Liability;
Negligence; Palsgraph doctrine; Parental liability; Privilege;
Privity; Privity of contract; Product liability; Sovereign
immunity; Strict liability; Warranty.
Child. See Parental liability
tort. Federal statute providing that every
person who under color of any statute, ordinance,
regulation, custom, or usage,
of any state or territory, subjects, or causes to be subjected, any
citizen of the United States or any other person within the
jurisdiction thereof to the
deprivation of any rights, privileges,
or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in
equity, or other proper proceeding for redress.
42 U.S.C.A. Â§ 1983. See
also Color of law.
Intentional tort. Tort or wrong perpetrated by one who intends to do that which the law has declared wrong as contrasted with negligence in which the tortfeasor fails to exercise that degree of care in doing what is otherwise permissible. See also Willful tort.
See Jones Act; Longshore and Harbor
Workers' Compensation Act;
Negligence. The tort or negligence consists of the existence of a legal duty owed the plaintiff by the defendant, breach of the duty, proximate causal relationship between the breach and plaintiffs injury, and damages. Stimson v. Michigan Bell Tel. Co., 77 Mich.App.. 361, 258 N.W.2d 227, 231. See also Negligence.
One involving or consisting in
an injury to the person or to the reputation or feelings, as
distinguished from an injury or damage to real or personal
property, called a "property
tort." Gray v. Blight, C.C. A.Colo., 112 F.2d 696, 699.
Prenatal injuries. See Child; Unborn child; Viable child.
Though not a recognized term
of English law, may be conveniently used in those cases where
a man who has not committed a
tort is liable as if he had.
Thus a master is liable for
wrongful acts done by his
servant in the course of his
Strict tort liability. See Strict liability.
Willful tort. See Intentional tort, above; also Willful tort.
Tort claims acts.
Federal Tort Claims Act; Sovereign immunity.
Federal Tort Claims Act n. a statute (1948) which moved the power of the federal government to claim immunity from a lawsuit for damages due to negligent or intentional injury by a federal employee in the scope of his/her work for the government. It also established a set of regulations and format for making claims, giving jurisdiction to federal district courts..
Then comes the word "sovereign" and that leads into "immunity".
All of this leads to a better understanding of the "legalese" language.
Link to our nfpcar.org legal page: http://nfpcar.org/Legal/legalprint.htm
California Bar Association Student Hand Out>> Simple
Definitions that I may Use Adjudicatory hearing: the procedure
used to determine the facts in a juvenile case; similar to an adult trial but
generally closed to the public. Aggravating factors: factors that
might increase the seriousness of an offense. The presence of these factors may be considered by the judge and jury. Aid and abet: to actively, knowingly,
intentionally or purposefully assist someone in committing a crime. Appeal: to resort to a higher court
for the purpose of obtaining a review of a lower court’s order. The person who seeks such a review is called an appellant and the person against whom the appeal is filed is called the appellee. Arraignment: a court session at which
a defendant is charged and enters a plea. For a misdemeanor, this is also the defendant’s initial appearance, when the judge
informs him or her of the charges and sets the bail. Assault: to attempt to hurt someone
physically in a way that makes the victim feel immediately threatened. There is no need for physical contact. Attorney: a person who has a law
degree (in most instances) and is licensed by the state to advise and represent others in legal matters. Battery: any intentional, unlawful
physical contact inflicted on one person by another without consent. Best interests of the child: the
standard that courts use when deciding issues involving custody and visitation rights, or whether to approve adoptions and
guardianships. It requires the courts to consider many factors, such as the health of the
parent or guardian; the child’s preference; and the ability of the parent or guardian
to provide the child with food, shelter, clothing and medical care, before deciding what
is in an individual child’s best interest. Beyond a reasonable doubt: the level
of proof required to convict a person of a crime. It does not require that one be "convinced 100 percent." It does mean,
how-ever, that there should not be any
reasonable doubts as to a person’s
guilt. Burden of proof: the obligation of a
party to prove his or her allegations during a trial. California Youth Authority: a group
of people who control secure facilities for repeat offenders or youthful offenders who have committed serious crimes. Civil action: a lawsuit brought by
one or more individuals against another person or business, or the government, for the purpose of redressing private wrongs. Complaint: the first paper filed in a
civil lawsuit which states the wrong done to the plaintiff by the defendant. Conspiracy: an agreement between two
or more individuals to commit a crime, along with an act done to begin the crime. Contempt of court: to defy a court’s
authority. If one is found or held in contempt of court, he or she may be fined, placed in jail, or both. Contributing to the delinquency of a minor: the act of aiding or encouraging improper conduct of a minor. Convict: (n.) a person who has been
found guilty of a crime and is now in prison; (v.) to find a person guilty of a crime or wrongdoing. Crime: an act or failure to act that
violates a law for which a penalty (usually a fine, jail or probation) is set by the state. Damages: money awarded by the court
to be paid by a person who has wronged another in a civil law action. Defendant: the person against whom a
claim is made. In a civil suit, the defendant is the person being sued; in a criminal case, the defendant is the person
charged with committing a crime. Delinquent offender: a minor who has
committed an offense usually punishable by criminal processes. Such offenders are usually processed through the juvenile justice
Detention: temporary custody such as
being held at the police station or in Juvenile Hall. Disposition: the word used in the
juvenile justice system when referring to the outcome of a Juvenile Court proceeding; similar to "sentencing" in adult court. District attorney: an attorney who
tries to show that an accused person is guilty. In juvenile court, this attorney decides whether or not to bring the juvenile to
court and recommends a disposition as well. Diversion program: a special program
for handling minors (first offenders) with problems; it is meant to be used by, for example, police, probation officers and
juvenile courts to keep certain juveniles out of further involvement in the juvenile
justice system. Drunken driving: Driving while
intoxicated. In California, it is illegal to drive with a blood-alcohol concentration (BAC) of 0.08 percent or greater. Drivers under
age 21 cannot drive with a BAC of 0.01 percent. Due process: Minors and their parents
are guaranteed due process
by the U.S. Constitution. This means that you will be given advance notice of all
hearings and that you have a right to present your side; legal procedures must follow a set of
rules and principles that are meant to guarantee justice and fair play. Felony: a serious criminal offense
punishable by a prison sentence of more than one year. Foster home: the residence or home
(other than that of a child’s own parents) in which a child is placed temporarily by a court or welfare department. Guardian: an adult who has been given
the right to make decisions on behalf of a child or disabled adult. Guardians are also often given custody of the
child or children for whom they are responsible. Guardian ad litem:
Adjudicatory hearing: the procedure used to determine the facts in a juvenile case; similar to an adult trial but generally closed to the public.
Aggravating factors: factors that might increase the seriousness of an offense. The presence of these factors may be considered by the judge and jury.
Aid and abet: to actively, knowingly, intentionally or purposefully assist someone in committing a crime.
Appeal: to resort to a higher court for the purpose of obtaining a review of a lower court’s order. The person who seeks such a review is called an appellant and the person against whom the appeal is filed is called the appellee.
Arraignment: a court session at which a defendant is charged and enters a plea. For a misdemeanor, this is also the defendant’s initial appearance, when the judge informs him or her of the charges and sets the bail.
Assault: to attempt to hurt someone physically in a way that makes the victim feel immediately threatened. There is no need for physical contact.
Attorney: a person who has a law degree (in most instances) and is licensed by the state to advise and represent others in legal matters.
Battery: any intentional, unlawful physical contact inflicted on one person by another without consent.
Best interests of the child: the standard that courts use when deciding issues involving custody and visitation rights, or whether to approve adoptions and guardianships.
It requires the courts to consider many factors, such as the health of the parent or guardian; the child’s preference; and the ability of the parent or guardian to provide
the child with food, shelter, clothing and medical care, before deciding what is in an individual child’s best interest.
Beyond a reasonable doubt: the level of proof required to convict a person of a crime. It does not require that one be "convinced 100 percent." It does mean, how-ever,
that there should not be any reasonable doubts as to a person’s guilt.
Burden of proof: the obligation of a party to prove his or her allegations during a trial.
California Youth Authority: a group of people who control secure facilities for repeat offenders or youthful offenders who have committed serious crimes.
Civil action: a lawsuit brought by one or more individuals against another person or business, or the government, for the purpose of redressing private wrongs.
Complaint: the first paper filed in a civil lawsuit which states the wrong done to the plaintiff by the defendant.
Conspiracy: an agreement between two or more individuals to commit a crime, along with an act done to begin the crime.
Contempt of court: to defy a court’s authority. If one is found or held in contempt of court, he or she may be fined, placed in jail, or both.
Contributing to the delinquency of a minor: the act of aiding or encouraging improper conduct of a minor.
Convict: (n.) a person who has been found guilty of a crime and is now in prison; (v.) to find a person guilty of a crime or wrongdoing.
Crime: an act or failure to act that violates a law for which a penalty (usually a fine, jail or probation) is set by the state.
Damages: money awarded by the court to be paid by a person who has wronged another in a civil law action.
Defendant: the person against whom a claim is made. In a civil suit, the defendant is the person being sued; in a criminal case, the defendant is the person charged with committing a crime.
Delinquent offender: a minor who has committed an offense usually punishable by criminal processes. Such offenders are usually processed through the juvenile justice system.
Detention: temporary custody such as being held at the police station or in Juvenile Hall.
Disposition: the word used in the juvenile justice system when referring to the outcome of a Juvenile Court proceeding; similar to "sentencing" in adult court.
District attorney: an attorney who tries to show that an accused person is guilty. In juvenile court, this attorney decides whether or not to bring the juvenile to court and recommends a disposition as well.
Diversion program: a special program for handling minors (first offenders) with problems; it is meant to be used by, for example, police, probation officers and juvenile courts to keep certain juveniles out of further involvement in the juvenile justice system.
Drunken driving: Driving while intoxicated. In California, it is illegal to drive with a blood-alcohol concentration (BAC) of 0.08 percent or greater. Drivers under age 21 cannot drive with a BAC of 0.01 percent.
Due process: Minors and their parents are guaranteed due process by the U.S. Constitution. This means that you will be given advance notice of all hearings and that you have a right to present your side; legal procedures must follow a set of rules and principles that are meant to guarantee justice and fair play.
Felony: a serious criminal offense punishable by a prison sentence of more than one year.
Foster home: the residence or home (other than that of a child’s own parents) in which a child is placed temporarily by a court or welfare department.
Guardian: an adult who has been given the right to make decisions on behalf of a child or disabled adult. Guardians are also often given custody of the child or children for whom they are responsible.
Guardian ad litem:a person appointed by the court specifically to protect the interests of a minor in a lawsuit or other legal proceeding.
Hearing: a constitutionally required formal proceeding in which the accused is given notice of charges brought against him or her, then has an opportunity to present a defense.
Homicide: the killing of another person. Homicide can be criminal, non-criminal or negligent.
Hung jury: the situation in which a jury cannot reach a unanimous decision.
Intent: determination to achieve a particular end by particular means.
Jury: a body of men and women selected to examine certain facts and determine truth in a legal proceeding.
Juvenile court: courts established by a state to hear matters involving youngsters under the age of 18 who have either been abused or neglected by their parents or found to be outside the control of their parents, or who have committed a crime.
Juvenile hall: a locked facility where minors are placed prior to a court hearing.
Kidnapping: taking a person against his or her will.
Legal defense: a legally recognized excuse for a defendant’s actions, such as implied consent, privilege and self-defense, which may remove liability for certain offenses.
Mandatory sentencing: laws that require courts to sentence convicted criminals to certain prison terms.
Manslaughter: the killing of a person without malice or premeditation, but during the commission of an illegal act.
Miranda warnings: rights that a person must be told when arrested or taken into custody by police or other officials. These include the right to remain silent, to contact a lawyer, and to have a free lawyer if the person arrested cannot afford one.
Misdemeanor: a criminal offense, less serious than a felony, punishable by a jail sentence of one year or less.
Mitigating factors: factors that may lessen the seriousness of an offense. The presence of these factors may be considered by the judge or jury.
Murder: the unlawful killing of a person with malice aforethought.
Negligence: failure to exercise the care that a reasonable person would exercise in the same circumstances.
Parole: release from prison before the full sentence has been served, granted at the discretion of a parole board.
Penal Code: a list of criminal offenses and recommended sentences.
Preponderance of the evidence: the standard of proof generally used in civil suits. To prevail, the party must present sufficient evidence in court to show that his or her claims are more likely to be true than not. This is sometimes called the burden of proof.
Probable cause: a reasonable belief, known personally or through reliable sources, that a person has committed a crime.
Probation: a period of time when a minor is under the supervision of a probation officer to make sure court orders against the minor are followed.
Prosecution: the process of suing someone in a civil case or bringing someone to trial on criminal charges.
Public defender: an attorney who is paid by the county to defend those without money who are accused of committing crimes.
Reasonable person standard: the idealized standard of how a community expects its members to act. It is based on the degree of care that persons of ordinary prudence would exercise in particular situations.
Referee/commissioner: appointed by the juvenile court judge. Has the same power as the judge.
Restitution: money paid to victims by the offender to make up for harm or damage done.
Robbery: the unlawful taking of property from a person’s immediate possession by force or threat of force.
Self-defense: the right to defend oneself with whatever force is reasonably necessary against an actual or reasonably perceived threat of personal harm.
Self-incrimination: giving evidence and answering questions that would tend to subject one to criminal prosecution.
Shoplifting: a form of theft in which items are taken from a store without payment or the intention to pay.
Status offenses: acts that are illegal if committed by a juvenile (truancy or running away from home, for example).
Statutes: laws enacted by legislatures.
Statute of limitations: laws that set deadlines for when a lawsuit must be filed.
Statutory rape: an act of sexual intercourse with a minor (under age 18) who is not the perpetrator’s spouse. It is a crime whether or not the minor consents to the act.
Temporary restraining order (TRO): an order issued by a court to prevent a change in the status quo. In interpersonal settings, a TRO is sometimes issued by a court to prevent one person from hitting another person or from snatching a child in a custody dispute. A TRO is temporary and may be issued without calling together both parties to the dispute. Often, a court will later hold a hearing to see whether the TRO should be made into a permanent injunction.
Termination of parental rights: the taking away, by the state, of the rights that parents possess in relation to their children. Parental rights are terminated when a child is put up for adoption. Parental rights may also be suspended or terminated if a court finds a parent unfit and/or decides to place a child in foster care.
Ward: a person incapable of managing his or her own affairs and for whom the court steps in to make decisions.
Welfare and Institutions Code: a collection of laws dealing with minors and institutions.