ACCUSATION - The charging document that a prosecutor uses to identify each specific type of crime alleged to have been committed by the defendant. An accusation in a DUI-DWI case is typically several “counts” (each count is written and considered as a separate offense then set forth and described separately in the accusation) that identify in general terms, how, when and in what fashion each offense was committed. In DUI-DWI practice, a person might be accused in alternative “counts” of an accusation with (1) DUI-alcohol (drunk driving), (2) DUI-per se (being above the state’s minimum mandatory alcohol blood level), (3) DUI-drugs [impairment from prescribed or illegal (i.e., cocaine) drugs], AND (4) DUI-alcohol AND drugs, by being under the combined impairing effects of both alcohol and some type of drug.
ACQUITTAL - A finding by a judge or jury that a person who was tried for committing a crime is not guilty.
ACUTE INTOXICATION - The term used by medical facilities to refer to intoxication that is “of clinical significance” (potentially fatal). Complications from acute intoxication may include trauma, aspiration (vomit getting into your lungs), delirium, coma, and convulsions, depending on the substance and method of administration.
ADJOURNMENT - Postponing or rescheduling a case or court session until another date or time. In some jurisdictions, this is called a “continuance.” Each state’s laws control when and under what circumstances an adjournment or continuance is available to either party.
ADJUDICATION - Generally, this term refers to a final judicial (by a court) determination of a decision in a pending case. In juvenile delinquency cases, it is the equivalent of a ‘conviction.’ In typical criminal cases, “adjudication” refers to the court entering its ruling of guilty or not guilty after a bench trial.
AFFIDAVIT - A written statement of fact that is verified by oath or affirmation before a notary public. These are commonly offered to the court, the judge and the jury to verify some fact or to confirm that some act has been accomplished.
AFFIRMATIVE DEFENSE - Without denying the charge, the defendant raises extenuating or mitigating circumstances such as insanity, necessity, or coercion to avoid civil or criminal responsibility. Another way of thinking of an affirmative defense would be as a valid excuse as to why the crime was committed or why the defendant should not be held to blame for the crime. The defendant usually must prove (or set forth some evidence of) any affirmative defense he/she raises. Court rules or state statutes typically require a defendant to notify the opponent before the trial that an affirmative defense will be asserted.
ALCOHOL - Derived from Arabic. Refers to a wide range of chemicals, whether suited for human consumption or not. The term “alcohol” is often used by lay persons to refer to alcoholic beverages made with ethyl alcohol or ethanol. The usual type of alcohol found in mixed drinks, wine and beer is ethanol. However, the chemical “alcohol” can be part of many products that contain some form of alcohol, often a different form of alcohol besides ethanol, as well as products such as sugarless chewing gum, breath sprays, medicines, mouth washes, cologne or deodorant.
ALFORD PLEA - The so-called Alford plea is a form of “guilty” plea in which the defendant does not admit the act, but admits that sufficient evidence exists with which the prosecution could likely convince a judge or jury to find the defendant guilty. Upon receiving an Alford plea from a defendant, the court may immediately pronounce the defendant guilty and impose sentence as if the defendant had otherwise been convicted of the crime. However, in many 294 states, such as Massachusetts, a plea that “admits sufficient facts” more typically results in the case being “continued without a finding” (see description below) and later dismissed. It is the appeal of the ultimate dismissal of charges that engenders most pleas of this type. This plea originated in the United States Supreme Court case of North Carolina v. Alford, 400 U.S. 25 (1970). After the Alford decision, the plea “Alford” plea generally has the same effect as a plea of guilty with respect to sentencing. Later use of the conviction as an aggravating factor (if the defendant is later convicted of another offense) is allowed in all courts.
ALIBI - A “lack of presence” defense. The Defendant need not prove that he was elsewhere when the crime happened; rather, a Prosecutor must disprove a claimed alibi (i.e., Prosecutor must prove beyond a reasonable doubt that the defendant was present). Although rare in DUIDWI cases, some drivers may not be present after an accident when the police arrive at the scene. In most, if not all, states, the Defendant must notify the prosecution prior to trial if they are going to claim an alibi defense.
APPEAL - A request to take a case to a higher court for review of proceedings in a lower court. No new evidence may be introduced during the appellate process; the reviewing court considers only whether errors occurred during prior proceedings.
APPEARANCE - Although usually associated with an attorney’s “entry of appearance” (see below), this word can signify a client’s obligation to show up for court at the time, date and place indicated in a summons or other court notification.
APPELLANT - The party appealing an adverse decision or judgment to a higher court.
APPELLATE COURT - A court having jurisdiction over appeals as opposed to a trial court that allows witnesses to testify under oath and enters rulings on admission of documents, exhibits or testimony at the trial.
APPELLATE JURISDICTION - The power and authority of a court (established by state law) to review a case that has already been tried by a lower court.
APPELLEE - The party responding to an appeal filed by the opposite party in a higher court.
ARRAIGNMENT - Typically, the first court appearance after an arrest and release from jail on bond, where the charges are formally read, and one enters his or her plea of guilty or not guilty.
ATTORNEY - A lawyer; one who is licensed to act as a representative for another in a legal matter or proceeding; one who is licensed to practice law. Most attorneys are licensed in and practice in one state.
ATTORNEY-CLIENT PRIVILEGE - In all legal matters, the client (whether or not a party to litigation) has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer. The attorney-client privilege authorizes a client to refuse to disclose, and to prevent others from disclosing, information communicated in confidence to the attorney and legal advice received in return. The objective of the privilege is to enhance the value which society places upon legal representation by assuring the client the opportunity for full disclosure to the attorney, unfettered by fear that others will be informed. While the privilege belongs only to the client, the attorney is professionally obligated to claim it on his client’s behalf whenever the opportunity arises unless he has been instructed otherwise by the client.
BAIL - To set free a person arrested or imprisoned (pending trial or resolution of an appeal) in exchange for security such as cash, credit card deposit or real estate. Bail is forfeited if the person fails to appear in court as directed.
BOND - In criminal law, a surety bond puts up money or property that assures the appearance of the defendant or the payment of the defendant’s bail if the defendant fails to appear. The person who agrees to be the “surety” is financially obligated to pay the bond if the person fails to appear. The failure to appear will typically cause the judge of the court requiring attendance to issue a “bond forfeiture” order, as well as a warrant for the defendant’s arrest.
BLOOD ALCOHOL CONTENT/LEVEL (BAC) OR (BAL) - The amount of alcohol in a person’s bloodstream. The adult (age 21 and over) legal limit in drunken driving cases is .08% in all states. For someone under 21, the legal limit is 0.00%, 0.01% or 0.02%, depending on the state the offense is committed in. For persons of any age driving a commercial vehicle, the legal limit is 0.04%.
BLOOD TEST - A test to measure a person’s BAC by drawing the blood, usually done in a hospital. Blood tests are often requested where substances other than alcohol are suspected to be impairing the driver in a DUI-DWI case, or where an accident may require that the person suspected of drunk driving is already going to a hospital. In some states, refusal is possible for a person who is capable of refusing. In other states, forcible blood draws are authorized.
BREATH TEST - A test to measure your breath alcohol content, usually done at a police station or a jail. One does not have to agree to blow into a breath machine, and in most cases, one should not agree to do so. Some police jurisdictions also use roadside breath tests, but these are not admissible as evidence in court.
BRIEF - A written document presented to the court by a lawyer that sets forth both the facts of the case and the law which supports the lawyer’s case.
BURDEN OF PROOF - This refers to the evidentiary obligation of a party to legal proceedings having to “carry” the burden to prove his or her allegations during a trial. Different levels of proof are required depending on the type of case. This phrase is employed to signify the duty of proving the facts in dispute on an issue raised between the parties in a cause. In criminal cases, as every person is presumed to be innocent until the contrary is proved, the burden of proof rests on the prosecutor to prove each and every element of the charges. After the prosecutor has presented such evidence, the defendant may need to rebut (challenge) the prosecutor’s evidence, as a practical matter, even though the burden of proof in criminal cases never shifts to the defendant.
CHARGES - A formal accusation, indictment, or other criminal complaint form used to inform an accused person of the existence of a criminal offense against him or her. These are also sometimes merely called “criminal charges.”
CIRCUMSTANTIAL EVIDENCE - A type of indirect evidence that implies something occurred but does not directly prove it. For example, circumstantial evidence that it rained recently can be obtained by a witness testifying that he went into his house at 6:00 p.m. and it was not raining. Later, at 7:30 p.m., he comes outside and the ground, roadways and trees are wet. He did not SEE it rain, but circumstantial evidence says it did.
CITATION - Similar to a unique web site address [URL], this is a legal shorthand method of referring to a particular criminal or civil case that has been decided by a court. Each reported (and some unreported) decisions by appellate and even trial level decisions in some states is given a unique set of alphanumeric identifiers that help attorneys refer to the case so others can look it up and review the ruling by that court. In this book, you will frequently see such cases used as references for legal points that are made either in the text itself or in the footnotes. By copying the case names (State v. Jones) and the numbers and words following (233 N.C. App. 456) as a whole and entering this information into either a legal search engine or into Google, you can find the entire case itself.
CODE - A collection of written laws arranged into chapters, table of contents, and index, and published by legislative authority. For example, the Iowa Code is a collection of laws approved by the Iowa legislature. Abbreviations for statutory provisions in this book may be a byproduct of the “code” citation. Example: Official Code of Georgia Annotated is abbreviated O.C.G.A.
COMMON LAW - Law based upon previous decisions of courts or referring to the body of laws passed down from England to America.
CONCURRENT SENTENCE - Upon conviction for multiple crimes, a criminal sentence can be ordered by the judge to be served at the same time as another criminal sentence, rather than one after the other.
CONSECUTIVE SENTENCE - Upon conviction for multiple crimes, criminal sentences that must be served one after the other, rather than at the same time, are called “consecutive” sentences. Consecutive sentences may only be imposed if there is specific statutory authority to do so. In some circumstances, consecutive sentences may be imposed within the judge’s discretion (e.g., when a person is convicted of a new offense committed while on parole status). In other circumstances, consecutive sentences are mandatory under state law.
CONTEMPT OF COURT - This phrase refers to any act or conduct that shows disrespect for the court’s authority. Contempt usually means a person has failed to obey a court order. Contempt can be punished by a fine or imprisonment. Generally, contempt that can result in jail time must occur within the courtroom or in the presence of the judge. Other forms of contempt are typically punished by fines.
CONTINUANCE - This term refers to postponing or rescheduling a case or court session until another date or time. In some jurisdictions, this is called an “adjournment.” Each state’s laws control when and under what circumstances an adjournment or continuance is available to either party, and typical rules include being able to prove several criteria exist that justify the Court resetting the case to a future date.
CONVICTION - Finding by a judge or jury that a person is guilty beyond a reasonable doubt of committing a crime.
COPPING A PLEA - See “Plea Bargain” below.
COURT-APPOINTED ATTORNEY - Refers to legal counsel assigned by the court to represent an indigent criminal defendant. A court-appointed attorney is not necessarily a “free” attorney; the court can order that some or all of the attorney’s time utilized on behalf of the client be reimbursed. If there is no chance jail time will be imposed on a defendant on a misdemeanor, the judge need not appoint an attorney.
CROSS EXAMINATION - The process of challenging the evidence presented by a witness who is testifying for the opposite side in a trial. The person cross-examining the witness may utilize a series of questions, plus documents and other exhibits (such as videotape) to case doubt on the testimony of the witness. Questions on cross-examination (as opposed to direct examination) can be “leading” (questions that suggest the answer to the witness). Leading questions are not permitted to be asked by the party who offers the witness for providing evidence on their behalf.
DEFENDANT - The person accused of a crime.
DEPOSITION - The testimony of a witness not taken in open court, but given under oath before a court reporter pursuant to authority given by statute or court rule, to take testimony in preparation for trial. Deposition testimony may be introduced as evidence in a court proceeding. Only a few states allow deposition testimony in criminal cases, although depositions are very common in civil cases.
DIRECTED VERDICT - In criminal cases, upon motion made by the defense attorney, a trial judge’s directive (order) to a jury to return a specified verdict of “not guilty,” usually because the prosecutor failed to prove its case. This type of ruling or order is sometimes called an “instructed verdict of acquittal.”
DISTRICT ATTORNEY - A lawyer elected or appointed to serve as a prosecutor for the state in criminal cases. In some jurisdictions, this prosecutor’s title is “state” attorney or solicitor. The common abbreviation for the elected District Attorney in a jurisdiction is “DA,” while the assistants who work for him/her are “assistant district attorneys” (ADA).
DIVERSION - Also known as adjournment in contemplation of dismissal or conditional dismissal. A program in which a defendant is put on probation for a set period of time and his or 297 her case does not go to trial during that time. If the defendant meets the conditions set by the court, the charge will be dismissed. Diversion is generally only allowed for first offenders, as that term is defined by state law. Some jurisdictions have no statutes authorizing diversion in DUI-DWI cases.
DOCKET - A list or index of cases and case events maintained by the clerk of court. This term can also mean a list of cases on a court calendar for a specific day or term of court.
DOUBLE JEOPARDY - In criminal law, a plea of “double jeopardy” is a procedural defense based upon state and/or federal constitutional rights (and possibly statutory rights in some states) that forbids the government from trying an accused citizen a second time for a crime, after having already been tried for the same crime. In ancient common law, a defendant would plead “autrefois acquit” or “autrefois convict” which merely meant that the defendant had been acquitted or convicted of the same offense before.
ENTRAPMENT - Entrapment occurs when police engage in impermissible conduct that would induce an otherwise law-abiding person to commit a crime in similar circumstances, or when police engage in conduct so reprehensible that it cannot be tolerated by the court. Entrapment does not occur if the defendant has the propensity to commit the crime, and the police conduct only gives the defendant the opportunity to commit the crime. This defense is almost never viable in a DUI-DWI case.
ENTRY OF APPEARANCE - A document filed by an attorney with the court, and provided to the prosecutor and judge, advising that the attorney has undertaken representation of a specific individual.
EVIDENCE - A fact presented before a court such as a statement of a witness, an object, etc., that bears on or establishes a point in question.
EXCLUSIONARY RULE - This is a court-made rule preventing illegally obtained evidence from being used by the government in its case-in-chief against a criminal defendant. The rule is derived from the 4th and 5th Amendments to the United States Constitution. Some states have enacted state constitutional provisions or state statues to give citizens more protections under state laws that track the protections covered by the federal 4th and 5th Amendments. These state laws can offer more protection than the United States Constitution offers to a citizen.
EXCULPATORY EVIDENCE - Evidence that the Prosecutor may possess that could establish a person’s innocence or be used by his or her attorney to prove some fact that could cast doubt upon his or her guilt.
EX-PARTE - A Latin term that means “by or for one party.” This refers to situations in which only one party appears before a judge without the adversary being present. Such meetings are highly suspicious, and can result in legal penalties against the party that meets with a judge without the opponent being present or even being notified.
EXPUNGEMENT - A process where a conviction may be set aside either upon the passage of time or the completion of certain conditions. The conviction may or may not be totally removed from all aspects of a criminal record. Not available in some states.
EXTRADITION – EXTRADITE - This is the formal application process whereby the prosecuting authority of one jurisdiction seeks the turnover of a person who has been located in one state to the authorities in another state where that person has been accused of or convicted of a crime. This can also be done between nations, where a person has fled from one country to another to avoid being brought to justice.
FIELD SOBRIETY TESTS - Various roadside exercises that are used by law enforcement officers to determine whether or not a person is likely to have an alcohol content at or above the legal limit. Although police routinely do not advise of the voluntary nature of these evaluations, field sobriety evaluations are optional in almost all jurisdictions. Most experienced attorneys advise their clients against attempting the evaluations due to inconsistent officer training, defective administration of the evaluations, as well as the subjective nature of these exercises.
FELONY - A crime considered to be of a graver nature than a misdemeanor and punishable by more than a year in prison. Examples of felonies include murder, kidnapping, manslaughter, burglary, robbery, and certain types of sexual abuse.
HABEAS CORPUS (Petition for) – From the Latin, this translates to “you have the body.” A petition for habeas corpus is a petition to bring a person (typically a prisoner) before a court or a judge for a hearing on whether the person is being held or detained illegally. In most common usage, it is directed to and served upon the official person detaining another, commanding that the person produce the body of the prisoner or person detained so the court may determine if such a person had been denied his or her liberty without the process of law.
HEARSAY - A statement made outside of court (i.e., not from the witness stand at the present proceeding) that is offered into evidence not merely to prove that the statement was made but to prove that it was true. The reason that hearsay is often kept out of a trial is that it is considered unreliable. Instead of having someone testify about what they heard someone else say, it is much more reliable to have the person who actually made the statement testify. There are dozens of long-established exceptions to the general rule that hearsay statements are inadmissible in court; the exceptions are based on circumstances where the out-of-court statements carry a strong likelihood of trustworthiness (e.g., deathbed statements, self incriminating statements, statements made to doctors about medical conditions, etc.).
INDICTMENT - A formal accusation of a felony, issued by a grand jury (a special jury of everyday citizens that is assembled to decide if sufficient evidence exists to go forward with the prosecution)
INFORMATION - A formal accusation of crime, based on an affidavit of a person allegedly having knowledge of the offense.
INFRA - Regarding something that is cited as legal precedent later in the same document.
INSTRUCTIONS - Also called “jury instructions” or “jury charges,” these are directions given by the judge to the jury concerning the law of the case and on the applicable legal principles that the jury is duty-bound to follow in deciding guilt and innocence.
INTERLOCUTORY - A legal term that means provisional, temporary or preliminary. It applies to legal orders or decrees given by a court before it issues its final decision. An “interlocutory appeal” involves an appeal of a matter within a case before the case is concluded or final.
JURISDICTION - The right and power to interpret and apply the law to a particular case. One definition relates to the authority of a court to hear and rule upon certain types of cases. This is sometimes called “subject matter jurisdiction.” This term can also refer to a limitation on the extent of authority or control. By way of example, the law in some states limits the place or geographic area that a police officer can arrest a person to being the area where a crime is committed and observed within the officer’s “jurisdiction” (e.g., the City Limits).
JURY - A number of people, selected according to law, and sworn to listen to certain matters of fact and declare the truth based upon evidence presented to them. In a criminal case, panels of 6 to 12 jurors (depending on state law) can hear misdemeanor offense cases, and 12 will typically be required to hear felony cases. It may or may not be required (in a few states) to have a unanimous decision for either a conviction or an acquittal.
JURY SELECTION - Also called, voir dire. This is an inquiry of prospective jurors, by the attorneys (in most jurisdictions) and by the judge, to determine if such jurors are fit for jury duty in a given case. Any juror revealing an inability to be impartial to the parties or issues will be stuck (taken off) the jury panel by the judge either by the judge’s own action or upon a well founded motion made by either attorney for removal. Once all questions and answers have ended, each attorney is allowed a given number of arbitrary “strikes” (eliminations) of those on the panel. These are called “peremptory strikes.”
MANDAMUS - The name of a writ that is issued from a court of superior jurisdiction, directed to a lower court or a public officer, commanding the performance of a particular act.
MIRANDA WARNING - A four-part warning required to be given by police to a criminal suspect who has been arrested before custodial interrogation can take place. This warning advises the person being detained that he or she does not have to talk to police, that he or she can stop any interrogation at any time and have counsel present, and that his silence will not be held against him, and his right to legal counsel before talking to police. This “phrase” derives from a US Supreme Court decision: Miranda v Arizona, 384 US 436 (1966). Over the years, courts at every level have carved dozens of exceptions into the rule so that its effect is watered down.
MISDEMEANOR - Offenses considered less serious than felonies. There are three classes of misdemeanors-simple, serious, and aggravated. Examples of misdemeanors may include simple battery (hitting someone), traffic violations, thefts of property not exceeding a certain value (possibly $500), trespass, and disorderly conduct. Maximum fines for misdemeanors vary from state, but $5000 is usually an upper limit, with many states capping fines at $1000. Typically, the longest prison sentence for being found guilty of a misdemeanor is one year or possibly less.
MISTRIAL - A mistrial is a court ruling made by a trial judge after a jury is impaneled but before the jury is able to reach a decision of innocence or guilt of the defendant on the pending criminal charge(s).
MOTION - An application to the court requesting action or some type of “relief” in a pending case. Usually, a motion addresses an issue that is within the court’s discretion to order some form of guidance as to how the trial will proceed. The judge may also order some act to be done or not done by another litigant or participant at trial. In terms of pre-trial motions, these are challenges to certain evidence being presented to the jury (or judge) due to some legal challenge that requires that evidence either be allowed to be used at trial or that it not be considered.
NOLLE PROSEQUI – NOL PROS - The Latin term used in many jurisdictions to describe the prosecutor’s voluntary dismissal of one or more pending criminal charges. The court’s permission is required for the nolle prosequi to be valid. As long as a jury trial has not been started, the entry of a nolle prosequi by a court is not an adjudication of the case on the merits (e.g., it is not final and you can be re-accused later).
NOLO CONTENDERE PLEA - A nolo contendere plea (also called a “no contest” plea) can be entered by criminal defendants facing a realistic prospect of conviction, who do not wish to undergo a trial, and yet are not willing to admit to being responsible for the criminal act charged. Also, defendants may wish to avoid admitting to a tort (a civil personal injury suit arising from an accident in which the injured party seeks monetary damages) or any other type of wrongdoing alleged in the indictment, accusation, uniform traffic citation or information against him/her with a view to possible later civil action.
OPINION - A formal statement by a judge, magistrate or justice (another name used for trial level judges in some states), that sets forth a decision about some aspect of a case or on the legal issues bearing on a case.
ORDINANCE - A law passed by a city, town, parish or county legislative body. Ordinances are of lower significance and reach than state statutes, which control the law across an entire state.
OVERRULE - A judge’s decision (usually made during trials or motions hearings) to not allow an objection to prevail. Also, this can refer to a decision by a higher (appellate) court that a lower court’s decision was in error.
PARTIES - The persons who are actively concerned in the prosecution or defense of a legal proceeding. In a criminal case, the parties are the State, the United States, or some other governmental entity as the prosecution verses the defendant, the person charged with the crime. The person against whom the crime was committed is typically not a party.
PERJURY - Knowingly making a material false statement while under oath to otherwise tell the truth. Perjury is a crime in all jurisdictions and applies to all witnesses (i.e., it is a crime to lie to the judge or while testifying to the jury.)
PER SE - Latin, meaning “of, in, or by itself or oneself; intrinsically.” In DUI-DWI practice, all that the prosecutor needs to prove to obtain a conviction for this type of “DUI-DWI” offense is to successfully introduce the breath, blood or urine test result that meets or exceeds the applicable numerical “level” so as to convince the jury or judge that the result obtained was reliable and trustworthy, as required under state law.
PLEA BARGAIN - This term generally refers to an agreement in a criminal case in which a prosecutor and a defense attorney (acting on his or her client’s behalf) arrange to settle the case against the defendant on some negotiated terms and conditions. Typically, all plea bargains are subject to the consent of the trial judge before whom the case is pending. The defendant may agree to plead guilty or nolo contendere in exchange for the prosecutor dropping some charges or reducing the recommended punishment aspect of the case to a more favorable level.
PLEADING - A formal statement, generally written, propounding the case of action or the defense of a legal case. Pleadings may also have specific titles such as “Motion to Suppress,” “Motion in Limine” or “Discovery Motion,” and these are all classified as “pleadings.”
PRELIMINARY HEARING - Synonymous with preliminary examinations; the hearing given before a magistrate or other judge to determine whether a person charged with a crime should be held or bound over for trial. The level of proof required to be shown at this level of criminal proceedings is very low since the prosecutor typically will not have fully investigated the case. Often, if a person is released on bond, no right to such a hearing exists, or is waived (given up).
PRESUMPTION OF INNOCENCE - The Government has the burden of proving a person charged with a crime guilty beyond a reasonable doubt, and if it fails to do so, the person is (so far as the law is concerned) not guilty. The indictment or formal charge against any person is not evidence of guilt. Indeed, the person is presumed by the law to be innocent until the judge or jury finds them guilty. The law does not require a person to prove his innocence or produce any evidence at all, nor can the government use this silence against a defendant.
PRIMA FACIE - Latin for “at first view.” Evidence that is sufficient or plain enough on its face to raise a presumption of fact or to establish the fact in question unless rebutted. So far as can be judged from the disclosure, an accurate fact, presumed to be true unless disproved by some evidence to the contrary.
PRO SE - Latin for “on one’s own behalf.” A person who represents himself in court alone without the help of a lawyer is said to appear pro se.
PROBABLE CAUSE - A legal term of art that means a constitutionally prescribed standard of proof or (in the alternative) may refer to a reasonable ground for belief in the existence of certain facts. Probable cause is the burden of proof necessary for issuance of an indictment or issuance of an accusatory document (i.e., an information or an accusation).
PROBATION - A form of criminal sentence in which an offender agrees to comply with certain conditions imposed by the court rather than being put in jail or prison.
PROOF BEYOND A REASONABLE DOUBT - The highest level of proof in any legal matters, reserved for criminal cases. In order for a criminal defendant to be convicted of a crime, the prosecutor must prove his or her case to the point that the jurors have no reasonable doubts in their minds that the defendant did whatever he or she is charged with having done. The typical jury in criminal cases must be unanimous, but some jurisdictions now allow verdicts on less than unanimous verdicts.
PROSECUTOR - A government lawyer who initiates an accusation against a party suspected of committing a crime; also one who takes charge of a case or performs the function of a trial lawyer in a criminal case on behalf of the state or the people.
PUBLIC DEFENDER - A lawyer employed by the government to represent a person accused of a crime and who cannot afford to hire a lawyer.
REBUTTAL EVIDENCE - Evidence given to explain or disprove facts given in evidence by the opposing party.
RESTITUTION - A legal remedy sometimes allowed by statute under which a person is restored to his or her original position prior to loss or injury. In DUI-DWI accident cases, the laws of many jurisdictions authorize the criminal court disposing of a guilty verdict or plea to order restitution of damages to the “victim” of the DUI-related crash. In these case, the person convicted of having been DUI-DWI, must pay “restitution” to the victim of the accident, to put the victim in the financial position they would have been in if there hadn’t been an accident.
RETAINER - A contract between an attorney and his or her client. Preferably (under most state bar rules) these need to be in some written form, but retainers can be oral. The payment of money to the attorney as a “retainer” signifies an agreement for the attorney to act on the person’s behalf and to represent the person in the legal matter that is the subject of their “contract.” In criminal cases, a retainer is typically a partial payment toward the ultimate, total fee that may be due in the event the case requires filing of a variety of motions and other pleadings, handling administrative license issues, conduction of pre-trial hearings of various types, going to trial or possibly filing an appeal. To avoid confusion on the exact terms and schedule of other payments, retainer agreements should be in writing in virtually all cases.
SENTENCE - Judgment formally pronounced by a judge upon defendant after the defendant’s conviction in the criminal prosecution.
SOLICITOR - The prosecutor representing the state if your county or parish has a separate court for trying misdemeanors.
STANDARD OF PROOF - The amount of evidence which a prosecuting attorney in a criminal case must present in a trial in order to win is called the standard of proof. In criminal cases in America, the appropriate standard is the highest legal standard in existence, proof beyond a reasonable doubt.
STATUTE - A law adopted by the legislature.
SUBPOENA - A court-authorized or court-issued form (usually under the seal of the court) ordering a person to be in court at a certain place, hour and time, or “to be punished” for not doing so.
SUPRA - The legal citation for the point just made has already been cited above in the same document.
SUSTAIN - A judge’s decision (usually during trial or motions hearings) to allow an objection or motion to prevail.
TESTIMONY - Spoken evidence given by a confident (competent?) witness, under oath, as distinguished by evidence derived by writings, physical exhibits and other sources.
TRIAL INFORMATION (OR ACCUSATION) - A document filed by the prosecutor, which states the charges and evidence against a defendant in a criminal case. See further information under “accusation” in this glossary.
UNIFORM CITATION (OR UNIFORM TRAFFIC CITATION) - A statutory form of a handwritten or digitally created charging document generally used by police officers to accuse a citizen of certain types of offenses. In some states, this method allows a law enforcement officer to issue a traffic citation on certain misdemeanor or traffic infraction cases. Typically, uniform citations are authorized for traffic offenses and other types of violations that are considered less serious offenses. Some states allow the prosecution of DUI-DWI cases on these citations, without the need for the prosecutor to file a formal, computer-generated (or typewritten) accusation or “information” setting forth the charges.
VERDICT - The formal decision or finding made by a jury in a trial after consideration of the evidence presented and applying the rules of law given to the jury by the judge. In a criminal 302 case, for each “count,” the jury will render one of three decisions: (1) “guilty,” (2) “not guilty” or (3) “can’t agree unanimously” (or by whatever non-unanimous standard some state may have rather than unanimous).
VOIR DIRE - French for “to speak truly, to tell the truth.” In English, this is called “jury selection.” Jury selection is an inquiry of prospective jurors by the attorneys (in most jurisdictions) and by the judge, to determine if prospective jurors are qualified for jury duty in a given case.
WAIVER - This refers to knowingly and intentionally giving up a right. Example: a defendant waives his right to remain silent by agreeing to be interviewed by police. In the legal system, almost any right can be waived, if it is done knowingly and intelligently.
WARRANT - A writ or order issued by a judge or magistrate authorizing an officer of the law to make an arrest, to conduct a search, or to perform some other designated act.
WITNESS - One who testifies to what he or she has seen, heard, or otherwise observed or (in the case of expert witnesses) testifies to his or her professional opinion based on a hypothetical set of facts, treatment records, or statement.
WORK RELEASE - A probation program (alternative to jail sentence) that is available in some jurisdictions wherein the defendant is permitted to maintain employment while residing in jail when not at work. The defendant leaves jail on workdays only for his work hours, plus limited travel time. These programs are not available in some jurisdictions, due to lack of funding for such facilities. Also, some state statutes do not allow DUI-DWI detainees to utilize “work release.”
WRIT - An order issued from a court requiring the performance of a specified act, or giving authority and commission to having it done.