Criminal Law Dicnonary Essay, Research Paper

Entrapment

The inducement, by law enforcement officers or their agents, of another person to commit

a crime for the purposes of bringing charges for the commission of that

artificially-provoked crime. This technique, because it involves the commission of a crime,

which is itself a crime, is severely curtailed under the constitutional law of many states.

Estoppel

a rule of law that when person A, by act or words, gives person B reason to

believe a certain set of facts upon which person B takes action, person A cannot later,

to his (or her) benefit, deny those facts or say that his (or her) earlier act was

improper. A 1891 English court decision summarized estoppel as “a rule of evidence

which precludes a person from denying the truth of some statement previously made

by himself”.

certiorari

A writ of certiorari is a form of judicial review whereby a court is asked to

consider a legal decision of an , judicial office or organization (eg. government) and to

decide if the decision has been regular and complete or if there has been an error of law.

For example, a certiorari may be used to wipe out a decision of an administrative tribunal

which was made in violation of the rules of natural justice, such as a failure to give the

person affected by the decision an opportunity to be heard.

Circumstantial evidence

which may allow a judge or jury to deduce a certain fact from other facts which have been

proven. In some cases, there can be some that can not be proven directly, such as with an

eye-witness. And yet that may be essential to prove a case. In these cases, the lawyer will

provide the judge or juror with of the circumstances from which a juror or judge can

logically deduct, or reasonably infer, the fact that cannot be proven directly; it is proven by

the of the circumstances; hence, “circumstantial” . Fingerprints are an example of

circumstantial evidence: while there may be no witness to a person’s presence in a certain

place, or contact with a certain object, the scientific evidence of someone’s fingerprints is

persuasive proof of a person’s presence or contact with an object.

Case law

The entire collection of published legal decisions of the courts which, because of ,

contributes a large part of the legal rules which apply in modern society. If a rule of law

cannot be found in written laws, lawyers will often say that it is a rule to be found in “case

law”. In other words, the rule is not in the books but can be found as a principle of law

established by a judge in some recorded case. The word has become synonymous for case

law.

Class action

When different persons combine their lawsuits because the facts and the defendant are so

similar. This is designed to save Court time and to allow one judge to hear all the cases at

the same time and to make one decision binding on all parties. Class action lawsuits would

typically occur after a plane or train accident where all the victims would sue the

transportation company together in a class action suit.

Ad hoc

Latin: for this purpose; for a specific purpose. An ad hoc , for example, is created with a

unique and specific purpose or task and once it has studied and reports on the matter, it

stands disbanded (compare with ).

Ad litem

Latin: for the suit. A person appointed only for the purposes of prosecuting or defending

an action on behalf of another such as a child or mentally-challenged person. Also called a

guardian ad litem.

Res judicata

Latin: A matter which has already been conclusively decided by a court.

Nolo contendere

Latin for “I will not defend it.” Used primarily in criminal proceedings whereby the

defendant declines to refute the evidence of the prosecution. In some jurisdictions, this

response by the defendant has same effect as a plea of guilty.

Writ

An official court document, signed by a judge or bearing an official court seal, which

commands the person to whom it is addressed, to do something specific. That “person” is

typically either a sheriff (who may be instructed to seize property, for example) or a

defendant (for whom the writ is the first notice of formal legal action. In these cases, the

writ would command the person to answer the charges laid out in the suit, or else

judgment may be made against them in their absence).

Mootness

Also called a “moot point”: a side issue, problem or question which does not have to

be decided to resolve the main issues in a dispute

Pardon

A pardon is a government decision to allow a person who has been convicted of a crime,

to be free and absolved of that conviction, as if never convicted. It is typically used to

remove a criminal record against a good citizen for a small crime that may have been

committed during adolescence or young adulthood. Although procedures vary from one

state to another, the request for a pardon usually involves a lengthy period of time of

impeccable behavior and a reference check. Generally speaking, the more serious the

crime, the longer the time requirement for excellent behavior. In the USA, the power to

pardon for federal offenses belongs to the President.

Mandamus

A writ which commands an individual, organization (eg. government), or court to

perform a certain action, usually to correct a prior illegal action or a failure to act in the

first place.

Demurrer

This is a motion put to a trial judge after the plaintiff has completed his or her case, in

which the defendant, while not objecting to the facts presented, and rather than responding

by a full defence, asks the court to reject the petition right then and there because of a lack

of basis in law or insufficiency of the evidence. This motion has been been abolished in

many states and, instead, any such arguments are to be made while presenting a regular

defence to the petition.

De Novo

Latin: new. This term is used to refer to a trial which starts over, which wipes the slate

clean and begins all over again, as if any previous partial or complete hearing had not

occurred.

Deposition

The official statement by a taken in writing (as opposed to which where a witnesses give

their perception of the facts verbally). are the most common kind of depositions.

Duces tecum

Latin: bring with you. Used most frequently for a species of (as in ” duces tecum”) which

seeks not so much the appearance of a person before a court of law, but the surrender of a

thing (eg. a document or some other evidence) by its holder, to the court, to serve as

evidence in a trial.

Punitive damages

Special and highly exceptional damages ordered by a court against a defendant where the

act or omission which caused the suit, was of a particularly heinous, malicious or

highhanded nature. Where awarded, they are an exception to the rule that damages are to

compensate not to punish. The exact threshold of punitive damages varies from

jurisdiction to jurisdiction. In some countries, and in certain circumstances, punitive

damages might even be available for breach of contract cases but, again, only for the

exceptional cases where the court wants to give a strong message to the community that

similar conduct will be severely punished. They are most common in intentional torts such

as rape, battery or defamation. Some jurisdictions prefer using the word “exemplary

damages” and there is an ongoing legal debate whether there is a distinction to be made

between the two and even with the concept of .

Guardian ad litem

A guardian appointed to assist an infant or other mentally incapable defendant or plaintiff,

or any such incapacitated person that may be a party in a legal action.

Habeas corpus

Latin: a court petition which orders that a person being detained be produced before a

judge for a hearing to decide whether the detention is lawful. Habeas corpus was one of

the concessions the British Monarch made in the and has stood as a basic individual right

against arbitrary arrest and imprisonment.

Immunity

An exemption that a person (individual or corporate) enjoys from the normal operation of

the law such as a legal duty or liability, either criminal or civil. For example, enjoy

“diplomatic immunity” which means that they cannot be prosecuted for crimes committed

during their tenure as . Another example of an immunity is where a witness agrees to

testify only if the testimony cannot be used at some later date during a hearing against the

witness.

Injunction

A court order that prohibits a party from doing something (restrictive injunction) or

compels them to do something (mandatory injunction).

In personam

Latin: All legal rights are either in personam or . An in personam right is a personal right

attached to a specific person. In rem rights are property rights and enforceable against the

entire world.

In rem

Latin: All legal rights are either or in rem. In rem rights are proprietary in nature; related

to the ownership of property and not based on any personal relationship, as is the case

with rights.

Interlocutory

Proceedings taken during the course of, and incidental to a trial. Examples include

procedures or applications made which are to assist a case in preparing its case or of

executing judgment once obtained (eg. garnishment or judicial sale). These decisions

intervene after the start of a suit and decide some issue other than the final decision itself.

Jurisdiction

Refers to a court’s authority to judge over a situation usually acquired in one of three

ways: over acts committed in a defined territory (eg. the jurisdiction of the Supreme Court

of Australia is limited to acts committed or originating in Australia), over certain types of

cases (the jurisdiction of a bankruptcy court is limited to bankruptcy cases), or over

certain persons (a military court has jurisdiction limited to actions of enlisted personnel).

Lis pendens

Latin: a dispute or matter which is the subject of ongoing or pending . Politicians will

sometimes refuse to discuss a matter or an issue which is “lis pendens” because they do

not want their comments to be perceived as an attempt to influence a court of law.

Litigation

A dispute is in “litigation” ( or being “litigated”) when it has become the subject of a

formal court action or law suit.

Misfeasance

Improperly doing something which a person has the legal right to do.

Nonfeasance

Not doing something that a person should be doing.

Malfeasance

Doing something which is illegal.

Petition

The formal, written document submitted to a court, and which asks for the court to

redress what is described in the petition as being an injustice of some kind. Petitions set

out the facts, identifies the law under which the court is being asked to intervene, and ends

with a suggested course of action for the court to consider (eg. payment of damages to the

). Petitions are normally filed by lawyers because courts insist on complicated forms but

most states will allow citizens to file petitions provided they conform to the court’s form.

Some states do not use the word “petition” and, instead, might refer to an “application”, a

“complaint” or the “.

Plaintiff

The person who brings an case to court; who sues. May also be called “claimant”,

“petitioner” or “applicant. The person being sued is generally called the “” or the “.”

Pleadings

That part of a party’s case in which he or she formally sets out the facts and legal

arguments which support that party’s position. Pleadings can be in writing or they can be

made verbally to a court, during the trial.

Statute

The written laws approved by legislatures, parliaments or houses of assembly (i.e.,

politicians). Also known as “”. The written laws of the Canadian Province of

Newfoundland, for example, are in a multi-volume set of books called the Statutes of

Newfoundland.

Tort

Derived from the Latin word tortus which meant wrong. In French, “tort” means a

wrong”. Tort refers to that body of the which will allow an injured person to obtain

compensation from the person who caused the injury. Every person is expected to conduct

themselves without injuring others. When they do so, either intentionally or by , they can

be required by a court to pay money to the injured party (”damages”) so that, ultimately,

they will suffer the pain cause by their action. Tort also serves as a deterrent by sending a

message to the community as to what is unacceptable conduct.

Tort Feasor

Name given to a person or persons who have committed a .

Venue

This has the same meaning as in everyday English except that in a legal context it usually

refers specifically to the location of a judicial hearing. For example, if a criminal case has a

very high media profile in a particular city, the “venue” may change to another city to

ensure objective witnesses (i.e. that would not have been spoiled by media speculation on

the crime).

Due process

A term of US law which refers to fundamental procedural legal safeguards of which every

citizen has an absolute right when a state or court purports to take a decision that could

affect any right of that citizen. The most basic right protected under the due process

doctrine is the right to be given notice, and an opportunity to be heard. The term is now

also in use in other countries, again to refer to basic fundamental legal rights such as the

right to be heard.

Bad faith

Intent to deceive. A person who intentionally tries to deceive or mislead another in order

to gain some advantage.

Plea bargaining

Negotiations during a criminal trial, between an accused person and a prosecutor in which

the accused agrees to admit to a crime (sometimes a lesser crime than the one set out in

the original charge), avoiding the expense of a public trial, in exchange for which the

prosecutor agrees to ask for a more lenient sentence than would have been recommended

if the case had of proceeded to full trial. The normal rule of law is that judges are not

bound by plea bargains although, as past lawyers themselves, they are generally aware of

plea bargains and a reasonable recommendation of a prosecutor on sentencing is always

heavily considered.

Ombudsman

A person whose occupation consists of investigating customer complaints against his or

her employer. Many governments have ombudsmen who will investigate citizen

complaints against government services.

Pro se

Latin: in one’s personal behalf.

Subordination

To be subject to the orders or direction of another; of lower rank.

Collateral estoppel

A type of estoppel that bars a person from adopting a position in court that contradicts his

or her past statements or actions when that contradictory stance would be unfair to

another person who relied on the original position. For example, if a landlord agrees to

allow a tenant to pay the rent ten days late for six months, it would be unfair to allow the

landlord to bring a court action in the fourth month to evict the tenant for being a week

late with the rent. The landlord would be estopped from asserting his right to evict the

tenant for late payment of rent. Also known as estoppel in pais.

Acquittal

A decision by a judge or that a in a criminal case is not guilty of a . An acquittal is not a

finding of innocence; it is simply a conclusion that the pros.

Detainer

Removal of a tenant from rental property by a law enforcement officer. First, the landlord

must file and win an eviction lawsuit, also known as an “unlawful detainer.”

Actionable

Another term for a lawsuit. For example, a plaintiff might say, “I began this negligence

action last fall after the , Ms. Adams, struck me while I was crossing the street at Elm and

Main.”

Appellate court

A higher court that reviews the decision of a lower court when a losing for an appeal.

Brief

A document used to submit a legal contention or argument to a court. A brief typically

sets out the facts of the and a argument as to why she should prevail. These arguments

must be supported by legal authority and , such as , regulations and previous court

decisions. Although it is usually possible to submit a brief to a trial court (called a trial

brief), briefs are most commonly used as a central part of the process (an appellate brief).

But don’t be fooled by the name — briefs are usually anything but brief, as pointed out by

writer Franz Kafka, who defined a lawyer as “a person who writes a 10,000 word decision

and calls it a brief.”

Compensatory damages

Damages that cover actual injury or economic loss. Compensatory damages are intended

to put the injured party in the position he was in prior to the injury. Compensatory

damages typically include medical expenses, lost wages and the repair or replacement of

property. Also called “actual damages.”

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