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Legal Terms

Legal Terms Defined

Acquittal: What an accused criminal defendant receives if he/she is found not guilty. It is a verdict (a judgment in a criminal case) of not guilty.

Affidavit: Any written document in which the signer swears under oath before a notary public or someone authorized to take oaths (like a county clerk), that the statements in the document are true.

Answer: The first pleading by the defendant in a lawsuit, responding to the charges and demands of the plaintiff’s complaint.

Bailiff: A court official, usually a deputy sheriff, who keeps order in the courtroom and handles various errands for the judge and clerk.

Case Law: Reported decisions of appeals courts and other courts which make new interpretations of the law and, therefore, can be cited as precedents.

Common Law: The traditional unwritten law of England based on custom, and usage, which began to develop over a thousand years before the founding of the United States.

Complaint: The first document filed with the court by a person or entity claiming legal rights against another.

Counsel: A lawyer, attorney, attorney-at-law, counsellor, counsellor-at-law, solicitor, barrister, advocate or proctor (a lawyer in admiralty court), licensed to practice law.

Defendant: The person against whom a legal action is brought.

Discovery: The formal and informal exchange of information between sides in a lawsuit. Two types of discoveries are interrogatories and depositions.

Exhibit: Any object or document offered and marked as evidence. Any document attached to a pleading, affidavit, or other formal papers.

Expungement: Is the process of legally destroying, obliterating or striking out records or information in files, computers and other depositories relating to criminal charges.

Felony: A crime punishable by more than one year of incarceration. When you are sentenced under a felony, and the sentence is executed, you go to prison. This is distinguishable from a misdemeanor which is only punishable by confinement of county or local jail and/or a fine.

Gross Misdemeanor: A crime punishable by up to one year in county jail, a $3000 fine, or both. You are entitled to a lawyer when you are charged with a Gross Misdemeanor level offense.

Liability: Legal responsibility for one’s acts or omissions.

Memorandum: An informal writing. A brief writing to preserve a thing or an event against loss of memory in respect thereof. A writing used by a witness to assist and refresh his/her memory while on the witness stand.

Misdemeanor: A crime punishable by up to 90 days in county jail, a $1000 fine, or both. You are entitled to a lawyer when you are charged with a Misdemeanor, even if you cannot afford one.

Motion: A request that a judge make a ruling or takes some other action. Motions are either granted or denied by a judge.

Motions to Dismiss and Suppress: These are usually motions that are based upon whether the state has enough evidence (probable cause) to compel you to go to trial. There can also be other motions that are made, such as whether or not any of your constitutional rights may have been violated. Was a search legal? Was a motor vehicle stop justified? And other matters of this nature.

Notice: Information, usually in writing in all legal proceedings, of all documents filed, decisions, request, motions, petitions, and upcoming dates.

Order: A written command or direction given by a judge.

Petition: A written request to the court that it take a particular action.

Petty Misdemeanor: A Petty Misdemeanor is defined as “not a crime,” under the law. The maximum fine is $300. There is no jail that can be imposed. Consequently, you are not entitled to a Public Defender for this kind of offense.

Plaintiff: A person who brings a lawsuit against another person.

Pleading: The initial case documents filed with the court, for example, the complaint and answer, or the petition and response.

Presentence Investigation (PSI): The investigation into the history of a person convicted of a crime before sentencing to determine if there are extenuating circumstances which should ameliorate the sentence or a history of criminal behavior to increase the harshness of the sentence.

“Rule 5 Hearing”: A Rule 5 hearing is the first hearing that you normally go to. Your rights are generally explained. Often times, the court wants to know if you have a lawyer. This is also the first time that bail (or release conditions) may be an issue. You will receive a copy of the complaint. The court will ask if you understand the charges against you. You will also have to fill out some paperwork, so that the court knows how to get a hold of you.

“Rule 8 Hearing”: A Rule 8 hearing is required in gross misdemeanor and felony cases. It is supposed to be held within ten days of the Rule 5 Hearing. We usually try to waive this hearing, or combine it with the Rule 11 (Omnibus) Hearing, in order to facilitate streamlining the legal process, and to eliminate the need for an unnecessary court hearing. However, this hearing can be helpful if the case might be resolved, or if bail needs to be addressed.

“Rule 11 (Omnibus) Hearing”: This hearing can involve a number of different matters. It is called Omnibus, because we bring these matters together for one hearing. This is very much like the hearings we used to watch on Perry Mason. In Perry Mason, however, testimony was always required for the Court to find probable cause. Probable cause, however, can now be inferred from reading the police reports.

There can still be a mini trial, however, because constitutional issues, such a search and seizure, search warrants, and motor vehicle stops, are all governed by constitutional principles. Consequently, the Court has to frequently take testimony to determine what the truth is on these important Pre-Trial hearings. There is no right to a jury during this phase of your case.

The Omnibus hearing is also the first opportunity to plead not guilty. Once you plead not guilty, you can demand a speedy trial. The trial is supposed to be held within 60 days of your demand for a speedy trial.

“Rule 15 Hearing”: This is a hearing to plead guilty.

“Rule 27 Hearing”: This is a sentencing hearing. You have an opportunity to present evidence, at this stage, also. You can present letters of recommendation, or witnesses that can address the Court, should you desire. This is also your time to have an opportunity to explain yourself to the judge. This is known as your Right of Allocution. Every defendant has a right to talk to the judge before sentence is imposed.

Response: A court paper that directly answers the points raised by the other side’s pleading.

Request for Disclosure: In all criminal cases, including petty misdemeanors, a person is entitled to know what the police have for evidence against him or her. As a defense attorney, I request disclosure from the prosecution, so that I can see the nature of the evidence. I will then go over this evidence with you, line by line, if necessary, so that we can prepare our case strategy.

Retainer Agreement: The employment of a lawyer by a client; the specific agreement between a lawyer and the client; the first payment by a client to a lawyer either for one specific case or so the lawyer will be available for unspecified future cases.

Sentence (Executed): This is a sentence that means exactly what it says. Your jail or prison sentence is executed. You are either going to be a guest of the governor, or of the county.

“Stay of Imposition of Sentence”: Stay of Imposition of Sentence means that the sentence is not imposed. You can be placed on probation. If you successfully complete probation, you will have a misdemeanor on your record.

“Stay of Adjudication of Sentence”: This is not a sentence, at all. Actually, it is a deferral of the proceedings. With a Stay of Adjudication, you plead guilty, but your plea is not accepted by the court. You can still be placed on probation, including jail. If you successfully complete probation, then there will be nothing on your record. Another advantage of a Stay of Adjudication of Sentence is that there is nothing on your record during the time of your probation.

“Stay of Execution of Sentence”: This kind of sentence usually is imposed for felonies. The Court pronounces the sentence, but stays the execution. In other words, you could go to prison, but by virtue of the stay, you will not go to prison. You can still serve up to one year in county jail with a stay of execution of sentence for felony cases.

Summons: A document issued by the court at the time a lawsuit is filed, stating the name of both the 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.

Subpoena: A subpoena is a legal document which is actually a command by the court for someone to either attend a court proceeding, or to bring evidence to the court proceeding. By bringing evidence, this is known as a Subpoena Duces Tecum.

Testimony: Oral evidence given under oath by a witness in answer to questions posed by attorneys at trial or at a deposition.

Voir Dire: From French meaning “to see to speak,” the questioning of prospective jurors by a judge and attorneys in court. Voir Dire is used to determine if any juror is biased and/or cannot deal with the issues fairly, or if there is cause not to allow a juror to serve.

Warrant: An order of a court which directs a law enforcement officer to arrest and bring a person before a 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.

Witness: 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.

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