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AFFIRMATIVE DEFENSE
New evidence offered
by the defendant in an action which my serve to prove a
new fact. While not denying the charge, the defendant
presents this evidence to avoid judgment against him or
her. A classic example of this is the entrapment
defense.
ALLEN CHARGE
Further instructions
which the judge gives a jury having difficulty reaching
a decision, in order to encourage the jury to reach a
verdict.
APPEAL
The judicial
proceedings or steps in the proceedings resulting from a
request to a higher court for a review of the decision
of a lower court.
ARRAIGNMENT
A hearing before a
judicial officer at which the defendant is informed of
the charges filed against him or her and of his or her
rights. The defendant or his lawyer must then respond to
the charges with a plea of guilty or not guilty.
BILL OF PARTICULARS
Additional information
in which the prosecutor specifies the nature, character,
place and time of a crime that is alleged in the
charging document. Also, Motion for Bill of Particulars;
a request by the Defense attorney to the Court to order
the Government to provide same.
BOND
There are three types
of Bonds. A personal surety bond, also known as a
signature bond, is simply a contract between whoever
signs it (usually the accused and his or her family
members) and the Court promising to pay a certain amount
if the person doesn't show up. A ten percent bond is
similar to the personal surety bond with the added
requirement that ten percent of the face amount of the
bond be posted with the Court. For example, if you have
a $100,000 ten percent bond then $10,000 must be
deposited with the Court. This money is then returned to
whoever posted it when the case is over. The third bond
is the corporate surety bond. This is where a bondsman
posts the bond with the Court. Of course, the bondsman
will look to the accused and his family for assurances
of payment and for his premium (usually 15% of the face
value of the bond which is never returned).
CLOSING ARGUMENT
Final statement during
trial made by attorneys for each party in which they
summarize both the evidence they have presented and that
which they assert the opposing party has failed to
prove. Also called closing statement or summation.
CO-DEFENDANT
One or two or more
persons charged in the same charging document or tried
in the same legal proceedings.
COMPLAINT
The complaint is a
written statement of the essential facts which
constitute a crime. It must be sworn before a magistrate
judge. A formal document submitted to the court by the
prosecutor alleging that a person has committed an
offense and requesting that prosecution be initiated. In
felony cases this document is filed to initiate the
preliminary hearing on probable cause. In Federal Court
it is also the document filed to hold a defendant until
a grand jury decides whether to issue an indictment.
CONSPIRACY
An agreement between
two or more persons to commit a specified offense, such
as a conspiracy to commit money laundering. An overt act
in furtherance of the agreement may be required.
CONTINUANCE
The cessation,
interruption or adjournment of a proceeding until a
future date. Usually refers to a postponement which
amounts to a substantial delay in the proceedings.
CROSS-EXAMINATION
The interrogation of a
witness by the opposing party or attorney, limited to
those matters about which the witness testified during
direct examination.
DEFENDANT
An individual accused
of an offense or crime by the filing of a charging
document.
DETENTION
The confinement of a
person in a correctional facility during the pendency of
a criminal action. See also pre-trial detention.
DIRECT EXAMINATION
The first questioning
of a witness by the party representing that witness. See
also cross examination.
DISCOVERY
The procedure by which
one or both parties disclose evidence which will be used
at trial.
DISMISS
To terminate legal
action involving outstanding charges against a defendant
in a criminal case. Motion to Dismiss is when the
defense attorney asks the Court to dismiss the case.
EXCLUSIONARY RULE
Doctrine derived from
the United States Constitution which prevents the
authorities from using illegally obtained evidence at
trial.
FEDERAL DISTRICT
COURT JUDGE
The Federal District
Court Judge is the trial judge. They are appointed by
the President of the United States and confirmed by the
U.S. Senate. They have life appointments.
FEDERAL MAGISTRATE
JUDGE
Magistrate Judges, in
the Federal system, are judges that are appointed by the
District Court judges. Unlike District Court Judges who
are appointed for life by the President and confirmed by
the Senate, Magistrate Judges are only appointed for a
period of time. They are not the trial judges and they
do not preside over juries. Instead, they usually handle
pre-trial hearings such as the initial appearance, bond
hearing, and some pre-trial motion hearings. They can
also conduct misdemeanor trials.
FELONY
An offense punishable
by a term of imprisonment exceeding one year or by
death.
HUNG JURY
A jury so divided in
opinion that it is unable to reach a unanimous verdict.
INDICTMENT
A formal written
accusation presented by the Grand Jury alleging that an
individual or a corporation named has committed a
specified offense, usually a felony.
INITIAL APPEARANCE
The defendant's first
appearance in court at which he or she is informed of
the charges. A plea may be entered and bail set. In some
cases, the defendant may only be advised of his or her
rights and the steps in the judicial process, and
assigned counsel if necessary.
MISTRIAL
A trial terminated by
a judge because of circumstances or facts which preclude
a fair and impartial proceeding as prescribed by law.
MOTION
An oral or written
request made to the court requesting a specific
judgment, order or finding.
OPENING STATEMENT
Initial address to the
court by an attorney in which the nature of the case and
the evidence to be presented are outlined.
PLEA BARGAIN OR
AGREEMENT
The process whereby
the defense counsel and the prosecutor reach a
resolution of a criminal case. When the resolution is
reduced to writing it is called the plea agreement.
PRE-SENTENCE
INVESTIGATION (PSI)
An inquiry undertaken
by a designated authority at the request of a court to
gather information about the background of a person
convicted of an offense. This inquiry is designed to
assist the court in determining the appropriate sentence
to be imposed.
PRE-SENTENCE
INVESTIGATION REPORT (PSR)
A written account
prepared for the judge from a pre-sentence
investigation, designed to assist the judge in
determining the most appropriate sentence for a person
convicted of an offense.
PRE-TRIAL DETENTION
In Federal Court the
Government can ask that someone be held in custody
without bond during the pendency of the case. This is
called pre-trial detention. A pre-trial request is not
automatically granted. The Government must prove to the
Judge that the accused is either a danger to the
community or a risk of flight, or both. If you are
charged with certain crimes, for example, a drug crime,
the law presumes that you are a danger to the community
and a risk of flight. In this case you or your lawyer
must overcome this presumption.
PROBABLE CAUSE
A set of facts or
circumstances which would indicate to a reasonable
person that an offense was committed by a particular
individual.
PROBATION
DEPARTMENT
A court agency whose
primary functions include the investigation of persons
placed on probation, the preparation of pre-sentence
reports which assist the judge in determining the
appropriate penalty, and the supervision of persons
receiving probation as their sentence. Probation
Officers work for the Probation Department.
RAP SHEET
Slang term for the
official document listing all prior arrests,
dispositions, aliases and identifying information of a
defendant.
SENTENCING
GUIDELINES
A set of rules that
determine a sentencing range for a given offense and a
given defendant.
SUBPOENA
A written court order
requiring a person to appear in court at a designated
time to testify in a case or to produce documents or
items to be used as evidence.
VOIR DIRE
The preliminary
examination of a witness or a potential juror when there
is a question concerning the individual's competence,
interest or some other matter.
WRIT
A document issued by a
judge ordering or forbidding the performance of a
specified act.
WRIT OF HABEAS
CORPUS
A document which
directs the person detaining a prisoner to produce him
or her before a judicial officer to determine the
lawfulness of the imprisonment.
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