| 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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