The criminal justice process is filled with esoteric terms and processes that are bewildering to the uninitiated. Rather than fill my blog posts with off-topic definitions and explanations, I’ve created this page to serve as a repository for those concepts which must be understood in order to get the full value of the articles in the Malefactor’s Register.
Actus Reus — The act or omissions that comprise the physical elements of a crime as required by statute. The statutory definition of a crime pairs Actus reus with Mens rea, the psychological state defining a criminal perpetrator as culpable for having committed a crime. See also: Corpus Delicti, Mens Rea, Element of the crime
Abuse of Discretion — A standard of review applied by appellate courts in reviewing the discretion exercised by a trial judge. Discretion is “abused” when the court makes a decision by whim or caprice, arbitrarily, or from a bad motive which amounts practically to a denial of justice as a clearly erroneous conclusion, one that is clearly against logic and effect of the facts presented. There is no hard and fast rule by which an abuse of discretion may be determined, but in general an exercise of discretion, not to amount to an abuse, must be legally sound; there must be an honest attempt by the court to do what is right and equitable under the circumstances and the law, without the dictates of whim or caprice. See also:Shocks the Conscience.
Accomplice— Someone who assists in the commission of a crime and, unlike a mere accessory, is usually present or directly aids in the crime. Also unlike an accessory who can claim being only a subordinate figure, the accomplice may share in the same charge and punishment as the principal criminal. See also Accessory; Aiding and Abetting.
Admission Against Interest — An exception to the hearsay rule which allows someone to testify to a statement by another person that reveals something incriminating, embarrassing, or otherwise damaging to the maker of the statement. See also: Hearsay.
Actual Innocence — In order to raise a claim of actual innocence, a prisoner must present evidence of innocence so strong that a court cannot have confidence in the outcome of the trial — it is more likely than not that no reasonable juror would have voted for conviction — unless the court is also satisfied that the trial was free of non-harmless constitutional error. The Supreme Court has counseled however, that the actual innocence exception should “remain rare” and only be applied in the “extraordinary case.” The term “actual” refers to being innocent of the act, not “OMG! She’s actually innocent!”
Affirmative Defense — A type of defense to a charge or allegation that serves as a basis for proving some new fact; in such a defense the defendant does not simply deny a charge, but offers new evidence to avoid a judgment against him. The defendant has the burden of proof in an affirmative defense. See also:Insanity, Diminished Capacity, Self Defense.
Aggravating Circumstances — Circumstances that increase the seriousness or outrageousness of a given crime, which will increase the wrongdoer’s penalty or punishment. For example, the crime of aggravated assault is a physical attack made worse because it is committed with a dangerous weapon, results in severe bodily injury, or is made in conjunction with another serious crime. Aggravated assault is usually considered a felony, punishable by a prison sentence. See also: Mitigating Circumstances.
Aiding and Abetting — To “aid and abet” means to intentionally help someone else commit a crime. To establish aiding and abetting, the government must prove beyond a reasonable doubt that (1) someone else committed the charged crime, and (2) that the defendant willfully associated him/herself in some way with the crime and willfully participated in it as he/she would in something he/she wished to bring about. See also Accessory; Accomplice.
Alford Plea — Also known as a “best-interests plea,” an Alford plea registers a formal claim neither of guilt nor innocence toward charges brought against a defendant in criminal court. The name, Alford plea, is taken from North Carolina v. Alford 400 U.S. 25. See also: No Contest.
Alibi — As a noun, a defense to a criminal charge alleging that the accused was somewhere other than at the scene of the crime at the time it occurred. As a verb, to provide a statement that the accused was elsewhere.”
Allocution — The direct address between the judge and the convicted defendant prior to sentencing. During the address, the judge speaks directly to the defendant and asks if the defendant has anything to add prior to hearing the sentence. The defendant then answers the judge and may say anything in an effort to lessen the severity of the sentence, such as an apology, an offering of remorse, or an explanation of the motivations that drove the defendant’s criminal actions.
Antiterrorism and Effective Death Penalty Act — Usually referred to by its initials A-E-D-P-A is a federal law passed in 1996 that changed generally the procedures used in a habeas corpus action, and made special rules for a habeas corpus action involving a sentence of death. As the name implies, the law made the process more efficient by eliminating avenues of appeal.
Appellate Jurisdiction — The power of a court to hear appeals from lower courts. This includes the power to reverse or modify the the lower court’s decision. In the federal system, the circuit courts have appellate jurisdiction over the cases of the district courts, and the supreme court has appellate jurisdiction over the decisions of the circuit courts.
Attempt (and intent) — An action is not criminally punishable as an attempt to commit a particular crime unless the accused had the intent to commit that crime. The intent to commit a crime does not in itself constitute an attempt, nor does mere preparation. The crime of attempt requires proof that the actor took a substantial step toward commission of the crime. A substantial step is one that strongly corroborates the actor’s criminal purpose, but is not necessarily one that is essential to the commission of the crime.
Arrest —An “arrest” occurs when a person has been taken into police custody and is no longer free to leave or move about. The use of physical restraint or handcuffs is not necessary. An arrest can be complete when a police officer simply tells a crime suspect that he or she is “under arrest,” and the suspect submits without the officer’s use of any physical force. The key to an arrest is the exercise of police authority over a person, and that person’s voluntary or involuntary submission. A brief custodial encounter like a traffic stop does not constitute arrest, nor does stop-and-frisk actions by police.
Brady Rule — The Brady Rule, named for Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose materially exculpatory evidence in the government’s possession to the defense. See also: Exculpatory Evidence, Inculpatory Evidence
Case Law — The law based on judicial opinions (including decisions that interpret statutes), as opposed to law based on statutes, regulations, or other sources. In other words, statutes describe prohibited acts, case law — based on violations of the law — clarifies what the law means and enforces. This also refers to the collection of reported judicial decisions within a particular jurisdiction dealing with a specific issue or topic. See also: Common Law
Castle Doctrine — An exception to a rule in place in some jurisdictions that requires a defendant to retreat before using deadly force in self-defense. The castle exception states that if a defendant is in his home, he is not required to retreat prior to using deadly force in self defense. See also: Affirmative Defense, Self Defense.
Challenge for Cause — A challenge that aims to disqualify a potential juror for some stated reason. Typical reasons include bias, prejudice, or prior knowledge that would prevent impartial evaluation of the evidence presented in court. See also: Peremptory Challenge
Circumstantial Evidence — Facts and circumstances surrounding a transaction from which the jury or trier of the fact may infer other connected facts which reasonably follow, according to the common experience of mankind.
Citation — In order to find a particular opinion among the staggering number of reported decisions, a reference system has developed, called citations. The following is an example of a citation, or cite, to a state court opinion: Ford Motor Co. v. London, 217 Tenn. 400, 398 S.W.2d 240 (1966) . The citation indicates the following information: (1) The names of the parties, generally with the plaintiff first (Ford Motor Co.) and the defendant second (London); (2) the volume of the state reporter where the opinion is found (217); (3) the state reporter system (Tenn.); (4) the page in the state reporter system volume where the opinion begins (400). Then listed is the exact same case in the West National Reporter system: (5) the volume of the West Reporter system (398); (6) the West Reporter where the opinion is found (S.W.2d); (7) the page in the West Reporter where the opinion begins (240); and (8) the date that the court decided the case (1966).
A citation to a case from a federal district court appears as: Landman v. Royster, 333 F. Supp. 621 (E.D. Va. 1971) . The citation gives the following information about the case: (1) The parties, plaintiff first and defendant second (Landman v. Royster); (2) the volume of the West Federal Reporter where the opinion appears (333); (3) the West Reporter that publishes the case (F. Supp.); (4) the page in the reporter where the opinion begins (621); (5) the court that decided the case (E.D. Va.), the federal district court for the Eastern District of Virginia; and (6) the date of the decision (1971). A citation to a federal court of appeals, for example, Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) , gives the same information: parties, volume, reporter, page, court, and date.
Clear and Convincing Evidence — A burden of proof beyond a preponderance of evidence, but below the threshold of reasonable doubt. Similar to “satisfaction of a jury.” To prove a thing to the satisfaction of a jury means that the jury must be satisfied that the thing existed. To satisfy the mind, according to the common notion of mankind, is to free it from doubt, to set it at rest.
Common Law — The body of law that developed over many years in England based on court decisions and custom, as compared to written statutes. England’s common law came to the United States with the colonists, and it survives today, greatly expanded and changed by the published decisions of American courts. Many common law principles, however, have been codified in state statutes. See also: Case Law, Moral Law, Positive Law
Corpus Delicti — What it is not is “the dead body.” The term is Latin for The body of the crime; the fact that a crime has actually been committed, that someone is criminally responsible. Hilyard v State, 90 Okla Crim 435, 214 P2d 953, 28 ALR2d 961; 29 Am J2d Ev § 149. In homicide cases, to prove the corpus delicti, the state must prove the facts of death and the criminal agency of another person as the cause thereof.
Crime of Passion — A crime committed while in the throes of passion, with no opportunity to reflect on what is happening and what the person is about to do. The emotional state does not excuse the crime, but can be a mitigating factor. See also: Manslaughter.
Cross-Examination — The interrogation of a witness for the opposing party by questions framed to test the accuracy and truthfulness of his testimony on direct examination and to bring out the truth of the matter in issue; opposite of Direct Examination.
Diminished Capacity — The diminished capacity plea is based in the belief that certain people, because of mental impairment or disease, are simply incapable of reaching the mental state required to commit a particular crime. In the example of murder and manslaughter, a diminished capacity defense contends that a certain defendant is incapable of intending to cause a death, and therefore must have at most caused such a death recklessly. Thus, a successful plea of diminished capacity in a murder trial would likely result in the charge being reduced to manslaughter.
A “diminished capacity” plea differs in important ways from “not guilty by reason of insanity.” “Reason of insanity” is an affirmative defense to crimes. That is, a successful plea of insanity will, in most states, result in a verdict of “not guilty” and commission of the defendant to a mental institution. “Diminished capacity,” on the other hand, merely results in the defendant being convicted of a lesser offense. California allowed a plea of diminished capacity beginning in the 1950s. But the plea came under intense scrutiny during as the so-called “Twinkie defense,” and some jurisdictions have eliminated the diminished capacity plea. See also: Affirmative Defense, Insanity, Nature and Quality of the Act.
Direct Evidence — Testimony or other proof which expressly or straight-forwardly proves the existence of a fact; opposite of circumstantial evidence.
Direct Examination — The initial questioning of a witness by the party who calls him.; opposite of Cross-Examination.
Directed Verdict — A verdict which a jury returns as directed by the court. In criminal cases, a directed verdict is almost exclusively used at the end of the prosecution’s presentation of evidence when the court rules that the state has failed to prove its case.
Double Jeopardy — The Double Jeopardy Clause in the Fifth Amendment to the US Constitution prohibits anyone from being prosecuted twice for substantially the same crime.
The underlying idea is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”
Durham Rule — Durham was in and out of mental institutions and frequently when he was released, committed one crime or another. As a result in 1954, the D.C. circuit court in reversing Durham’s latest conviction, created a revised rule that it hoped would ameliorate the problem with a decision that established the Durham Rule: “The rule we now hold…is simply that an accused is not criminally responsible if his unlawful act was the product of mental disease or defect. We use “disease” in the sense of a condition which is capable of either improving or deteriorating. We use ‘defect’ in the sense of a condition which is not considered capable of either improving or deteriorating and which may be either congenital, or the result of injury, or the residual effect of a physical or mental disease.” Durham v. United States (1954). See also, Insanity, Irresistible Impulse Test, M’Naghten’s Rule, Nature and Quality of the Act.
Dying Declaration— A statement made by the victim of a homicide while about to die, and without any hope of recovery, concerning the facts and circumstances under which the fatal injury was inflicted, and offered in evidence on the trial of the person charged with having caused the death of the declarant. Under particular circumstances and in certain cases, it is competent evidence in some courts as an exception to the hearsay rule.
Eighth Amendment — “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Bail: “This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction…Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.” Stack v. Boyle, 342 U.S. 1, 4 (1951)
Fines: For years the Supreme Court had little to say with reference to excessive fines. In an early case, it held that it had no appellate jurisdiction to revise the sentence of an inferior court, even though the excessiveness of the fines was apparent on the face of the record. Ex parte Watkins, 32 U.S. (7 Pet.) 568, 574
Punishment: It is clear from some of the complaints about the absence of a bill of rights including a guarantee against cruel and unusual punishments in the ratifying conventions that tortures and barbarous punishments were much on the minds of the complainants, but the English history which led to the inclusion of a predecessor provision in the Bill of Rights of 1689 indicates additional concern with arbitrary and disproportionate punishments.
Element of a Crime — The component parts of crimes. Each element of a crime must be proven beyond a reasonable doubt.
“To prove the defendant guilty of murder in the first degree with deliberate premeditation, the Commonwealth must prove beyond a reasonable doubt the following elements:
1. The defendant caused the death of [victim’s name].
2. The defendant intended to kill [victim’s name], that is, the defendant consciously and purposefully intended to cause [victim’s name] death.
3. The defendant committed the killing with deliberate premeditation, that is, he decided to kill after a period of reflection.”
Massachusetts Model Jury Instructions — HomicideSee also: Corpus Delicti
Exclusionary Rule — The primary justification for the exclusionary rule, under which evidence illegally seized is not admissible at a criminal trial, is the deterrence of police conduct that violates Fourth Amendment rights; the rule is not calculated to redress the injury to the privacy of the victim of the search or seizure, but is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect. See also: Fruit of the Poisonous Tree, Fourth Amendment
Exculpatory Evidence — Evidence which may justify or excuse an accused defendant’s actions, and which will tend to show the defendant is not guilty or has no criminal intent. See also: Brady Rule, Inculpatory Evidence.
Exigent Circumstances — Exigent circumstances are exceptions to the general requirement of a warrant under the Fourth Amendment searches and seizures. Exigent circumstances occur when the a law enforcement officer has a probable cause and no sufficient time to secure a warrant.
Felony — A crime sufficiently serious to be punishable by death or a term in state or federal prison, as distinguished from a misdemeanor.
Felony Murder — A rule of criminal statutes that any death which occurs during the commission of a felony is first degree murder, and all participants in that felony or attempted felony can be charged with and found guilty of murder.
Fifth Amendment — “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The source of this clause was the maxim nemo tenetur seipsum accusare — no man is bound to accuse himself. “The privilege afforded not only extends to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute…” Hoffman v. United States, 341 U.S. 479
Fourth Amendment — “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
“Every man’s house is his castle” was a maxim much celebrated in England, as was demonstrated in Semayne’s Case, decided in 1603. A civil case, Semayne’s Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the King’s agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King’s process.
Fruit of the Poisonous Tree — In the typical “fruit of the poisonous tree” case, the challenged evidence was acquired by the police after some initial Fourth Amendment violation, and the question before a court is whether the chain of causation proceeding from the unlawful conduct has become so attenuated or has been interrupted by some intervening circumstance so as to remove the “taint” imposed upon that evidence by the original illegality. Thus, most cases begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity. See also: Exclusionary Rule.
Grand Jury — A group of people selected to sit on a jury that decide whether to return an indictment. An indictment formally charges a person with committing a crime and begins the criminal prosecution process.
The grand jury acts as an investigative body, acting independently of either prosecuting attorney or judge. Criminal prosecutors present the case to the grand jury. The prosecutors attempt to establish probable cause to believe that a criminal offense has been committed. The grand jury may request that the court compel further evidence, including witness testimony and subpoenas of documents. The grand jury is generally free to pursue its investigations unhindered by external influence or supervision.
The grand jury assesses whether there is adequate basis for bringing a criminal charge against a suspect. The grand jury is “a kind of buffer or referee between the Government and the people.” United States v. Williams, 504 U.S. 36, 37 (1992). Having served on a grand jury, I think these are fine words, but in reality, this is a bunch of hooey.
Habeas Corpus — A civil lawsuit specifically permitted by federal law in which a defendant can challenge in federal court his or her state conviction or sentence based on alleged violations of the defendant’s constitutional rights.
Harmless Error — An error is harmless if it is clear beyond a reasonable doubt that absent the error, the jury would have returned a verdict of guilty. United States v. Roberts, 986 F.2d 1026, 1031-32 (6th Cir.) However, where the error involves a non-constitutional issue, the court need not find the error harmless beyond a reasonable doubt to uphold a conviction. Where an error is not of constitutional dimension, it is harmless unless it is “more probable than not” that it substantially affected the verdict. Whether a particular error is found to be harmless turns on the closeness of the case, the significance of the issue affected by the error, and the steps taken to mitigate the effects of the error. See also: Abuse of Discretion
Hearsay — A term applied to that species of testimony given by a witness who relates, not what he knows personally, but what others have told him.~ Black’s Law Dictionary, 6th Ed. A statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801(c). See also: Dying Declaration.
Heinous, Atrocious, and Cruel — Used in assessing whether the death penalty is appropriate. A crime is committed in an especially cruel manner when the perpetrator inflicts mental anguish or physical abuse before the victim’s death,” and that “[m]ental anguish includes a victim’s uncertainty as to his ultimate fate. A crime is committed in an especially “depraved (or atrocious)” manner when the perpetrator “relishes the murder, evidencing debasement or perversion,” or “shows an indifference to the suffering of the victim and evidences a sense of pleasure” in the killing. See also:Walton v. Arizona, 497 U.S. 639 (1990)
Homicide — The killing of a human being due to the act or omission of another. Included among homicides are murder and manslaughter. Not all homicides are a crime, particularly when there is a lack of criminal intent. Non-criminal homicides include killing in self-defense, a misadventure like a hunting accident or automobile wreck without a violation of law. See also: Murder, Manslaughter.
Ignorance of the Law — Ignorance of the law generally does not excuse anyone for its violation; however, there are crimes that require a particular evil condition of the mind, existing in actual fact, and that ignorance or mistake of law, if it makes that particular state of mind impossible, takes away the offense. See also: Nature and Quality of the Act.
Indictment — An indictment formally charges a person with a criminal offense. The indictment enables a government prosecution of a suspected criminal actor for the offenses charged in the indictment. During an indictment proceeding, a grand jury determines that there is adequate basis for bringing criminal charges against a suspected criminal actor.
Ineffective Assistance of Counsel — An attorney’s conduct at trial is considered ineffective if that counsel’s “representation fell below an objective standard of reasonableness,” and, “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). See also Sixth Amendment.
Insanity — A person is insane and is not responsible for criminal conduct if, at the time of such conduct, as a result of a severe mental disease or defect, he was unable to appreciate the nature and quality or the wrongfulness of his acts. In criminal cases, a claim by a criminal defendant of his/her insanity at the time of trial requires a separate hearing to determine if a defendant is sufficiently sane to understand the nature of a trial and participate in his/her own defense. If found to be insane, the defendant will be ordered to a mental facility, and the trial will be held only if sanity returns. See also: Durham Rule, Irresistible Impulse Test, M’Naghten’s Rule. Diminished Capacity, Nature and Quality of the Act.
Intent — For a person to be guilty of an offense, except where a statute imposes strict criminal liability for the conduct, the person’s liability must be based on conduct that includes either a voluntary act or an omission to perform an act or duty that he or she is capable of performing, and he or she must have the requisite degree of culpability for each element as to which a culpable mental state is specified in the law.
These provisions, in effect, codify the fundamental distinction between criminal conduct on the one hand and innocent conduct or accident on the other: that, generally, an offense is not committed unless a person not only does a forbidden act or fails to meet a prescribed duty, but also has a certain guilty state of mind at the time of his act or failure. Existence of a guilty mind — a mens rea in legal terminology — is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.
While direct evidence of state of mind is impossible to produce, circumstantial evidence is competent for proving mental state. When a statute defining an offense does not specify any degree of culpability, and plainly indicates the purpose to impose strict criminal liability for the conduct described, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.
Although it has been said that guilty knowledge or intent is an essential element in statutory crime, and that positive action is not criminal unless the intention accompanies the act, either expressly or by inference from the act itself, this is not always true.
Guilty knowledge is not necessary where a statute shows a legislative intent not to require intent, for example in the sale of adulterated foods or the sale of intoxicants to a minor or an intoxicated person. Criminal intent can never be proved by direct testimony of a third person, and it need not be; rather, it must be gathered from the surrounding facts and circumstances under proper instructions from the court.
See these other key terms to establish the commission of a crime: Malice Aforethought, strict liability,Malice Aforethoughtmens rea, motive, actus reus, knowingly, recklessly, purposely,willingly, intentignorance, Nature and Quality of the Act.
Irresistible Impulse— The defendant’s “reasoning powers were so far dethroned by his diseased mental condition as to deprive him of the will power to resist the insane impulse to perpetrate the deed, though knowing it to be wrong.” See also Insanity, Durham Rule, M’Naghten’s Rule, Nature and Quality of the Act.
Knowingly — A person acts knowingly, regardless of purpose, when the person is aware that his or her conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he or she is aware that such circumstances probably exist. Moreover, when knowledge suffices to establish an element of an offense, then purpose is also sufficient culpability for such element. A person can act knowingly without acting purposely, as in the case where a person believes there is consent to sexual conduct when there is in fact none, and thereby coerces another to submit through force.
Larceny — The crime of taking the goods of another person without permission (usually secretly), with the intent of keeping them. It is one form of theft. Some states differentiate between grand larceny and petty larceny based on the value of the stolen goods.
Lesser Included Offense — A less-serious crime that is necessarily committed during the perpetration of a greater crime because the lesser crime contains some of the same elements of the greater crime. The greater crime cannot be proven unless all of the elements of the lesser crime are proven. For example, trespassing is a lesser included offense of the crime of burglary.
Malice Aforethought — 1) The conscious intent to cause death or great bodily harm to another person before a person commits the crime. Such malice is a required element to prove first degree murder. 2) A general evil and depraved state of mind in which the person is unconcerned for the lives of others See also: Premeditation, Mens Rea.
Manslaughter — The unlawful killing of another person without premeditation. It is distinguished from murder (which brings greater penalties) by lack of any prior intention to kill anyone or create a deadly situation. There are two levels of manslaughter: voluntary and involuntary. Voluntary manslaughter includes killing in heat of passion or while committing a felony. Involuntary manslaughter occurs when a death is caused by a violation of a non-felony. See also: Homicide, Murder
Misdemeanor — A lesser crime punishable by a fine and/or county jail time for up to one year. See also Felony
Mitigating Factor — Any fact or circumstance that lessens the severity or culpability of a criminal act. Mitigating factors include an ability for the criminal to reform, mental retardation, an addiction to illegal substances or alcohol that contributed to the criminal behavior, and past good deeds, among many others. Recognition of particular mitigating factors varies by jurisdiction. See also: Aggravating Factor.
M’Naghten’s Rule — In 1843, Daniel M’Naghten was found not guilty of murder by reason of insanity. That verdict set off a firestorm of protest in England and resulted in an inquiry by the House of Lords which led to the adoption of the M’Naghten Rules.
“In all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved…; to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.” See also:Insanity, Irresistible Impulse Test, Durham Rule,Nature and Quality of the Act.
Moral Law — Principles describing conduct that is right and wrong, such as those found in the 10 Commandments. Moral law is distinguished from positive law, which is the set of rules actually enacted by society and enforced by its courts and the police. See also: Positive Law, Common Law.
Motive — Motive is a mental state that induces an act. The presence or absence of motive is a circumstance that should be weighed by the jury in deliberating upon the guilt of the accused. Motive is a circumstantial fact used to strengthen an inference, drawn from other evidence, that an act was done. Motive is not an element of crime that is required to be established to warrant a conviction. Proof of motive does not establish guilt, nor does want of proof of motive establish innocence.
Murder —At common law, murder is defined as killing another human being with malice aforethought.
There are several degrees of murder in most jurisdictions, as well as the crime of manslaughter, which itself is broken down further.
In most states, first-degree murder is defined as an unlawful killing that is both willful and premeditated, meaning that it was committed after planning or “lying in wait” for the victim.Second-degree murder is ordinarily defined as: 1) an intentional killing that is not premeditated or planned, nor committed in a reasonable “heat of passion”; or 2) a killing caused by dangerous conduct and the offender’s obvious lack of concern for human life. Second-degree murder may best be viewed as the middle ground between first-degree murder and voluntary manslaughter. See also: Manslaughter.
.Nature and Quality of the Act — To be guilty of a crime when diminished capacity is claimed, the jury must decide whether the defendant understands the nature and quality of the alleged criminal act. Generally, Nature of the act refers to whether the defendant knows what they are doing. This expression originated in the attempt to cover those cases where persons, either momentarily or permanently deranged, literally do not know what they are doing.
The Quality of an act distinguishes it from all other things. This implies a complete and extensive knowledge of the thing in question. To know the quality of an act of murder means to know all of the elements, which seem to make it distinct from all other acts, to know that it is unjustifiable; that it differs from the killing of a rat in that different consequences follow; that human suffering is involved. It is to know, at least in some vague way, that human society could not exist if murder were the rule. To know the quality of an act of murder is to know enough to be able to distinguish it from justifiable homicide, from killing in war, etc. See also:Insanity, Irresistible Impulse Test, Durham Rule,M’Naghten’s Rule, Diminished Capacity.
n.b. — n.b. is an abbreviation for the Latin phrase nota bene which translates as “take note,” or more directly, “note well.” It is used in legal documents or certain academic papers to point out something important that may not be directly related to the matter at hand. I use it here when I feel the need.
No Contest Plea — A criminal defendant’s plea in court that the defendant will not contest the charge of a particular crime, also called nolo contendere. While technically not an admission of guilt for commission of the crime, a plea of “no contest” will be treated for sentencing purposes by a judge as an admission of responsibility. A no contest plea is often made in cases in which there is also a possible lawsuit for damages by a person injured by the criminal conduct (such as reckless driving, assault with a deadly weapon, aggravated assault), because it cannot be used in the civil lawsuit as an admission of fault. See also: Alford Plea.
No-Knock Warrant — A search warrant authorizing police officers to enter certain premises without first knocking and announcing their presence or purpose prior to entering the premises. Such warrants are issued where an entry pursuant to the knock-and-announce rule (ie. an announcement prior to entry) would lead to the destruction of the objects for which the police are searching or would compromise the safety of the police or another individual. See also: Fourth Amendment, Search Warrant.
Peremptory Challenge — A peremptory challenge results in the exclusion of a potential juror without the need for any reason or explanation – unless the opposing party presents a prima facie argument that this challenge was used to discriminate on the basis of race, ethnicity, or sex. See also: Challenge for Cause.
Positive Law — Statutory man-made law, as compared to “moral law” which is purportedly based on universally accepted moral principles, “God’s law,” and/or derived from nature and reason. See also: Moral Law, Common Law.
Preliminary Hearing — A hearing held after a criminal defendant’s first appearance in court for the purpose of determining whether there is probable cause to believe that the defendant committed the felony with which he or she is charged. See also: Grand Jury/
Preponderance of the Evidence — Preponderance of the evidence is the greater weight of the evidence; that is, evidence that the trier of fact believes because it outweighs or overbalances in the trier’s mind the evidence opposed to it. A preponderance means evidence that is more probable, more persuasive, or of greater probative value. It is the quality of the evidence that must be weighed. Quality may or may not be identical with quantity. 4 Ohio Jury Instructions 409.57. See also Reasonable Doubt, Clear and Convincing Evidence.
Prima Facie — Latin for “at first look,” or “on its face,” prima facie evidence is that which if unexplained or uncontradicted, is sufficient to carry the case to the jury and to sustain a verdict or finding in favor of the side of the issue which it supports, but which may be contradicted by other evidence.
Privileged Material — In the law of evidence, certain subject matters are privileged and can not be inquired into in any way. Such privileged information is not subject to disclosure or discovery and cannot be asked about in testimony. Usually, privileges exist not because of a fear that information provided will be inaccurate, but because there are public policy reasons the information should not be disclosed. Common privileged materials include spousal communications unless waived by both spouses, and attorney-client privileges. NOTE: Communications to clergy are not privileged.
Probable Cause— Sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime. Probable cause must exist for a law enforcement officer to make an arrest without a warrant, search without a warrant, or seize property in the belief the items were evidence of a crime. See also Search Warrant.
Purposely — A person acts purposely when it is the person’s specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his or her specific intention to engage in conduct of that nature. Purpose is determined from the manner in which an act is done, along with all other facts and circumstances. Offenses requiring a purposeful state of mind include aggravated murder, aggravated robbery, and possession of criminal tools. Where an inherently dangerous instrumentality was employed, a homicide occurring during the commission of a felony is a natural and probable consequence presumed to have been intended. Such evidence is sufficient to allow a jury to find a purposeful intent to kill. See also: Knowingly, Recklessly, mens rea
Question of Fact — A question of fact is resolved by a trier of fact, i.e. a jury or, at a bench trial, a judge, weighing the strength of evidence and credibility of witnesses. Conversely, a question of law is always resolved by a judge. See also: Question of Law.
Reasonable Doubt — From Ohio Jury Instructions: Reasonable doubt is present when, after you have carefully considered and compared all the evidence, you cannot say you are firmly convinced of the truth of the charge. Reasonable doubt is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. Proof beyond a reasonable doubt is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs. OJI § 403.50
Recklessly — A person acts recklessly when, with heedless indifference to the consequences, the person perversely disregards a known risk that his or her conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person perversely disregards a known risk that such circumstances are likely to exist. When recklessness suffices to establish an element of an offense, then knowledge or purpose is also sufficient culpability for such element. “Recklessly” ranks just below “knowingly” in degree of culpable mental state, and the statutory definition of recklessness contemplates a perverse disregard for a known risk. Recklessness requires more than mere negligence with respect to the possibility that an event might occur. See also Purposely, Knowingly, mens rea, Willfully.
Search Warrant — A written order by a judge which permits a law enforcement officer to search a specific place and identifies the persons (if known) and any articles intended to be seized. Such a search warrant can only be issued upon a sworn written statement of a law enforcement officer (including a prosecutor). Evidence unconstitutionally seized cannot be used in court, nor can evidence traced through such illegal evidence. See also Fruit of the Poisonous Tree, Fourth Amendment, No-Knock Warrant.
Self Defense — Very generally, use of force is justified when a person reasonably believes that it is necessary for the defense of oneself or another against the immediate use of unlawful force. However, a person must use no more force than appears reasonably necessary in the circumstances. Self-Defense statutes and common law vary significantly among jurisdictions. See also: Affirmative Defense.
Shocks the Conscience — A phrase that can refer to any situation that seems grossly unjust to the observer. Judges often use this phrase as a test to determine which situations are so unjust or wrong that the court must intervene. If some event shocks the conscience of the court, the court will look for some remedy to fix the problem. See also: Actual Innocence, Abuse of Discretion.
Sixth Amendment — “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
The development of the common law principle in England had denied to anyone charged with a felony the right to retain counsel, while the right was afforded in misdemeanor cases, a rule ameliorated in practice, however, by the judicial practice of allowing counsel to argue points of law and then generously interpreting the limits of “legal questions.” The colonial and early state practice in this country was varied, ranging from the existent English practice to appointment of counsel in a few States where needed counsel could not be retained. It was not until the 1930s that the Supreme Court began expanding the clause to its present scope.
“Speedy Trial” — Criminal defendants have the right to a “speedy trial,” which usually means that the prosecutor must decide within 72 hours which charges, if any, will be filed. A prosecutor is not bound by the initial charge decision, but may later change the crimes with which you will be charged once more evidence is obtained. The required time in which a prosecutor must make a charge decision varies from jurisdiction to jurisdiction.
Slayer Rule — In trusts and estates law, the slayer rule says that a murderer cannot retain a property interest in his victim’s estate. The slayer rule allows courts to presume the murderer disclaims her property interest, and therefore behave as though the murderer predeceased the victim. This has the effect of disqualifying the murderer from receiving property from the estate of the victim. The murderer is not required to be convicted of the crime, but if she is convicted of murder, the conviction establishes a conclusive presumption that the murderer did feloniously and intentionally kill the victim.
Strict Liability — Proof that a person committed an act is sufficient to convict regardless of extraneous factors. Clear indication of legislative intent to impose strict liability would be found in a statute worded “No person shall . . .,” absent any reference to the requisite culpable mental state, and in statutes whose language eliminates the possibility that a person could engage in the illegal conduct without intending to do so, such as speeding. See also Mens Rea, Attempt vs. Intent.
Transferred Intent — When a defendant intends to harm one victim, but then unintentionally harms a second victim instead. n this case, the defendant’s intent transfers from the intended victim to the actual victim and can be used to satisfy the mens rea element of the crime that the defendant is being charged with.
Trial Court — A court of original jurisdiction where evidence and testimony are first introduced, received, and considered. Findings of fact and law are made in the trial court, and the findings of law may be appealed to a higher court that has the power of review.
Willfully — The word “willfully” typically refers to a culpable state of mind. Willfully generally means done with a bad purpose, without justifiable excuse, stubbornly, obstinately, or perversely, or without ground for believing the act in question is lawful, or involving conduct marked by careless disregard whether a person has the right so to act. In order to establish a willful violation of a statute, the government must prove that the defendant acted with knowledge that his or her conduct was unlawful.
Writ of Certiorari – A type of writ, meant for rare use, by which an appellate court decides to review a case at its discretion. The word certioari comes from Latin and means “to be more fully informed.” A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it. The U.S. Supreme Court uses certiorari to pick most of the cases that it hears.