English legal glossary 4 страница
PREPONDERANCE OF THE EVIDENCE - Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it.
PRE-SENTENCE REPORT - A report to the sentencing judge containing background information about the crime and the defendant to assist the judge in making his or her sentencing decision.
PRESENTMENT - Declaration or document issued by a grand jury that either makes a neutral report or notes misdeeds by officials charged with specified public duties. It ordinarily does not include a formal charge of crime. A presentment differs from an indictment .
PRESUMPTION - An inference of the truth or falsity of a proposition or fact, that stands until rebutted by evidence to the contrary.
PRESUMPTION OF INNOCENCE - A hallowed principle of criminal law that a person is innocent of a crime until proven guilty. The government has the burden of proving every element of a crime beyond a reasonable doubt and the defendant has no burden to prove his innocence.
PRESUMPTION OF LAW - a rule of law that courts and judges shall draw a particular inference from a particular fact, or from particular evidence.
PRETERMITTED CHILD - A child born after a will is executed, who is not provided for by the will. Most states have laws that provide for a share of estate property to go to such children.
PRE-TRIAL CONFERENCE - A meeting between the judge and the lawyers involved in a lawsuit to narrow the issues in the suit, agree on what will be presented at the trial, and make a final effort to settle the case without a trial.
PRIORS - A slang term meaning previous conviction(s) of the accused.
PRISON - A federal or state public building or other place for the confinement of persons. It is used as either a punishment imposed by the law or otherwise in the course of the administration of justice. Also known as penitentiary, penal institution, adult correctional institution, or jail.
PRIVILEGE - A legal right, exemption or immunity granted to a person, company or class, that is beyond the common advantages of other citizens.
PRIVILEGED COMMUNICATIONS - Confidential communications to certain persons that are protected by law against any disclosure, including forced disclosure in legal proceedings. Communications between lawyer and client, physician and patient, psychotherapist and patient, priest, minister, or rabbi and penitent are typically privileged.
PRIVITY - Mutual or successive relationships to the same right of property, or the same interest of one person with another which represents the same legal right.
PROBABLE CAUSE - A reasonable belief that a crime has or is being committed; the basis for all lawful searches, seizures, and arrests.
PROBATE - The court-supervised process by which a will is determined to be the will-maker's final statement regarding how the will-maker wants his or her property distributed. It also confirms the appointment of the personal representative of the estate. Probate also means the process by which assets are gathered; applied to pay debts, taxes, and expenses of administration; and distributed to those designated as beneficiaries in the will.
PROBATE COURT - The court with authority to supervise estate administration.
PROBATE ESTATE - Estate property that may be disposed of by a will.
PROBATION - A sentence imposed for the commission of a crime whereby a convicted criminal offender is released into the community, usually under conditions and under the supervision of a probation officer, instead of incarceration. A violation of probation can lead to its revocation and to imprisonment.
PROBATION BEFORE JUDGMENT (PBJ) - A conditional avoidance of imposition of sentence after conviction; failure to satisfy the conditions may cause imposition of sentence after a finding of violation of probation.
PROBATION DEPARTMENT - The department that oversees the actions of probationers as well as the location of where probation officers work.
PROBATION OFFICER - One who supervises a person placed on probation and is required to report the progress and to surrender the probationer if they violate the terms and conditions of the probation.
PROCEDURAL LAW - The method, established normally by rules to be followed in a case; the formal steps in a judicial proceeding.
PROFFER - An offer of proof as to what the evidence would be if a witness were called to testify or answer a question.
PROOF - Any fact or evidence that leads to a judgment of the court.
PROSECUTING ATTORNEY - See PROSECUTOR and DISTRICT ATTORNEY.
PROSECUTION - A proceeding instituted and carried on in order to determine the guilt or innocence of the accused.
PROSECUTOR - A trial lawyer representing the government in a criminal case and the interests of the state in civil matters. In criminal cases, the prosecutor has the responsibility of deciding who and when to prosecute.
PROSTITUTION - The performance or agreement to perform a sexual act for hire.
PROTECTIVE ORDER - A court order to protect a person from further harassment, service of process, or discovery.
PROXIMATE CAUSE - The act that caused an event to occur. A person generally is liable only if an injury was proximately caused by his or her action or by his or her failure to act when he or she had a duty to act.
PUBLIC DEFENDER - An attorney appointed by a court or employed by a government agency whose work consists primarily of defending people who are unable to hire a lawyer due to economic reasons.
PUNITIVE DAMAGES - Money awarded to an injured person, over and above the measurable value of the injury, in order to punish the person who hurt him.
PURGE - To clean or clear, such as eliminating inactive records from court files; with respect to civil contempt, to cure the noncompliance that caused the contempt finding.
QUASH - To overthrow, to vacate, to annul or make void.
QUASI JUDICIAL - Authority or discretion vested in an officer whose acts partake of a judicial character.
RAP SHEET - A listing of all the criminal convictions against an individual.
RAPE - Unlawful intercourse with an individual without their consent.
RAPE, STATUTORY - See STATUTORY RAPE.
RATIFICATION - The confirmation or adoption of a previous act done either by the party himself or by another.
REAL EVIDENCE - Evidence given to explain, repel, counteract, or disprove facts given in evidence by the adverse party.
REAL PROPERTY - Land, buildings, and other improvements affixed to the land.
REASONABLE DOUBT, BEYOND A - The degree of certainty required for a juror to legally find a criminal defendant guilty. An accused person is entitled to acquittal if, in the minds of the jury, his or her guilt has not been proved beyond a
"reasonable doubt"; that state of mind of jurors in which they cannot say they feel a persisting conviction as to the truth of the charge.
REASONABLE PERSON - A phrase used to denote a hypothetical person who exercises qualities of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of his or her own interest and the interests of others. Thus, the test of negligence is based on either a failure to do something that a reasonable person, guided by considerations that ordinarily regulate conduct, would do, or on the doing of something that a reasonable and prudent (wise) person would not do.
REBUTTAL - Evidence given to explain, counteract, or disprove facts given by the opposing counsel.
RECALL - Cancellation by a court of a warrant before its execution by the arrest of a defendant; also, a process by which a retired judge may be asked to sit on a particular case.
RECIDIVISM - The continued, habitual, or compulsive commission of law violations after first having been convicted of prior offenses.
RECKLESS DRIVING - Operation of a motor vehicle that shows a reckless disregard of possible consequences and indifference of other's rights.
RECOGNIZANCE - The practice which enables an accused awaiting trial to be released without posting any security other than a promise to appear before the court at the proper time. Failure to appear in court at the proper time is a separate crime.
RECORD - All the documents and evidence plus transcripts of oral proceedings in a case.
RECUSE - The process by which a judge is disqualified from hearing a case, on his or her own motion or upon the objection of either party.
RE-DIRECT EXAMINATION - Opportunity to present rebuttal evidence after one's evidence has been subjected to crossexamination.
REDRESS - To set right; to remedy; to compensate; to remove the causes of a grievance.
REFEREE - A person to whom the court refers a pending case to take testimony, hear the parties, and report back to the court. A referee is an officer with judicial powers who serves as an arm of the court.
REGULATION - A rule or order prescribed for management or government.
REHEARING - Another hearing of a civil or criminal case by the same court in which the case was originally heard.
REJOINDER - Opportunity for the side that opened the case to offer limited response to evidence presented during the rebuttal by the opposing side.
RELEVANT - Evidence that helps to prove a point or issue in a case.
RELINQUISHMENT - A forsaking, abandoning, renouncing, or giving over a right.
REMAND - The act of sending a case back to the trial court and ordering the trial court to conduct limited new hearings or an entirely new trial.
REMEDY - The means by which a right is enforced or the violation of a right is prevented, redressed or compensated.
REMITTITUR - The reduction by a judge of the damages awarded by a jury.
REMOVAL - The transfer of a state case to federal court for trial; in civil cases, because the parties are from different states; in criminal and some civil cases, because there is a significant possibility that there could not be a fair trial in state court.
REPLEVIN - An action for the recovery of a possession that has been wrongfully taken.
REPLY - The response by a party to charges raised in a pleading by the other party.
REPORT - An official or formal statement of facts or proceedings.
RESPONDENT - The party who makes an answer to a bill or other proceedings in equity; also refers to the party against whom an appeal is brought. Sometimes called an appellee.
REST - A party is said to rest or rest its case when it has presented all the evidence it intends to offer.
RESTITUTION - Act of giving the equivalent for any loss, damage or injury.
RESTRAINING ORDER - A court order forbidding the defendant from doing any action or threatened action until a hearing on the application can be conducted.
RETAINER - Act of the client in employing the attorney or counsel. Also denotes the fee the client pays when he or she retains the attorney to act for him or her.
RETURN - A report to a judge by police on the implementation of an arrest or search warrant. Also, a report to a judge in reply to a subpoena, civil or criminal.
REVERSE - An action of a higher court in setting aside or revoking a lower court decision.
REVERSIBLE ERROR - A procedural error during a trial or hearing sufficiently harmful to justify reversing the judgment of a lower court. See PREJUDICIAL ERROR.
REVOCABLE TRUST - A trust that the grantor may change or revoke.
REVOKE - To annul or make void by recalling or taking back.
RIGHTS, CONSTITUTIONAL - The rights of a person guaranteed by the state or federal constitutions.
ROBBERY - The act of taking money, personal property, or any other article of value that is in the possession of another done by means of force or fear.
RULE - An established standard, guide, or regulation.
RULE OF COURT - An order made by a court having competent jurisdiction. Rules of court are either general or special; the former are the regulations by which the practice of the court is governed, the latter are special orders made in particular
cases.
RULES OF EVIDENCE - Standards governing whether evidence in a civil or criminal case is admissible.
SANCTION - A punitive act designed to secure enforcement by imposing a penalty for its violation. For example, a sanction may be imposed for failure to comply with discovery orders.
SEALING - The closure of court records to inspection, except to the parties.
SEARCH AND SEIZURE - A practice whereby a person or place is searched and evidence useful in the investigation and prosecution of a crime is seized or taken. The search is conducted after an order is issued by a judge.
SEARCH WARRANT - An order issued by a judge or magistrate commanding a sheriff, constable, or other officer to search a specified location.
SECURED DEBT - In bankruptcy proceedings, a debt is secured if the debtor gave the creditor a right to repossess the property or goods used as collateral.
SELF-DEFENSE - Claim that an act otherwise criminal was legally justifiable because it was necessary to protect a person or property from the threat or action of another.
SELF-INCRIMINATION - Acts or declarations by which one implicates oneself in a crime.
SELF-PROVING WILL - A will whose validity does not have to be testified to in court by the witnesses to it, because the witnesses executed an affidavit reflecting proper execution of the will prior to the maker's death.
SENTENCE - The judgment formally pronounced by the court or judge upon the defendant after his or her conviction by imposing a punishment to be inflicted either in the form of a fine, incarceration or probation.
SENTENCE REPORT - A document containing background material on a convicted person. It is prepared to guide the judge in the imposition of a sentence. Sometimes called a pre-sentence report.
SENTENCE, CONCURRENT - Two or more sentences of jail time to be served simultaneously.
SENTENCE, CONSECUTIVE - Two or more sentences of jail time to be served in sequence.
SENTENCE, SUSPENDED - A sentence postponed in which the defendant is not required to serve time unless he or she commits another crime or violates a court-imposed condition.
SENTENCING - The postconviction stage in which the defendant is brought before the court for imposition of sentence.
SEPARATE MAINTENANCE - Allowance ordered to be paid by one spouse to the other for support while the spouses are living apart but not divorced.
SEPARATION - An arrangement whereby a husband and wife live apart from each other while remaining married either by mutual consent or by a judicial order.
SEQUESTRATION OF WITNESSES - Keeping all witnesses (except plaintiff and defendant) out of the courtroom except for their time on the stand, and cautioning them not to discuss their testimony with other witnesses. Also called separation of
witnesses. This prevents a witness from being influenced by the testimony of a prior witness.
SERVE A SENTENCE - The act of spending an allotted amount of time in a designated location such as a prison as punishment for the crime committed.
SERVICE - The delivery of a legal document, such as a complaint, summons, or subpoena, notifying a person of a lawsuit or other legal action taken against him or her. Service, which constitutes formal legal notice, must be made by an officially
authorized person in accordance with the formal requirements of the applicable laws.
SERVICE OF PROCESS - Notifying a person that he or she has been named as a party to a lawsuit or has been accused of some offense. Process consists of a summons, citation or warrant, to which a copy of the complaint is attached.
SETTLEMENT - An agreement between parties that dictates what is being received from one party to the other.
SETTLOR - The person who sets up a trust. Also called the grantor.
SEXUAL MOLESTATION - Illegal sex acts performed against a minor by a parent, guardian, relative or acquaintance.
SHERIFF - Elected officer of a county whose job is to conserve peace within his or her territorial jurisdiction as well as aid in the criminal and civil court processes.
SHOPLIFTING - The willful taking and concealing of merchandise from a store or business establishment with the intention of using the goods for one's personal use without paying the purchase price.
SHOW CAUSE - An order requiring a person to appear in court and present reasons why a certain order, judgment, or decree should not be issued.
SIDEBAR - A conference between the judge and lawyers, usually in the courtroom, out of earshot of the jury and spectators.
SLANDER - False and defamatory spoken words tending to harm another's reputation, community standing, office, trade, business, or means of livelihood. See DEFAMATION.
SMALL CLAIMS COURT - A court that handles civil claims for small amounts of money. People often represent themselves rather than hire an attorney.
SODOMY - Oral or anal copulation between humans, or between humans or animals.
SOVEREIGN IMMUNITY - The doctrine that the government, state or federal, is immune to lawsuit unless it gives its consent.
SPECIFIC PERFORMANCE - A remedy requiring a person who has breached a contract to perform specifically what he or she has agreed to do. Specific performance is ordered when damages would be inadequate compensation.
SPEEDY TRIAL - The right of an accused to a speedy trial as guaranteed by the 6th Amendment of the United States Constitution.
SPENDTHRIFT TRUST - A trust set up for the benefit of someone who the grantor believes would be incapable of managing his or her own financial affairs.
STANDARD OF PROOF - There are essentially three standards of proof applicable in most court proceedings. In criminal cases, the offense must be proven beyond a reasonable doubt , the highest standard. In civil cases and neglect and
dependency proceedings, the lowest standard applies by a mere preponderance of the evidence , (more likely than not). In some civil cases, and in juvenile proceedings such as a permanent termination of parental rights, an intermediate standard applies, proof by clear and convincing evidence.
STANDING - The legal right to bring a lawsuit. Only a person with something at stake has standing to bring a lawsuit.
STATEMENT, CLOSING - The final statements by the attorneys to the jury or court summarizing the evidence that they have established and the evidence that the other side has failed to establish. Also known as closing argument .
STATEMENT, OPENING - Outline or summary of the nature of the case and of the anticipated proof presented by the attorney to the jury before any evidence is submitted. Also known as opening argument .
STATUS OFFENDERS - Youths charged with the status of being beyond the control of their legal guardian or are habitually disobedient, truant from school, or have committed other acts that would not be a crime if committed by an adult. They are not delinquents (in that they have not committed a crime), but are rather persons in need of supervision, minors in need of supervision, or children in need of supervision, depending on the state in which they live. Status offenders are placed under the supervision of the juvenile court. See PERSON IN NEED OF SUPERVISION.
STATUTE - A formal, written statement by legislature declaring, commanding, or prohibiting something.
STATUTE OF LIMITATIONS - The time within a plaintiff must begin a lawsuit (in civil cases) or a prosecutor must bring charges (in criminal cases). There are different statutes of limitations at both the federal and state levels for different kinds of lawsuits or crimes.
STATUTORY CONSTRUCTION - Process by which a court seeks to interpret the meaning and scope of legislation.
STATUTORY LAW - Law enacted by the legislative branch of government, as distinguished from case law or common law .
STATUTORY RAPE - The unlawful sexual intercourse with a person under an age set by statute, regardless of whether they consent to the act.
STAY - The act of stopping a judicial proceeding by order of the court.
STIPULATE - An agreement by attorneys on both sides of a civil or criminal case about some aspect of the case; e.g., to extend the time to answer, to adjourn the trial date, or to admit certain facts at the trial.
STRICT LIABILITY - A concept applied by courts in product liability cases in which a seller is liable for any and all defective or hazardous products which unduly threaten a consumer's personal safety.
STRIKE - The act of quitting work by a group of workers for the purpose of coercing their employer to accept some demand(s) they have made upon their employer who has initially refused.
SUBMIT - To yield to the will of another.
SUBPOENA - An order of the court which requires a person to be present at a certain time and place to give testimony upon a certain matter. Failure to appear may be punishable as a contempt of court.
SUBSTANTIVE LAW - The law dealing with rights, duties, and liabilities, as contrasted with procedural law , which governs the technical aspects of enforcing civil or criminal laws.
SUE - To commence legal proceedings for recovery of a right.
SUIT - Any proceeding by one person or persons against another in a court of law.
SUMMARY JUDGMENT - A decision made on the basis of statements and evidence presented for the record without a trial. It is used when there is no dispute as to the facts of the case, and one party is entitled to judgment as a matter of law.
SUMMONS - A notice to a defendant that he or she has been sued or charged with a crime and is required to appear in court. A jury summons requires the person receiving it to report for possible jury duty.
SUPPORT TRUST - A trust that instructs the trustee to spend only as much income and principal (the assets held in the trust) as needed for the beneficiary's support.
SUPPRESS - To forbid the use of evidence at a trial because it is improper or was improperly obtained. See also EXCLUSIONARY RULE.
SUPPRESSION HEARING - A hearing on a criminal defendant's motion to prohibit the prosecutor's use of evidence alleged to have been obtained in violation of the defendant's rights. This hearing is held outside of the presence of the jury,
either prior to or at trial. The judge must rule as a matter of law on the motion.
SURETY BOND - A bond purchased at the expense of the estate to insure the executor's proper performance. Often called a fidelity bond.
SURVIVORSHIP - Another name for joint tenancy.
SUSTAIN- To maintain, to affirm, to approve.
SWEAR - To put to oath and declare as truth.
TANGIBLE - Capable of being perceived, especially by the sense of touch.
TANGIBLE PERSONAL PROPERTY MEMORANDUM (TPPM) - A legal document referred to in a will and used to guide the distribution of tangible personal property.
TEMPORARY RELIEF - Any form of action by a court granting one of the parties an order to protect its interest pending further action by the court.
TEMPORARY RESTRAINING ORDER - A judge's order forbidding certain actions until a full hearing can be held. Usually of short duration. Often referred to as a TRO.
TENANCY - An interest in realty which passes to the tenant.
TESTAMENT - A will disposing of personal property. See WILL.
TESTAMENTARY CAPACITY - The legal ability to make a will.
TESTAMENTARY TRUST - A trust set up by a will.
TESTATE - One who has died leaving a will or one who has made a will.
TESTATOR - Male person who makes a will (female: testatrix ).
TESTATRIX - Female person who makes a will (male: testator ).
TESTIFY - To make a declaration under oath in a judicial inquiry for the purpose of establishing or proving some fact.
TESTIMONY - The evidence given by a witness under oath. It does not include evidence from documents and other physical evidence.
THEFT - The act of stealing or the taking of property without the owner's consent.
THIRD-PARTY A person, business, or government agency not actively involved in a legal proceeding, agreement, or transaction.
THIRD-PARTY CLAIM - An action by the defendant that brings a third party into a lawsuit.
TIME SERVED - A sentence given by the court to a convicted criminal equal to the amount of time that the criminal was incarcerated during the trial.
TITLE - Legal ownership of property, usually real property or automobiles.
TORT - A civil injury or wrong committed on the person or property of another. A tort is an infringement on the rights of an individual, but not founded on a contract. The most common tort action is a suit for damages sustained in an automobile
accident. See EX DELICTO.
TRANSCRIPT -A written, word-for-word record of what was said, either in a proceeding such as a trial or during some other conversation, as in a transcript of a hearing or oral deposition.
TRANSITORY - Actions are "transitory" when they might have taken place anywhere, and are "local" when they could occur only in some particular place.
TRESPASSING - Unlawful interference with one's person, property and rights.
TRIAL - A judicial examination and determination of issues between parties before a court that has jurisdiction.
TRIAL COURT - See TRIAL, COURT (BENCH).
TRIAL, COURT (BENCH) - A trial where the jury is waived and the case is seen before the judge alone.
TRIAL, SPEEDY - The Sixth Amendment of the Constitution guarantees the accused to an immediate trial in accordance with prevailing rules, regulations and proceedings of law.
TRIER OF FACT - Term includes the jury or the judge in a jury-waived trial, who have the obligation to make finding of fact rather than rulings of law.
TRO - See TEMPORARY RESTRAINING ORDER.
TRUE BILL - The endorsement made by a grand jury on a bill of indictment when it finds sufficient evidence for trial on the charge alleged.
TRUE TEST COPY - A copy of a court document given under the clerk's seal, but not certified.
TRUST - A legal device used to manage real or personal property, established by one person (the grantor or settlor) for the benefit of another (the beneficiary). A third person ( the trustee) or the grantor manages the trust.
TRUST AGREEMENT OR DECLARATION - The legal document that sets up a living trust. Testamentary trusts are set up in a will.
TRUSTEE - The person or institution that manages the property put in trust.
TURNCOAT WITNESS - A witness whose testimony was expected to be favorable, but who later becomes an adverse witness.
UNCONSCIONABILITY - An absence of meaningful choice on the part of one of the parties to a contract, and contract terms which are unreasonably favorable to the other party.
UNCONSTITUTIONAL - That which is contrary to or in conflict with the federal or state constitutions.
UNDERCOVER - A person participating in a secret investigation in order to acquire information about the crime without the other party realizing their identity.
UNDUE INFLUENCE - Whatever destroys free will and causes a person to do something he would not do if left to himself.
UNEMPLOYMENT - State or condition of not being employed.
UNILATERAL - One-sided, ex parte, or having a relation to only one of two or more persons or things.
UNJUST ENRICHMENT, DOCTRINE OF - The principle that one person should not be permitted to unjustly enrich himself at the expense of another, but should be required to make restitution for the property or benefit received.
UNLAWFUL DETAINER - The unjustifiable act of retaining possession without right; e.g. a tenant whose lease has expired.
UNSECURED - In bankruptcy proceedings, for the purposes of filing a claim, a claim is unsecured if there is no collateral, or to the extent the value of collateral is less than the amount of the debt.
USURY- Charging a higher interest rate or higher fees than the law allows.
VACATE - To render an act void; to set aside.
VAGRANCY - The state or manner of living by wandering from place to place without a home, job, or means of support.
VANDALISM - Willful or malicious acts that are intended to damage or destroy public or private property.
VENUE - The proper geographical area (county, city, or district) in which a court with jurisdiction over the subject matter may hear a case.
VERDICT - The opinion of a jury, or a judge where there is no jury, on the factual issues of a case.
VICTIM - A person who is the object of a crime or civil wrongdoing.
VICTIM IMPACT STATEMENT - A statement during sentencing which informs the sentencer of the impact of the crime on the victim or the victim's family.
VIOLATION - The act of breaking, infringing, or transgressing the law.