Cj 2350: Judicial Terms

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Aggravation or circumstances in aggravation:

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facts that tend to justify the imposition of the more severe punishment.

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Mitigation or circumstances in mitigation

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Facts that tend to justify the imposition of a lesser punishment.

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Civil contempt

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Willful, containing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.

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Complaint:

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a written statement made upon an oath before a judge, magistrate, or official authorized by law to issue warrants of arrest, setting forth essential facts constituting an offense and alleging that the defendant committed the offense.

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Constructive contempt:

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any criminal or civil contempt other than direct contempt

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Criminal contempt:

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either:
-Misconduct of any person that obstructs the administration of justice and that is committed either in the courts presence or so near thereto as to interrupt, disturb, or hinder its proceedings, or
-Willful disobedience or resistance of any person to a court’s lawful writ, subpoena,Process, order, rule, or command, where the dominant purpose of the contempt proceeding is to punish the contemptor.

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Curtilage of a dwelling house:

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a space, necessary and convenient and habitually used for family purposes and the carrying on of domestic employments. It includes the garden, if there is one, and it need not be separated from other lands by fence.

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Determination of guilt:

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a verdict of guilty by jury, a finding of guilty by a court following a nonjury trial, or the acceptance by the court of a plea of guilty.

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Direct contempt:

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Disorderly or insolent behavior or other misconduct committed in open court, in the presence of a judge, that disturbs the court’s business, where all of the essential elements of the misconduct occur in the court, and where immediate action is essential to prevent diminution of the courts dignity and authority before the public.

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Duplicate:

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a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements or miniatures, or by mechanical or electronic recordings, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original.

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Evidence relating a past sexual behavior:

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such a term includes, but is not limited to, evidence of the complaining witness’s marital history, mode of dress, and general reputation for promiscuity, nonchasity, or sexual mores contrary to the community standards and opinion of character for those traits.

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Evidentiary hearing:

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held by the trial court to resolve contested factual issues.

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Harmless error:

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any error, defect, irregularity or variance that does not affect substantial rights shall be disregarded.

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Hearsay:

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A statement, other than one made by the declarant (person who makes the statement) while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

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Spousal Privilege

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a communication is confidential if it is made privately by any person and his or her spouse and is not intended for disclosure to any other person. An accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse. The privilege may be claimed by the accused or by the spouse of behalf of the accused. The authority of the spouse to do so is presumed. There is no privilege under this rule in proceeding in which one spouse is charged with a crime against the other person or property of (1) the other, (2) a child or either, (3) a person residing in the household of either, or (4) a third person committed in the course of committing a crime against any of them.

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Indictment:

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a written statement charging the defendant or defendants named therein with the commission of an indictable offense, presented to the court by a grand jury, endorsed “A True Bill,” and signed by the foreman. The term indictment includes presentment.

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Indigent:

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a person who is financially unable to pay for his or her defense.

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Information:

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a written statement charging the defendant or defendants, named therein with the commission of an indictable offense, made on oath, signed, and presented to the court by the district attorney without action by a grand jury.

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Judgment:

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the adjudication of the court based upon a plea of guilty by the defendant, upon the verdict of the jury, or upon its own finding following a nonjury trial, that the defendant is guilty or non guilty.

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Law enforcement officer and officer:

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any person vested by law with a duty to maintain public order is to make arrests for offenses.

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Magistrate:

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includes magistrates, district judges, superior court judges, and any other judicial officer authorized by law to conduct a preliminary examination of a person accused of a crime or issue a warrant.

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Mentally incompetent

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unable to stand trial to be sentenced for an offense if the defendant lacks sufficient present ability to assist in his or her defense by consulting with counsel with a reasonable degree of rational understanding of the facts and the legal proceedings against the defendant.

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Order to show cause:

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and order in response to a habeas corpus petition directing the respondent (warden) to file a return. The order to show cause is issued if the petitioner (prisoner) has made a prima facie showing that he or she is entitled to relief; it does not grant the relief requested. An order to show cause may also be referred to as “granting the writ.”

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Original:

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in regard to a writing or recording, the writing or recording itself or any counterpart intended to produce the same effect by a person executing or issuing it. An original of a photograph includes the negative and any print there-from. If data is stored in a computer or a similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original.

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Plain error:

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plain errors or defects affecting the substantial rights may be noticed, although they were not brought to the attention of the court.

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Reasonable cause to believe:

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a basis for belief in the existence of facts that, in view of the circumstances, under and purposes for which the standard is applied, is substantial, objective, and sufficient to satisfy applicable constitutional requirements.

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Reasonable suspicion:

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a suspicion based on the facts or circumstances that of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but that give rise to more than a bare suspicion; that is a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.

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Release on own recognizance:

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release of a defendant without bail upon his or her promise to appear at all appropriate times, sometimes referred to as personal recognizance.

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Relevant evidence:

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evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that in would be without evidence.

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Return:

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The law enforcement officer executing an arrest warrant shall endorse thereon the manner and the date of execution, shall subscribe his name and shall return the arrest warrant to the clerk of the court specified in the arrest warrant.

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Search:

Back 31

and intrusion other than an arrest, by an officer under color of authority, upon an individual person, property, or privacy, for the purpose of seizing individuals or things or obtaining information by inspection or surveillance, if such intrusion, in the absence of legal authority or sufficient consent, would be a civil wrong, criminal offense, or violation of the individual’s rights under the Constitution of the United States or the State.

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Search warrant:

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a written order, in the name of the state or municipality, signed by a judge or magistrate authorized by law to issue search warrants, directed to any law enforcement officer as defined by Rule 1.4(p), commanding him or her to search for personal property and, if found, to bring it before the issuing judge or magistrate.

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Seizure:

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The taking of any person or thing or obtaining of information by an officer pursuant to a search or under other color of authority.

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Subpoenas:

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orders issued by the clerk of a court in which a criminal proceeding is pending at anytime for such witnesses as and party may require for attendance at trial and at the hearings, for taking depositions, or for any other lawful purpose.

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Summons:

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an order issued by a judicial officer or, pursuant to the authorization of a judicial officer, by the clerk of a court, requiring a person against whom a criminal charge has been filed to appear in a designated court at a specified date and time.

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Victim:

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A person against whom a criminal offense has allegedly been committed, or the spouse, parent, lawful representative, or child of someone killed or incapacitated by the alleged criminal offense, except where the spouse, parent, lawful representative, or child is also the accused.

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Waiver of error:

Back 37

no party may assign as error on appeal the court’s giving or failing to give any instruction or portion thereof or to the submission of the failure to submit a form of verdict unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of his or her objection.

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Work product:

Back 38

discovery cannot be required of legal research of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecutor, members of the prosecutors legal or investigative staff or law enforcement officers, or of defense counsel or defense counsel’s legal or investigative staff.