Glossary of Judicial Terms Relating to Criminal Law

Glossary of Judicial Terms Relating to Criminal Law

Acquittal: A jury verdict that a criminal defendant is not guilty, or the finding of a judge that the evidence is insufficient to support a conviction.

Admissible: A term used to describe evidence that may be considered by a jury or judge in civil and criminal cases.

Affirmed: In the practice of the court of appeals, it means that the court of appeals has concluded that the lower court decision is correct and will stand as rendered by the lower court.

Amicus curiae: Latin for "friend of the court." It is advice formally offered to the court in a brief filed by an entity interested in, but not a party to, the case.

Appeal: A formal request to a supervisory court, usually composed of a panel of judges, to change the legal ruling of a lower court. The process of exercising the right to submit a request for review of a decision made by another court is referred to as an "appeal" or "to take an appeal.”

Appeal by Application for Leave: An appeal that requires permission from the higher court before an appeal can be filed. In Michigan, the circuit court has the final discretion to accept or reject an Appeal by Application. More about filing an Appeal by Application for Leave.

Appeal of Right: An appeal made to a higher court that does not require permission from the court before it can be filed. More about filing an Appeal of Right.

Appellant: The party appealing a decision or judgment to a higher court.

Appellee: The party responding to an appeal.

Arraignment: A proceeding in which a criminal defendant is brought into court, told of the charges in an indictment or information, and asked to plead guilty or not guilty.

Article III Judge: A federal judge who is appointed for life, during "good behavior," under Article III of the Constitution. Article III judges are nominated by the President and confirmed by the Senate.

Bail: The release, prior to trial, of a person accused of a crime, under specified conditions designed to assure that person's appearance in court when required. It also can refer to the amount of bond money posted as a financial condition of pretrial release.

Bench trial: A trial without a jury, in which the judge serves as the fact-finder.

Brief: A written statement submitted in a trial or appellate proceeding that explains one side's legal and factual arguments.

Burden of proof: The duty to prove disputed facts. In civil cases, a plaintiff generally has the burden of proving his or her case. In criminal cases, the government has the burden of proving the defendant's guilt (see “standard of proof”).

Capital offense: A crime punishable by death.

Case file: A complete collection of every document filed in court in a case.

Case law: The law as established in previous court decisions. A synonym for legal precedent. Akin to common law, which springs from tradition and judicial decisions.

Certiorari: A type of writ seeking judicial review, recognized in U.S. courts. A writ of superior court to call up the records of an inferior court or body acting in a quasi-judicial capacity.

Chief judge: The judge who has primary responsibility for the administration of a court; chief judges are determined by seniority.

Clerk of court: The court officer who oversees administrative functions, especially managing the flow of cases through the court. The clerk's office is often called a court's central nervous system.

Common law: The legal system that originated in England and is now in use in the United States, which relies on the articulation of legal principles in a historical succession of judicial decisions. Common law principles can be changed by legislation.

Community service: A special condition the court imposes that requires an individual to work–without pay–for a civic or nonprofit organization.

Concurrent sentence: Prison terms for two or more offenses to be served at the same time, rather than one after the other. Example: Two five-year sentences and one three-year sentence, if served concurrently, result in a maximum of five years behind bars.

Consecutive sentence: Prison terms for two or more offenses to be served one after the other. Example: Two five-year sentences and one three-year sentence, if served consecutively, result in a maximum of 13 years behind bars.

Conviction: A judgment of guilt against a criminal defendant.

Counsel: Legal advice; a term also used to refer to the lawyers in a case.

Court: Government entity authorized to resolve legal disputes. Judges sometimes use "court" to refer to themselves in the third person, as in "the court has read the briefs."

Court reporter: A person who makes a word-for-word record of what is said in court, generally by using a stenographic machine, shorthand or audio recording, and then produces a transcript of the proceedings upon request.

Count: An allegation in an indictment or information, charging a defendant with a crime. An indictment or information may contain allegations that the defendant committed more than one crime. Each allegation is referred to as a count.

Defendant: An individual, or business, against whom a lawsuit is filed.

Declaratory judgment: A judge's statement about someone's rights. For example, a plaintiff may seek a declaratory judgment that a particular statute, as written, violates some constitutional right.

De facto: Latin, meaning "in fact" or "actually," something that exists in fact but not as a matter of law.

Default judgment: A judgment awarding a plaintiff the relief sought in the complaint because the defendant has failed to appear in court or otherwise respond to the complaint.

Defendant: In a civil case, the person or organization against whom the plaintiff brings suit; in a criminal case, the person accused of the crime.

De jure: Latin, meaning "in law," something that exists by operation of law.

De novo: Latin, meaning "anew." A trial de novo is a completely new trial. Appellate review de novo implies no deference to the trial judge's ruling.

Deposition: An oral statement made before an officer authorized by law to administer oaths. Such statements are often taken to examine potential witnesses, to obtain discovery, or to be used later in trial (see “discovery”).

Discovery: Procedures used to obtain disclosure of evidence before trial.

Docket: A log containing the complete history of each case in the form of brief chronological entries summarizing the court proceedings.

Due process: In criminal law, the constitutional guarantee that a defendant will receive a fair and impartial trial. In civil law, the legal rights of someone who confronts an adverse action threatening liberty or property.

En banc: French, meaning "on the bench." All judges of an appellate court sitting together to hear a case, as opposed to the routine disposition by panels of three judges. In the Ninth Circuit, an en banc panel consists of 11 randomly selected judges.

Evidence: Information presented in testimony or in documents that is used to persuade the fact-finder (judge or jury) to decide the case in favor of one side or the other.

Exclusionary rule: Doctrine that says evidence obtained in violation of a criminal defendant's constitutional or statutory rights is not admissible at trial.

Exculpatory evidence: Evidence indicating that a defendant did not commit the crime.

Ex parte: A proceeding brought before a court by one party only, without notice to or challenge by the other side.

Federal public defender: An attorney employed by the federal courts on a full-time basis to provide legal defense to defendants who are unable to afford counsel. The judiciary administers the federal defender program pursuant to the Criminal Justice Act.

Federal public defender organization: As provided for in the Criminal Justice Act, an organization established within a federal judicial circuit to represent criminal defendants who cannot afford an adequate defense. Each organization is supervised by a federal public defender appointed by the court of appeals for the circuit.

Federal question jurisdiction: Jurisdiction given to federal courts in cases involving the interpretation and application of the U.S. Constitution, acts of Congress, and treaties.

Felony: A serious crime, usually punishable by at least one year in prison.

File: To place a paper in the official custody of the clerk of court to enter into the files or records of a case.

Grand jury: A body of 16 to 23 citizens who listen to evidence of criminal allegations, which is presented by the prosecutors, and determine whether there is probable cause to believe an individual committed an offense (see also “indictment” and “U.S. attorney”).

Habeas corpus: Latin, meaning "you have the body." A writ of habeas corpus generally is a judicial order forcing law enforcement authorities to produce a prisoner they are holding, and to justify the prisoner's continued confinement. Federal judges receive petitions for a writ of habeas corpus from state prison inmates who say their state prosecutions violated federally protected rights in some way.

Hearsay: Evidence presented by a witness who did not see or hear the incident in question but heard about it from someone else. With some exceptions, hearsay generally is not admissible as evidence at trial.

Home confinement: A special condition the court imposes that requires an individual to remain at home except for certain approved activities such as work and medical appointments. Home confinement may include the use of electronic monitoring equipment— a transmitter attached to the wrist or the ankle— to help ensure that the person stays at home as required.

Impeachment: (1) The process of calling a witness's testimony into doubt. For example, if the attorney can show that the witness may have fabricated portions of his testimony, the witness is said to be "impeached." (2) The constitutional process whereby the House of Representatives may "impeach" (accuse of misconduct) high officers of the federal government, who are then tried by the Senate.

Inculpatory evidence: Evidence indicating that a defendant did commit the crime.

Indictment: The formal charge issued by a grand jury stating that there is enough evidence that the defendant committed the crime to justify having a trial; it is used primarily for felonies (see also “information”).

In forma pauperis: "In the manner of a pauper," permission given by the court to a person to file a case without payment of the required court fees because the person cannot pay them.

Information: A formal accusation by a government attorney that the defendant committed a misdemeanor (see also “indictment”).

Interrogatories: A form of discovery consisting of written questions to be answered in writing and under oath.

Jurisdiction: The legal authority of a court to hear and decide a certain type of case. It also is used as a synonym for venue, meaning the geographic area over which the court has territorial jurisdiction to decide cases.

Jury: The group of persons selected to hear the evidence in a trial and render a verdict on matters of fact (see also “grand jury”).

Jury instructions: A judge's directions to the jury before they begin deliberations regarding the factual questions they must answer and the legal rules that they must apply.

Litigation: A case, controversy, or lawsuit. Participants, plaintiffs and defendants, in lawsuits are called litigants.

Magistrate judge: A judicial officer of a district court who conducts initial proceedings in criminal cases, decides criminal misdemeanor cases, conducts many pretrial civil and criminal matters on behalf of district judges, and decides civil cases with the consent of the parties.

Mental health treatment: A special condition the court imposes to require an individual to undergo evaluation and treatment for a mental disorder. Treatment may include psychiatric, psychological, and sex offense-specific evaluations, inpatient or outpatient counseling, and medication.

Misdemeanor: An offense punishable by one year of imprisonment or less (see also “felony”).

Mistrial: An invalid trial, caused by fundamental error. When a mistrial is declared, the trial must start again with the selection of a new jury.

Motion: A request by a litigant to a judge for a decision on an issue relating to the case.

Motion in Limine: A pretrial motion requesting the court to prohibit the other side from presenting, or even referring to, evidence on matters said to be so highly prejudicial that no steps taken by the judge can prevent the jury from being unduly influenced.

Motion for Directed Verdict: A procedural device whereby the decision in a case is taken out of the hands of the jury by the judge. A verdict is generally directed in a jury trial where there is no other possible conclusion because the side with the burden of proof has not offered sufficient evidence to establish a prima facie case. More about a motion for Directed Verdict. A directed verdict is provided for by federal and state Rules of Civil Procedure. In a criminal action, an acquittal may be directed in favor of a defendant, based upon Rules of Criminal Procedure.

Motion to File Ginther Hearing: If you have been convicted of a crime because of ineffective assistance of counsel, one legal option is to file a Motion for Ginther Hearing. The term for this motion is derived from the decision People v Ginther, 390 Mich 436 (1973). A Ginther Hearing is an evidentiary hearing on a defendant's motion for new trial claiming they received ineffective assistance of counsel. Read more about a Motion to File Ginther Hearing and Ineffective Assistance of Counsel.

Nolo contendere: “No contest.” A plea of nolo contendere has the same effect as a plea of guilty, as far as the criminal sentence is concerned, but may not be considered as an admission of guilt for any other purpose.

Opinion: A judge's written explanation of the decision of the court. Because a case may be heard by three or more judges in the court of appeals, the opinion in appellate decisions can take several forms. If all the judges completely agree on the result, one judge will write the opinion for all. If all the judges do not agree, the formal decision will be based upon the view of the majority, and one member of the majority will write the opinion. The judges who did not agree with the majority may write separately in dissenting or concurring opinions to present their views. A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law the majority used to decide the case. A concurring opinion agrees with the decision of the majority opinion, but offers further comment or clarification or even an entirely different reason for reaching the same result. Only the majority opinion can serve as binding precedent in future cases (see also “precedent”).

Oral argument: An opportunity for lawyers to summarize their position before the court and also to answer the judge’s questions.

Panel: (1) In appellate cases, a group of judges (usually three) assigned to decide the case; (2) in the jury selection process, the group of potential jurors; (3) the list of attorneys who are both available and qualified to serve as court-appointed counsel for criminal defendants who cannot afford their own counsel.

Parole: The release of a prison inmate— granted by the U.S. Parole Commission— after the inmate has completed part of his or her sentence in a federal prison. When the parolee is released to the community, he or she is placed under the supervision of a U.S. probation officer. The Sentencing Reform Act of 1984 abolished parole in favor of a determinate sentencing system in which the sentence is set by sentencing guidelines. Now, without the option of parole, the term of imprisonment the court imposes is the actual time the person spends in prison.

Per curiam: Latin, meaning "for the court." In appellate courts, often refers to an unsigned opinion.

Peremptory challenge: A district court may grant each side in a civil or criminal trial the right to exclude a certain number of prospective jurors without cause or giving a reason.

Petit jury (or trial jury): A group of citizens who hear the evidence presented by both sides at trial and determine the facts in dispute. Federal criminal juries consist of 12 persons and federal civil juries consist of at least six persons.

Petty offense: A federal misdemeanor punishable by six months or less in prison.

Plea: In a criminal case, the defendant's statement pleading "guilty" or "not guilty" in answer to the charges (see also “nolo contendere”).

Pleadings: Written statements filed with the court that describe a party's legal or factual assertions about the case.

Precedent: A court decision in an earlier case with facts and legal issues similar to a dispute currently before a court. Judges will generally "follow precedent"— meaning that they use the principles established in earlier cases to decide new cases that have similar facts and raise similar legal issues. A judge will disregard precedent if a party can show that the earlier case was wrongly decided, or that it differed in some significant way from the current case.

Presentence report: A report prepared by a court's probation officer, after a person has been convicted of an offense, summarizing for the court the background information needed to determine the appropriate sentence.

Pretrial conference: A meeting of the judge and lawyers to plan the trial, to discuss which matters should be presented to the jury, to review proposed evidence and witnesses, and to set a trial schedule. Typically, the judge and the parties also discuss the possibility of settlement of the case.

Pretrial services: A function of the federal courts that takes place at the very start of the criminal justice process—after a person has been arrested and charged with a federal crime and before he or she goes to trial. Pretrial services officers focus on investigating the backgrounds of these persons to help the court determine whether to release or detain them while they await trial. The decision is based on whether these individuals are likely to flee or pose a threat to the community. If the court orders release, a pretrial services officer supervises the person in the community until he or she returns to court.

Probation: Sentencing option in the federal courts. With probation, instead of sending an individual to prison, the court releases the person to the community and orders him or her to complete a period of supervision monitored by a U.S. probation officer and to abide by certain conditions.

Probation officer: Officers of the probation office of a court. Probation officer duties include conducting presentence investigations, preparing presentence reports on convicted defendants, and supervising released defendants.

Procedure: The rules for conducting a lawsuit; there are rules of civil procedure, criminal procedure, evidence, bankruptcy, and appellate procedure.

Pro per: Slang expression sometimes used to refer to a pro se litigant. It is a corruption of the Latin phrase "in propria persona."

Pro se: Representing oneself, serving as one's own lawyer.

Prosecute: To charge someone with a crime. A prosecutor tries a criminal case on behalf of the government.

Pro tem: Temporary.

Record: A written account of the proceedings in a case, including all pleadings, evidence, and exhibits submitted in the course of the case.

Remand: Send back.

Reverse: The act of a court setting aside the decision of a lower court. A reversal is often accompanied by a remand to the lower court for further proceedings.

Sanction: A penalty or other type of enforcement used to bring about compliance with the law or with rules and regulations.

Sentence: The punishment ordered by a court for a defendant convicted of a crime.

Sentencing guidelines: A set of rules and principles established by the United States Sentencing Commission that trial judges use to determine the sentence for a convicted defendant.

Service of process: The delivery of writs or summonses to the appropriate party.

Sequester: To separate. Sometimes juries are sequestered from outside influences during their deliberations.

Standard of proof: Degree of proof required. In criminal cases, prosecutors must prove a defendant's guilt "beyond a reasonable doubt." The majority of civil lawsuits require proof "by a preponderance of the evidence" (50 percent plus), but in some the standard is higher and requires "clear and convincing" proof.

Statute: A law passed by a legislature.

Statute of limitations: The time within which a lawsuit must be filed or a criminal prosecution begun. The deadline can vary, depending on the type of civil case or the crime charged.

Sua sponte: Latin, meaning "of its own will." Often refers to a court taking an action in a case without being asked to do so by either side.

Subpoena: A command, issued under a court's authority, to a witness to appear and give testimony.

Subpoena duces tecum: A command to a witness to appear and produce documents.

Substance abuse treatment: A special condition the court imposes that requires an individual to undergo testing and treatment for abuse of illegal drugs, prescription drugs, or alcohol. Treatment may include inpatient or outpatient counseling and detoxification.

Supervised release: Term of supervision served after a person is released from prison. The court imposes supervised release during sentencing in addition to the sentence of imprisonment. Unlike parole, supervised release does not replace a portion of the sentence of imprisonment but is in addition to the time spent in prison. U.S. probation officers supervise people on supervised release.

Temporary restraining order: Akin to a preliminary injunction, it is a judge's short-term order forbidding certain actions until a full hearing can be conducted. Often referred to as a TRO.

Testimony: Evidence presented orally by witnesses during trials or before grand juries.

Toll: See “statute of limitations.”

Transcript: A written, word-for-word record of what was said, either in a proceeding such as a trial, or during some other formal conversation, such as a hearing or oral deposition.

U.S. Attorney: A lawyer appointed by the President in each judicial district to prosecute and defend cases for the federal government. The U.S. Attorney employs a staff of Assistant U.S. Attorneys who appear as the government's attorneys in individual cases.

Uphold: The appellate court agrees with the lower court decision and allows it to stand (see “affirmed”).

Venue: The geographic area in which a court has jurisdiction. A change of venue is a change or transfer of a case from one judicial district to another.

Verdict: The decision of a trial jury or a judge that determines the guilt or innocence of a criminal defendant, or that determines the final outcome of a civil case.

Voir dire: Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.

Warrant: Court authorization, most often for law enforcement officers, to conduct a search or make an arrest.

Witness: A person called upon by either side in a lawsuit to give testimony before the court or jury.

Writ: A formal written court order directing a person to take, or refrain from taking, a certain act.

Writ of Certiorari: An order issued by the U.S. Supreme Court directing the lower court to transmit records for a case which it will hear on appeal.

Writ of Mandamus: A type of writ; a court order instructing an inferior court, a corporation or a person to perform some duty specified in the order.  Example: a writ of mandamus by an appeals court compelling a lower court to hear a motion.

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