Legal Procedures and Courts

CHAPTER 17

Who ís Who in the Courtroom

A courtroom can be an overwhelming place, with its formality, its procedures, and its people. Lots of people do different jobs there. The court employs some of them; others play a role in the specific proceeding. Here' s a who' s who that may help.

Prosecution: In a criminal case, the government (state, local, or federal) that brings a defendant (∆) to trial for a crime.

Plaintiff (Π): The person who sues a ∆.

Defendant (∆): In a criminal case the person charged with a crime. In a civil case the person sued by the Π.

Parties: In a civil case, the Π and ∆. Each is a party. Also called litigants. There may be more than one Π or ∆. There may be a large group ofΠ' s or∆' s who don' t even know each other, as in a class action suit.

Witness: A person called by either party in a civil case or by either side in a criminal case to give evidence, through testimony, to the court. The witness testifies (answers questions) under oath.

There are many types of witnesses, including:

1. Character witness: A witness who vouches for the character and standing in the community of a party or∆, but who does not know about the specific case before the court.
2. Expert witness: A witness with special knowledge, experience, or training in the field about which he testifies. An expert witness is permitted to give his opinion in court, unlike a lay witness who generally does not give an opinion.
3. Lay witness: A witness generally called to testify about what he knows or saw first- hand or to impart other firsthand knowledge he may have.
4. Material witness: In a criminal case, the witness whose testimony is vital to prove the guilt or innocence of the∆.
5. Hostile witness: A witness who is biased against the party or side questioning him.

Others in the courtroom include:

Judge: A public officer with authority to hear and decide cases in court.

Bailiff: A court attendant who maintains order in court. He' s the one who shouts, 'Order in the court!'

Clerk: A court officer who files documents with the court (such as motions and pleadings), keeps records of all legal proceedings, and generally knows what' s going on. If you have questions about the court' s procedures, ask the clerk!

Law clerk: A person, often a young lawyer, who helps the judge with research and writing decisions and other documents.

Jury: In a jury trial, a group of laypersons who decide the facts in a case at trial. A jury may have six or twelve members, depending on the court and state involved.

Called a petit jury.

Grand jury: In a criminal matter, the group of persons convened by the court to hear evidence from the prosecution and decide if there is enough to bring the accused to trial.

Lawyer: Also called attorney, counsel, advocate, and possibly other names, as well.... The person-hired to represent his/her client' s interests to-achieve a specific legal goal. Remember that the client is the employer-not the other way around! A lawyer is also considered an 'officer of the court,' with an obligation to do justice. As you can imagine, these roles may sometimes be challenging and can create conflicts for lawyers.

Prosecuting Attorney: Also called district attorney, assistant district attorney, and government' s lawyer. The lawyer prosecuting a criminal case for the government (The People) or representing the government in any other matter.

Bar: The railing separating the participants in a trial from the observers. Lawyers are called ìmembers of the bar.î To disbar a lawyer is to revoke his license to practice law.

Magistrate: A judge (sometimes called a judicial officer) of a lower court, dealing with misdemeanor cases for example, a justice of the peace.

Sheriff: A law officer of a county who serves summonses, subpoenas, and other legal documents and carries out judgments of the court. A sheriff also calls jurors.

Deputy sheriff: A person appointed by the sheriff to assist him.

The following officials may function in administrative agencies, not courts.

Hearing officer: Also called hearing examiner or administrative law judge. A public officer with authority to hear and decide cases in an administrative agency. Examples of these agencies include the tax agencies, labor boards, real estate boards, social security, special education, et cetera.

WHAT'S WHAT: DOCUMENTS IN THE COURT

Lawyers can, and often do, bury you in paper. Eek - Here' s a summons! Oh - Here' s a contract, a subpoena! Now what? What are all these papers?

Since law is a profession of words, it is vital to understand the type of document with which you are dealing. A document is a paper with legal significance.

Are you signing away your fortune or proving that you have one? Are you asking the court to move the trial or is the court forcing you to move? Here are some common and basic types of documents, each with its own purpose, limits, and significance.

Affidavit: A written statement of facts sworn to under oath and signed in front of a person authorized to administer an oath, such as a notary public.

The person writing it is called the affiant. The part signed by the notary is called the jurat, and says something like:

Sworn before me this __ _ day of__ _ 200___ at____ .

Bill: This little word has many legal meanings. Among these are: It may be a law in draft form; that is, before it is passed by the legislature, while it is debated before enactment (when a bill becomes a law).

It is the Bill of Rights that sets out many basic rights and freedoms.

It may be something we all know very well a statement of money owed. Too often, the mailbox is full of bills!

Certificate: A document stating a fact, qualification, promise, et cetera. For example: A teaching certificate permits a person to teach in the state jurisdiction.

The certificate; a marriage certificate states the person is married (in all jurisdictions). Note: In some places these are called ìlicenses.î See below.

Charter: An act of the legislature that sets up a corporation. Called ìcertificate of incorporation.î A city charter, which creates a city, is also set up by the legislature. A charter school is set up through the state laws (created by the legislature).

Contract: An agreement between people, corporations, or other entities (not the court, but) which can be enforced by a court. It is usually written, but not always.

Deed: A writing that transfers ownership of land and buildings from one person to another (the grantor to the grantee).

Decree: A judgment of a court. An order. For example: A divorce decree ends a marriage.

Indictment: A written accusation by a grand jury, stating that there is enough evidence against a person to charge him/her with a crime.

Interrogatories: A pretrial discovery tool used in civil cases. It is a set of written questions that one party serves - don' t you love that word! - on the other. The questions are answered under oath.

License: A document giving official permission to do something. For example: A driver' s license permits a person to drive; a license to practice medicine in the jurisdiction covered by the license lets a person be a doctor there. (Note: As with certificates, some licenses are limited to specific jurisdictions.)

Motion: An application to a court for a ruling or an order. For example: A motion to change the trial location is a change of venue motion. A motion to strike asks judge to remove specific testimony from the record.

Order: A command or decision by a judge.

Ordinance: A municipal (city) law.

Record: The history of a court action. All the testimony, documents, and other evidence presented.

Statute: A law passed by state or federal legislatures.

Subpoena: A written order or writ requiring the person to whom it is addressed to appear in court to give testimony (called a subpoena ad testificandum) and/or to bring specific documents or other evidence (called a subpoena duces tecum).

Summons: Written notice to a person or persons or corporation or other entity that there is a lawsuit against him/her/them/it. The document that starts an action when served upon the ∆.

Testament: Any proof that serves as evidence of something. For example, a last will and testament proves how the decedent (person who died) wanted his property (called ìestateî) distributed after his death.

Warrant: A writ or order authorizing an officer to make an arrest, conduct a search of a person or premises or seize property belonging to a ∆, or perform another task. Examples are bench warrants, search warrants, arrest warrants.

Will: A document that states how a person wants to dispose of (divide, give away) his property (ìestateî) after death.

Writ: A formal document ordering an action. Usually, it orders an officer of the state to do something. For example, writ of habeas corpus, writ of certiorari, writ of execution.

1. Writ of habeas corpus: The Great Writ. An order that a person appear in court to determine if he is held in custody legally.
2. Writ of certiorari: An order by a higher court to a lower court to get the record of proceedings so that the higher court can review the lower court' s decision for error.
3. Writ of execution: A court order to enforce a judgment granted to the Π by authorizing the sheriff to impose a levy on property, in the court' s jurisdiction, that belongs to the judgment debtor (∆).

VERBS IN COURT: WHO DOES OR SAYS WHAT TO WHOM?

Law words can be obscure because lawyers often use common words in very specific ways. When a lawyer ìmoves,î he doesn' t take his furniture. A judge who ìrenders a decisionî is not rendering fat, as a cook does, or rendering a drawing, as an architect does. When a lawyer ìexaminesî you, he' s not checking you out as a doctor would, and when a judge ìcharges the jury,î he' s not buying something with plastic! And even though quash sounds like squash, it' s not. So here goes: some common verbs as used by lawyers, judges, and you, when you' re involved with them in court. The witness may:

Testify: In court (or administrative hearing or deposition or other judicial or quasi- judicial settings), you don' t ìspeakî or ìanswerî! You testify: that is, you answer questions under oath; you give testimony (evidence) to the court.

Oath: A pledge to tell the truth. For those who refuse to take an oath, an affirmation will do. It affirms (states) that the person will tell the truth. Perjury, the crime of lying under oath, is taken very seriously by judges and is a felony.

Depose: Answer questions under oath before a trial, transcribed by a court reporter. This testimony creates a document, called the deposition; the witness is the deponent.'The witness was deposed a month before trial at the lawyer' s office.î Depositions are part of pretrial discovery. Watch this! If you are a deponent, be sure your testimony at trial is consistent with your testimony at the deposition. If it' s not, it raises many troubling questions: Might it be perjury? An honest mistake? Is the witness believable (credible)? When was he telling the truth?now? then? never?

Remain silent: Refuse to testify. A witness who may incriminate himself has the right to remain silent. This usually means the defendant (∆) in a criminal proceeding or someone who may be charged with a crime because of the testimony.

The theory is: The ∆ is innocent till proven guilty, and it is the government' s job to convict him. He cannot be forced to help the government' s case against him, i.e., incriminate himself.

Note: Only a witness who may incriminate himself has this privilege. Others, such as those with immunity (an exemption from prosecution in exchange for the witness' s testimony) may not assert the privilege against self- incrimination. If such a witness refuses to testify, he may be cited for contempt. The court may punish a witness for disobeying the court or impairing the dignity of the court.

Other verbs. The lawyer(s) or litigant pro se (representing himself without a lawyer) may:

1. Move: Ask the court for something through a motion. The lawyer (for his client) then is called the movant, the moving party. ìI move thatî. There are many types of motions. For example, a motion to change venue, a motion to quash, a motion to suppress evidence. Lawyers will tell you that the way these motions are dealt with by the court before the trial even begins often make or break their case. Motions are a vital part of what goes on in courts. Lots of motions keep lots of lawyers very busy!
2. Object, Protest: The lawyer may argue against specific testimony or procedures. 'I object!'
3. Depose: Same word as above. Here, the lawyer takes the deposition from the witness. 'The lawyer deposed the witness.'
4. Examine: Ask questions. There are two forms of examination: direct examination and cross-examination.
5. Direct examine: Ask questions of his own witness. The purpose is to present evidence favorable to the lawyer' s client.
6. Cross examine: Ask questions of a witness brought to court (ìcalledî) by the other side. The purpose is to discredit or clarify evidence to make it more favorable to the lawyer' s client.
7. Impeach the witness: During cross-examination a lawyer may attempt to prove that the witness is not credible (a liar?) and should not be believed. This is called impeaching the witness.
8. Rest his case: Tell the court (the judge) that he' s presented all his evidence and wants to end his presentation. He' s finished...
9. Rebut: Surprise! You thought it was all over, didn' t you? Not so fast! The lawyer may present evidence to disprove facts presented by the other side in some situations even after she rests. This happens especially if the other side presents facts that could not have been anticipatedsurprises.

During the trial, the judge may:

1. Quash: Vacate, annul, make void. A motion to quash testimony, if approved, gets rid of it. ìMotion to quash is granted.î So the testimony is excluded or removed from the record.
2. Sustain: Approve, grant.' The judge granted - sustained - the plaintiff' s (Π' s) motion.' Yeah!
3. Deny: Refuse to grant. For example, 'The judge denied the motion to quash.' So the (damaging?) evidence comes in.
4. Order, Direct: tell a party or the parties to do something during the course of the trial. For example, an order to show cause or a temporary restraining orders (TRO). There are lots of orders, which generally are not part of the final judgment. They are interlocutory: i.e., provisional, temporary, et cetera.
5. Rule: Make a decision on a legal question during the trial.
6. Overrule: Another word for deny.
7. Adjourn: Say good night, Judge! The judge may postpone the trial till the next day, next week, whenever.

At the end of a trial by jury the judge may:

1. Charge the jury: This occurs at the end of a jury trial. The charge is the judge' s instructions to the jury, telling the members of the jury which laws to apply to their verdict, which burden of proof must be met, and so on.
2. Sequester the jury: (Actually, a judge can do this both during and after the trial.) Separate the jury members from their normal routines, often by having them stay in a hotel during the trial or during their deliberations.

The jury may:

1. Deliberate: In the jury room. Discuss, consider, argue, and ponder among them. Decide which witness to believe; which, if any, is not credible.
2. Request clarification: Ask the judge for more information, to see documents, to get clarification, et cetera.
3. Return a verdict: Make a decision. In criminal cases the verdict must be unanimous. In civil cases it depends on the state, the law that applies, the court, and so on.
4. Not reach a verdict: Become deadlocked, unable to decide for one side or the other. This is called a ìhung jury.î in such a case often a new trial may begin, and we go back to square one!

Note: To hold a new trial in the case of a hung jury, even in a criminal case, is not double jeopardy.

After the trial without a jury the court (one or more judges) may:

1. Render an opinion: Write, deliver the judgment (decision).
2. Affirm: Decide - by an appellate court - that the lower court' s decision in a particular case is right and should stand.
3. Reverse: Opposite of affirm. Set aside the lower court' s decision. The appellate court' s decisions to vacate, annul, or change the lower court' s decision in the same case. In this way our laws change; new laws and precedents are created.
4. Vacate: Cancel, annul. Another word for reverse.
5. Remand: Send back. An appellate court' s decision to send a case back to the lower court where it was heard first, either for a new trial or for changes, as ordered by the appellate court.
6. Hold: Decide, declare, state. The important sentence or sentences in a decision that decide the case and can be used as precedent for other cases. Remember the Declaration of Independence? 'We hold these truths . . .' Same word. 'We hold that ' Lawyers read cases for the holdings.
7. Overrule: Annul, reverse, reject. An appellate court' s ruling in a case that is directly opposite an earlier decision by a lower court in that jurisdiction. The second case may involve different parties, but the question of law may be the same as in the earlier case. Once a case is overruled, it no longer serves as precedence in that jurisdiction. Thus, too, do our laws evolve and change. A famous overruling was Brown v. Board of Education, a 1954 case that found ìseparate but equalî schools inherently unequal (and a violation of the Constitution). This case overruled the 1896 case, Plessy v. Ferguson, which upheld laws permitting separate but equal facilities. Those laws were called 'Jim Crow' laws.

WHEN WHAT IS IN YOUR HEART AND MIND DOES MATTER

States of Mind That Have Legal Meanings and Importance

Many cases depend on a person's mental state of being.

Did the person intend to do what he did? How important is this? Extremely important. Think about it. They say even a dog knows if he has been kicked. Little children know to say, 'But it was only an accident.' 'I didn' t mean to take your bike/book/cookie.'

Thus, from dogs to children, we all know that a person' s state of mind is vital in assessing an event. Let' s see how it plays out in specific situations in both criminal and civil law.

In criminal law, the term mens rea deals with the importance of a state of mind. It means a guilty mind, guilty intent. It encompasses many of the terms described below, including intent, knowledge, malice, gross (criminal) negligence, and recklessness, among others.

Generally, a crime is the combination of a mens rea and the actus reus (the criminal act).

DEFENSES

YES - the defendant, ∆ did it.

BUT - he has an answer ... a denial... Here, in very simplified form, are examples of defenses and samples of the types of cases where they may be relevant.

1. Self-Defense 'First, he came at me with a knife. Then, I was scared, so I stabbed him.' (Used in criminal/intentional tort cases.)
2. Defense of Property: 'I warned him not to enter my home. He continued to come in. I hurt him.' (Used in criminal/intentional tort cases.)
3. Mistake of Fact 'I thought I was taking my own coat. I did not intend to steal yours.' (Used in criminal/tort cases.)
4. Insanity ìI couldn' t intend to commit that crime, as I didn' t have the mental capacity to know what I was doing. I couldn' t control doing it or not doing it.î (Used in criminal cases.)
5. Infancy I was seven years old and didn' t know any better. The law says I didn' t have the legal capacity to commit a crime or enter into a Κ, et cetera. (Used in criminal/tort/K cases.)
6. Intoxication
   1. Involuntary intoxication- 'I took a drug. I didn' t know what it was or how it would affect me.'
   2. Voluntary intoxication- ìI was so drunk at that party, I didn't know what I was doing.î This defense is not usually allowed. (Used in criminal cases.)
7. Entrapment: 'The undercover agent wanted to get me into trouble, so he lured me into this trap. I never would have done it on my own.î (Used in criminal cases.)
8. Duress 'He threatened to stab me if I didn' t go with him. He forced me to do it.î (Used in criminal/wills/K cases.)
9. Truth: 'Yes, I wrote and published that. Yes, I know it ruined his reputation. But it was all true.' (Used in defamation cases.
10. Contributory negligence: In states that have this defense, if the plaintiff' s (Π' s) own negligence contributed to his injury, he may not win any damages, even if the ∆ was also negligent.
11. Comparative negligence: In states that have this defense, if Π and ∆ were both negligent in causing the Π injuries, the Π compensation (damages) is reduced by the proportion that was his fault. The ∆ pays only for the portion of the injury that he caused.
12. Consent:'She willingly agreed to the sexual act.' 'The patient agreed to have surgery performed. His consent was voluntary and informed.î ìWe were playing football. This means he gave his implied consent to being touched.' (Used in rape/tort/assault and battery cases.)
13. Privilege, Immunity: 'You can't sue me for that statement because I said it in a court trial. It is privileged.' 'You can't prosecute me because I am a diplomat. I have diplomatic immunity.' (Used in tort/defamation/minor criminal cases.)

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