PURPOSE
The purpose of this book, understanding the Judicial Branch of the government, is to take a
rather narrow view of the Judicial Branch of the government in order to better understand its
daily function in our communities. The Judicial Branch of the government is the most
misunderstood and misapplied branch of the government. Many people think that it is the
function of the Courts to make law. While many others think it is the function of the Judicial
Branch of the government to enforce and implement the law. The purpose of this book is to
define in a narrow sense the function of the Judicial Branch so that it can assist individuals in
determining what branch of the government is the appropriate branch of the government to help
resolve individual questions, problems or disputes that exist in everyday life. It is with this
thought in mind that this section has been composed.
It should be understood that because of the narrow purpose of the book, that many
oversimplifications may be stated. Oversimplification is used to demonstrate the narrow
function of each branch of government as it may apply to any particular problem.
Many have said that the volume and substance of the law is not in the statement of the rule of law
but in the statement of the exception to the rule. It is with this understanding and with this
knowledge that one must view this book. It will be rare for any exceptions to be discussed,
detailed or delineated although it is known and recognized that many exist.
For over twenty years, this book has been used as the basis for
presentations to jurors, educators, technologists, government employees,
civic organizations, church groups, school students and many others. It was
most recently presented to the New York State Bar Association, Statewide
Conference on Law-Related Education, October 29-31, 1997 at Bolton Landing,
New York.
ABOUT THE AUTHOR:
TABLE OF CONTENTS
I. FORM OF GOVERNMENT
A. LEGISLATIVE
B. EXECUTIVE
C. JUDICIAL
II. JUDICIAL BRANCH OF THE GOVERNMENT
A. COURTS
1. Federal
2. State
(a) District Court
(b) The Circuit Court
(c) The Court of Special Appeals
(d) The Court of Appeals
B. COURT HOUSE & OCCUPANTS
C. HISTORICAL DEVELOPMENT - COMMON LAW
III. FUNCTION OF THE JUDICIAL BRANCH OF THE GOVERNMENT
A. RESOLUTION OF DISPUTES
1. Fairness:
2. Justice:
3. Impartiality:
4. Expedition:
B. DETERMINATION OF DISPUTED FACTS
1. Burdens of Proof
a. Preponderance of evidence
b. Clear and Convincing Evidence
c. Reasonable Doubt
2. Advocacy and Persuasion
3. Truthfulness and Credibility
4. Methods of Determination of Factual Disputes.
C. COURTROOM DIAGRAM
D. STEPS OF TRIAL
E. COURTROOM DUTIES
F. DETERMINATION OF DISPUTED LAW
IV. OTHER WEB LINKS
APPENDIX A
APPENDIX B
APPENDIX C
GLOSSARY OF LEGAL TERMS
The Government of the United States and each of its individual states is a constitutional form of
government. That is the definition and form of the government is determined by a constitution
which is the product of the collective will of the people.
The Constitution of the United States and of each individual state provides for a government
which is a comprised of three branches; the Legislative, Executive and Judicial Branch. Each
branch has a distinct responsibility that is separate and apart from each other. The body of law
which defines the responsibilities of each branch of the Government is known as "separation of
powers". Virtually all disputes between the branches occur when a branch attempts to exercise a
power belonging to another branch.
The Legislative Branch of the Government has the responsibility of making law. Periodically we
elect representatives as states legislators, county councilmen, city councilmen, United States
Congressmen to make laws on our behalf. These individuals are elected by popular election and
their responsibility is to make law in accordance with our popular will. If we are satisfied with
the job that they do we reelect them to office, if we are unsatisfied by the job that they do we
elect others to perform that function on our behalf. The Legislative Branch of the Government
has no other primary function. That is it is not the function of the Legislative Branch of the
Government to organize and implement or enforce the law nor is it the function of the Legislative
Branch of the Government to resolve disputes.
Websites:
Federal Legislative: United States House of
Representatives
State of Maryland: Maryland General Assembly
State of New York: New York State Assembly
The Executive Branch of the Government has the responsibility of organizing the laws enacted
by the Legislative Branch of the Government and implementing and enforcing those laws. The
people elect representatives to do that on their behalf. These representatives are known as
Presidents, Governors, County Executives and Mayors. To the extent that those individuals
organize, implement and enforce the law in accordance with popular will they are elected to
office. To the extent that they do not organize, implement and enforce the law in accordance
with the popular will others are elected to do their job. The Executive Branch of the Government
does not have the function of making the law nor does it have the function of resolving disputes.
Websites:
Federal Executive: The White
House
State of Maryland: Governor of Maryland
State of New York: Governor of New York
Library of Congress
George Washington Papers
The Judicial Branch of the Government has the responsibility of resolving disputes that citizens
of the community have with one another. They of course are charged with the responsibility of
resolving those disputes in a fair, just, impartial and expeditious fashion. In many instances they
must resolve disputes in accordance with rules and regulations enacted by the Legislative Branch
of the Government or enforced by the Executive Branch of the Government.
The Judicial Branch of the Government does not have the responsibility of making law as that is
the responsibility of the Legislative Branch of the Government nor does the Judicial Branch of
the Government have the function of enforcing or implementing the law because that is the
function of the Executive Branch of the Government. To a limited extent when a court resolves a
dispute; that resolution stands as a precedent for the resolution of similar disputes. To that extent
it is said that the Judicial Branch of the Government makes law. However, it is the consequence
of resolving a dispute as opposed to initial law making.
Different governmental entities affect our daily lives. Those governments typically affecting our
daily lives are the Federal Government, the State Government and the local Government (county
or city).
With respect to any given course of conduct that conduct may be affected at the same time and
same fashion by the Legislative Branch of the Federal Government, by the Legislative Branch of
the State Government, by the Legislative Branch of the Local Government. In a like fashion, any
given course of conduct might at the same time be affected by the Executive Branch of the
Federal Government, the Executive Branch of the State Government or the Executive Branch of
the Local Government. To the same extent any given course of conduct might involve a dispute
which could be resolved in a federal court, a state court or a local court.
The governmental function of resolving disputes is over 5,000 years old. While many societies
can trace the necessity to resolving disputes to specific historical events, the American system of
resolving disputes originates from the Biblical model first adopted by Moses.
As reported in the 18th Chapter of the Book of Exodus in the Bible
(Exodus 18), Moses was
having great difficulty in keeping up with the press of disputes. The people of Israel were
seemingly having a great difficulty getting along with each other. Moses' father in the law,
Jethro, came to visit him and after observing him spend so much time and energy resolving
disputes, gave him the following advice: Jethro told Moses to appoint capable people as his
representatives to resolve the disputes. Appoint these officials over thousands, hundreds, fifties
and tens. Jethro then advised that these representatives should decide the simple cases, but the
difficult cases should be brought to Moses.
This model of appointed Judges being delegated the authority to decide disputes and the right to
appeal a more difficult case to a higher authority formed the foundation upon which the Judicial
Branch of the Government rests.
Websites:
Supreme Court: Supreme Court of the United States
State of Maryland:
Maryland Court System
Maryland Court System Archives
Maryland Court System Maryland Manual
State of New York: New York Court System
The Judicial Branch of the Government is specifically composed of a federal court, a state court
and sometimes in rare instances a local court.
The Federal Court is composed of the Federal Magistrate, the United States Federal District
Court, the United States Circuit Court of Appeals and the Supreme Court of the United States.
Federal Courts resolve disputes arising over an application of Federal law (usually enacted by
Congress or expressed in the United States Constitution).
Maryland State Courts are composed of the District Court, the Circuit Court, the Court of Special
Appeals and the Court of Appeals. State Courts resolve disputes arising over an application of
State law (usually enacted by State Legislation or expressed in the State Constitution).
The Federal Magistrate has jurisdiction of a limited nature. Its jurisdiction includes minor
criminal offenses and minor traffic offenses. The United States District is a court of general trial
jurisdiction. Its jurisdiction includes questions mainly involving major civil and criminal
disputes. It is at this court where people are entitled to a federal jury trial. The Circuit Court of
Appeals is an Appellate Court of unlimited jurisdiction. That is almost all disputes decided in
the District Court may be appealed as a matter of right to this Court. The Supreme Court is a
court of limited appellate jurisdiction. It can hear cases only when it decides that the issue
presented are of such public importance that it is necessary to be decided for the public interest.
The Supreme Court is known as a certiorari court. Certiorari is a common law writ which by
limited definition means "send me your papers", a command which is directed to the lower court.
(See Table 1 below)
Table 1: FUNCTION OF FEDERAL COURTS
| JURISDICTION |
COURT |
FUNCTION |
| Limited Trial |
Federal Magistrate |
Traffic
Minor Criminal
Small Claims
Limited Jury |
| Unlimited Trial |
U.S. District Court |
All trial
Jury/Grand Jury |
| Unlimited Appellate |
Circuit Court of Appeals |
Unlimited Appeals |
| Limited Appellate |
Supreme Court |
Limited Appeals |
WEBSITES:
Federal:
United States Federal Courts
Structure of Federal Courts
The State Court system is composed of a District Court which is a trial court of limited
jurisdiction. Its jurisdiction is limited to minor criminal offenses, minor motor vehicle offenses
and civil cases involving questions or issues under $10,000.00. The Circuit Court is a court of
general trial jurisdiction. It is the court which hears major criminal and civil disputes and is the
court where one exercises the right to a state jury trial. In addition, the Circuit Court resolves
disputes concerning land, marriage and estates. The Court of Special Appeals is a court of
unlimited appellate jurisdiction. Its function is to determine appeals from the Circuit Court.
Issues of appeal are limited to questions of legal error that have occurred in the Circuit Court.
Almost all cases which are heard in the Circuit Court may be appealed as a matter of right to the
Court of Special Appeals. (See Table 2 below)
Table 2: FUNCTION OF STATE COURTS
The Court of Appeals is a court of limited jurisdiction. It decides only those cases that the Court
of Appeals determines are of public importance and necessity to be decided. Again, it being an
appellate court it hears only cases involving legal error committed in a trial before a Circuit
Court.
There are seven Court of Appeals judges, thirteen Court of Special Appeals judges, 109 Circuit
Court judges and 90 District Court Judges in the State of Maryland.
The District Court of Maryland was created as the result of the ratification in 1970 of a
Constitutional amendment proposed by the legislature in 1969.
The District Court began operating on July 5, 1971, replacing a miscellaneous system of trial
magistrates, people's and municipal courts. It is a court of record, is entirely State funded, and
has statewide jurisdiction. District Court judges are appointed by the Governor and confirmed by
the Senate. They do not stand for election. The first Chief Judge was designated by the
Governor, but all subsequent chief judges are subject to appointment by the Chief Judge of the
Court of Appeals. The District Court is divided into twelve geographical districts, each
containing one or more political subdivisions with at least one judge in each subdivision.
As of July 1, 1992, there were 97 District court judgeships, including the Chief Judge. The Chief
Judge is the administrative head of the Court and appoints administrative judges for each of the
twelve districts, subject to the approval of the Chief Judge of the Court of Appeals. A chief clerk
of the Court is appointed by the Chief Judge. Administrative clerks for each district are also
appointed as are commissioners who perform such duties as issuing arrest warrants and setting
bail or collateral.
The District Court has jurisdiction in both the criminal, including motor vehicle, and civil areas.
It has little equity jurisdiction and has jurisdiction over juvenile cases only in Montgomery
County. The exclusive jurisdiction of the District Court generally includes all landlord/tenant
cases; replevin actions; motor vehicle violations; criminal cases, if the penalty is either less than
three years imprisonment and/or does not exceed a fine of $2,500; and civil cases involving
amounts not exceeding $2,500. It has concurrent jurisdiction with the circuit courts in civil cases
over $2,500, but not exceeding, $20,000; and concurrent jurisdiction in misdemeanors and
certain enumerated felonies. Since there are no juries in the District Court, a person entitled to
and electing a jury trial must proceed to the Circuit Court.
The Circuit Courts are the highest common law and equity courts of record exercising original
jurisdiction within the State. Each has full common law and equity powers and jurisdiction in all
civil and criminal cases within its county and all the additional powers and jurisdiction conferred
by the Constitution and by law, except where, by law, jurisdiction has been limited or conferred
upon another tribunal.
In each county of the State and in Baltimore City, there is a Circuit court which is a trial court of
general jurisdiction. Its jurisdiction in very broad, but generally it handles the major civil cases
and more serious criminal matters. The Circuit Court also decides appeals from the District
Court and from certain administrative agencies.
The courts are grouped into eight geographical circuits. Each of the first seven circuits is
comprised of two or more counties while the Eighth Judicial Circuit consists of Baltimore City.
On January 1, 1983, the former Supreme Bench was consolidated into the Circuit Court for
Baltimore City.
As of July 1, 1992, there were 123 Circuit Court judges with at least one judge for each county
and 25 in Baltimore City. Unlike the other three court levels in Maryland, there is no chief judge
who is the administrative head of the circuit courts. However, there are eight circuit
administrative judges appointed by the Chief Judge of the Court of Appeals, who perform
administrative duties in each of their respective circuits. They are assisted by county
administrative judges.
Each Circuit Court judge is initially appointed to office by the Governor and must stand for
election at the next general election following, by at least one year, the vacancy the judge was
appointed to fill. The judge may be opposed by one or more members of the bar. The successful
candidate is elected to a fifteen-year term of office.
The Court of Special Appeals was created in 1966 as Maryland's intermediate appellate court. Its
creation was the result of a rapidly growing caseload in the Court of Appeals which had caused a
substantial backlog to develop in that Court.
The Court of Special Appeals sits in Annapolis and is composed of thirteen members; a chief
judge and twelve associates. One member of the Court is elected from each of the first five
Appellate Judicial Circuits while two members are elected from the Sixth Appellate Judicial
Circuit (Baltimore City). The remaining six members are elected from the State at large. As in
the Court of Appeals, members of the Court of Special Appeals are appointed by the Governor
and confirmed by the Senate. They also run on their records without opposition for ten-year
terms. The Governor designates the Chief Judge of the Court of Special Appeals.
Unless otherwise provided by law, the Court of Special Appeals has exclusive initial appellate
jurisdiction over any reviewable judgment, decree, order or other action of a circuit court and
generally hears cases appealed directly from the circuit courts. The judges of the court are
empowered to sit in panels of three. A hearing or rehearing before the Court en banc may be
ordered in any case by a majority of the incumbent judges of the Court. The Court also considers
applications for leave to appeal in such areas as post convictions, habeas corpus matters
involving denial of or excessive bail, inmate grievances, and appeals from criminal guilty pleas.
The Court of Appeals is the highest tribunal in the State of Maryland. It was created by the
Constitution of 1776. In the early years of its existence, the Court sat in various locations
throughout the State, but since 1851 it has sat only in Annapolis. The Court is composed of
seven judges, one from each of the first five Appellate Judicial Circuits and two from the Sixth
Appellate Judicial Circuit (Baltimore City). After initial appointment by the Governor and
confirmation by the Senate, members of the Court run for office on their records, unopposed. If a
judge's retention in office is rejected by the voters or there is a tie vote, that office becomes
vacant and must be filled by a new appointment. Otherwise, the incumbent judge remains in
office for a ten-year term. The Chief Judge of the Court of Appeals is designated by the
Governor and is the constitutional administrative head of the Maryland judicial system.
As a result of legislation effective January 1, 1975, the Court of Appeals hears cases almost
exclusively by way of certiorari, a discretionary review process. That process has resulted in the
reduction of the Court's formerly excessive workload to a more manageable level, thus allowing
the Court to devote more time to the most important and far-reaching issues.
The Court may review cases already decided by the Court of Special Appeals or bring up for
review cases filed in that court before they are decided. In addition, the Court of Appeals has
exclusive jurisdiction over appeals in which a sentence of death is imposed. The Court of
Appeals may also review cases from the circuit court level if those courts have acted in an
appellate capacity with respect to an appeal from the District Court. The Court is empowered to
adopt rules of judicial administration, practice, and procedure which will have the force of law.
In addition, it admits persons to the practice of law, reviews recommendations of the State Board
of Law Examiners and conducts disciplinary proceedings involving members of the bench and
bar. The Court of Appeals may also decide questions of law certified by federal and other state
appellate courts.
(e) State of New York Courts
NEW YORK STATE COURT SYSTEM
Supreme Court, Appellate Division
|
Supreme Court, Trial Division
|
Courts of Limited Jurisdiction
|
(i) New York Court of Appeals
(ii) New York Criminal Courts
(iii) New York Probate
Courts
(iv) Additional State Courts
(v) Courts.net
Websites:
Maryland at a Glance
The Judicial Branch of the Government is physically composed of four thousand court houses in
the United States. Forty of those are located in the State of Maryland. There are fifteen thousand
judges in the United States, 219 of those judges are located in the State of Maryland. There are
112,000 clerks in the United States court houses, there are 2,700 of those clerks located in the
State of Maryland. There are 620,000 lawyers in the United States, 17,000 of those lawyers are
located in the State of Maryland.
The total Maryland state government budget is $11 billion. Of that $11 billion the total state
judiciary budget is $71 million. (All of the above statistics are as of 1990).
The English Common law is a process of decisional law that developed in England. Thus the
decision in one case stands as a rule of conduct on like cases. Put in another way that would
mean that decisions in prior cases stand as a law or a rule of conduct for like future cases.
The English Common law has the force and effect of the rule of law simply because the
Maryland Declaration of Rights says it is the rule of law. The Declaration of Rights provides in
Article 5 as follows:
"That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by
Jury, according to the course of that Law, and to the benefit of such of the English statutes as
existed on the Fourth day of July, seventeen hundred and seventy-six; and which, by experience,
have been found applicable to their local and other circumstances, and have been introduced,
used and practiced by the Courts of Law or Equity; and also of all Acts of Assembly in force on
the first day of June, eighteen hundred and sixty-seven. . . ."
The Common Law has been defined by various authorities. Black's Law Dictionary (5th Ed.)
defines the Common Law:
"As distinguished from law created by the enactment of legislatures, the common law comprises
the body of those principles and rules of action, relating to the government and security of
persons and property, which derive their authority solely from usages and customs of
immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming,
and enforcing such usages and customs...those principles, usage and rules of action applicable
to government and security of persons and property which do not rest for their authority upon
express and positive declaration of the will of the legislature."
The term common law is also used to distinguish the law of England from earlier Roman or civil
law. Corpus Juris Secundum describes the nature of the common law as follows:
The common law is one of the forms of law, and is a controlling system of rules and principles,
flexible and susceptible of adaption to new condition, although fundamentally immutable, which
is developed and stated in, although not established by, judicial decisions."
The authority as to the nature of the Common Law is William Blackstone who first set forth the
Common Law in 2 W. Blackstone Commentaries in 1765. Excerpts of his organization of the
Common Law are set forth in Appendix A & B. Blackstone still remains the most authoritative
source of the Common Law. It has been used as authority to support a statement of law by the
Supreme Court of the United States over 700 times and as recently as 1990. It has been relied on
by Maryland Courts over 250 times and as recently as 1990.
The function of the Judicial Branch of the Government is to bring disputes to a final resolution.
This process of dispute resolution of course must be done in a fair, just, impartial and
expeditious fashion.
The basic method by which disputes are brought to a final resolution is through the presentation
of evidence and law supporting competing sides of a dispute in a court room before a judge or a
jury. This process is described by many as the adversarial system of dispute resolution.
Fairness involves an application of the concepts of due process, equalness,
opportunity to be heard.
Justice requires the application of the concepts of a search for the truth.
Impartiality requires the application of the concepts of unbiased or
unprejudiced action.
Expedition requires application of the concepts of speed, quickness and
efficiency. Justice delayed is justice denied.
All of these concepts are equally important to the resolution of disputes. All of these concepts
must be applied with a sense of consciousness as to the existence of each other. Thus when one
considers whether or not a case is being resolved fairly one must necessarily consider whether the
dispute is being resolved justly, impartially and expeditiously. It is fair to say that in the
resolution of disputes often times the concepts of fairness, justice, impartially and expedition
have an inherent competition with one another. Therefore, the resolution to disputes requires a
constant balancing of the relative importance of each concept as the dispute proceeds to be
resolved.
In order to resolve disputes there are two issues which must be addressed. First, one must
address a determination of disputed facts. Secondly, one must determine a disputed law. In most
cases it is necessary for the court to exercise its dispute resolving function with regard to
questions of disputed facts. Less often a court must resolve disputed questions of law.
The disputed fact resolution process involves fact finding. Fact finding occurs either by a judge
or a jury. Juries consist of 12 or 6 depending on the jurisdiction and depending on the court. In
Maryland, a criminal jury consists of 12 jurors while a civil jury consists of 6 jurors. Whether
the Court (Judge) or Jury method of fact finding is used depends on a party's selection.
In order for a court or jury to resolve disputes of fact it is necessary for the court to apply a
burden of proof. A burden of proof is necessary because collectively the community is incapable
of determining matters which have occurred some time ago to any degree of certainty. So by
necessity a standard or a burden of proof must be relied upon which is less than certain. The
court system uses three burdens of proof in resolving its disputes.
A burden of proof requires a fact finding body to look at the evidence in terms of its quality or
believability (truth) and in terms of its quantity or persuasiveness (weight). Generally speaking
burdens of proof require a higher quality and higher quantity of evidence as the consequence of
the judgment of the court increases. So, in a civil case where the consequence of the judgment is
a money damage award, the amount and quality of the evidence is the least. On the other hand,
in a criminal case, where the consequence of the judgment is guilt of a crime and a potential loss
of freedom the quantity and quality of the evidence is the highest.
The three burdens of proof that are given application by fact finding bodies are as follows:
Proof by a preponderance of the evidence:
Proof by clear and convincing evidence: and
Proof beyond a reasonable doubt.
Proof by a preponderance of the evidence is defined as follows: It means simply more likely so
than not or more probable than not. If you were to attempt to visualize the concept of
preponderance of evidence you might visualize balance scales of weight. If those balance scales
of weight are in a state of even balance, that is one side not tilting one way, and the other side not
tilting the other way, you would not be justified in concluding that a party had proven their case
by a preponderance of the evidence or more likely so than not. If however, you were able to say
that one side of the scale tilted however so slightly out of that state of even balance then you
would be justified in saying that a party had proven their case by a preponderance of the evidence
or more likely so than not.
Proof by clear and convincing evidence requires a moving party to prove their case by evidence
that is clear in the sense that it is easily understood and convincing in the sense that it has some
extraordinary probative force (the ability to establish the existence of fact). If you were to again
look at the visual concept of the balanced scales of weight it would require those balanced scales
of weight to be moved to beyond that mere out of balance state; to a state where the evidence
could be said to be clear in the sense that is easily understood and convincing in the sense of
some extraordinary probative force.
Proof beyond a reasonable doubt means that doubt about the truth of the proposition asserted
must be sure. It must not be capable of question by reason. The word reasonable is used to
modify the verb doubt to indicate to the fact finding body that a doubt cannot be based upon
whim, caprice or arbitrariness. It must be based on reason not speculation. It must be based on
reason generated from the evidence. If you were again to visualize the balanced scales of weight
they would have to be titled beyond the clear and convincing stage to a point where there was no
doubt based upon reason.
The application of any of the burdens of proof requires the application of the concepts of
advocacy or persuasion, and truthfulness or credibility.
Advocacy and persuasion refers to the ability of the evidence to be convincing or persuasive.
The fact finder is persuaded by the evidence when the evidence has more weight or greater
convincing force. The fact finder is persuaded by the evidence when the evidence has a higher
probative force. The fact finder is persuaded by the evidence when it is compelling.
Issues of credibility or truthfulness are best categorized by the use of the word believability.
These issues request a determination of whether or not evidence will be believed or disbelieved.
Issues of believability are issues which involve more than the sometimes simple questions of
purposeful lies under oath, although they do include such issues. Issues of believability more
often require a determination of issues centered around whether or not a particular piece of
evidence or testimony is surrounded by an indication of a desire for truthfulness and an ability for
truthfulness.
Desire for truthfulness refers to the issue of bias or prejudice, that is, bias or prejudice in the
sense of a witness having a interest in the outcome of the case or the dispute. Bias and prejudice
in this sense is not thought of in other typical questions of prejudice as a result of race, creed or
religion. Bias or prejudice is thought of in the context of whether an individual has lost their
desire by virtue of their background to come into court and tell the truth.
Ability to tell the truth refers to such questions as whether or not a witnesses testimony is
reasonable or unreasonable. Whether or not the testimony is probable or improbable. Whether
or not a witness had the opportunity to see that about which was testified. It is , therefore,
important to determine whether or not a witnesses testimony is supported or contradicted by
other credible evidence that may be found to exist.
Disputes of fact then are determined in accordance with the particular burden of proof that is
applicable to the type of case being resolved. That resolution of the disputed facts must be done
in a fair, just, impartial and expeditious fashion.
Two methods are employed to make a final determination of facts. First a trial by the Court and
second a trial by a jury.
(a) Court: This method occurs when a single individual, a Judge, listens to the evidence, applies
the burdens of proof and makes a decision. The decision is called a court verdict.
(b) Jury: This method occurs when a group of individuals listens to the evidence, applies the
burdens of proof and makes a decision. The decision is called a jury verdict.
In most states, including Maryland, the
jury verdict must be unanimous, that is, all of the jurors must agree. Some
states allow a less than unanimous verdict especially in civil cases.
The jury verdict must be unanimous, that is, all of the jurors must agree. The size of the jury varies with the type
of case. In a civil dispute, six jurors compose the group. In a criminal dispute, 12 jurors
compose the group.
Both civil and criminal juries are selected through a process whereby each side has an
opportunity to participate in the selection process. Normally a jury is randomly selected from a
pool of eligible individuals. Eligibility is determined by the legislature by the enactment of State
law. From that pool of jurors, a smaller group of jurors, a panel, is made available to the parties.
The panel of jurors is asked questions by a Judge about their knowledge of the particular dispute.
If a juror is biased by their knowledge of the case, they will be excused for cause. This is known
as a challenge for cause. Additionally, each party is allowed to dismiss a juror from the panel for
their own private reasons. This is known as a preemptory challenge. A Petit Jury is
distinguished from a Grand Jury. A Petit Jury is a fact finding jury and a Grand Jury is a
charging jury.
(c) Grand Jury. The Grand Jury's function is to determine whether there is probable cause that a
crime occurred and whether there is probable cause that the defendant committed the crime. A
Grand Jury proceeding is secret and not open to the public. On the other hand, a petit jury
proceeding occurs in an open public courtroom. A Grand Jury is composed of 23 individuals
who are selected by random from the same pool of jurors as the Petit jury. Both the Petit and
Grand Juries may have alternate jurors who are used a jurors in the event that a juror has to be
excused for health or bias reasons.
(i) Probable Cause. Before a Grand Jury can indict an individual for a crime, they must be
persuaded that (i) there is probable cause that a crime has occurred and (ii) there is probable
cause that the Defendant committed the crime. Probable cause is defined as that amount of
information which would lead to a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man in the belief that the person accused
is guilty of the offense which he is charged with. The law intends probable cause determinations
to be common sense decisions. The test is: given all of the circumstances including an
assessment of the truthfulness of the information is that a fair probability that a crime was
committed and that the accused is the perpetrator.
(ii) Grand Jury Procedure. The procedure before the Grand Jury is determined by the Foreman
and the State's Attorney. The Grand Jury does not make factual determinations as a Petit Jury
makes. Therefore, the Grand Jury does not apply a burden of proof as a Petit Jury does.
A trial proceeds with the plaintiff going first and the defendant going next. The trial
proceeds in the following steps:
1. OPENING STATEMENT by Plaintiff or Prosecutor
2. OPENING STATEMENT by Defense
3. DIRECT EXAMINATION by Plaintiff or Prosecutor
4. CROSS-EXAMINATION by Defense
5. MOTIONS
6. DIRECT EXAMINATION by Defense
7. CROSS-EXAMINATION by Plaintiff or Prosecutor
8. CLOSING STATEMENT by Plaintiff or Prosecutor
9. REBUTTAL ARGUMENT
10. JURY INSTRUCTIONS
11. VERDICT
BAILIFF/SHERIFF
- Ministerial officer of the court
- Calls the court to order
- Takes custody of accused
- Calls witnesses into courtroom
- Serves bench warrants
- Services process (subpoenas)
- Takes charge of jury while they are deliberating
- Maintains order in the court
COURT CLERK
- Swears in witnesses
- Polls jury for impaneling at time of trial
- Swears in jury after selection
- Prepares judge's calendar of trials, hearings, sentencings, motions and other matters
- Enters decisions in the file
- Sends out judgment notifications
- Records evidence introduced at trials and hearings
- Records all pleas entered and trial dates
- Responsible for care of all exhibits
COURT REPORTER
- Records verbatim testimony in civil and criminal actions including objections made,
rulings of the court, exceptions taken, arraingments, pleas, sentences, arguments of
prosecution and defense, all statements and remarks made and oral instructions given.
- Retains all notes but need not transcribe them, except on request of the court or either
party.
- At judge's request, reads aloud portions of stenographic notes to the court.
JURORS
- Listen carefully to all evidence presented during the trial.
- Discuss the evidence and reach conclusions as to what was proved by each side.
- Arrive at a verdict based on their findings of fact and after applying the law applicable to
the case.
JUDGE
- Makes sure all parties have a fair opportunity to present their case.
- In criminal cases, must maintain a delicate balance between the preservation of human
rights and the protection of society.
- Acts as neutral and impartial arbiter between the opposing sides.
- May decide the facts as well as apply the law.
- May sentence the guilty person.
PLAINTIFF AND PROSECUTOR
- Plaintiff starts a civil lawsuit.
- Prosecutor is the district attorney. The prosecutor must prove beyond a reasonable doubt
(in a criminal case) that the defendant is guilty. The Plaintiff must prove by a
preponderance of evidence (in a civil case) that the defendant is wrong.
DEFENDANT AND DEFENSE ATTORNEY
- Defendant is person accused of a civil or criminal offense
- Defense attorney is the lawyer attempting to insure that only proper evidence is presented
in the courtroom.
- Defense attorney sees that the client is given a fair trial, and that all evidence favorable to
defendant is brought out in court.
WITNESS
- Gives testimony for either side in a case before the court.
- May be friendly, hostile, expert or other specific witness
Determinations of disputes of law is the second primary function of the Court is resolving
disputes. It is important to recognize that it is not a function of the Judicial Branch of the
government to make law. However, because disputes are resolved and evidence (recorded
decisions) of those resolved disputes are kept and maintained a prior dispute resolution can and
does stand as an expression of the law.
This process of recording prior decisions results in the conclusion by some that the court has
made law. This view is an over simplification of the process because the very nature of the
decisional process is to resolve disputes concerning the law. Thus when a court resolves disputes
concerning the law and expresses that resolution in the form of a written decision it merely is
giving expression to some formal concept of the law most likely previously known but
unexpressed as is applicable to a certain given set of facts and circumstances.
Typically disputes of law center around the application of principles concerning an individuals
right or cause of action or reason for being in court.
At earliest common law individuals could bring suit against each other basically for two reasons.
That is because of a breach of a contract or because of a civil wrong or a tort. The other fashion
by which a dispute could come into court was as a result of a criminal wrong. Because these
limited areas of resolving disputes obviously did not resolve all disputes that existed in the
community the jurisdiction of courts expanded to include matters which required a dispute
resolving court to do more than enter a judgment of guilt or innocence or a money judgment.
Thus arose concepts of equity and equitable dispute resolution. These types of dispute
resolutions are mainly applicable to disputes over land, marriage or other matters which could
not be fairly resolved by money judgment. The judgment of a court exercising dispute resolving
jurisdiction in these type of cases is expressed in some mandatory language as opposed to money
judgments. Thus these courts enter judgments or decrees which dissolve divorces and divide
land.
It is fair to say that 90% of all cases that come to a court house for resolution do not involve
questions of dispute concerning the law. More frequently the dispute exists over the facts.
Disputes concerning the law require a determination of two questions; which law or what law.
Questions of determining which law are questions that involve a determination of whether
competing jurisdictions, federal v. state or state v. state has a prime concern with the subject
matter of the dispute. Disputes of what law? basically whether or not, in a public policy sense,
existing law, should be applied differently to different facts or should be changed by the court.
Often issues involving which law? or what law? requires the dispute resolving court to choose
between two good policies or two good values.
Additional State Courts
Courts.net
ABA Division of Public Education
Civinet
A. Personal Web Site Lists
Ira Wilsker's Legal Sites
The Police Officer's Internet Directory
B. Law-Related Education Organizations
Maryland Law-Related Education
New York Law-Related Education
C. Criminal Justice
Law Enforcement Sites
U.S. Marshals
Police Departments
on the Internet
Most Wanted
Law Enforcement Sites on the Web
D. Electronic Books Online
Electronic Books
Online
2 W. Blackstone Commentaries
Of the Nature of Laws in General
1. Law is a rule of action prescribed by a superior power
2. Natural law is the rule of human action, prescribed by the Creator and discoverable by the
light of reason
3. The divine, or revealed law (considered as a rule of action) is also the law of nature, imparted
by God himself
4. The law of nations is that which regulates the conduct and mutual intercourse of independent
states with each other by reason and natural justice
5. Municipal or civil law is the rule of civil conduct prescribed by the supreme power in a state,
commanding what is right, and prohibiting what is wrong
6. Society is formed for the protection of individuals; and states or government, for the
preservation of society
7. In all states there is an absolute supreme power, to which the right of legislation belongs; and
which, by the singular constitution of thee kingdoms, is vested in the king, lords, and commons
8. The parts of a law are, I. The declaratory; which defines what is right and wrong. II. the
directory; which consists in commanding the observation of right, or prohibiting the commission
of wrong. III. The remedial; or method of recovering private rights and redressing private
wrongs. IV. The vindicatory sanction of punishments for public wrongs; wherein consists the
most forcible obligation of human laws
9. To interpret a law, we must enquire after the will of the maker; which may be collected either
from the words, the context, the subject-matter, the effects and consequence, or the spirit and
reason of the law
10. From the latter method of interpretation arises equity, or the correction of that wherein the
law (by reason of its universality) is deficient
Of the Laws of England
1. The laws of England are of two kinds: the unwritten or common law, and the written or statute
law
2. The unwritten law includes, I. General customs. II. Particular customs. III. Particular laws
3. General customs, or the common law properly so called, are founded upon immemorial
universal usage, where judicial decisions are the evidence; which decisions are preserved in the
public records, explained in the yearbooks and reports, and digested by writers of approved
authority
4. Particular customs are those which are only in use within some peculiar districts; as gavel-kind, the customs of London
5. These - I. must be proved to exist; - II. must appear to be legal; that is, immemorial,
continued, peaceable, reasonable, certain, compulsory, and consistent; III. must, when allowed,
receive a strict construction
6. Particular laws are such as, by special custom, are adopted and used only in certain peculiar
courts, under the superintendence and control of the common and statute law; namely, the
Roman civil and canon laws
7. The written or statute laws are the acts which are made by the king, lords, and commons, in
parliament; to supply the defects, or amend what is amiss, of the unwritten law
8. In order to give a more specific relief than can sometimes be had, through the generality of
both the unwritten and written law, in matters of private right, it is the office of equity to
interpose.
(1) Alabama - Sub-section 1-3-1 (Code of Alabama 1975)
- Common Law of England Adopted
(2) Arizona - Sub-section 1-201 (Arizona Revised Statutes Annotated)
- Common Law adopted with exceptions
(3) Arkansas - Sub-section 2-119 (Arkansas Code of 1987 Annotated)
- Common and statute law of England adopted
(4) California - Sub-section 22.2 (Civil Code, West's Annotated California Code)
- Common law of England is a source of law
(5) Colorado - Sub-section 2-4-211 (West's Colorado Revised Statutes)
- Common law of England adopted
(6) Florida - Sub-section 2.01 (West's Florida Statutes Annotated)
- Common law and certain statutes declared in force
(7) Illinois - Chapter 1 Provision 801 (Smith - Hurd Illinois Annotated Statutes)
- Common law is a rule of decision
(8) Kansas - Sub-section 77-109 (Kansas Statutes Annotated)
- Adopts common law with modifications
(9) Maryland - Constitution Article 5 (Annotated Code of Maryland)
- Common law and statutes of England applicable
(10) Michigan - Constitution Article 3 Sub-section 7 (Michigan Compiled Law Annotated)
- Common law adopted
(11) Montana - Constitution Title 1-2-103 (Montana Code Annotated)
- Common law adopted
(12) Nebraska - Sub-section 49-202 (Revised Statutes of Nebraska)
- English Common law adopted
(13) Nevada - General Provision 1.030 (Nevada Revised Statutes)
- Common law applicable in courts
(14) New Hampshire - Constitution Part 2, Art. 90 (New Hampshire Revised Statutes Annotated)
- Adopts Common law
(15) New York - Sub-section 4 (McKenney's Consolidated Laws of New York Annotated
Statutes
- Adoption of English and Colonial laws
(16) North Carolina - Sub-section 4-1 (General Statutes of North Carolina)
- Common law declared to be in force
North Dakota - Sub-section 1-01-06 (North Dakota Century Code)
- Common law specifically excluded
(17) Utah - Sub-section 8-3-1 (Utah Code, 1953)
- Common law adopted
(18) Vermont - Title 1 Sub-section 271 (Vermont Statutes Annotated)
- English Common law adopted
(19) Virgin Islands - Sub-section 4 (Virgin Islands Code Annotated)
- Common law adopted
(20) South Carolina - Sub-section 14-1-50 (Code of Laws of South Carolina)
- English Common law
(21) Washington - Chapter 4.04 Section 010 (Revised Code of Washington Annotated)
- Common law adopted
(22) Wisconsin - Constitution Article 14 Sub-section 13 (Wisconsin Statutes Annotated)
- Common law in force until altered by legislature
(23) Wyoming - Sub-section 8-1-101 (Wyoming Statutes 1977)
- Common law adopted
A
ACTION: Lawsuit; the legal demand for one's right asserted in court.
ADJUDICATION: Giving a judgement or decree, also the judgement given.
ADVERSARY SYSTEM: The system of trial practice in the U.S. and some other countries in
which each of the opposing or adversary parties has full opportunity to present and establish its
opposing contentions before the Court.
AFFIRM: When a higher Court declares that a lower Court's action was valid and correct.
ALLEGATION: The assertion, declaration, or statement of a party to an action, mad in a
pleading, setting out what he expects to prove.
ANSWER: A pleading by which defendant tries to dispute the plaintiff's right to recover by
controverting the facts alleged by the plaintiff or the principle of law relied on by him, or both; or
by asserting some defense which relieves the defendant of liability.
APPEAL: To take a case to a higher Court for review.
APPEARANCE: The formal proceedings by which a defendant submits himself to the
jurisdiction of the Court.
APPELLANT: The party appealing a decision or judgement to a higher Court.
APPELLATE COURT: A Court which hears appeals and reviews lower Court decisions,
generally on the lower Court record only.
APPELLEE: The successful party in the lower Court against whom an appeal is taken.
ARRAIGNMENT: In criminal practice, to bring the prisoner to Court in person to answer a
charge.
AT ISSUE: Parties to a suit are at issue when they reach a point in the pleadings at which facts
are alleged to exist by one side and are denied by the other.
ATTORNEY OF RECORD: Attorney whose name appears in the permanent records or files of
a case.
B
BAIL: Cash or other security placed on deposit with the Court to obtain the release of an
arrested or imprisoned person and to guarantee his reappearance before the Court on a specific
day.
BAIL BOND: A financial obligation signed by the accused and those who serve as sureties to
guarantee his future appearance in Court.
BAILIFF: A Court attendant who keeps order and is responsible for the custody of the jury.
BRIEF: A written or printed document prepared by counsel to file in Court, usually setting forth
both facts and law in support of his case.
BURDEN OF PROOF: In the law of evidence, the necessity or duty of proving a fact or facts
in dispute.
C
CAUSE: A suit, litigation or action--civil or criminal.
CERTIORARI: An order commanding judges or officers of a lower Court to certify the record
of a case for judicial review by an appellate court.
CHANGE OF VENUE: The removal of a suit begun in one county or district to another, for
trial, or from one Court to another in the same county or district.
CIRCUMSTANTIAL EVIDENCE: All evidence of indirect nature; the process of decision by
which Court or jury may reason from circumstances know or proved to establish by inference the
principal fact.
CIVIL CASE: A case between two parties to remedy a private wrong.
CLERK: One who keeps the records of all proceedings, exhibits and administers the oath to
jurors and witnesses.
COMMON LAW: Law which derives its authority solely from usages and customs of
immemorial antiquity or from the judgement and decrees of Courts.
COMPLAINANT: Synonymous with "plaintiff."
COMPLAINT: The first or initiatory pleading on the part of the complainant, or plaintiff, in a
civil action.
CONTRACT: An exchange of oral or written promises between two or more parties to do or
not to do a particular thing, enforceable by law.
CONVICTION: Being found guilty of a crime or misdemeanor.
CORROBORATING EVIDENCE: Additional evidence which tends to strengthen or confirm
evidence already given.
COUNTERCLAIM: A claim presented by a defendant in opposition to the claim of a plaintiff.
COURT REPORTER: The one who makes a permanent record of all the Court's proceedings.
COURT TRIAL: A trial without a jury, where the judge resolves the dispute.
CROSS EXAMINATION: The questioning of a witness in a trial, or in the taking of a
deposition, by the party opposed to the one who produced the witness.
D
DAMAGES: Compensation recoverable in Court by one who has suffered loss, detriment or
injury to his person, property or tights due to the unlawful acts or negligence of others.
DE FACTO: In fact. In reality.
DE JURE: As a result of law, as a result of official action.
DE NOVO: Anew, afresh. A "trial de novo" is a retrial.
DECLARATORY JUDGEMENT: One which declares the rights of the parties or expresses
the opinion of the Court on a question of law, without necessarily ordering anything to be done.
DECREE: A decision or order of the Court. A final decree is one which fully and finally
disposes of the litigations; and interlocutory decree is a provisional or preliminary decree which
is not final.
DEFAULT: A "default" in action of law occurs when a defendant omits to plead within the time
allowed of fails to appear at trial.
DEFENDANT: In a civil action, the party denying or defending itself against charges brought
by a plaintiff. In a criminal action, the person indicted for an offense.
DEPOSITION: The testimony of a witness, not taken in open Court, in pursuance of authority
given by statute or rule of Court to take testimony elsewhere.
DIRECT EVIDENCE: Proof of facts by witnesses who saw acts done or heard words spoken,
as distinguished from circumstantial evidence, which is called indirect.
DIRECT EXAMINATION: The first interrogation of a witness by the party on whose behalf
he is called.
DIRECTED VERDICT: An instruction by the judge to the jury to return a specific verdict.
DISCOVERY: A proceeding whereby one party to an action may be informed as to facts known
by other parties or witnesses.
DISSENT: A term commonly used to denote the disagreement of one or more judges of a Court
with the decision of the majority.
DOUBLE JEOPARDY: Common law and Constitutional prohibition against more than one
prosecution for the same crime, transaction or omission.
DUE PROCESS: Law in its regular course of administration through the Courts of justice. The
guarantee of due process requires that every person have the protection of a fair trial.
E
ENJOIN: To acquire a person, by writ of injunction from a Court of equity, to perform, or to
abstain or desist from some act.
ET AL.: An abbreviation of et alii, meaning "and others."
EX PARTE: On one side only; by or for one party; done for, in behalf of, or on the application
of, one party only. A judicial proceeding, order, injunction, etc, is said to be ex parte when it is
taken or granted at the instance and for the benefit of one party only, and without notice to, or
contestation by, and person adversely interested.
ET SEQ.: An abbreviation for et sequentes, or et sequentia, meaning "and the following."
EX POST FACTO: After the fact; an act of fact occurring after some previous act or fact, and
relating thereto.
EXHIBIT: A paper, document or other article produced and exhibited to a Court during a trial
or hearing.
EXPERT EVIDENCE: Testimony given in relation to some specific, technical, or professional
matter by experts, i.e., persons qualified to speak authoritatively by reason of their special
training, skill, or familiarity with the subject.
EXTENUATING CIRCUMSTANCES: Circumstances which render a crime less aggravated,
heinous, or reprehensible than would otherwise be.
F
FAIR PREPONDERANCE: Evidence sufficient to create in the minds of the jurors of fact the
belief that the party which bears the burden of proof has established its case.
FALSE ARREST: Any unlawful physical restraint of another person, in prison or elsewhere.
FALSE PRETENSES: Misrepresentation in order to obtain another's money or goods.
FELONY: A crime of a graver nature than a misdemeanor. Generally, an offense punishable by
death or imprisonment in excess of one year.
FRAUD: An intentional perversion of truth; deceitful practice of device resorted to with intent
to deprive another of some property or other right, or in some manner to do him injury.
G
GRAND JURY: A jury of inquiry whose duty is to receive complaints and accusations in
criminal cases, hear evidence and find bills of indictment in cases where they are satisfied that
there is probable cause that a crime was committed and that a trial ought to be held.
H
HABEAS CORPUS: "You have the body." The name given a variety or writs whose object is
to bring a person before a Court or judge. In most common usage, it is directed to the official or
person detaining another, commanding him to produce the body of the prisoner or person
detained so the Court may determine if such a person has been denied his liberty without due
process of the law.
HEARSAY: Evidence not proceeding from the personal knowledge of the witness.
HYPOTHETICAL QUESTION: A combination of facts and circumstances, assumed or
proved, stated in such a form as to constitute a coherent state of facts upon which the opinion of
an expert can be asked by way of evidence in a trial.
I
IMPEACHMENT OF WITNESS: An attack on the credibility of a witness, as by the
testimony of other witnesses or evidence of prior bad conduct or criminal convictions.
INADMISSIBLE: That which, under the established rules of evidence, cannot be admitted or
received.
INDETERMINATE SENTENCE: An indefinite sentence of "not less than" and "not more
than" so many years, the exact term to be served being afterwards determined by parole
authorities within the minimum and maximum limits set by the Court or by statute.
INDICTMENT: An accusation in writing found and presented by a grand jury, charging that a
person therein named has done some act, or been guilty of some omission, which by law, is a
crime.
INFORMATION: An accusation of some criminal offense, in the nature of an indictment, but
which is presented by a competent public officer instead of a grand jury.
INFRACTION: The breaking of a minor law; usually traffic laws in which no imprisonment
may be imposed.
INJUNCTION: A mandatory or prohibitive writ issued by a Court.
INSTRUCTION: A direction given by the judge to the jury concerning the law of the case.
IRRELEVANT: Evidence not relating or applicable to the matter in issue; not supporting the
issue.
ISSUE OF FACT: Arises when a fact is maintained by one party and is controverted by the
other in the pleadings.
ISSUE OF LAW: Arises where evidence is undisputed and only one conclusion can be drawn
there from.
J
JURISDICTION: The power of the Court to hear a case in question, which exists when the
proper parties are present, and when the point to be decided is within the issues authorized to be
handled by the particular Court.
JURY: A certain number of persons selected according to law, and sworn to inquire of certain
matters of fact, and declare the truth upon evidence laid before them.
JURY TRIAL: A trial where a group of citizens hears the evidence presented and gives its
verdict.
L
LEADING QUESTION: One which instructs a witness how to answer or puts into his mouth
words to be echoed back; one which suggests to the witness the answer desired. Prohibited on
direct examination.
LIS PENDENS: A pending suit. Jurisdiction, power, or control which courts acquire over
property in suit pending action and until final judgment.
M
MANDATE: A judicial command or precept proceeding from a Court or judicial officer,
directing the proper officer to enforce a judgement, sentence or decree.
MANSLAUGHTER: The unlawful killing of another without malice; may be either voluntary
upon a sudden impulse, or involuntary in the commission of some unlawful act.
MISDEMEANOR: Offense less than a felony; generally those punishable by fine or
imprisonment for a term of one year or less.
MISTRIAL: An erroneous or invalid trial; a trial which cannot stand in law because of lack of
jurisdiction, wrong drawing of jurors, or disregard of some other fundamental requisite.
MITIGATING CIRCUMSTANCE: Such as do not constitute a justification or excuse for an
offense, but which may be considered as reducing the degree of moral culpability.
MURDER: The unlawful killing of a human being by another with malice aforethought, either
expressed or implied.
N
NEGLIGENCE: The failure to do something which a reasonable person, guided by ordinary
considerations would do; or the doing of something which a reasonable and prudent person
would not do.
O
OBJECTION: The act of taking exception to some statement or procedure in trial. Used to call
the Court's attention to improper evidence or procedure.
OF COUNSEL: A phrase commonly applied to counsel employed to assist in the preparation of
management of the case, or its presentation on appeal, but who is not the principal attorney of
record.
OPINION EVIDENCE: Evidence of what the witness thinks, believes, or infers in regard to
facts in dispute, as distinguished from his personal knowledge of the facts; not admissible except
(under certain limitations) in the case of experts.
P
PANEL: A list of jurors to serve in a particular Court, or for the trial of a particular action:
denotes either the whole body of persons summoned as jurors for a particular term of Court or
those selected by the clerk by lot.
PAROLE: The conditional release from prison of a convict before the expiration of his
sentence. If he observes the conditions, the parolee need not sere the remainder of his sentence.
PARTIES: The persons who are actively concerned in the prosecution or defense of a legal
proceeding.
PETIT JURY: The ordinary jury of twelve (or fewer) persons for the trial of a civil or criminal
case. So called to distinguish it from the grand jury.
PETITIONER: One who files a petition with a Court seeking action or relief. When a writ of
certiorari is granted by the Supreme Court, the parties to the case are called petitioner and
respondent in contrast to appellant and appellee used in an appeal.
PLAINTIFF: A person who brings a civil action; the party who complains or sues.
PLEADING: The process by which the parties in a suit or action alternately present written
statements of their contentions, each responsive to that which precedes, and each serving to
narrow the field of controversy until there evolves one or more points affirmed on one side and
denied on the other, called the issue upon which they then go to trial.
PRELIMINARY HEARING: Synonymous with "preliminary examination"; the hearing given
a person charged with a crime by a magistrate or judge to determine whether he should be held
for trial. Since the Constitution states that a person cannot be accused in secret, a preliminary
hearing is open to the public unless the defendant requests that it be closed. The accused person
must be present at this hearing and must be accompanied by an attorney.
PREPONDERANCE OF EVIDENCE: The greater weight (in terms of quality not quantity) of
evidence, or that evidence which is more believable and convincing.
PRESUMPTION OF FACT: An inference as to the truth or falsity of any proposition of fact,
drawn by a process of reasoning in the absence of actual certainty of its truth or falsity, or until
such certainty can be ascertained.
PRESUMPTION OF LAW: A rule of law that Courts and judges shall draw a particular
inference from a particular fact, or from particular evidence.
PROBATION: A sentence of being placed under the jurisdiction of probation officers for a set
time instead of going to prison.
PROSECUTOR: A public officer whose duty is the prosecution of criminal proceedings on
behalf of the people.
PUBLIC DEFENDER: Lawyers employed by the state to represent defendants accused of
crimes who cannot afford to hire their own lawyer.
R
REASONABLE DOUBT: An accused person is entitled to acquittal if, in the minds of the jury,
guilt has not been proven beyond a "reasonable doubt"; that state of mind of jurors in which they
cannot say they feel an abiding conviction as to the truth of the charge.
REBUTTAL: The introduction of answering evidence; proof by one party disputing proof
provided by its adversary; also, the stage of a trial when such evidence is introduced.
REDIRECT EXAMINATION: Follows cross-examination and is exercised by the party who
first examined the witness.
REMAND: To send back. In the even of a decision being remanded, it is sent back by a higher
Court to the Court from which it came for further action.
REPLY: When a case is tried or argued in Court, the argument of the plaintiff in answer to that
of the defendant. A pleading in response to an answer.
REST: A party is said to "rest" or "rest his case" when he has presented all the evidence he
intends to offer.
RESTITUTION: The restoring of goods or money to the victim of a crime by the offender.
S
SEARCH AND SEIZURE, UNREASONABLE: In general, an unlawful search of one's
premises or of his person; a search which is unreasonably oppressive in its invasion of privacy.
SEARCH WARRANT: A written order from a justice or magistrate directing an officer to
search a specific place for a specific object, issued upon a showing of probable cause.
SELF-DEFENSE: The protection of one's person or property against some injury attempted by
another. The law of "self-defense" justifies an act done in the reasonable belief of immediate
danger. When acting in justifiable self-defense, a person may not be punished criminally nor
held responsible for civil damages.
STANDING: A person's right to bring a lawsuit because he or she is directly affected by the
issue raised.
STATE'S ATTORNEY: Same as prosecutor.
STATE'S EVIDENCE: Testimony given by an accomplice or participant in a crime tending to
convict others.
STATUTE: The written law in contradistinction to the unwritten law.
STAY: A stopping or arresting of a judicial proceeding by order of the Court.
STIPULATION: An agreement by attorneys on opposite sides of a case as to any matter
pertaining to the proceedings or trial. It is not binding unless assented to by the parties; most
stipulations must be in writing.
SUBPOENA: A process to cause a witness to appear and give testimony before a Court or
magistrate.
SUMMONS: A notification to the named person that an action has been commenced against
him in Court and that he is required to appear, on the day named, and answer the complaint in
such action.
T
TESTIMONY: Evidence given by a competent witness, under oath; as distinguished from
evidence derived from writings and other sources.
TORT: An injury or wrong committed, either with or without force, to the person or property of
another.
TRANSCRIPT: The official record of proceedings in a trial or hearing.
V
VENUE: The particular county, city or geographical area in which a Court with jurisdiction may
hear and determine a case.
VERDICT: In practice, the formal decision or finding made by a jury, reported to the Court and
accepted by it.
VOIR DIRE: To speak the truth. The phrase denotes the preliminary examination which the
Court may make of one presented as a witness or juror, as to his qualifications.
W
WAIVE: To give up right or claim voluntarily.
WAIVER OF IMMUNITY: A means authorized by statutes by which a witness, in advance of
giving testimony or producing evidence, may renounce the fundamental right guaranteed by the
Constitution that no person shall be compelled to be a witness against himself, frequently
demanded of a public official.
WARRANT OF ARREST: A writ by a magistrate, justice or other competent authority, to a
sheriff or other officer, requiring him to arrest a person therein named and bring him before the
magistrate of Court to answer to a specified charge.
WEIGHT OF EVIDENCE: The balance of preponderance of evidence; the inclination of the
greater amount of credible evidence, offered in a trial, to support one side of the issue rather than
the other.
WITNESS: One who testifies to what he has seen, heard, or otherwise observed.
Federal Courts Glossary of Terms
1. Source: Shaping American Democracy, Revised Edition 1990. Pub. Citizenship Law-Related Education Program for
the Schools of Maryland and Law, Youth and Citizenship Program of the New York State Bar Association.
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