4.4

Terms for Criminal Liability

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INTRODUCTION

You have probably noticed that there are only a fraction of the number of terms in the criminal section compared to the civil terms. The reason is that we did not repeat terms, such as court, trial, etc. Thus, most common terms were mentioned in the earlier section. Here are a few general comments before discussing criminal law terms.



Lecture Notes . . .

PLEADINGS v. MOTIONS . . . One of the few times a paralegal might need to know the difference between a motion and a pleading is when organizing a file. Most firms keep pleadings and motions together in the pleadings portion of the file. But many firms keep motions filed separately from the pleadings, sometimes in their own file or, for large cases with many motions, in a separate expandable folder.

JURISDICTION . . . As a paralegal, I never had a discussion with an attorney regarding jurisdiction. There is a very good reason for that. Jurisdiction is generally the province of the attorney. However, understanding the reason a case is filed in a specific court will make you a more well rounded paralegal. It will also be helpful later when discussing the concept of precedence.

CRIMINAL LIABILITY

Criminal Law
Criminal matters involve a question of guilt. "Is the defendant guilty of committing a criminal act?" In all criminal actions, the government must take the role of plaintiff. That is why criminal matters are titled "State v. Smith" or "The People v. Jones."

Criminal law is viewed as harming the community. This is why the state, or government, is the party making the allegation, not an individual.

Guilt or Innocence?
The defendant must plead guilty or not guilty. The question in criminal cases is guilt or innocence, whereas in civil cases the question is liability.

Burden of Proof
The burden of proof in criminal cases is considerably higher than in civil cases. In preponderance of evidence standard in civil cases basically means a "majority of the evidence" points one way or the other. In criminal cases, though, the jury must be certain by "beyond a reasonable doubt." Thus, even if a juror thought it was likely that a defendant was guilty, if he or she still had a "reasonable" doubt, he or she would have to find the defendant not guilty.

Misdemeanor and Felony
The difference is the amount of prison time that is served. A felony is a year or more in prison, and a misdemeanor is less than a year. Obviously, felonies involve more serious offenses.

Counsel
Attorney, lawyer, and counsel all mean the same thing. In criminal cases, the lawyer handling the case for the government is the Prosecutor, usually titled District Attorney or State's Attorney. For federal cases, the United States Attorney is the prosecutor.

Nolle Prosequi
(Pronounced: no-lay pross-eh-kwee) Sometimes called no-pro, this is typically used when the prosecutor thinks the Defendant has suffered enough.

Nolo Contendere
(Pronounced: no-lo con-tend-ray)
Also called no contest, is used often as part of plea bargains. Our most famous nolo contendere case was Spiro Agnew, Vice President under Nixon. He was not involved in Watergate, but resigned in the middle of the scandal due to unrelated criminal accusations that he had accepted kickbacks for awarding construction contracts while he was Governor of Maryland.

Probable Cause
To get a search warrant, police must establish probable cause. To file charges, the prosecutor must have probable cause. It is the standard for going forward with any criminal legal action. It means there is a valid and at least reasonable suspicion that a criminal act has been committed.

Grand Jury
Let's get one thing straight: This has nothing to do with a jury! It is an investigative panel called by the prosecutor to determine whether criminal charges should be filed against a potential defendant.

The reason a Grand Jury is used by the prosecutor is often because the prosecutor (such as a District Attorney or United States Attorney) has no subpoena power. So if the case is being investigated, and the prosecutor needs to subpoena persons or documents, a Grand Jury is often used.

Impeach
Exception to the rule: If an attorney calls a witness, and the judge declares the witness hostile, it means that the attorney may discredit the witness, and may also ask leading questions on direct examination.

Beyond a Reasonable Doubt
This is very hard to define. Most courts tell jurors that they have to determine the level of proof for themselves! Thanks a lot!

Related Note: The most often asked question of the judge by jurors is: What is Reasonable Doubt?

Acquit
A judge or jury may acquit the defendant by finding him/her not guilty.

Double Jeopardy
The criminal equivalent of res judicata.

Remember, a person can be charged criminally and sued civilly for the same event. However, it is the government that pursues the criminal charges, and the individual who has been harmed, or damaged, who pursues a civil suit.



Commonly Asked Questions . . .


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