Chapter 12 Vocabulary

grand jury

A group of citizens impaneled to hear evidence presented by a prosecuting attorney with the purpose of determining whether sufficient evidence (probable cause) exists to bring to trial a person accused of committing a crime. If such evidence is found, the grand jury issues an indictment. Failure to find such evidence results in dismissal of a case.

preliminary hearing

A hearing held in front of a judge to determine whether or not there is probable cause to believe that a person committed the crime of which he or she stands accused. If probable cause is found, the judge binds over the defendant for trial. If probable cause is not found, the case may be dismissed.

arraignment

A judicial proceeding at which a person accused of a crime is formally advised of the charges by the reading of the charging document in open court, advised of his or her rights, and asked to enter a plea (e.g., guilty, not guilty, nolo contendere) to the charges.

legal realism

A legal theory with a primary focus on the decision-making processes of the courts. The theory holds that the courts create law through their accumulated decisions, meaning that the law becomes whatever the courts say it is. Legal realism suggests that legal reasoning is an act of interpretation, requiring judges to consider factors beyond the law to resolve uncertainties in cases. In this approach, judges craft decisions to achieve justice, serve broad social interests, and foster good public policy.

indeterminate sentencing

A method of sentencing in which a statute sets a broad range of permissible sentences for an offense (usually a minimum and a maximum) and leaves it to the sentencing judge to impose whatever sentence he or she feels is fair, given the particular facts of a case. Compare to determinate sentencing.

determinate sentencing

A method of sentencing that limits judges' discretion by requiring specific sentences for a particular crimes (as in a mandatory sentence) or by providing sentencing guidelines that use numerical scales and tables to arrive at the recommended sentence for a particular case. Compare to indeterminate sentencing.

jurisprudence of rights

A modern extension of legal realism which argues that the primary consideration, other than the law, that should guide judges is an ethics of rights, in which fairness is the guiding principle to be used when deciding cases.

law and economics

A movement emerging in the 1970s advocating that the law should be interpreted (and cases decided) in a way that distributes economic costs and benefits in a manner that promotes economic efficiency and maximizes wealth.

presumption of sanity

presumes that defendants are sane (i.e., legally responsible for their actions), unless they are proven insane at trial (through successful use of the insanity defense). This is a presumption the jury (or judge in a bench trial) is required to make at a criminal trial.

feminist jurisprudence

A perspective of legal reasoning drawing upon critical legal studies and focusing on gender inequality in society as a function of law.

critical race theory

A perspective of legal reasoning drawing upon critical legal studies and focusing on the experience of racial and ethnic minorities with the legal system.

postmodern jurisprudence

A perspective of legal reasoning drawing upon critical legal studies and focusing on the intersection of race, gender, gender identity, religion, social class, sexual orientation, and other perspectives to study inequalities in law and society, often using literary theory to interpret legislation and judicial decisions.

presentence investigation report

A report prepared by probation officers containing information about the offender and the nature of the offense. Commonly known as PSI, its purpose is to aid a judge in determining the sentence for a case.

critical legal studies

A theory of legal reasoning which emerged in the 1970s and argues that law is politics and designed to maintain the status quo in society. Critical race theory, feminist jurisprudence, and postmodern jurisprudence are variations of critical legal studies.

bench trial

A trial in which the judge, rather than the jury, acts as finder of fact (e.g., determining guilt or innocence). Bench trials may occur for some misdemeanors for which trials by jury are not available or when a defendant waives his or her right to a trial by jury. Compare to trial by jury.

geographic jurisdiction

A type of jurisdiction based on location, in which a court is empowered to hear cases that originated within the geographic area (whether county, district, or other geographic unit) over which that court has authority.

indictment

A written statement issued by a grand jury to indicate that sufficient evidence (probable cause) exists to bring to trial a person accused of a crime. Also known as a true bill, the indictment indicates the specific offense with which the accused is charged, including a description of the facts and circumstances surrounding the crime that led the grand jury to find probable cause.

peremptory challenge

Allows the prosecution or defense to excuse a potential juror during the voir dire process without specifying a cause. Each side is typically permitted only a limited number of peremptory challenges, and they may not be used to exclude jurors on the basis of race or gender.

legal process theories

An approach to legal reasoning that attempts to harmonize legal formalism and legal realism by offering neutral principles that judges could use to resolve unclear cases. However, determining which neutral principles to use and how to use them is a value decision which can lead to inconsistencies between judges

exculpatory evidence

Any evidence that may be favorable to the defendant in a criminal trial, either by casting doubt on the defendant's guilt or mitigating the defendant's culpability. The prosecution must disclose all exculpatory evidence to the defense as part of the discovery process.

evidence

Anything that helps prove or disprove a fact. May include physical evidence, sworn testimony, scientific evidence, or demonstrative evidence.

habeas corpus

In a legal context, a writ of habeas corpus is a court order directed at someone who has custody of a person ordering the release of that person because his or her incarceration was achieved through unlawful processes. This provides the mechanism by which unlawful incarcerations may be challenged.

appeal

In criminal cases, the defendant has the right to file an appeal requesting that an appellate court review the decision made by a lower court. Appeals may be filed after a sentence has been imposed and final judgment entered in a case and primarily focus on substantive due process and procedural justice rather than on factual issues of guilt or innocence.

voting disenfranchisement laws

Laws that prohibit persons convicted of a felony from voting. States differ in the type and extent of disenfranchisement laws they have, if any.

defense attorneys

Lawyers who represent persons accused of a crime. Defense attorneys may be private attorneys hired by accused persons who can afford to do so, private attorneys appointed by the court to represent indigent persons, or state employees whose full-time job is to represent indigent persons.

misdemeanor

Less serious offenses that may be punished by a sentence of less than a year in jail and/or a small to moderate fine. Compare to felony and infraction

harmless error

Minor legal errors that were unlikely to have affected the overall outcome of a case. If appealed, harmless errors do not result in the reversal of a conviction

petit jury

The group of jurors impaneled to hear a particular criminal case, at the conclusion of which they render a verdict. In most states, petit juries in criminal trials are composed of 12 jurors

venire

The group of persons who are summoned to court as potential jurors and who then participate in the voir dire process for jury selection.

felony

The most serious crimes, which may be punished by a sentence to a year or more in prison and/or a substantial fine. Compare to misdemeanors and infractions.

judges

Those who preside over state and federal courts. The primary role of the judge is to enforce the rules of criminal procedure and criminal evidence.

voir dire

A Latin term for the process in which the venire of potential jurors is sworn to tell the truth and then questioned to screen out persons who may not be able to make a fair and impartial decision in the case (this is known as being stricken for cause). Potential jurors can also be excused with peremptory challenges.

National Supremacy Clause

A clause in the U.S. Constitution that identifies the federal government as the supreme law of the land. This means if there is a conflict between a federal law and a state law, the federal law will take priority.

summons

A court order that directs a recipient to appear in court at a specific time on a specific date. Among other uses, the summons is the mechanism by which potential jurors are compelled to appear in court to participate in the jury selection process.

complaint

A document completed by a police officer or private citizen accusing a person of committing a crime.

subject matter jurisdiction

A form of jurisdiction based on the subject matter of a case. Courts of limited subject matter jurisdiction hear cases only on certain topics; courts of general subject matter jurisdiction hear all other types of cases

motion

A formal request asking the court to make a specific ruling on an issue or question. Motions may address any number of substantive or procedural issues, but the most significant is a motion to suppress evidence that was gathered in violation of a defendant's constitutional rights.

information

A formal, written document accusing a person of a crime. The document is prepared by the prosecuting attorney and submitted to a judge for his or her consideration at a preliminary hearing.

prosecutors

Government officials who are responsible for prosecuting (charging and bringing to trial) violations of criminal law. Prosecutors are sometimes called the "gatekeepers" of the criminal justice system because of their power to determine who will appear in court and on what charges.

Certiorari

Persons seeking appellate review of their case after their initial appeal may ask a higher court to hear their case by filing a petition for a writ of certiorari. Certiorari is rarely granted.

presumption of innocence

Presumes that all criminal defendants are innocent until their guilt has been proven beyond a reasonable doubt. This is a presumption that the jury (or judge in a bench trial) is required to make at a criminal trial.

prejudicial/reversible error

Significant mistakes made in a criminal trial that are likely to contribute to an unfair verdict. These errors may result in overturning a conviction

jurisdiction

The authority given to a court to hear and adjudicate a particular dispute. There are multiple forms of jurisdiction, including hierarchical, subject matter, and geographic.

beyond a reasonable doubt

The burden of proof necessary to find a defendant guilty of a crime, whether in a trial by jury or a bench trial. Although a higher standard than probable cause but a lower standard that absolute certainty, there is no precise way to quantify how much proof it takes to reach the standard of beyond a reasonable doubt.

adjudication

The formal process for resolving legal disputes in courts of law.

hierarchical jurisdiction

The organization of state and federal court systems in which a case begins in a court of original jurisdiction where factual determinations are made. These decisions may be appealed to a court of appellate jurisdiction, which reviews the proceedings of the court of original jurisdiction to ensure that laws and procedures were properly applied.

judicial review

The power of the courts to invalidate laws enacted by a legislature or rules made by an executive agency if they violate or conflict with the U.S. Constitution. In criminal justice, judicial review is often focused on issues of substantive due process or procedural justice.

plea bargaining

The process by which a defendant agrees to plead guilty in exchange for some consideration from the government, such as a lower charge, fewer counts, or a reduced sentence. Approximately 95% of felony cases are resolved by plea bargaining.

discovery

The process by which the parties (defense and prosecution) to a criminal case exchange relevant information about that case. The purpose of discovery is to prevent unfair surprises at trial.

legal reasoning

The processes by which judges make decisions about how to interpret and apply the law

legal formalism

The traditional view of legal reasoning holding that judges apply law to the facts of the case to arrive at logical decisions separate from any ethical, political, philosophical, or policy considerations.

courtroom workgroup

The working relationship that develops among court employees, including judges, prosecutors, defense attorneys, and others.

initial appearance

When a judge or magistrate informs an accused person of the charges against him or her, the possible penalties, and the right to retain counsel or have an attorney appointed if indigent. A decision may also be made about whether to grant bail. The initial appearance is to occur within 48 hours of a person's arrest.