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A Glossary of Colorado Criminal –  Legal Terms and Definitions

 

ABUSE OF PROCESS. The improper use of court process (orders of a court such as a subpoena or summons). See citation, summons, subpoena, service of process, warrant.

ABUSED CHILD. Under Colorado law, a minor (usually defined in the law as a person who is under the age of 18  who has been purposely injured or endangered may be considered an abused child. The abuse can be physical, emotional, or sexual. See child endangerment, neglected child.

ACTUS REUS. Literally, guilty act. Generally, no crime occurs unless a guilty act (the actus reus) is done with a guilty mind (the mens rea). See culpable mental state, mens rea.

ADMINISTRATIVE LAW. Written rules adopted by various government agencies (such as the governmental bodies of a city, county, state or federal government) under limited authority granted by legislative bodies. Administrative laws have to do with rules, regulations, applications, licenses, permits, available information, hearings, appeals and decision-making. Examples of administrative agencies authorized to create administrative law are the Federal Aviation Administration (the FAA) and the Colorado Liquor Control Commission. Administrative rules differ from agency to agency and are not usually found in the statutes, but only in those regulations themselves. A member of the public must exhaust all administrative remedies (must take every step, including appeals within the agency and its system) before challenging an administrative ruling in court. See appeal, zoning.

ADULT. For most purposes under Colorado law, a person age 18 or older.

ADVERSARY SYSTEM. An approach to law in which a trial is viewed as a contest between opponents, each of whom has the burden of establishing his or her own case. The adversary system is a major element of the Anglo-American legal system. See burden of proof, evidence.

AFFIRMATIVE DEFENSE. 1) In criminal law, a defense the facts of which are peculiarly within the knowledge of the accused. Statutes designate certain defenses affirmative defenses. 2) In civil law, a legal defense to the claim of the plaintiff. For example, assumption of risk may be an affirmative defense in a negligence case, and fraud by the plaintiff may be a defense in a case for breach of contract. In both criminal and civil cases, these defenses are called affirmative because the defendant must take the initiative to prove them: the defendant has the burden of going forward with the evidence and the burden of proof by a preponderance of the evidence. See burden of proof, evidence, degree of proof.

ALIBI. Literally, in another place. As used by a person accused or suspected of a crime, evidence that he or she was not present when the crime was committed. See affirmative defense, evidence.

APPEAL. A procedure in which a party to a legal proceeding asks a higher court to reverse or modify the judgment or other final order of a lower court or of an administrative agency. Appeals generally must be made on the ground that the lower court misinterpreted or misapplied the law, rather than on the ground that the lower court made an incorrect finding of fact. See court of appeals, harmless error, plain error.

APPELLANT. The party who appeals the judgment or final order of a court or administrative body.

APPELLEE. The party against whom an appeal is taken.

ARRAIGNMENT. In criminal procedure, the process of bringing the accused into open court, informing the accused of the charge, advising the accused about his or her rights, taking the accused’s plea to the charge, and setting bail if bail is appropriate. If the charge is a felony, the arraignment is usually a separate proceeding before trial. If the charge is a misdemeanor, the arraignment is usually the initial step in the trial itself. See bail, charge, felony, misdemeanor.

ARREST. The process of placing a person in legal custody or otherwise legally restricting a person’s freedom. Usually an arrest involves a person accused of a criminal offense, but other persons also may be arrested: a material witness; the reputed father of an illegitimate child to further a lawsuit against him for child support; and a person charged with contempt of court.

ASSAULT. The criminal act of threatening or actually inflicting physical injury.

BAIL. 1) The pretrial release of an accused provided the court is satisfied that the accused will attend all court hearings. Where the accused is charged with a felony, bail may include conditions such as restrictions on travel and an order to stay away from the victim.

2) The deposit of money or property with the court, or the promise to pay or forfeit money to the court, designed to guarantee that the accused will appear at court for all proceedings. See bail bond, bail schedule, cash bond, personal recognizance.

BAIL BOND. A type of insurance policy that helps to ensure an accused will appear at court for all proceedings. The bail bond is posted with the court by a professional bail bondsman, who promises to forfeit a specified sum of money if the accused (the person giving bond) fails to appear in court as required. Payment of the cost of the bond is similar to the payment of an insurance premium. Usually, the cost of a bail bond is 10 percent of the face amount of the bond. None of the cost is refundable even if the accused appears as required.

BAIL SCHEDULE. A list of felony and misdemeanor offenses and the dollar amount of the bail for each offense. Every court is required to publish a bail schedule covering all misdemeanor offenses.

BAILIFF. A court official who acts as an aide to the judge. Generally, the bailiff’s duties include opening and closing each session of court and maintaining administrative control of the courtroom and the jury. The bailiff’s duties also may include escorting accused persons to and from court, calling and swearing in witnesses, and other matters.

BEYOND A REASONABLE DOUBT. The highest degree of proof: proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his or her own affairs. In a criminal case, it is necessary for the prosecution to prove each element of the crime charged beyond a reasonable doubt. that is, so that the jury is firmly convinced of the defendant’s guilt. If the jury believes that the defendant probably is guilty, but they have a reasonable (not merely speculative) doubt about it, they must find the defendant not guilty. See crime, degree of proof, evidence.

BINDOVER.To hold for trial or for further inquiry. For example, after a preliminary hearing in a felony case establishes probable cause to believe that the accused committed the crime charged, the municipal court or county court binds over the accused for indictment by a grand jury. Also, the transfer of a child from juvenile court to a common pleas court for trial and punishment as an adult in serious cases and under limited circumstances is often called a bindover.

BURDEN OF PROOF. The duty to establish a claim or defense. The burden of proof is on the party asserting the claim or defense. This requirement is a hallmark of the adversary system. If a complaining party fails to meet the burden of proof the complaining party must lose the case, at least as to that particular claim. If a defendant fails to meet the burden of proof as to a particular defense the defendant will not be relieved of liability by that defense, although he or she may win the case for another reason. See adversary system, degree of proof.

CAPITAL OFFENSE. A felony for which death is a potential penalty.

CASH BOND. A type of bail in which the accused in a criminal case deposits the full amount of bail in cash with the court. The entire amount is refundable if the accused appears when required. See bail.

CHALLENGE. 1) A request that a prospective juror be dismissed. 2) The right to make such a request. See challenge for cause, peremptory challenge, voir dire.

CHALLENGE FOR CAUSE. The right to have a prospective juror dismissed for any one of a number of good, specific reasons, such as friendship with one of the parties or an inability to follow and understand the proceedings. There is no limit to the number of prospective jurors who may be challenged for cause. See voir dire, peremptory challenge.

CHANGE OF VENUE. In criminal law, a change (from one county to another) in the place where the trial is held, in order to secure a fair trial. See venue.

CHARGE. 1) The judge’s instructions to the jury on its duties, the law involved in the case, and how the law must be applied. The charge is given just before the jury retires to consider its verdict. 2) The accusation in a criminal case.

CHILD ENDANGERMENT. An act or omission that exposes a child to psychological, emotional or physical abuse. Child abuse based on the offense of child endangerment is normally a misdemeanor, but endangerment that results in mental illness or serious physical illness or injury is a felony. See abused child, neglected child.

CIRCUMSTANTIAL EVIDENCE. Indirect evidence, that is, evidence that does not directly prove a fact, but from which the fact can be inferred. See evidence, direct evidence, Rules of Evidence.

CITATION. A form of combined complaint and summons that may be used in minor criminal cases. It informs the defendant of the violation, and when and where he or she must appear in court. A traffic ticket is a form of citation. See summons.

CITIZEN’S ARREST. The arrest of an accused without a warrant by any person, upon probable cause to believe that a felony has been committed and that the person detained committed it. In Colorado, a citizen’s arrest is the only power of arrest conferred on the general public. Law enforcement officers have the same powers of arrest without a warrant as any citizen. Law enforcement officers have the additional power to arrest without a warrant for misdemeanors, and to execute arrest warrants issued for any offense.

CLEAR AND CONVINCING EVIDENCE. An intermediate degree of proof in a legal proceeding. Clear and convincing evidence is a lesser degree of proof than beyond a reasonable doubt, but a higher degree of proof than preponderance of the evidence. Clear and convincing evidence is required in a civil action to establish the right to an extraordinary remedy, such as an injunction. See beyond a reasonable doubt, degree of proof, evidence, extraordinary writ, preponderance of the evidence, writ.

CLOSING. The final step in the sale and purchase of real estate, in which a deed of title, financing documents, title insurance policies, and remaining funds due are exchanged. See deed, real property, title.

COMMON LAW. The body of principles, rules, and forms of procedure that is based on case law, that is, on the written opinions of judges in deciding specific cases. Common law is different from statutory law, which is created by a legislative body.

COMPETENCE. Generally, the legal ability to act. For example, a contract is not enforceable if one of the parties was not competent (in reasonable possession of his or her wits).

COMPETENCE TO STAND TRIAL. In criminal law, a requirement for prosecution. No defendant may be brought to trial if he or she is incapable of understanding the nature of the criminal case and proceedings or of assisting in his or her own defense. In such a case, the court may order treatment and the probate court may issue civil commitment orders. If the accused is restored to competence, the criminal trial may proceed. See competence, crime, criminal insanity.

CONSTITUTION. The written document that is the fundamental law of a nation or a state. The United States Constitution is the fundamental law of the nation. It outlines the federal government’s structure and powers and establishes basic law in the United States. Similarly, the Colorado Constitution establishes basic law for the people of Colorado. Should a conflict arise between the state and federal constitutions, the U.S. Constitution takes precedence.

CONTEMPT OF COURT. Any act or omission calculated to hinder a court in administering justice, or to compromise a court’s dignity or authority. Direct contempt is an act, usually of a disruptive nature, committed in a courtroom or in the presence of a judge. Indirect contempt is, in general, the failure or refusal to obey a lawful order of the court. Both kinds of contempt may result in criminal penalties.

CONTINUANCE. A postponement of a legal proceeding. In general, continuances are granted only for good cause, such as the illness of counsel or a party, or the unavailability of a witness.

CORPUS DELICTI. Literally, the body of the crime. In law, corpus delicti means the fact that a crime was committed; it is part of the basic proof required to sustain any criminal charge, from overtime parking to treason. Corpus delicti does not mean the corpse of a murder victim. If the prosecutor proves through testimony or other evidence that a murder was in fact committed, the corpus delicti has been proved, even though the victim’s body is not found.

COURT. 1) An institution for resolving legal disputes. 2) A formal term for the judge or judges of a court as when, during a trial, an attorney addresses the judge with the phrase, May it please the court. 3) An imprecise way of referring to the judge or judges. For example, the court, on its own motion, declared a mistrial, means that the judge stopped the trial on his or her own, without a motion or request from a party.

COURT OF APPEALS. In Colorado, an intermediate court having jurisdiction to hear appeals from the judgments and other final orders of common pleas courts, municipal courts and county courts, and the power to reverse or modify such judgments or orders, or to remand cases back to the lower courts for further proceedings. The court of appeals has similar powers as to appeals from the decisions of administrative agencies. Applications for extraordinary writs must be made (in all but habeas corpus cases) first in the court of appeals, rather than in a trial court. An appeal from the decision of a court of appeals may be taken to the Supreme Court of Colorado. The federal court system also has courts of appeals. The decisions of a federal court of appeals may be appealed to the United States Supreme Court. See appeal, judgment, administrative law, extraordinary writ.

COURT REPORTER. A court official responsible for the accurate recording of court proceedings and the transcription of such recordings into typewritten or printed form. Court reporters record proceedings through the use of shorthand, stenotype, voice recording, videotape, and other means. The court reporter is also a notary public.

CRIMINAL ACTION. A court proceeding involving a crime (a public wrong), in which the state or one of its municipalities is the complaining party.

CRIMINAL INSANITY. An affirmative defense to a crime. To establish this defense under Colorado practice, it must be shown that the defendant, because of a severe mental illness or defect, did not know what he or she was doing was wrong. Persons found not guilty by reason of insanity are committed to mental institutions for treatment, and released when their sanity is restored. See affirmative defense, competence to stand trial, crime, mens rea.

CRIMINAL RULES. See Rules of Practice and Procedure.

CROSS-EXAMINATION. The questioning (examination) of a witness during a legal proceeding, conducted by the opposing party. Generally, cross-examination takes place after direct examination by the party who called the witness. Leading questions may be asked on cross-examination. See direct examination, leading question.

CULPABLE MENTAL STATE. Synonymous with mens rea (guilty mind). Generally, a crime requires that a guilty act or omission (the actus reus) be committed with the required degree of guilty mind. Therefore, Colorado law provides that certain acts are crimes only if done with a particular state of mind, and that a certain sort of criminal act is more or less serious depending on the perpetrator’s state of mind at the time. For example, consider the killing of one person by another person.

That conduct may be 1) no crime (if done in self-defense), 2) a serious crime if done negligently (negligent homicide) and 3) the most serious sort of crime if done purposefully (murder). The four culpable (blameworthy) states of mind recognized by Colorado law in ascending order of severity are negligence, recklessness, knowledge and purpose. In order to convict the accused, the prosecutor must prove beyond a reasonable doubt that, when he or she did the unlawful act charged, the accused did so with the state of mind required for the commission of that particular crime. A very few acts (strict liability offenses) are criminal, however they are done. See beyond a reasonable doubt, crime, murder, strict liability.

CYBERLAW. A term that refers to the rules and regulations established by Congress, legislatures, courts, and international conventions to govern, prevent and resolve disputes that arise from the use of computers and the Internet.

CYBERPIRATE. Also known as a cybersquatter. See cybersquatting.

CYBERSQUATTING. In cyberlaw, buying a domain name reflecting the name of a business or famous person so that the name can be sold back to the business or celebrity for a profit. The Anti-Cybersquatting Consumer Protection Act of 1999 authorizes a cybersquatting victim to file a federal lawsuit to regain a domain name or sue for monetary compensation. Victims of cybersquatting can also use the provisions of the Uniform Domain Name Dispute Resolution Policy adopted by ICANN, an international organization that administers domain names. Through this policy, disputes are resolved through arbitration rather than litigation. Cybersquatters are also known as cyberpirates.

DEFENDANT. The party against whom a civil action or criminal action is brought.

DETERMINATE SENTENCE. A prison or jail sentence for a specific time (say, two years), currently used for misdemeanors and most felonies in Colorado. It is sometimes also referred to as a determinate or flat time sentence. This differs from an INDETERMINATE  sentence.

DEGREE OF PROOF. The level of persuasiveness by which a case or defense must be established. The degree of proof required to establish guilt in a criminal case is beyond a reasonable doubt. The degree of proof necessary to permit an extraordinary remedy in a civil case is clear and convincing evidence (extraordinary remedies include most remedies other than money damages an injunction, for example). The degree of proof required to prevail in other civil cases or to establish an affirmative defense in a criminal case is preponderance of the evidence. A lesser degree of proof, required to make a valid arrest or to hold a criminal accused for trial, is probable cause. Degree of proof does not mean the sheer amount of evidence but the believability and reliability of the evidence. The testimony of one reliable and believable witness may be more persuasive than the testimony of 10 unreliable witnesses. See beyond a reasonable doubt, clear and convincing evidence, preponderance of the evidence, probable cause.

DELINQUENT CHILD.  A delinquent child is one who commits any act (other than a juvenile traffic offense) that would be a crime under state, municipal, or federal law if committed by an adult, or who fails to obey an order of a juvenile court. For example, a child is charged with delinquency whether the offense in question is murder or merely disorderly conduct. See crime, juvenile division.

DIRECT EVIDENCE. Evidence that was seen, touched or heard by a witness directly. For example, a witness who sees rain coming down has direct evidence that it is raining. Also, a written document introduced in a trial is direct evidence of its own contents. See evidence, circumstantial evidence, Rules of Evidence.

DIRECT EXAMINATION. The questioning (examination) of a witness in a legal proceeding by the party who called the witness to testify. Leading questions are prohibited on direct examination except when the court rules that the witness is hostile to the party that called him or her. See cross-examination, hostile witness.

DISBARMENT. The revocation (taking away) of an attorney’s license to practice law as punishment for certain wrongful acts. Because of its authority to regulate the practice of law in this state, the Supreme Court of Colorado is in charge of such professional discipline.

DISCOVERY. Any of various pretrial procedures by which a party to a case may learn about information or evidence in the possession of another party, a witness, or other person. The purposes of discovery are to prevent unfairness (including unfairness resulting from surprise during a trial), to make it easier to prepare an effective lawsuit, and to help narrow the questions to be tried in the case. Discovery is more limited in criminal than in civil cases. See deposition, evidence, interrogatory.

DOUBLE JEOPARDY. Properly, once in jeopardy, but also called former jeopardy. Both the U. S. and Colorado constitutions provide that no person can be placed in jeopardy (that is, tried) more than once for the same crime. With some exceptions, then, the state has only one chance to prove an accused guilty. In general, an accused is in jeopardy at the point in a trial when the jury is impaneled and sworn or, in a case tried without a jury, when the presentation of evidence begins. See constitution, impanel.

DUE PROCESS OF LAW. The 14th Amendment to the United States Constitution provides that no person may be deprived of life, liberty, or property without due process of law. That is, rights, obligations, and liabilities must be determined through a rational legal procedure that is intended, and used, to insure fundamental fairness. In the context of criminal law, this means that an accused person may not be arbitrarily fined, jailed or otherwise punished. Guilt or innocence must be determined fairly, impartially and in a timely manner, and the accused must have the opportunity to face his or her accusers and to offer a defense. See constitution.

EARNED CREDIT. In Colorado criminal law, the reduction of an inmate’s sentence by one day (the earned credit) for each month the inmate participates in meaningful school, work, training, or treatment programs. This is the only type of time off for good behavior still available to inmates.

ENTRAPMENT. An affirmative defense to a criminal charge. The defense is established if the defendant proves that the offense was incited or induced by law enforcement officers, and that the accused would not have been inclined to commit the offense without that incitement or inducement. See affirmative defense, charge.

EQUAL PROTECTION OF THE LAWS. The 14th Amendment to the United States Constitution provides that persons are entitled to equal protection of the laws. Generally, that means that persons similarly situated must be treated equally, without discrimination on some improper basis. For example, the law can provide that all people over age 62 get a public pension, but not that only white males (or black females) over age 62 get a public pension. Similarly, the law can require that all citizens pay income taxes, but not that only residents of Alabama and Colorado pay income taxes. In the context of criminal law, equal protection means that the law must be the same for all, regardless of (for example) rank, status, creed, color, or political persuasion. See constitution.

EVIDENCE. Anything that can be presented in a legal proceeding to prove a fact, or disprove an alleged fact. Some of the more important classes of evidence are: 1) testimony; 2) tangible evidence (things); 3) documentary evidence (information shown in letters, memoranda, or other writings); and 4) demonstrative evidence (evidence that shows how an event happened, relationship, or cause and effect). See circumstantial evidence, direct evidence, prima facie, Rules of Evidence, testimony.

EX POST FACTO. Literally, after the fact.  Ex post facto laws prohibited by the constitution of the United States are laws enacted after an act was done that: 1) impose a criminal penalty for the act where none previously existed; 2) impose a higher penalty than that previously applicable; or 3) eliminate a defense available at the time the act was done. The Constitution prohibits the enforcement of retroactive laws, whether criminal or civil, but gives effect to laws that establish a remedy or advantage not available when the act was done that is, laws which put a person in a better place than he or she would have been under the law in effect when the act was done. See constitution.

EXTRADITION. 1) The formal process in which one state may surrender to a second state a person accused of committing a crime in that second state. Extradition is used only in felony cases and in cases involving the failure to support children. 2) A similar surrender, used between nations that are parties to an extradition treaty.

EXTRAORDINARY WRIT. Any of five special types of lawsuit. See habeas corpus, mandamus, procedendo, prohibition, quo warranto, writ.

FALSE ARREST. An arrest (a deprivation of a person’s liberty, or detention) without legal justification. False arrest can be the basis of a tort lawsuit where the plaintiff was detained by the defendant when the defendant knew, or should have known, that the detention was illegal. False imprisonment is synonymous with false arrest.

FALSE IMPRISONMENT. See false arrest.

FEE. In general, payment for services rendered, such as the charge made by an attorney for work done for a client.

FELONY. A serious crime carrying a potential penalty of imprisonment in the Colorado Department of Corrections. First degree murder is the most serious felony; some of the others are second degree murder, drug trafficking, kidnapping, rape and robbery. See crime, misdemeanor, murder.

GRAND JURY. See jury.

GUARDIAN AD LITEM. A guardian at lawh who is appointed by the court for the specific purpose of protecting the interests of a minor during the course of legal proceedings. See guardian, next friend.

HABEAS CORPUS. An extraordinary writ designed to test the legality of any kind of detention. This writ may be initiated in the court of appeals, the Supreme Court of Colorado or in a common pleas court. It is most often used in criminal cases, but also may be used to test the legality of a person’s continued confinement in a mental hospital. Habeas corpus cannot be used as a substitute for appeal. A post-conviction relief proceeding is used instead of habeas corpus in some cases in Colorado. See extraordinary writ, writ.

HARMLESS ERROR. In appellate practice, an error committed by a trial court that was not prejudicial to the rights of the appellant (the party who brought the appeal).that is, the error did not affect the outcome of the trial. An appellant must show prejudicial error in order to win an appeal; harmless error is not enough. See appeal, court of appeals, prejudicial error.

HEARSAY. Testimony concerning matters not within the personal knowledge of the witness; in essence, second-hand testimony. With certain exceptions, under the rules of evidence, hearsay cannot be allowed or admitted for consideration in a trial. For example, the State will not be allowed to prove that Mary committed a crime by having Susan testify: gI heard John say that Mary did it. See evidence, rules of evidence.

HOSTILE WITNESS. A witness whose interests or attitude can be shown to be adverse to the party calling the witness to testify at a trial or other legal proceeding. Although normally a witness cannot be cross-examined by the party that calls him or her, a party can cross-examine his or her own witness if the court declares that the witness is hostile. See cross-examination, direct examination, leading question.

HUNG JURY. A jury that cannot agree on a final verdict. In criminal cases in Colorado, all members of the jury must agree on a verdict; one dissenting vote is enough to deadlock the jury. In civil cases, three-fourths of the jury must agree on a verdict, so a civil case with eight jurors can be deadlocked by three dissenting votes. If the judge is convinced that the jury will not be able to reach a verdict, the judge will declare a mistrial. The case may have to be retried at a later date to a new jury unless the prosecutor decides to dismiss it. See mistrial.

IMPANEL. To seat, or complete, a jury. When the voir dire (questioning of jurors) is finished and both sides have exercised their challenges for cause and peremptory challenges, the jury is impaneled. The jurors are then sworn (given an oath to do their duty) and the trial is ready to proceed with the introduction of evidence. See voir dire, challenge.

INDETERMINATE SENTENCE. A sentence containing a minimum and a maximum prison or jail terms (say, 18 to 36 months). Typically, the offender must serve the minimum time and must be released at the maximum time. In the period between the minimum and maximum, the offender may be released administratively (usually by a parole board). Thus, the exact time is indefinite when the sentence is imposed.

INDICTMENT. A formal accusation made by a grand jury, charging a named person with a specific crime. In serious offenses, an accused is entitled to indictment by a grand jury under both the United States and Colorado constitutions. See jury, information.

INFORMATION, BILL OF INFORMATION. A formal written accusation made by a prosecuting attorney charging a named person with a specific crime. An information can be used instead of an indictment by a grand jury except to charge offenses carrying a potential penalty of death or life imprisonment, but it cannot be used in any case unless the accused waives indictment.

INITIAL APPEARANCE. The first appearance of an accused before a municipal (or county) court judge or magistrate, during which the Rules of Criminal Procedure require the judge or magistrate to inform the accused of his or her constitutional rights (particularly the right to remain silent and the right to be represented by counsel) and to set bail for the accused if bail has not already been set. When a person is arrested without a warrant, the initial appearance must be held without unnecessary delay, that is, the accused must be brought before a judge or magistrate at the first reasonable opportunity within hours or a few days at most after arrest. In misdemeanor cases, a defendant might decide to plead guilty and be sentenced during the initial appearance. In felony cases, the defendant is not permitted to make a plea at the initial appearance because the county court does not have jurisdiction to decide felonies. A defendant who cannot afford bail is generally incarcerated until his or her trial.

INSANITY. See competence, criminal insanity.

JAIL – PRE SENTENCE CREDIT. Credit given for the time served in a local jail by a person before he or she is sentenced for a crime. For example, offenders are incarcerated in local jails: 1) after arrest; 2) while awaiting bail; 3) while awaiting a hearing or trial; 4) while awaiting a physical or mental examination; and 5) while awaiting transportation after conviction. Many offenders have already served time before they technically begin their sentences. In general, offenders are entitled to have their sentences reduced by all the time they have been incarcerated. Also known as PRE-SENTENCE CREDIT.

JOINT AND SEVERAL. Together and separately. The phrase normally refers to the liability of two or more persons with respect to a single transaction. For example, when two people are jointly and severally liable on a debt, the creditor may collect the entire debt from either person, or may collect any part of the debt from each.

JUDGE. The presiding officer of a court. In a trial court, the judge’s chief duties are to supervise the conduct of the trial and to rule on all questions of law. See court.

JUDGMENT. A final order of a trial court that puts into effect the court’s decision in the case. Judgment should be distinguished from verdict. A verdict is a finding of fact by a jury. The court must implement the verdict by issuing an appropriate order, or judgment. In a criminal case, the sentence is part of the judgment.

JUDICIAL RELEASE. A release from prison granted by a sentencing judge. Generally, the judge can modify an eligible offender’s sentence by granting judicial release (formerly known as shock probation).

JURISDICTION. The obligation and authority of a court. Territorial jurisdiction refers to the geographical extent of a court’s authority. A court’s jurisdiction may be exclusive or it may be concurrent with the jurisdiction of other courts. A trial court is said to have general jurisdiction if it has authority to deal with most types of civil and criminal cases. Subject-matter jurisdiction refers to the power of a court to deal with specific types of lawsuits or to award certain kinds of remedies. Monetary jurisdiction refers to the court’s authority to deal with lawsuits depending on the minimum or maximum amount of money in controversy. A court in which a given type of action may be begun is said to have original jurisdiction. A court with power to review the decisions of other courts, or administrative agencies, has appellate jurisdiction. In some cases, such as domestic relations cases involving parenting time and child support, the court retains the ability to change its orders according to (for example) changes in family circumstances. This is referred to as the court’s continuing jurisdiction. See juvenile division, where the terms exclusive jurisdiction and concurrent jurisdiction are used in context.

JURISPRUDENCE. The philosophy of law, or the science of classifying law and legal principles.

JURY. A group of citizens, selected and sworn to make a factual determination in a legal proceeding. A grand (large) jury’s function is to review alleged offenses presented to it and determine whether there is probable cause to believe that a crime was committed, and that the accused person committed the crime. A petit (small) jury’s duties are to decide the factual questions in a trial and to render a verdict on those questions.

JUVENILE. In Colorado, any person under age 18. Juvenile is synonymous with minor and child for most purposes.

JUVENILE COURT. See juvenile division.

JUVENILE DELINQUENT. A minor who has committed any act (other than a juvenile traffic offense) that would be a crime if committed by an adult.

JUVENILE DIVISION. In Colorado, a division of the court with exclusive jurisdiction to deal with juveniles who are unruly, abused, neglected, or dependent. Juveniles charged with criminal offenses and retained for trial by the juvenile division (juvenile court) are not subject to adult penalties if found guilty, but may be dealt with according to a wide range of treatment options available to the juvenile judge.

LEADING QUESTION. A question phrased so that it suggests the answer. In general, leading questions are prohibited on direct examination but are permitted on cross-examination. A direct question to a witness might be phrased, What did you do then?  The same question would be leading if it were phrased, You ran away then, didn’t you? See cross-examination, direct examination, hostile witness, Rules of Evidence.

MALICIOUS PROSECUTION. A cause of action based on the defendant’s having the plaintiff prosecuted for a criminal offense, knowing there is no probable cause to do so. See crime.

MALPRACTICE. A tort arising from the failure of a professional person, such as a doctor or lawyer, to follow the reasonable standards of the profession. For example, in representing his or her clients a lawyer must do not merely what a reasonably careful person would do, but what a person trained and skilled in the law would do. When a client is injured as a result of that negligence, the lawyer may be liable to pay damages. See damages, negligence, tort.

MANDAMUS. An extraordinary writ used to compel a public official to do his or her duty in a particular matter. The duty involved must be clearly defined by statute, ordinance, or case law. See extraordinary writ, writ.

MANDATORY REPORTERS. Those who are bound by Colorado law to immediately report known or suspected child abuse or neglect to local law enforcement or human services agencies. They cannot be sued for following through on this obligation, but they may face both criminal and civil liability if they fail to report known abuse or neglect. Mandatory reporters include teachers and other authorized school employees, counselors, health care professionals, child care workers, attorneys, priests and others who work closely with children or are charged with protecting children.

MENS REA. Literally, guilty mind. Generally, no crime occurs unless a guilty act (actus reus) is done with a guilty mind (mens rea). In Colorado, four degrees, or types, of guilty mind are defined. See culpable mental state.

MINOR. For most purposes in Colorado, anyone under age 18. Minor is synonymous with juvenile and child for most purposes.

MIRANDA WARNINGS. The requirement, called the Miranda rule, set by the U.S. Supreme Court in Miranda v. Arizona (1966), that a person suspected of committing a crime and taken into custody by law enforcement officers may not be interrogated until he or she has been advised of the right to remain silent, the right to legal counsel and the right to have counsel paid at state expense if necessary, and also has been warned that anything the suspect says can be used against him or her in further legal proceedings.

MISDEMEANOR. A crime that generally carries a local jail term. Probation supervision, community service, restitution, and other local sanctions are common. Misdemeanors which include a great variety of offenses from littering and speeding to drunken driving (the first three times) and simple assault (with minimal harm).are generally less serious offenses than felonies. Misdemeanants are not eligible for prison terms. See crime, felony.

MISTRIAL. The suspension of a trial by the court (the judge) because of some act or event that seriously compromises the fairness of the proceeding and that cannot be corrected. The judge usually declares a mistrial due to a mistake or misconduct that jeopardizes a party’s right to a fair trial, or due to the inability of a jury to agree on a verdict (hung jury). If a mistrial has been declared in a civil case, the case will be set for a new trial. If a mistrial is declared in a criminal case, there may be a retrial, a plea bargain or a dismissal of the charges. See hung jury.

MOTION. 1) A written request asking the court to take some action (for example, to dismiss a complaint). 2) An oral request made at a trial or hearing asking the court to take some action (for example, to rule on the admissibility of evidence).

NOLLE PROSEQUI. Literally, It will not be pursued.  A document filed by the prosecuting attorney that dismisses a criminal case. Unless the offender has been in jeopardy, a nolle prosequi does not prevent the state from retrying the case, but it ends most cases. In courthouse slang, the phrase is usually shortened to nolly pross or nolly, and is used both as a noun and a verb. See double jeopardy.

OBJECTION. The act of taking exception to some evidence, statement, conduct, proceeding, or event believed to be improper. If an appropriate objection is made at trial, the court will sustain it and take whatever corrective measures are necessary. If an objection is made to something that is not improper, the court will overrule it.

OPENING STATEMENT. A statement, made by a party’s attorney in a trial or other legal proceeding, that outlines what the party expects to prove and how the party intends to prove it. In a jury trial, opening statements are made immediately after the jury is impaneled and sworn.

PEREMPTORY CHALLENGE. The right to have a prospective juror dismissed from a jury without stating a reason. During voir dire after all challenges for cause have been exhausted and the jury is tentatively complete each party may exercise peremptory challenges, one at a time, and in turn. In criminal cases, the number of peremptory challenges allowed each party is six in capital offense cases, four in all other felony cases, and three in misdemeanor cases. In civil cases, each party is allowed three peremptory challenges. See challenge, voir dire.

PERSONAL RECOGNIZANCE. A type of bail consisting simply of an accused’s written promise to appear in court when required. Generally, when there is no good reason to believe an accused will not appear when required, the accused may be released on personal recognizance. See bail.

PLAIN ERROR. An error committed during a trial or other legal proceeding that is so extremely prejudicial to the rights of a party that it can serve as the basis of a reversal by an appellate court even though no party objected when the error was made. (Normally, errors not brought to the attention of the trial court at the time of trial are not considered on appeal). See court of appeals, evidence, objection.

PLEA BARGAINING. In criminal law, pretrial negotiations between the defense and prosecution. If a plea bargain is made, the accused normally will be permitted to plead guilty to a lesser offense than was originally charged, or to plead guilty to a principal offense and have other charges dismissed. The accused may be willing to plead guilty to a lesser offense (or to a reduced number of offenses) because he or she has some doubt about the chance of winning at trial and is hoping to secure a lesser sentence because, by pleading guilty, he or she has saved the State the time, expense and uncertainty of a trial. The prosecution may accept a plea bargain if it has some doubt that it can obtain a conviction on the offense charged, or if it believes that it is more economically feasible and in the interest of justice to accept the plea. The underlying basis for a negotiated plea must be stated in open court. See crime, charge.

POST-CONVICTION RELIEF PROCEEDING. A type of proceeding in criminal matters designed as a partial substitute for habeas corpus, in which the court reviews claims of a convicted offender that his or her constitutional rights were violated. See habeas corpus.

PRELIMINARY HEARING. A type of proceeding held when a person is arrested for a felony. The purpose of the hearing is to determine whether there is probable cause to believe that a crime has been committed, and that the accused committed it. If the answer to both questions is yes and the crime appears to be a felony, the accused will be bound over (transferred) to the grand jury for possible indictment. In Colorado, municipal courts and county courts have preliminary hearing jurisdiction. See bindover, jury.

PREPONDERANCE OF THE EVIDENCE. In a legal proceeding, a measure or degree of proof less than beyond a reasonable doubt and clear and convincing evidence, but greater than probable cause. A fact is proven by a preponderance of the evidence if the evidence favoring something is more weighty and believable even if only by a tiny fraction than the evidence against it. Preponderance of the evidence is the degree of proof required to prevail in most civil actions and to establish an affirmative defense in a criminal case. See degree of proof, evidence.

PRE-SENTENCE REPORT  A report ordered by a judge in a criminal case for the purpose of giving the judge basic information about the history, character, and condition of the offender. The contents of the report assist the judge in determining the proper sentence. The report assists the judge in determining, among other things, the need for incarceration, the length of incarceration, the need for treatment, and whether local sanctions, such as probation, are appropriate. In Colorado, pre-sentence reports are required in felony cases in which community control sanctions, such as probation, may be granted, and optional in other cases. A victim impact statement is an analogous report concerned with the effects of the offense upon the victim. See felony, community control sanctions.

PRE-TRIAL CONFERENCE. A meeting of the parties, their attorneys, and the judge held before the trial. The purpose of the meeting is to agree on stipulations, questions to be tried, and other matters so that the trial proceeds smoothly and quickly. A pre-trial conference also may be a forum for settlement negotiations.

PRIMA FACIE. Literally, on its face.  Evidence is said to be prima facie when, standing alone, it amounts to the degree of proof required to make a particular finding. In a criminal case when the prosecution rests after completing the introduction of its evidence, the state’s case is said to be prima facie if the evidence so far introduced is sufficient to convict. See evidence.

PROBABLE CAUSE. A measure or degree of proof that is less than preponderance of the evidence, and is the lowest degree of proof normally used in a legal proceeding. Proof amounting to probable cause exists where there is good reason to believe, based on specific evidence, that a specific allegation or accusation is true. It is the degree of proof required to: 1) sustain an arrest; 2) bind over an accused to a grand jury following a preliminary hearing; 3) return an indictment; or 4) issue a search warrant. See arrest, bindover, evidence, degree of proof, indictment, warrant.

PROBATE.1) The administration of an estate under the supervision of the probate court. 2) The filing and acceptance of a will with the probate court before the actual administration of the estate. 3) Assets administered through the probate court. See estate, probate division, will.

PROBATION.See community control sanctions.

PRO BONO. In the legal arena, legal services that are donated to individuals or organizations that could not otherwise afford them and who would otherwise be denied equal access to the law.

PRO HAC VICE. For this occasion.  Most states will admit an attorney from another state by courtesy for a particular occasion (pro hac vice) for the purpose of participating in a single case, even though the attorney is not specifically licensed to practice law in that state. However, the attorney must receive admission by the other state’s court to participate in the case.

PROSECUTING ATTORNEY. In Colorado, an elected county official who is the attorney for local government agencies in governmental matters and who prosecutes criminal cases brought in common pleas court. In other states, the counterpart of the prosecuting attorney might be called the district attorney or state’s attorney. The prosecuting attorney’s counterpart in the federal system is the United States Attorney.

PROXIMATE CAUSE.1) A principal element of liability in tort cases. Unless the plaintiff can prove that the wrongful conduct of the defendant was the proximate cause of the plaintiff’s injury, the defendant cannot be held liable. It is not enough that the defendant did something wrong which eventually or indirectly led to the injury; in order to be the proximate cause of injury an act or omission must, in a natural and continuous sequence, directly produce the injury, and it must be shown that the harm would not have occurred but for the defendant’s act or omission. 2) Similarly, in criminal law the defendant’s act must have been the proximate cause of the death of the victim in order to prove murder or manslaughter. See manslaughter, murder, tort.

REASONABLE DOUBT. See beyond a reasonable doubt.

RULES OF EVIDENCE. The common law, statutory, and procedural-rule guidelines governing the introduction and use of evidence. The primary purposes of the rules are to promote the orderly presentation of evidence and to insure that evidence is excluded from consideration if by its nature, or its manner of presentation, it is unreliable or unfair. The Colorado Rules of Evidence are established by the Supreme Court of Colorado, as are other rules of practice and procedure. See evidence, Rules of Practice and Procedure.

RULES OF PRACTICE AND PROCEDURE. Rules established by the Supreme Court of Colorado governing practice and procedure in all courts of the state. In addition to rules of evidence, there are separate sets of rules governing civil, criminal, traffic, juvenile and appellate cases. See Supreme Court.

SEARCH AND SEIZURE. The process of searching for and seizing evidence in a criminal action. The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. A general rule (subject to many exceptions) is that a search is unreasonable unless it is made: 1) with the authority of a search warrant; 2) in connection with a lawful arrest; or 3) with the permission of the person whose property is searched. See constitution, search warrant.

SEARCH WARRANT. A warrant (order of a court) commanding a law enforcement officer to conduct a search and seizure. Under the Fourth Amendment to the United States Constitution, a search warrant may be issued only when there is probable cause to believe that the search will uncover particular evidence of a crime, and must specifically describe the place to be searched and the things to be seized. See probable cause, search and seizure.

SELF-INCRIMINATION. The act of acknowledging one’s guilt during a criminal investigation or prosecution. The term is also used to describe the making of any guilty or damaging statement. Compulsory self-incrimination is prohibited by the Fifth Amendment to the United States Constitution; a person may not be tortured, abused, frightened or tricked into confessing to a crime or making an incriminating statement. For the same reason, at trial an accused person cannot be required to testify (be a witness).

SENTENCE. The judgment in a criminal case. The sentence follows a guilty plea, a jury verdict finding the accused guilty, or, where a jury is waived, a judge’s (or panel of judges’) finding that the accused is guilty. In most felony cases in Colorado, the court will impose a definite sentence of imprisonment (from six months to life, depending on the nature of the crime and, sometimes, the surrounding circumstances), and may include a fine and other sanctions.

Also, the sentence for a felony often includes post-release sanctions, meaning that a convict released from prison will be monitored to some extent for up to five additional years. In a misdemeanor case (except minor misdemeanor cases, where jail is never an option) the sentence may include a definite jail term of up to six months, a fine of up to $1,000, or both.  In felony and misdemeanor cases, the sentence may also include some form of probation).

SEQUESTER. To keep separate or apart. In some criminal cases members of the jury may be sequestered (prevented from having contact with their families, the news media or the general public, except under supervision) by being lodged in a hotel during the trial. That is to make sure that the jury makes its decision based only on the evidence presented in court.

Also, a witness who has not already testified may be sequestered (or excluded from the courtroom) to prevent him or her from hearing the testimony of another witness. That is done to prevent the excluded witness from being influenced by the testimony of the previous witness.

STARE DECISIS. Literally, to stand on decisions. The rule that the decision of a court, once made, will not be discarded lightly, but will be used as precedent for determining similar cases in the future. This rule is a foundation for the development of the common law.

STATUTE. In general, a written law adopted by any legislative body, such as the United States Congress or the Colorado General Assembly.

STATUTES OF LIMITATIONS. Statutory (written) laws that limit the time within which a civil or criminal action may be brought (filed in a court), usually calculated from the date of the incident upon which the action is based. The time limits vary depending on the type of action involved, and in some cases on the status of the parties (when a minor is involved, for example) or the date of the discovery of the injury or loss or the discovery of the identity of the person causing the injury or loss. Because these laws are applied in so complicated a manner, it is important that persons believing they might have a legal claim speak with an attorney as quickly as possible. The unexcused failure to bring an action within the time allowed by the applicable statute of limitations is an absolute defense to the action, so no time should be lost in seeking legal advice.

STIPULATION. In legal proceedings, formal acknowledgment by the parties that a fact is undisputed. Parties may stipulate undisputed matters in order to save time and effort. Dates, times, weather conditions, and the qualifications of expert witnesses often are stipulated. See pre-trial conference.

SUBPOENA. Literally, under punishment.  An order issued by a court to a witness, commanding the witness to appear and testify under threat of punishment for contempt of court. A subpoena duces tecum (literally, bring with thee, under punishment) is a subpoena commanding a witness to bring specified books, papers, or other tangible evidence to a hearing or trial. See contempt of court.

SUMMONS. 1) In civil practice, an order of the court issued to a defendant commanding the defendant to appear and answer the complaint, or risk having default judgment entered against him or her. 2) In criminal practice, an order similar to that issued to a defendant in a civil action, except that the punishment for failure to appear and answer the charge is arrest and incarceration. See service of process.

SUPREME COURT. An appellate court of last resort. The Supreme Court of Colorado is the highest court in Colorado, and the United States Supreme Court is the highest court in the nation.

TRESPASSER. In criminal and tort law, a person who comes upon the land or premises of another without permission. See trespass.

TRUE BILL. 1) A phrase endorsed on an indictment which shows that a grand jury has found probable cause to believe that the crime stated in the indictment was committed and that the accused committed it. 2) An accepted or issued indictment. See jury, indictment, no bill.

VENUE. The place where a trial is held. In general, venue follows jurisdiction. In a criminal case, venue may be changed if necessary to secure a fair trial for the accused. See jurisdiction.

VERDICT. The factual decision by a jury in a trial. In a criminal case, a verdict might be guilty, not guilty, or not guilty by reason of insanity. In a civil case, the verdict might be stated as a finding for the plaintiff (or defendant). In a suit for money, a verdict for the plaintiff (or the defendant, if the defendant has filed a counterclaim) will state a sum of money. When a jury retires to consider its decision, the court will furnish it with forms for all possible verdicts in the case. A verdict has no effect until it is formalized by a judgment entry.

VICTIM IMPACT STATEMENT. A report used by judges in sentencing offenders convicted of felonies. The report is generally prepared by the court’s probation officer and provides the judge with information about the economic, physical , and psychological damage the victim suffered as a result of the offender’s crime. The victim impact statement is similar to the pre-sentence report but is concerned with the victim rather than the offender. See pre-sentence report.

VOIR DIRE. Literally, to see, to say. In legal procedure, the process of questioning prospective jurors to determine their fitness to hear and decide a particular case. See challenge, impanel.

WARRANT. In general, authority or a document granting some specific authority. An arrest warrant authorizes and commands the arrest of a specific person. A search warrant authorizes and commands the search of particular premises for specific evidence or contraband. Arrest and search warrants must be issued by or under the supervision of a court, and may be issued only on probable cause. See probable cause.


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H. Michael Steinberg Esq.
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