ADVANCED LEGAL TERMINOLOGY AND PROCEDURES

ADVANCED LEGAL TERMINOLOGYAND PROCEDURES Not a complete guide.

What you will learn today • What you will not learn today • WHY?

Sometimes the meaning is not clear from the words.

Sometimes different words seem to be used for the same thing. What is the difference?

In order to interpret the meaning correctly, interpreter must understand the phrase, not just the meaning of each word. If the phrase does not make sense, ask for an explanation.

Issue • “I have an issue with John taking a day off”. • “The other issue that needs to be addressed is the schedule for next week” • “ The Sunday issue of Star Tribune has a coupon for free bananas”. • “The Parties’ marriage ended without issue”.

Jail / Prison / Workhouse • If you are in one of them, you are incarcerated • There are 2 reasons to be incarcerated: • While the court proceedings are pending or • As a punishment after the person has been convicted • Prisons are managed by State government • Jails and workhouses – by county government

Jail / Prison / Workhouse • If the case is pending, the incarcerated defendant is ALWAYS in a jail. • Person convicted of a Felony is punished by prison. • Person convicted of a misdemeanor or a gross misdemeanor is punished by jail or workhouse. • Not all counties have workhouses. • In modern time there is nothing special about workhouse. It's no different from a jail, but it is for post-conviction incarceration.

Consideration • “You have to take into consideration many factors when you buy a car.” • “Please, don't be so loud, have some consideration.” • “The contract is not enforceable because of insufficiency of consideration.” • In the context of contracts, consideration means exchange of value.

Commitment • “The bride and groom made a commitment to each other” • “I can't come to your party - I have a prior commitment.” • Commitment to custody of the Commissioner of Corrections • Civil commitment

Bail and Bond • Bail – like security deposit paid to court to guarantee that Defendant will come back and will not run away. • When the case is over, bail is returned to Defendant. (Yes, even if he is found guilty) • If Defendant does not have enough money to “post” bail, he can purchase a bond.

Bail and Bond Example: The bail is set to $10,000. Defendant doe not have $10k, but has 1k. He pays 1k to the bonding company Bonding company pays 10k to the court When the case is over court returns 10k to the bonding company.

OFP / HRO / DANCO • OFP – Order For Protection • HRO – Harassment Restraining Order • DANCO – Domestic Abuse No Contact Order • They all have similar purpose – to restrict or prohibit contact between people. • Violation of either of them is a crime. • There are also significant differences

OFP / HRO / DANCO • OFP – Order For Protection • Only between certain categories of people: • Relatives (spouses, parents and children, siblings) • People who live together (roommates) • People who have a romantic or significant sexual relationship. • People who have a child together • Granted only if there was physical or sexual violence or threat of imminent physical violence

OFP – Order For Protection • Can do much more than just restrict or prohibit contact • Also can: • Establish temporary child support and spousal maintenance • Grant temporary custody of children • Set temporary parenting time schedule • Order temporary possession of property • Must be requested by the victim or by a parent on behalf of a child.

HRO – Harassment Restraining Order • No special relationship is necessary • No fear of physical harm is necessary • Prohibits harassing behavior – repeated incidents of intrusive unwanted acts, words or gestures that have substantial adverse effect on person's safety, security or privacy. • Must be requested by the victim or by a parent on behalf of a child.

DANCO • No Contact Order issued as part of a criminal case where Defendant is charged with Domestic Assault, or one of several other crimes. • Requested by the prosecutor. • Can be ordered even if the victim objects • When victim asks to lift DANCO, court often refuses to do it. • Only prohibits contact. Does not address child support, parenting time, custody, property, or anything else.

IMPLIED CONSENT / INFORMED CONSENT • To imply – to suggest something that is not state expressly. • Synonyms: to hint, to suggest, to signify, to insinuate, to presuppose, to evidence. • “This judge used to be a prosecutor....” • Any person who drives a motor vehicle in this state consents to a test of that person's blood, breath, or urine. (Minn. Stat. 169A.51)

IMPLIED CONSENT / INFORMED CONSENT • Refusal to take the test is a crime. • In addition to criminal prosecution, person's DL will be revoked. • Before testing police reads Implied Consent Advisory. • Implied Consent Challenge

INIMICAL / AMENABLE / AMICABLE • Inimical – harmful, dangerous. • “Inimical to public safety” • Amenable – responsive to suggestion, easily persuaded. • “Amenable to probation” • Amicable – as friends, non-confrontational, peaceful. • “Amicable divorce”

SENTENCING GUIDELINES • PRESUMPTIVE SENTENCE • UPWARD AND DOWNWARD DEPARTURES • DISPOSITIONAL DEPARTURE • DURATIONAL DEPARTURE • TOP / MIDDLE / BOTTOM OF THE BOX • PROBATIONARY SENTENCE • COMMITMENT

PREJUDICE • The jury had a prejudice against the accused • The case is dismissed without prejudice • The case is dismissed with prejudice

TRESPASS • Old meaning – to do wrong • Offense against a person or violation of the law • “I'm sorry to trespass on your time.” • Modern meaning – to enter someone's property against the owner's prohibition. • Defendant is trespassed from going to Walmart.

EXECUTION • Generally – to act. • The death row inmate was executed • Police executed the search warrant • The process of collecting money on a judgment • Fully executed contract = signed contract, not performed • Executory contract = to be performed later

Common Sentencing Models

Steps of the process: • 1. Adjudication – determination of guilt. • 2. Imposition of sentence – announcement of sentence. • 3. Execution of sentence – the criminal is punished

Continuance for Dismissal • Continuance = delay = postponement • CFD happens before adjudication • The process does not reach adjudication • CFD is agreement between a defendant and a prosecutor • Judge is usually not involved at all • Typically defendant has to pay more money and not commit any similar violations for 6 months or 1 year. • Usually only for minor violations.

Stay of Adjudication • Stay = suspend = stop = freeze in place. • Defendant pleads guilty and admits facts that establish all the elements of the crime. • Judge does not officially decide that the defendant is guilty. • If the defendant does not have other similar violations for certain period of time the judge dismisses the case. • Defendant pays court costs and/or cost of prosecution instead of fine.

Stay of Adjudication – cont. • If Defendant violates terms imposed by the judge, the judge can just accept the plea and enter the conviction.

Stay of Imposition • Defendant is adjudicated guilty (after a plea or after a trial) • The judge waits to impose the sentence. • Judge gives a probationary sentence • If Defendant successfully completes probation the level of crime is reduced.

Stay of Execution • Defendant is adjudicated guilty • Defendant is sentenced - the sentence is imposed. • Part of the sentence (or sometimes all of it) is suspended and the rest is executed. • Example: The sentence is 90 days in jail and $1000 fine. 85 days and $900 are stayed, 5 days and $100 are executed.

Huber • “ I am sentencing you to 30 days in jail with Huber, if eligible”. • Who is Huber and why am I so lucky to serve jail time with him?

Custody • Child Custody • Physical custody • legal custody • Custody as incarceration • “Defendant shall be taken into custody forthwith” • Custody of property • “Chain of custody”

Judicial notice • Court accepts a well-known fact as established without requiring a proof. • “The court will take a judicial notice of the fact that city of Plymouth is located in Hennepin County”

Possession • “This is housing court where we deal with unlawful detainer or eviction matters. The only issue that can be decided here is who has the right to possession of the property. I will not decide who owes money to whom, or any issues of title, or any issues about damages. Only who has the right to possession.”

The State rests

To strike a juror

Levels of suspicion and burdens of proof • A hunch • A reasonable articulable suspicion. • Terry Stop • Gives police the right to stop and briefly detain for further investigation. • Stop and frisk • Probable cause • Sufficient reason to search, arrest, and charge with a crime.

Proof by preponderance of the evidence. • Lowest level of proof • More likely than not (>50%) • Often applies to civil cases

Proof by clear and convincing evidence • Highly and substantially more probable to be true than not true; • Gives firm belief in its factuality; • Used in matters where important rights are affected • Probation violations • Child protection • Parenting time restrictions

Proof beyond reasonable doubt • Required to convict of a crime

Summary Judgment

Sanctions in addition to criminal punishment Loss of driver's license Loss of occupational license Immigration consequences Collateral consequences

No-fault insurance • Applies to vehicle insurance • It does not mean that it's no one's fault • It means that it does not matter whose fault it is

Immigration terminology • Alien • Admission • Parole • Inadmissible • Removable • Affirmative asylum • Defensive asylum • Refugee / Asylee

ADVANCED LEGAL TERMINOLOGY AND PROCEDURES