Legal Glossary

This glossary includes terms used in this volume, plus other frequently used legal terms.

A B C D E F G H I J K L M
N O P Q R S T U V W X Y Z

abstract of record – A history, in abbreviated form, of a case as found in the record. See “legal file” in this glossary.

abstract of title – A chronological history, in abbreviated form, of the ownership of a parcel of land.

abuse of process – A legal theory alleging improper use by the defendant of a court process, such as a subpoena or lawsuit.

accessory – A person who assists in the commission of a crime, either before or after the commission of the crime.

acquit– To free from an accusation; to clear; to pronounce not guilty.

action at law – A suit or legal proceeding in which one demands his legal right in a court of justice.

action in personam – A suit or legal proceeding against the person, founded on a personal liability.

action in rem – A suit or legal proceeding directed against specific property. For example, it may seek recovery of an automobile or to quiet the title to real estate.

actual malice – Making a statement with knowledge that it is false or with reckless disregard of whether it is false. It does not mean hatred or ill-will in the ordinary sense.

adjudication – Giving or pronouncing a judgment or decree by a court of law. Also the judgment given.

administrative agencies – Established by statute, with powers specified by statute.

Administrative Hearing Commission – Reviews actions of many of Missouri’s agencies, boards and commissions when asked to review by an aggrieved person.

administrator (f. administratrix) – In probate law, a person appointed by the court to settle the estate of a person who has died. Now known as a “personal representative” in Missouri.

adult abuse proceedings Under the provisions of Chapter 455, RSMo, adults or children who have been subjected to abuse by a present or former adult household member may seek relief by a protective order.

ad valorem – According to value. A tax imposed on the value of property.

adversary system – The system of trial practice in the United States and some other countries in which each of the opposing, or adversary, parties has full opportunity to present and establish opposing contentions before the court.

Advisory Committee – Administers Rule 5, the Attorney’s Code of Professional Conduct.

advocate, n. – A counselor in a judicial proceeding; one who pleads the cause of another, an attorney. Also advocator.

advocate, v. – To support, defend or plead in favor of another in a judicial proceeding.

affidavit – A written statement sworn or declared to be true before an authorized officer.

affirm – To approve, agree or uphold.

affirmative defense – In criminal law, a defense asserted by a defendant, who has the burden of producing the evidence to support it. In civil cases, an affirmative defense may be asserted by a defendant or by a plaintiff in opposition to a counterclaim. An affirmative defense must be established by a preponderance of the evidence and the party asserting it has the burden of proof.

agent – One who is authorized to act for another. Similar to a servant for the purposes of the rule of respondeat superior, under which a principal may be held liable for the wrongful acts or omissions of his or her agents or servants.

allegation – The assertion, declaration, or statement of a party to an action, made in a pleading, setting out what the party expects to prove.

allege – 1. To affirm or declare positively but without proof. 2. To give as reason, excuse or support.

alleged – Suspected; temporarily presumed; supposed.

allocution – Court’s inquiry if there is any legal cause why sentence should not be imposed.

amend – To change or modify in an attempt to improve, correct, or update.

American Bar Assn. Canon 35 – In 1937, the ABA passed a judicial canon, declaring that cameras not be allowed in courtrooms.

amicus curiae (a-mi kus ku’ ri-e) – A friend of the court; one who, with the permission of the court, volunteers information and argument upon some matter of law.

annulment – an action for annulment is based on matters that existed before the marriage that prevented a valid marriage contract from being formed.

answer – The pleading filed by a defendant responding to the allegations of a plaintiff’s petition.

anti-trust laws – Federal and state laws protecting commerce from unlawful restraint.

appeal – A procedure in which a party to a legal proceeding seeks the reversal or modification by a higher court of a judgment or final order of a lower court or administrative agency.

appeals court – See “appellate court” in this glossary.

appearance – The formal proceeding by which the defendant submits to the jurisdiction of the court.

appellant – The party appealing a decision or judgment to a higher court. Opposite of appellee.

appellate court – A court having jurisdiction of appeal and review; not a “trial court.”

appellee – The party in a court action against whom the appellant appeals a decision or judgment.

appointed counsel – An attorney appointed by the court to represent an indigent defendant in a criminal case.

arbiter – One selected and bound by principles of law to decide on a controversy; referee. Also arbitrator.

arbitration – Determination of a controversy by a third party chosen by the two opposing parties, who agree to abide by the decision of the third party.

armed criminal action – Committing a felony by, with or through the use, assistance or aid of a dangerous instrument or deadly weapon.

arraign, v. – To bring one charged with a crime to court to answer the charge made against him or her.

arraignment, n. – In criminal law, the initial appearance of the defendant before the circuit court. At that time, the charges against the defendant are read to him.

arrest – Apprehension or detention of a person by a law enforcement officer.

arrest of judgment – The act of postponing the effect of a judgment already entered.

arson – The crime of knowingly damaging a building by starting a fire. A crime against property.

assault – The crime of attempting to kill or cause serious physical injury to another person.

associate circuit division -A division of the circuit court that hears all misdemeanors and infractions.

associate circuit judge -Presides over associate circuit court. Every county must have at least one associate circuit judge.

assumption of risk – In tort law, a defense to a personal injury suit. The essence of the defense is that the plaintiff assumed the known risk of whatever dangerous condition caused his or her injury. Seldom a valid defense in Missouri.

at issue – Whenever the parties to a suit come to a point in the pleadings where the disputed issues are defined, they are said to be “at issue” and ready for trial.

attachment – A procedure by which a plaintiff may seize or secure the property of a defendant prior to trial, if certain conditions are met, for the purpose of paying any judgment which the plaintiff might obtain against the defendant.

Attorney General – Chief legal officer for the state.

attorney of record – An attorney whose name appears in the permanent records or files of a case, as representing a party.

aver – To allege; to assert formally.

 

B

bail bond – An obligation signed by an accused, with or without sureties, to secure the accused’s later appearance in court.

bailiff – A court officer (usually a deputy sheriff) whose duties are to keep order in the courtroom and to have custody of the jury

banc – Bench; the place where a court permanently or regularly sits.

bankruptcy courts -U.S. courts that have exclusive jurisdiction to handle bankruptcy maters.

bar association -Missouri has more than 80 local and specialty bar associations, which are voluntary. It also has one statewide bar, The Missouri Bar, which is mandatory.

battery – The use of force or violence to inflict an injury on another. The attempt to use force is called assault, thus “assault and battery.”

bench warrant – A process issued by the court, or “from the bench,” for the arrest of a person.

bequest – A gift of personal property made in a will. A bequest may be of a specific item, or may consist of all of the testator’s personal property.

best evidence – Primary evidence, as distinguished from secondary; the best and highest evidence of the fact to be proved under the circumstances of the case.

best evidence rule – A rule of evidence requiring that, whenever a written or printed document is being offered for the truth of its contents, the original document be put in evidence, or its absence explained so that a copy can be used.

beyond a reasonable doubt – Firmly convinced. Guilt of the accused must be proved beyond a reasonable doubt.

bill of attainder – A special legislative act pronouncing a specified person guilty of an alleged crime without trial, and sentencing him to death or attainder.

binding instruction – Instruction to the jury that if it finds certain conditions to be true, it must find for the plaintiff, or the defendant, as the case may be.

bind over – To hold for trial or for further inquiry. Bind over usually refers to the action in which an accused is held for trial following a preliminary hearing in a criminal case.

blackmail – The act of obtaining money by threats of injury to a person or his or her reputation or social standing.

Board of Law Examiners – Recommends to the Supreme Court of Missouri whether to license Missouri attorneys.

Board of Registration for the Healing Arts – Licenses and disciplines physicians and surgeons.

bond – See “bail bond” in this glossary.

“bound over” – See “bind over” in this glossary.

Branzburg v. Hayes -First Supreme Court case to consider whether the First Amendment supports a reporter’s privilege.

breach of the peace – A disturbance of the public peace; a violation of either an ordinance or a statute formed for the keeping of the public peace.

brief – A written or printed document prepared by counsel to file in court, usually setting forth both facts and law in support of a party’s position in a case.

burden of proof – A rule of evidence which requires a party to prove a fact or facts in dispute. It is to be distinguished from the obligation sometimes imposed on a party of “going forward with the evidence” which requires only that the party take the initiative of producing evidence on that issue.

burglary – Knowingly entering a building unlawfully for the purpose of committing a serious crime.

 

C

calendar – The schedule of proceedings before a court at a particular time or session. Also called the “docket.”

calling the docket – The public calling of the docket or list of cases for setting a time for trial, ruling on motions or entering orders.

capital crime – An offense which may be punishable by death; also capital murder case.

caption – The heading or introductory clause which shows the names of the parties, the name of the court, the number of the case, etc.

case law – Law whose principles are derived from court decisions.

case summary – See “pending issues summary” in this glossary.

cause – A civil or criminal action, suit or litigation. Often used interchangeably with “case.”

certify to Supreme Court -In Missouri, a Court of Appeals judge who dissents from a majority opinion may send the case to the Missouri Supreme court if he/she believes the decision departs from any previous decision.

certiorari (ser-shi-o-ra’ ri) – An original writ commanding judges or officers of inferior courts to certify or to return records of proceedings in a cause for judicial review.

Cervantes v. Time, Inc. -A St. Louis case in which the court said that courts must inquire into the substance of a libel accusation before ordering disclosure of sources.

challenge – To call into question; to object or make exception to.

challenge for cause – A challenge or objection to a prospective juror for which some pertinent cause is given.

challenge to the array – Questioning the qualifications of an entire jury panel, usually on the grounds of partiality or some fault in the process of summoning the panel.

chambers – The private office or room of a judge.

Chandler v. Florida – Supreme Court case in which a claim was made that TV broadcast of a trial violated the 6^th Amendment right to a fair trial.

change of judge – The removal of a judge from a lawsuit, with another judge named to hear the case. See Rule 32 for change of judge in criminal cases, Rule 51 for change of judge in civil cases.

change of venue – The removal of a suit for trial from one judicial circuit or county to another judicial circuit or county. See Rule 32 for change of venue in criminal cases, Rule 51 for change of venue in civil cases.

charters, municipal and county – Legal documents establishing a municipality or county – like a local constitution.

chattel – An item of tangible personal property, such as a car, television set or coat.

chief justice (Supreme Court of Missouri) – The judge elected by other judges on the Supreme Court to be chief justice of that court, to act as a spokesman for the court and perform certain administrative duties. The chief justice serves a two-year term in that position.

chief justice (Supreme Court of the United States) – The justice appointed by the President to be chief justice of that court to act as the presiding officer and as spokesman for the court and perform certain administrative duties. The chief justice serves for life.

circuit attorney – The prosecuting attorney for the City of St. Louis.

circuit court – Trial court which has original jurisdiction of all cases.

circumstantial evidence – Evidence of an indirect nature.

citation – A writ issued by a court commanding a specified person to appear on a specified day and do a specified thing or show cause why he should not.

civil action – A lawsuit based on a private wrong, as distinguished from a crime, or to enforce rights through remedies of a private or non-penal nature. All legal proceedings which are not criminal actions are civil actions.

claimant – Anyone who asserts a right, demand or claim. Claimant may be plaintiff in a suit or assert a claim in an estate.

class action – A lawsuit filed by a small group of plaintiffs on behalf of themselves and numerous other persons in a similar situation.

code – A collection, compendium or revision of laws systematically arranged into chapters, table of contents and index and promulgated by legislative authority. Example is U.S. Code..

Code of Judicial Conduct – Rules judges must follow that govern their behavior. Violations are reported to the Commission on Retirement, Removal and Discipline of Judges.

Code of Professional Responsibility (for attorneys) -Enforceable rules of the Supreme court of Missouri that attorneys must follow.

Code of State Regulations (CSR) – Compilation of state regulations.

codicil – A supplement or an addition to a will.

Commission on Human Rights – Missouri commission that deals with discrimination in housing, employment and public accommodation.

Commission on Retirement, Removal and Discipline of Judges –Investigates all complaints against judges.

commit – To send a person to prison, to an asylum, a workhouse, or a reformatory by lawful authority.

common law – Law which derives its authority from usages and customs of immemorial antiquity, or from the judgments and decrees of courts. Also called “case law.”

“common law” marriage – A “marriage” of man and woman who live together without the formalities or legalities of marriage; no longer recognized in Missouri.

commutation – The change of a punishment from a greater degree, as from death to life imprisonment. Also, the process of releasing (by action of the governor) a prisoner from prison early by reduction of his sentence.

comparative negligence – The doctrine by which acts of opposing parties are compared in the degrees of negligence, frequently on a percentage basis.

compensatory damages – Damages awarded the injured party to make up or compensate for only the injury sustained; damages awarded to replace the loss caused by a wrong committed.

competency – In the law of evidence, the presence of those characteristics which render a witness legally fit and qualified to give testimony. In probate law, the ability of a person to manage and care for himself and his own affairs.

complainant – Synonymous with “plaintiff.”

complaint – The first pleading on the part of a plaintiff in a civil action, setting out the plaintiff’s claims. In criminal law, the initial charge filed by the prosecuting attorney or a complainant against an accused in a felony case.

compulsory process – Process to compel the attendance in court of one wanted as a witness. Process includes subpoena plus warrant of arrest if they are needed.

concealed weapon – See “dangerous and concealed weapon.”

conclusions of law – A statement of the rules of law as applied to the facts of a particular case. In some cases, judges are required to make “findings of fact and conclusions of law.”

conclusive evidence – Evidence which is convincing to the degree that it cannot be contradicted; evidence which establishes a point beyond a reasonable doubt.

concur – To agree or act together.

concurrent sentence – Sentences for more than one crime in which the time of each is to be served together, rather than successively.

condemn – To pronounce guilty. Also to appropriate property for public use by power of eminent domain. Also to declare a building unfit for use.

condemnation – The legal process by which real estate of a private owner is taken for public use without his or her consent, but with payment of just compensation.

consecutive sentence – A separate sentence which a defendant is required to serve after completing some other sentence which already has been imposed.

consent decree – Agreement by defendant to cease activities asserted by government to be illegal. Also a decree in an equity case entered by consent of both parties.

constitutional – Authorized by, consistent with or not in conflict with any provision of a constitution.

contempt of court – Any act calculated to embarrass, hinder or obstruct a court in the administration of justice, or calculated to lessen its authority or dignity. Contempts are of two kinds: direct and indirect. Direct contempts are those committed in the immediate presence of the court; indirect is the term chiefly used with reference to the failure or refusal to obey a lawful order.

continuance – A postponement granted by the court in a legal proceeding. Under general practice, a continuance may only be granted for good cause, such as illness of counsel or a party, or the unavailability of a witness, or by agreement of the parties.

contract – An oral or written agreement between two or more parties which is enforceable by law.

contributory negligence – An act or omission by a plaintiff which amounts to a failure to use that degree of care which is prescribed for those circumstances which, combined with the defendant’s negligence, is the proximate cause of the plaintiff’s injury.

controlled substance – See Chapter 195, RSMo.

conversion – A legal theory and action based on the improper use by a defendant, for his or her own benefit, of personal property belonging to the plaintiff.

convict – To condemn or find one guilty of a criminal charge; to pronounce an accused person guilty as charged.

conviction – A judgment of guilty upon a plea of guilty at the end of a trial finding defendant guilty.

corpus delicti – The body (material substance) upon which a crime has been committed, e.g., the corpse of a murdered person, the charred remains of a burned house.

corroborating evidence – Additional evidence so that already given and tending to strengthen or confirm it.

costs – The expenses of a court proceeding, normally including filing fees, sheriff’s fees, deposition costs, etc. The costs normally must be paid by the losing party in a lawsuit.

count – When a plaintiff claims more than one ground for recovery, each ground is stated separately. Each separate part is known as a count in the petition. In criminal law, when more than one charge is made against the defendant in the same information or indictment, each charge is stated as a separate count.

counterclaim – A claim presented by a defendant in opposition to the claim of a plaintiff. It may or may not be related to the factual situation raised in the plaintiff’s petition.

Court of Appeals in Missouri – The intermediate appeals court with jurisdiction over all appeals except those over which the Supreme Court of Missouri has exclusive appellate jurisdiction.

court of appellate jurisdiction – A court with the power to review the proceedings and judgments of lower courts.

court of original jurisdiction – A court which has jurisdiction in the first instance; a trial court in which a case is considered for the first time. See also,

court reporter – A trained stenographer who keeps a verbatim report of oral proceedings during court proceedings and prepares a transcript of the case when required.

courts of record – Those courts whose proceedings are permanently recorded, and which have the power to fine or imprison for contempt. Courts not of record are those of lesser authority whose proceedings are not permanently recorded.

criminal insanity – The lack of mental capacity to do or abstain from doing a particular act. The inability to distinguish right from wrong. See also Chapter 552, RSMo.

cross-claim – A claim filed by one defendant against another defendant in the same lawsuit, seeking some affirmative relief, and related to the same factual situation raised in the plaintiff’s petition.See also Chapter 552, RSMO.

cross-examination – The questioning of a witness in a trial, or in the taking of a deposition, by a party opposed to the party which called the witness.

cumulative sentence – Any sentence which is to take effect after the expiration of a prior sentence.

custody – The care, guarding and keeping of a thing; confinement.

 

D

damages – Pecuniary (money) compensation which may be recovered in the courts by any party which has suffered loss, detriment, or injury to person, property or rights, through the unlawful act or negligence of another.

damnum absque injuria (dam’num abs’kwe in-joo’ri-a) – Literally, “a wrong without injury.” The doctrine that a person has no cause of action, and that the courts will not hear a case in which the wrongful act or omission of the potential defendant did not cause any harm to person, property or rights.

dangerous offender – One who: (1) is being sentenced for a felony during the commission of which he knowingly murdered or endangered or threatened the life of another person or knowingly inflicted or attempted or threatened to inflict serious physical injury on another person; and (2) has been previously convicted of a class A or B felony or of a dangerous felony.See section 558.016.4, RSMO.

de minimum no curat lex – Literally, “the law does not cure trifles.” The doctrine that a minimal or trifling injury does not justify the time and trouble of a lawsuit. The courts may properly refuse to hear such a case.

de novo – New, fresh. A “trial de novo” is the retrial of a case, usually at the next highest court level.

decedent – A deceased person. See “testator” and “executor” in this glossary.

declaratory judgment – A judgment which declares the rights of the parties or expresses the opinion of the court on the question of law, without ordering anything to be done.

decree – A decision or order of the court in a non-jury case. A final decree is one which fully and finally disposes of the litigation; an interlocutory decree is a provisional or preliminary decree which is not final.

defamation – The offense of injuring a person’s reputation. Includes libel and slander.

default – A “default” in an action at law occurs when a defendant fails to plead within the time allowed or fails to appear at the trial.

default judgment – Judgment entered by court against party in default.

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

demurrer – Obsolete in Missouri. See “motion for directed verdict,” which has been substituted, in this glossary.

deposition – The sworn testimony of a witness taken outside of court and transcribed by a reporter. Depositions are a discovery tool for lawyers, but can be used at trial to impeach a witness’s testimony or can be read to the jury if the witness is unavailable.

deputy clerk -Most circuit clerks have one or two assistants, deputy clerks.

deviate sexual assault – See section 566.070, RSMO.

devise – A gift of real property made in a will.

direct evidence – Proof of facts by witnesses who saw acts done or heard words spoken; distinguished from circumstantial evidence, which is called indirect.

direct examination – The first interrogation of a witness by the party on whose behalf he or she is called.

directed verdict – A verdict reached by the judge, taking a decision from the jury, because the party with the burden of proof has not produced sufficient evidence to prove its case, e.g., the state failing to prove a criminal case will suffer a directed verdict of acquittal in favor of the defendant. Also, an instruction by the judge to the jury to return a specific verdict.

disbarment – Removal of an attorney’s name from the roll of those entitled to practice law.

discovery – The term applied to various procedures which enable the parties to a lawsuit to learn the factual details of the opposing side’s case. Includes written interrogatories, depositions, production of documents, etc.

dismissal with prejudice – The dismissal of a lawsuit or claim which prohibits the party from bringing another action on the same claim or cause. Usually, the court must approve a dismissal with prejudice.

dismissal without prejudice – The voluntary dismissal of a lawsuit or claim by a party, preserving the right to bring the claim at a later time if desired. A case normally can be dismissed without prejudice at any time before trial, and without court approval.

dissent – A term commonly used to denote the disagreement of one or more judges of a court with the decision of the majority. It may or may not be accompanied by a written opinion.

dissolution of marriage -divorce

district courts – See “U.S. District Courts,” in this glossary.

division clerk – clerks serving associate circuit judges.

docket – A brief entry made into the formal record of the proceedings of a case. Also, the book containing the entries in brief and all the important acts done in court in the conduct of each case.

domestic relations –general legal term for issues affecting families, such as dissolution, child custody.

double jeopardy – Common-law and constitutional prohibition against more than one prosecution for the same crime, transaction or omission.

driving while intoxicated – See section 577.010, RSMO.

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 legal procedure and trial.

 

E

easement – The right of a person to use the land of another for a special purpose, such as for a roadway, utility line, drainage ditch, etc. An easement is normally acquired by purchase, similar to other ownership interests in land. It can be acquired by eminent domain.

Eighth Circuit Court of Appeals – located in St. Louis, this court hears appeals from trials in district courts of Arkansas, Iowa, Minnesota, Missouri Nebraska, North Dakota and South Dakota.

Embezzlement – The fraudulent appropriation by a person, for his or her own use or benefit, of property or money entrusted to him or her by another. See generally, Chapter 570, RSMo.

emancipation – In family law, the time when a child becomes legally free from parental control, occurring automatically upon reaching the age of majority (18 for most purposes). It may occur earlier when the child is married, or when he or she is abandoned by parents and becomes self-supporting.

eminent domain – The power of the state, or of those to whom the power has been lawfully delegated, to take private property for public use. See “condemnation” in this glossary.

en banc – On the bench; all judges of a court sitting together.

enjoin – To require a person, by writ of injunction from a court of equity, to perform or to abstain or desist from some act.

entrapment – The act of officers or agents of a government in inducing a person to commit a crime not contemplated by him or her, for the purpose of instituting a criminal prosecution against him or her.

equitable action – Cases which seek an order of the court determining the rights of the parties or ordering a party to perform or not perform certain actions.

equity – A legal remedy based on a system of fairness, natural right or justice, as distinguished from remedies based on the common law.

escheat – In American law, the right of the state to an estate for which there is no person legally qualified to inherit or claim the estate.

escrow – The written agreement between two parties that a third person will hold a deed, money or the like, to be delivered to one of the parties to a transaction when certain conditions or contingencies are met.

estate – A collective term meaning all property owned by a person, including real and personal property, and other legal rights.

Estes v. Texas – U. S. Supreme Court case in which a conviction was overturned because publicity had undermined the defendant’s due process rights.

estoppel – A party is prevented by its own act from claiming a right which is detrimental to another party who was entitled to rely on such conduct and acted thereon.

et al – An abbreviation of et alii, meaning “and others.”

et seq – An abbreviation for et sequentes, or et sequentia, meaning “and the following.”

et ux – An abbreviation for et uxor; literally, “and wife.”

eviction – 1. The act of expelling by legal process. 2. The recovery of property by judicial process.

evidence – Anything tending to prove fact, or disprove alleged fact. Some of the more valuable classes of evidence are: (1) testimony; (2) tangible evidence, or things which have a physical existence; (3) documentary evidence, which includes letters and other writings; and (4) demonstrative evidence, in which a procedure or event is shown or acted out. See also, circumstantial evidence, direct evidence, rules of evidence, parole evidence and parole evidence rule in this glossary.

examination – The formal interrogation of a witness; inquiry, investigation, questioning of.

exclusion of witnesses – See “separation of witnesses” in this glossary.

ex contractu – In both civil and common law, rights and causes of action are divided into two classes: ex contractu (from a contract) and ex delicto (from a wrong or tort).

ex delicto – Rights and causes of action arising from a wrong or “tort.”

ex parte – By or for one party; done on the application of one party only, usually without notice to the other party.

ex post facto – Literally, “after the fact.” An act or fact occurring after some previous act or fact, and relating thereto.

exclusionary rule – A rule prohibiting the use in criminal prosecutions of illegally obtained evidence. An example is the suppression of evidence obtained by police in an illegal search.

execute – To carry out the terms of a will, contract, or judicial order.

execution – A judicial writ directing the enforcement of a decision of the court.

executive orders – The means by which the chief executive can implement statues or further define executive authority as authorized by the legislative branch.

executor (f. executrix) – A person named by a testator to carry out the provisions of a will. Now called the “Personal Representative” in Missouri.

exhibit – A paper, document or other article produced, admitted into evidence and exhibited to a court or jury during a trial or hearing.

exigent – The “exigent circumstances” doctrine permits an officer to make a warrantless entry or search because of special emergency circumstances.

expert evidence – Testimony given in relation to some scientific, technical or professional matter by persons qualified to speak authoritatively by reason of their special training, skill or experience on matters which are not common knowledge.

expert witness – One who because of his special training, experience, knowledge or study in a particular field is considered a specialist and is asked to state, in a hearing or trial, his opinion on certain technical aspects of a case.

extenuating circumstances – Circumstances which render a crime less aggravated, heinous, or reprehensible than it would otherwise be; circumstances which tend to lessen guilt and which sometimes reduce punishment.

extradition – The removal, return or surrender by one state to another of an individual accused or convicted of an offense outside its own territory, and within the territorial jurisdiction of the other.

extraordinary remedies – See Chapter 6.

 

F

false arrest – The act of depriving one of liberty by unlawful physical restraint.

false imprisonment – Imprisonment of a person contrary to the law.

false pretenses – Deliberate misrepresentation of existing fact or condition whereby a person obtains another’s money or goods.

federal courts – Missouri has two districts of federal courts – the Western and the Eastern Districts.

federal magistrate – Appointed by federal district judges, they function like judges, but their decisions are subject to review by district judges, except for some civil cases.

fee simple – Absolute ownership of real property, to the exclusion of all others.

felony – A crime of a graver nature than a misdemeanor. Generally, an offense punishable by death or imprisonment in penitentiary in excess of one year. Classes of felonies and authorized terms are: for a class A felony, a term of years not less than ten years and not to exceed thirty years, or life imprisonment; for a class B felony, a term of years not less than five years and not to exceed fifteen years; for a class C felony, a term of years not to exceed seven years; for a class D felony, a term of years not to exceed five years.

fiduciary (fi’-du shi-a-ri) – A term derived from Roman law meaning a person who stands in a special relation of trust, confidence, or responsibility in his or her obligations to others (e.g. a company director, a trustee of a trust or the personal representative of an estate).

Fifth Amendment – guarantees due process of law.

finding – Commonly applies to the result reached by a judge or jury. See“decree,” “judgment,” “verdict” in this glossary.

findings of fact – A recital of the facts found by the court in court-tried cases, which form the factual basis for the court’s decision.

First Amendment –”Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. “

forcible entry and detainer – A summary proceeding for restoring possession of land to one who has been wrongfully deprived of possession.

foreclosure – A legal proceeding taken to enforce payment of a debt through the sale of property on which the creditor holds a lien.

forgery – Falsely making or materially altering what would otherwise be an apparently genuine document, with an intent to defraud others who rely on the genuineness of the document.

formal charging – In Missouri, people are charged with crime through an Information or Indictment.

Fourth Amendment –Protects us from unreasonable search and seizures.

fraud – An intentional perversion of truth; deceitful practice or devise resorted to with intent to deprive another of property or other right, or in some manner to inflict injury.

free press and fair trial – See Chapter 11.

 

G

“gag order” – Order imposing prior restraint on publication.

Gannett v. DePasquale – U.S. Supreme Court ruling that recognizes that criminal trials must be open to the press and public unless there is an overriding interest in not having an open trial.

Garland v. Torre – A case in which the Second Circuit United States Court of Appeals held a reporter must testify when the information sought goes to the heart of the plaintiff’s claim.

garnishee – The person upon whom a garnishment is served usually a debtor of the defendant in the action.

garnishment – A writ sought by a creditor to obtain payment of a judgment, by seizing a debtor’s money, wages or other property in the hands of a third person (e.g., an employer or bank).

General Assembly – The Missouri legislature, consisting of the House of Representatives and the Senate.

general assignment – The voluntary transfer, by a debtor, of all property to a trustee for the benefit of all creditors.

general jurisdiction – Term used to indicate that a court has jurisdiction to hear all controversies that may be brought within the legal bounds of rights and remedies. Is contrasted with special or limited jurisdiction.

grand jury – See “jury” in this glossary.

group legal services – Prepaid legal services plan, by which certain lawyers provide legal services to members of an organization under contract with the organization.

guardian ad litem – A person appointed by a court to look after the interests of an infant or incompetent involved in litigation.

 

H

habeas corpus – Literally, “you have the body.” The name given a variety of 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 the official to produce the body of the prisoner or person detained so the court may determine if such person has been denied liberty without due process of law.

 

“hammer” instruction – An instruction which tells the jurors that it is desirable that there be a verdict in every case and that they should endeavor to arrive at a verdict. It is cautioned, however, that no juror should agree to a verdict which violates the court’s instructions which require finding a fact which under the evidence is untrue.

hardship driving privileges – See section 302.309, RSMo.

harmless error – An error committed by a lower court during a trial which is not prejudicial to the rights of the party and for which the appellate court will not reverse the judgment.

hearsay evidence – Evidence not based on the personal knowledge of the witness.

Herbert v. Lando – a 1979 U.S Supreme Court said in Herbert v. Lando, that established that in a libel suit there is no absolute protection for the editorial process of the media defendant because of the burden on the plaintiff to prove “actual malice,” that the material sought from a reporter or editor must be relevant to the case, and trial courts should restrict discovery where justice requires protection from annoyance, embarrassment, oppression or undue burden or expense.

homicide – The killing of one human being by another. Includes first and second degree murder, and manslaughter.

hostile witness – A witness subject to cross-examination by the party which called him or her to testify, because of evident antagonism toward that party as exhibited in his or her direct examination.

humanitarian doctrine – The theory that a party who has the last clear chance to avoid damage or injury to another but does not take appropriate possible actions to avoid such damage or injury is liable therefore even though the one injured also was negligent. This theory is no longer recognized in Missouri.

hung jury – A jury which cannot agree on a final verdict.

hypothetical question – A form of question used to obtain the opinion of an expert witness during trial. The question is based on an assumption that certain facts already in evidence are true and can provide a basis for a relevant opinion by the expert witness.

 

I

impanel – To complete a jury. When the voir dire is finished and both sides have exercised their challenges, the jury is complete or “impanelled”. The jurors take an oath to perform their duty, and the trial is ready to proceed.

impeach – The procedure followed by a legislative body in developing charges for removal of a public official for a crime or misfeasance; literally, “to accuse.” “To impeach” does not mean removal from office.

impeachment of witness – An attack on the credibility of a witness by the testimony of other witnesses or by the inconsistent testimony or statements of the witness made at an earlier time.

implied contract – A contract in which the promise made by the obligor is not expressed, but inferred by his or her conduct or implied in law.

imputed negligence – Negligence which is not directly attributable to a person. It is the negligence of another who has a legal relationship with him or her, and with whose fault he or she is chargeable such as an employer who is liable for the negligence of an agent or employee.

inadmissible – Evidence which cannot be admitted or received under the established rules of evidence.

in camera – In chambers; in private.

incompetent evidence – Evidence which is not admissible under the established rules of evidence.

indemnification – Agreement whereby a person agrees to hold harmless another person from anticipated possible loss.

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. Not used in Missouri.

indictment – An accusation in writing found and presented by a grand jury, charging the person named with a crime.

inference – A deduction drawn from a statement or deduction which is supposed or admitted to be true; a reasoning process in which a proposition seems a logical conclusion from a set of facts admitted or known to be true.

inferior court – A lower court.

information – The document filed by a prosecuting attorney charging a person with a crime.

infraction – The least serious criminal offense under Missouri law.

infringement – A breach or violation of a right, law or obligation.

initial appearance – When an accused person is brought before a judge and informed of charges against him or her.

initiative – A procedure by which voters, through the petition process, may propose a constitutional amendment or statute to be submitted to popular vote.

injunction – A writ issued by a court directing a person to do a certain thing (mandatory injunction) or prohibiting certain actions (prohibitive injunction).

instruction – A written statement given by the judge to the jury concerning the law of the case. See Missouri Approved Instructions (MAI and MAI-CR).

inter alia – Among other things or matters.

inter alios – Among other persons, between others.

inter vivos – Literally, “from one living person to another.” When property passes by conveyance from one living person to another, the transaction is said to be inter vivos.

interlocutory – Provisional, temporary, not final. Refers to orders and decrees of a court.

interrogation – The questioning of witnesses and other persons to obtain information.

interrogatories – Written questions propounded by one party and served on the adversary, to be answered in writing under oath.

intervention – A proceeding in a suit or action by which a third person is permitted by the court to make himself or herself a party.

intestate – One who dies without leaving a will. See “testator” this glossary.

irrelevant evidence – Evidence not relating or applicable to the matter in issue. Also, not supporting the issue.

 

J

joinder – The uniting of two or more persons in some legal proceeding.

justice, chief – The Chief Justice is the chief administrative officer of the judicial system and supervises the administration of the courts. The Chief Justice is elected by the other judges on the Supreme Court for a term of two years. The Court follows the practice of rotating the office of Chief Justice.

judge, presiding -Elected by peers for a two-year term, is the chief administrative officer over all circuit divisions.

judge, senior -Retired judges may continue to serve as senior judges.

judge, special – The Supreme Court of Missouri may assign circuit and appellate court judges to sit on any court as a special judge.

judgment – The decision of a court determining the issues in a lawsuit.

judgment affirmed – Approval by a superior court of the decision of a lower court.

judgment by default – A judgment awarded automatically to the plaintiff in a suit if the defendant fails to file within a specified time an answer to the plaintiff’s complaint or petition or fails to appear when the case is set for trial.

judgment reversed – The disapproval and annulling by an appellate court of the judgment of a lower court. The judgment is made void by the higher court because of an error or irregularity in the decision process of the lower court.

judicial circuit – There are 45 judicial circuits in Missouri, established by statute

judicial notice – Acceptance by the court, without formal proof shown, of facts of common knowledge.

judiciary – The judicial branch of government; the court system; the judges.

jurisdiction – 1. The authority to administer justice by hearing and deciding controversies. 2. The extent or range of judicial authority. 3. The territory over which judicial authority is exercised.

jurisprudence – The philosophy of law, or the science which deals with the principles of positive law and legal relations.

jury – A certain number of persons (traditionally 12) selected to determine the factual issues in a lawsuit.

jury array – The entire panel of jurors summoned to court.

jury supervisor – An officer who selects the names to be put into a jury wheel, or who draws the panel of jurors for a term of court.

jury trial – Jury trials are available in cases tried before circuit and associate circuit judges but not in cases tried before municipal judges in the municipal division.

jury venire – A panel of persons from which a jury is selected.

juvenile proceedings – See Chapter 5

juveniles as adults – Juveniles between the ages of 12 and 17 years old who have committed an act that would be a felony if committed by an adult may be tried under the adult criminal law.

 

L

larceny – See “stealing” in this glossary.

last clear chance – See “humanitarian doctrine” in this glossary.

leading question – A question, asked by a lawyer of a witness, which suggests the answer desired. Leading questions are prohibited on direct examination but are permitted on cross-examination.

legal file – A file containing the pleadings, judgment, motions, verdict and other records of a lawsuit. The legal file must be assembled by the appellant and filed with the appellate court in a case on appeal.

legal separation – If the court grants a legal separation, the result is the same as in a dissolution – the parties are separated, property divided, maintenance (alimony) may be awarded, child custody ordered – except that the parties remain married.

levy – A seizure; the obtaining of money by legal process through seizure and sale of property. May also refer to governmental action in imposing a tax.

liable – Responsible, answerable.

libel – A form of defamation expressed by print, writing, pictures or signs. In its most general sense, any publication that injures an individual’s reputation.

licensing of attorneys – Attorneys are licensed to practice law in Missouri by the Supreme Court based on recommendations of the Board of Law Examiners appointed by the Court.

lien (leen) – Any of a variety of charges or encumbrances on property, imposed to secure the payment of a debt or the performance or non-performance of some act or to secure the payment of a tax. Liens can be imposed on real or personal property.

limitation – A certain time allowed by statute in which a claim must be brought. Generally called a “statute of limitations.”

lineup – A police station procedure of placing the accused in a lineup with two or more persons of similar appearance to be viewed by a victim or other witnesses.

lis pendens – A pending suit. Also, the name given to the notice filed in the recorder of deeds’ office, giving notice that a lawsuit has been filed that may affect title to the property described in the notice.

litigant – One who is engaged in a lawsuit.

litigation – A lawsuit; the act of contesting at law.

locus delicti – The place of the offense.

lottery – A plan for the distribution of prizes by chance.

 

M

MAI – Missouri Approved Jury Instructions. A compilation of “pattern” jury instructions which must be followed by the lawyers in preparing instructions for submitting a civil case to a jury in Missouri.

MAI-CR – Missouri Approved Jury Instructions – Criminal. A compilation of “pattern” instructions for use in criminal cases in Missouri.

magistrate – A federal officer with the authority to issue warrants of arrest for persons accused of public offenses; a person with the authority of a public civil officer. In Missouri, magistrates have been replaced by associate circuit judges.

malfeasance – Evil doing, ill conduct or the commission of some act which is positively prohibited by law.

malicious prosecution – Name applied to an action for damages by a person, against whom a criminal prosecution or a civil suit has been instituted maliciously and without probable cause, after termination of such action in favor of the person claiming damages.

malpractice – A lawsuit brought against a professional person, such as a doctor, lawyer or engineer, for injury or loss caused to the plaintiff by the defendant’s failure to meet the standards of practice for the profession.

mandamus – A writ which issues from a court of superior jurisdiction, directed to an inferior court or an administrative agency or official, commanding the performance of a particular act.

mandate – A legal order directing the proper officer to enforce a judgment, sentence or decree.

manslaughter – The killing of a human being while in a state of anger, fear or agitation suddenly provoked by the unexpected acts of the victim and the death was not justifiable or excusable homicide.

master – An officer of the court, usually an attorney or retired judge, appointed to take testimony and make a report to the court. Used frequently in disbarment cases but can be used in other cases. See Rule 68.

material evidence – Evidence that is relevant to the substantial issues in dispute.

mechanic’s lien – A claim created by statute to secure priority of payment for work performed or materials furnished in building or repairing property.

memorandum opinion – a statement of the ruling and the statutes, cases, etc., governing the decision.

memorandums – Briefs or memorandums (often prepared at the judge’s request) usually examine the law relied on by a party to support its position under the facts of the particular cases.

mens rea (menz re-a) – Literally, “guilty mind.” One of the two basic requirements, along with a guilty act, for a crime.

military courts – Military courts are usually convened where military personnel are assigned such as Ft. Leonard Wood or Whiteman Air Force Base. However, the jurisdiction of a court-martial does not depend upon where the court sits.

Miranda warning – The statement of legal rights which must be given to an arrested person or person suspected of a crime before he can be interrogated by law officers.

misdemeanor – An offense less serious than a felony and punishable by fine or a jail term up to one year or both. Classes of misdemeanors and terms are: for a class A misdemeanor, a term not to exceed one year; for a class B misdemeanor, a term not to exceed six months; and for a class C misdemeanor, a term not to exceed fifteen days.

misfeasance – The improper performance of some act which a person might lawfully do.

Missouri Approved Instructions – In Missouri, the jury instructions are based on “form” or “pattern” instructions that have been approved by the Supreme Court for use in all cases. See Missouri Approved Instructions (MAI-CR).

Missouri Bar – The professional organization comprised of all lawyers authorized to practice law in Missouri.

Missouri Bar Administration – An outdated name for the Advisory Committee, which is responsible for overseeing Missouri’s lawyer disciplinary system.

Missouri Constitution – The Missouri Constitution is the ultimate legal authority in the state, subject only to the supremacy of the U.S. Constitution

Missouri Plan – See “non-partisan court plan” in this glossary.

Missouri Register – State rules and regulations are published in the Missouri Register.

Missouri Supreme Court – The highest level state appellate court in Missouri.

mistrial – A trial which has been terminated prior to its normal conclusion. It may be declared by the judge because of some extraordinary event (e.g., death or illness of juror or attorney), for prejudicial error which cannot be corrected in that trial, or because of a deadlocked jury.

mitigating circumstance – A circumstance which does not constitute a justification or excuse for an offense, but which may be considered as reducing the degree of moral culpability.

moot – Unsettled or undecided. A moot case is one in which the factual issues are resolved or other things occur which make it unnecessary for a court to render a decision; a moot point is one not settled by judicial decisions.

moral turpitude – Conduct contrary to honesty, modesty or good morals.

motion for directed verdict – See “directed verdict” in this glossary.

motion for judgment notwithstanding the verdict – Motion filed by party after an adverse verdict to have the court set aside the verdict and enter judgment as requested in an earlier motion for directed verdict.

motion for judgment of acquittal – Motion filed by defendant in criminal trial which requests the court, for the reasons given, to enter a judgment of acquittal instead of submitting the issue of guilt to the jury.

motion for new trial – The motion for new trial or for judgment of acquittal notwithstanding the jury verdict must be filed by a defendant in jury-tried cases in order to preserve for appeal any alleged trial court errors. A motion for new trial is permissible but not required in court-tried cases.

motion for summary judgment – See “summary judgment” in this glossary.

motion to dismiss – A motion filed by a party to a lawsuit to dismiss the claim of the opposing party on any of several grounds.

motion to suppress -A request to keep out evidence at a trial or hearing.

movant – One who has filed motion before a court.

multiplicity of actions – Numerous and unnecessary attempts to litigate the same issue.

municipal clerk – selected according to city ordinance.

municipal court – In Missouri, a division of the circuit court having jurisdiction over traffic and other minor offenses committed within the boundaries of the municipality in which the court sits.

municipal judge – Judges of the Municipal Division are selected in the manner provided by municipal ordinance.

murder – See “homicide” in this glossary.

murder in the first degree – Murder punishable in Missouri by death or by imprisonment for life without eligibility for parole or conditional release.

 

N

Nebraska Press Ass’n v. Stuart – A U.S. Supreme Court case that held that a gag order was unconstitutional.

 

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.

 

New York Times v. Sullivan – The famous U.S. Supreme Court case that established that a statement of and concerning a “public official” or a “public figure” must be made with actual malice in order for the plaintiff to prevail in a libel action.

next friend – One acting for the benefit of an infant or other person without being regularly appointed as guardian.

nisi prius – Courts for the initial trial of issues of fact, as distinguished from appellate courts.

no true bill – This phrase, endorsed by a grand jury on an indictment, is equivalent to a “not found” or “not a true bill.” It means that in the opinion of the jury, the evidence was insufficient to warrant a formal charge.

nolle prosequi (nol’e pros’e-kwi) – A formal entry upon the record by the plaintiff in a civil suit, or the prosecuting officer in a criminal case, by which he or she declares that he or she “will not further prosecute” the case.

nolo contendere – Literally, “I will not contest it.” If accepted by the court, it is equivalent, for purposes of that case only, to a plea of guilty and the court can sentence defendant thereon. This plea is not used in Missouri state courts but is used in federal courts.

nominal party — One who is joined as a party or defendant merely because the technical rules of pleading require his or her presence in the record.

non compos mentis – Literally, “not sound of mind,” insane.

non obstante veredicto – Literally, “notwithstanding the verdict.” A judgment entered by order of court for one party, although there has been a jury verdict against that party. (J. N. O. V.)

non-partisan court plan – A procedure for the selection and appointment of judges, in which the governor appoints a judge from a panel of candidates selected by a non-political nominating commission. A judge appointed under the non-partisan plan cannot engage in politics and stands for retention periodically without being opposed by another “candidate.”

 

O

objection – The act of taking exception to some statement or procedure in trial for the purpose of calling the court’s attention to improper evidence or procedure. Such objection, if overruled by the trial judge, serves as the basis for seeking reversal of the judgment on appeal.

of counsel – A phrase applied to counsel employed to assist in the preparation or management of a case, or its presentation on appeal, but who is not the principal attorney of record.

Oklahoma Publishing Co. v. District Court – A court ruling that established that the press may publish juvenile names in some circumstances.

opening statement – When the attorney lays out case. It is not considered as evidence.

opinion evidence – Testimony as to what the witness thinks, believes or infers regarding a fact in dispute, as distinguished from personal knowledge of the facts. Opinion evidence usually is not admissible except in the case of experts.

ordinance – A written law enacted by the legislative body of a county or city.

 

P

panel – A list of jurors to serve in a particular court, or for one particular trial.

pardon – Action by an executive (governor) which relieves one from further punishment for a criminal offense and restores rights and privileges lost as a result of the offense.

parol evidence – Oral or verbal evidence; the ordinary kind of evidence given by witnesses in court.

parol evidence rule – Under this rule, when parties put an agreement in writing, all previous oral agreements merge with the writing, and a contract as written cannot be modified by parol evidence, in the absence of a mistake or fraud in the preparation of the writing.

parole – A conditional release, usually under supervision of a parole officer, of a prisoner who has served part of the term for which he was sentenced. The parole may be revoked for failure to observe the conditions provided in the parole order.

parties – The persons who are actively concerned in the prosecution or defense of a legal proceeding.

pending issues summary – A summary of all cases that will be argued before the Supreme Court of Missouri..

peremptory challenge – The challenge which the prosecution or defense (or plaintiff or defendant in civil cases) may use to reject a prospective juror without giving any reason. Each party is entitled to a certain number of peremptory challenges according to statute.

perjury – The giving, willfully and knowingly, of false testimony to the court, either orally or in written form, such as in an affidavit by one under oath.

persistent offender – One who has been previously convicted of two felonies committed at different times and not related to the instant crime as a single criminal episode.

persistent sexual offender – One who has been previously convicted of the felony of rape, forcible rape, sodomy, forcible sodomy or an attempt to commit any of the aforesaid.

personal recognizance – A kind of bail, consisting of a written promise to appear in court when required, without the posting of cash or other security.

petition – A lawsuit is formally commenced by the filing of a written petition (or complaint) with the clerk of the court.

plaintiff – A person who brings a lawsuit.

plea – In criminal law, any of four formal answers an accused may give to a criminal accusation. The four pleas are: (1) “not guilty,” which is a complete denial of guilt; (2) “not guilty by reason of insanity,” which pleads the defense of criminal insanity and may be joined with a plea of not guilty; (3) nolo contendere (see nolo contendere in this glossary); and (4) “guilty,” which is a complete admission of guilt.

plea bargaining – In criminal law, pre-trial negotiations between the defense and the prosecution, with a view to obtaining a disposition of the case without trial. Under such agreement the accused may be permitted to plead guilty to a lesser offense, or plead guilty to one or more charges but have others dismissed or the prosecuting attorney may agree to recommend a particular sentence. The terms of a negotiated plea must be stated in the open court and it will be effective only if approved by the trial judge.

pleading – The process by which the parties in a suit alternately present written statements of their contentions until the controverted issues are set out for trial.

polling the jury – A practice whereby the jurors are asked individually whether they agreed to and still join in the verdict.

power of attorney – An instrument authorizing another to act as one’s agent or attorney.

praecipe (pre’si-pe) – An original writ commanding the defendant to do the thing required. Also, an order addressed to the clerk of a court, requesting the issuance of a particular writ.

prayer – The request in a pleading which states what action or relief is sought.

prejudicial error – Synonymous with “reversible error.” An error which warrants the appellate court in reversing a lower court judgment.

preliminary hearing – Synonymous with “preliminary examination;” the hearing, held by an associate circuit judge (or a magistrate in federal courts) to determine whether a person charged with a crime should be held for trial

preponderance of evidence – Greater weight of evidence, or evidence which is sufficient to create in the mind of the court or jury the belief that the party has established its case.

presentment – An informal statement in writing by a grand jury to the court that a public offense has been committed, from its own knowledge or observation, without any bill of indictment being voted.

presiding judge, circuit court – A circuit judge is elected as presiding judge in each circuit, by vote of the circuit and associate circuit judges in that circuit.

presumption of fact – A presumption of fact, usually rebuttable, resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action.

presumption of innocence – The principle that every accused is presumed innocent until proven guilty and that the state has the burden of proving every element of the crime charged beyond a reasonable doubt.

presumption of law – A rule of law that courts and judges shall draw a particular inference from a particular fact, or from particular evidence.

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.

privilege of journalist – Missouri has no such statutory privilege for a reporter to withhold the name of a source of information.

probate – The act or process of proving a will.

probation – Allowing a person convicted of a criminal offense to remain in the community rather than being incarcerated, so long as the person maintains good behavior, meets any special conditions imposed by the court, etc. Usually, a person placed on probation is under the supervision of a probation officer.

procedural law – The methods and procedures of carrying on a lawsuit, of enforcing one’s rights in judicial proceedings.

prohibition – The name of an extraordinary order issued by a superior court to a lower court, administrative agency or public officer to prohibit the court, agency or officer from exceeding its jurisdiction or exercising jurisdiction when there is no jurisdiction.

promissory note – A written promise to pay a specific sum of money to a named person.

property bond – A kind of bail in a criminal case, consisting of the posting of real property to secure the defendant’s appearance when required.

prosecuting attorney – The attorney for the state who prosecutes another for a crime; in Missouri, there is a prosecuting attorney in every county (called the circuit attorney in the City of St. Louis).

prosecutor (f. prosecutrix) – One who instigates a prosecution against another, by filing a complaint or making an accusation, and perhaps testifies in behalf of the state against the accused.

proximate cause – In tort law, the negligent act which causes a plaintiff’s injury or, when combined with other acts or omissions, most directly causes the plaintiff’s injury or loss.

public defender – A lawyer employed by the state to serve as defense attorney for indigent defendants. See also, “appointed counsel” in this glossary.

public figure (in libel) – Public figures are persons who have attained general fame or notoriety in a community or who are involved extensively in society’s affairs

public meeting – Any meetings of public governmental bodies at which public business is discussed or decided, or public policy is formulated.

public record – Any records retained by or of any public governmental body, except certain student records.

public vote – Any votes cast at any public meeting of any public governmental body.

 

Q

quaere – A question, or query.

quash – To overthrow or vacate. to annul or void a summons or indictment.

quasi judicial – Authority or discretion vested in an officer where that officer’s acts partake of a judicial character.

quid pro quo – Literally, “what for what.” A fair return or consideration.

quo warranto – A writ issuable by the state, through which it demands an individual to show by what right he or she exercises an authority which can only be exercised through grant or franchise from the state, or to show why he or she should not be removed from office.

 

R

rape – See section 566.030, RSMo

reasonable doubt – That state of the minds of jurors in which they are not firmly convinced as to the truth of the charge. An accused person is entitled to acquittal if, in the minds of the jury, the accused’s guilt has not been proven beyond a “reasonable doubt.”

rebuttal – The introduction of rebutting evidence. The showing that statements of witnesses as to what occurred is not true. Also, the stage of a trial at which such evidence may be introduced..

recall – The process of removal of a public official by a vote of the people, taken upon submission of a petition signed by a required number of citizens.

receiver – A person, who because he or she is disinterested in the parties of a cause, is appointed by the court to preserve the property or funds being contended in the case. This procedure is followed because it is not reasonable that either party hold the property.

receivership – The placing of property into the hands of a receiver for his care until litigation concerning the property is over and a decision as to the disposition of the property is rendered.

recognizance – See “signature bond” in this glossary.

record on appeal – The trial transcript and legal file which are prepared by the appellant and filed of record in the appellate court in a case on appeal.

recross examination – The interrogation of the witness, following redirect-examination, by the party who first cross-examined the witness.

redirect examination – The questioning of a witness by the party who first called that witness, after the opposing party has conducted cross-examination. Redirect examination is limited to issues raised in the cross-examination.

referee – A person to whom a cause pending in a court is referred by that court to take testimony, hear the parties and report to the court. The referee is an officer exercising judicial powers and is an arm of the court for a specific purpose. See “master” in this glossary.

referendum – The process of submitting certain recently enacted statutes to a popular vote for approval or rejection. (See Missouri Constitution, Art. III, sections 49; 52(a); and 53.)

relator – A party seeking relief through the prosecuting attorney or circuit attorney or Attorney General.

remanded –When a case is sent back to a lower court for further action.

removal order – A court order transferring a cause of that court’s jurisdiction to another court.

repeal – The abrogation of a previously existing law by enactment of a statute revoking the former law.

replevin – An action to recover possession of personal property from a person who has wrongfully or unlawfully taken and refused to return the property.

reply – When a case is tried and argued in court, the argument of the plaintiff in answer to that of the defendant is called a reply. In pleading, the plaintiff’s response to a pleading filed by the defendant generally is called a reply

res ipsa loquitur (rez ip’sa lok’wi-ter) – Literally “a thing that speaks for itself.” In tort law, the doctrine which holds a defendant guilty of negligence without a showing of a specific negligent act. Its use is limited in theory to cases in which the cause of the plaintiff’s injury was entirely under the control of the defendant, and the injury presumably could have been caused only by negligence.

res judicata – A rule of civil law that once a matter has been litigated and final judgment has been rendered by a court, the matter cannot be relitigated by the parties.

respondent – The party against whom an appeal is taken. See “appellee” in this glossary. Also, the party against whom a proceeding in quo warranto is brought.

respondeat superior – Literally, “a superior (or master) must answer.” The doctrine which holds that an employer or principal is responsible for the acts and omissions of his or her employees and agents, when done within the scope of their duties as employees or agents.

retainer – The act of the client in employing an attorney or counsel, which also denotes the fee which the client pays when the attorney is retained to act for him or her.

reversed – When a lower court’s ruling is found to be incorrect.

reversed outright –When the lower court’s ruling is found incorrect, and the appellate court determines there is nothing further to be tried or decided by the lower court, and the judgment is overturned.

reversible error – An error resulting in an unfair trial.

Revised Statutes of Missouri – Laws enacted by the Missouri’s General Assembly and signed by the governor.

Richmond Newspapers, Inc. v. Virginia – the Supreme Court case that established that criminal trials must be open to the public unless the trial court determines there is an “overriding interest” to close the courtroom.

right to counsel – The Constitution guarantees legal representation to anyone who is charged with a crime that could result in a loss of liberty. In Missouri, Public Defenders fulfill this constitutional responsibility.

rule nisi, or rule to show cause (ni’si) – A court order obtained on motion by either party to show cause why the particular relief sought should not be granted.

rule of court – An order made by a court having competent jurisdiction. Rules of court are either general or special. The former are the regulations by which the practice of the court is governed; the latter are special orders made in particular cases.

Rules 24.035 and 29.15 – A prisoner’s motion to set aside, vacate or correct a sentence, based on an alleged violation of the prisoner’s constitutional rights. The motion cannot be used to raise issues that could have been raised by direct appeal.

 

S

search and seizure, unreasonable – Generally, a police search of a person or place without proper legal authority, made to discover evidence, stolen property, weapons, etc.

search warrant – An order in writing, issued by a judge, directing an officer, at a particular place, to search for and seize particular property that is stolen or contraband or which constitutes evidence of the commission of a crime.

seizure – An act performed by a law officer under authority of a writ in taking into legal custody the property, real or personal, of a person against whom the writ was issued.

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.

sentence – The judgment in a criminal action, following a verdict or a plea of guilty, stating the punishment to be inflicted.

separation of witnesses – An order of the court requiring all witnesses (except parties) to remain outside the courtroom until each is called to testify. Also termed the “exclusion of witnesses” or “the rule on witnesses.”

sequester jury – The act of confining the jury (not permitting its members to return home or separate) during the course of a trial, until a verdict is reached.

servant – An employee; one who acts for another.

service of process – Written notification by an officer, handed to a person or published in accordance with legal requirements, that he or she has been named as a party to a lawsuit or has been accused of some offense. Process consists of a summons, citation or warrant, to which a copy of the complaint or other pleading is attached.

sexual offenses – See Chapter 566, RSMo.

Sheppard v. Maxwell – The U.S. Supreme Court case that recognized that pretrial publicity can have a prejudicial effect on the jury.

sheriff – An officer of a county, chosen by popular election, whose principal duties are aid of criminal and civil courts and administration of county jails. The sheriff is the chief preserver of the peace, and except in Jackson County, who also serves legal process, summons juries, executes judgments and holds judicial sales.

“shock probation” – Short term detention imposed pursuant to section 559.026, RSMo as a condition to granting probation.

signature bond – A bond that requires no cash.

sine qua non (si’ne kwa non) – An indispensable requisite or condition.

Sixth Amendment – “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

slander -A defamation that is in a non-permanent form – usually spoken.

slip opinions – The opinions issued by an appellate court on the day opinions are made public.

small claims court – A phase of the operation of the circuit court in which the judge keeps a separate docket of claims not exceeding $3,000 which is heard in an informal manner, without utilizing formal rules of evidence and procedure. Attorneys are not required but may be used. See also, Chapter 482, RSMo.

Smith v. Daily Mail – The U.S. Supreme Court case that established that the names of juveniles charged with offenses can be made public in most instances.

sound discretion – Judicial discretion which is not arbitrary but is fair and equitable under the circumstances.

Southwestern Reporter – a case law reporter containing published U.S. appellate court case decisions for Arkansas, Kentucky, Missouri, Tennessee and Texas.

sovereign immunity – The doctrine that a government or governmental agency cannot be sued.

specific performance – An order directing a person to perform specifically what that person has agreed in a contract to do; issued only when money damages would not be adequate to compensate for the breach of a contract.

stare decisis (sta’re de-si’sis) – The doctrine that when a court has once laid down a principle of law as applicable to a certain set of facts, it will adhere to that principle and apply it to future cases where the facts are substantially the same.

State Courts Administrator – Under the supervision and direction of the Supreme Court of Missouri, OSCA serves as the administrative support arm of the Missouri state court system.

state’s evidence – An accomplice or participant in a crime is said to have turned “state’s evidence” when such person gives testimony tending to convict others, usually in return for disposition of the charge against the witness.

status offense – Offenses for which a juvenile may be charged but which wouldn’t be offenses if committed by an adult.

Statute – The law as enacted by the legislative body, as opposed to case law developed by the courts.

statute of limitations – The time limit within which a civil or criminal action may be brought after its cause arises. The time limit depends on the kind of action involved and is set by the legislature.

stay – The act of stopping 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 duces tecum (su-pe’na du sez te’kum) – A writ by which the court commands a witness to produce certain documents or records in a trial or deposition.

substantive law – That part of the law dealing with rights, duties and liabilities, as distinguished from procedural law, which is the law regulating procedure.

suit – A court proceeding by one person against another or others in which he or she seeks redress for an injury or enforcement of a right. The term “suit” is seldom applied to a criminal prosecution.

summary judgment – Judgment entered when there is no genuine issue of material fact and party is entitled to prevail as a matter of law.

summons – A writ directing the sheriff or other officer to notify the named person that an action has been commenced against him or her in court and that he or she is required to answer the complaint in such action. A court direction or invitation to personally appear in court on a certain date in a certain courtroom at a certain time to answer to a charge.

“Sunshine Law” – See Chapter 10.

supersedeas (su-per-se-de-as) – Literally, “stay of proceedings.” A writ containing a command to stay proceedings at law, such as the enforcement of a judgment pending an appeal. Also, the name given to the bond posted by the losing party, to prevent execution on a judgment during an appeal.

suppression hearing – A hearing held on a defense motion to prohibit the use of evidence alleged to have been obtained in violation of the defendant’s rights. This hearing is held outside of the presence of the jury, either prior to or at trial. Suppression hearings are held only in criminal cases.

surety – The person or company which posts security on a bail bond in a criminal case, to guarantee the performance of the principal (defendant) in appearing in court, abiding by the terms of probation, etc.

suspended imposition of sentence – The practice of a court in not pronouncing a sentence on a convicted defendant; instead, the defendant may be placed on probation and, if probation is successfully completed, the defendant is discharged and no conviction is recorded..

suspended sentence – The practice of a court in placing a convicted person on probation, rather than sending him or her to jail or prison, although a conviction is recorded against that person. Sometimes referred to as “suspended execution of sentence.”

 

T

temporary restraining order – May be issued by the court at the request of the plaintiff without notice to the other party only if the plaintiff can show that immediate and irreparable injury or loss will result before the opposing party can be heard and only if it is shown that efforts have been made to notify the other party.

10% bond – The defendant deposits with the court cash or securities equal to 10% of the bond amount.

testate – One who has died leaving a will, or one who has made a will. The status of having died with a will.

testator (f. testatrix) – The person who makes a will.

testimony – Evidence given by a competent witness, under oath; as distinguished from evidence derived from writings and other sources.

third party petition – A “lawsuit within a lawsuit” because by it a defendant seeks to bring in another party (one not named in the plaintiff’s petition) to seek some sort of affirmative relief (usually indemnification) on the issues raised in the plaintiff’s petition

tort – An injury or wrong committed to the person or property of another, independent of any contract. For a tort to be committed there must be a breach or violation of some duty owing to the plaintiff.

tort-feasor – One who commits a tort.

transcript – The official record of proceedings in a trial or hearing.

traverse – In pleadings, traverse signifies a denial. When a defendant denies any material allegation of fact in the plaintiff’s declaration, the defendant is said to traverse it.

trespass – An unlawful entry onto another’s real property.

trial court – See “circuit court” in this glossary.

trial de novo – A new trial or retrial of all issues before a different division of the same circuit court (trial court) following a trial before a judge in the division having the original jurisdiction to hear and determine the issues first. The right to trial de novo is generally limited in Missouri to cases tried without a jury in the associate circuit division of the circuit court.

true bill – The grand jury’s endorsement on a bill of indictment when the jury finds sufficient evidence to warrant a criminal charge.

trust – A transaction in which the owner of property gives ownership to a trustee, to hold and to manage it for the benefit of a third party, called the “beneficiary.” Also, the document setting up a trust.

24.035 and 29.15 motion – In Missouri, in the case of a criminal conviction, a proceeding under Rule 24.035 (where there is a guilty plea) or 29.15 (where there is a conviction after trial) must be used instead of habeas corpus if the issues involved are covered by the Rule. In those cases, the Rule 24.035 or 29.15 proceeding is a substitute for habeas corpus. If a case is not covered by Rule 24.035 or 29.15, habeas corpus may be used.

“twenty-hour law” – Any person arrested in Missouri without a warrant and confined for the commission of a misdemeanor or felony must be released from custody within twenty hours of the arrest unless he is held on a warrant.

 

U

U.S. Attorney –Represents the U.S. government in district courts.

 

U.S. Court of Appeals – There are 11 United States Circuit Courts of Appeals. Missouri is in the Eighth Circuit, which includes Arkansas, Iowa, Minnesota, Nebraska, North Dakota, South Dakota and Missouri.

 

U.S. District Courts – Trial courts of general jurisdiction hear civil and criminal cases arising under federal laws

United States Code – Laws enacted by the United States Congress are found in the United States Code

unlawful detainer – A detention of real estate without the consent of the owner or some other person entitled to its possession.

usury – The act or practice of lending money at an exorbitant or illegal rate of interest.

 

V

venire (ve-ni’re) – Technically, a writ summoning persons to court to act as jurors; popularly used as meaning the body of persons summoned for jury duty.

veniremen – Members of a panel of jurors.

venue – The county in which a case, civil or criminal, may be tried and decided. This may be the county where filed or one to which case is sent on change of venue.

venue, change of – The procedure for removing a case from a court in one county or judicial circuit to the appropriate court in another county or judicial circuit. Generally, a party is entitled to only one change of venue in a case.

verdict – The formal decision or finding made by a jury, reported to the court and accepted by it. See also, “finding” in this glossary.

Vernon‘s Annotated Missouri Statutes –Included statutes of Missouri with additional notes of decisions of the state and federal courts interpreting the laws, the Constitution and court rules of Missouri.

voir dire (vwor der) – Literally, “to speak the truth.” The preliminary questioning of prospective jurors by the court and attorneys to determine their qualifications to sit on a jury in the particular case. Also, the questioning of a witness by an attorney, preparatory to making a formal objection to the witness’s testimony or other evidence.

 

W

waiver of immunity – The act of a witness, before giving testimony or producing evidence, of renouncing his constitutional right not to testify or to incriminate himself.

warrant of arrest – An order issued by a judge to a law enforcement officer, requiring the arrest of the person therein named for a specific charge.

warrantless search – A search without a warrant is considered unreasonable unless it is made in certain carefully defined instances.

weight of evidence – The balance and quality of evidence. The tendency of a greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.

willful – A “willful” act is one done intentionally, without justifiable cause, as distinguished from an act done carelessly or inadvertently.

with prejudice – Dismissal “with prejudice” bars the right to bring or maintain an action on the same claim or cause.

without prejudice – A dismissal “without prejudice” allows a new suit to be brought on the same cause of action.

witness – One who testifies to what has been seen, heard or otherwise observed.

writ – An order issued from a court requiring the performance of a specified act, or giving authority and commission to have it done.

writ of error coram nobis – A common law writ, the purpose of which is to correct a judgment in the same court in which it was rendered, on the ground of error of fact.

writ of execution – A writ to put in force a court decree or judgment.

written opinions – Both the Missouri Court of Appeals and Supreme Court issue written opinions when ruling on cases. Written opinions of trial courts are extremely rare.

 

Z

Zurcher v. Stanford Daily – A case that gives insight into the respective views of the Supreme Court and Congress regarding the protection afforded to a journalist’s notes, investigative materials, photographs and working papers.