West Virginia Judiciary

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Glossary of Legal Terms

aquit

To find a defendant not guilty in a criminal trial.

adjudication

A judgment or decision of a court or jury regarding a case.

admission

A voluntary acknowledgement of some fact(s) needed, along with proof of other facts, to establish guilt, but short of a confession of guilt, because not acknowledging all facts or elements of a charge (compare "confession").

affidavit

A written or printed declaration or statement under oath.

affirm

The ruling of an appellate court that the judgment of a lower court is correct and should stand.

allegation

An assertion, declaration or positive statement by a party to an action made in a pleading which states what he or she expects to prove.

answer

The defendant's written response to allegations in the case.

appeal

Review of a case by a higher court.

appearance

A coming into the court in person or by filing a paper, as plaintiff, defendant, or legal representative.

appellant

Party appealing a decision or judgment to a higher court.

appellate court

A court having jurisdiction to review the judgment or order of a lower court.

appellee

A party against whom an appeal is taken.

arbitration

The hearing and settlement of a dispute between opposing parties by a third party whose decision the parties have agreed to accept.

arraignment

A court hearing in a criminal case where a defendant is advised of the charges and asked to plead guilty or not guilty (most arraignments in WV are held in magistrate court).

attorney of record

An attorney who represents a party and has entered an appearance in an action (see "counsel").

bail bond

An agreement by a third party to pay a certain sum of money if the defendant fails to appear in court.

bailiff

A court official who maintains courtroom order and jury custody.

battery

An unlawful application of physical force to, or offensive touching of, another without his or her consent.

bench conference

A meeting either on or off the record at the judge's bench between the judge, counsel and sometimes the defendant, out of the hearing of the jury.

bench trial

Trial held before a judge sitting without a jury; jury waived trial.

bench warrant

Process issued by the court or "from the bench" for the attachment or arrest of a person.

bifurcate

To try issues separately, such as guilt and criminal responsibility in a criminal proceeding or liability and damages in a civil action.

binding over

The act by which a court or magistrate requires a person to enter into a recognizance or furnish bail to appear for trial, to keep the peace, to attend as a witness, etc. Also describes act of lower court in transferring case to higher court or to grand jury after a finding or probable cause to believe that defendant committed crime.

brief

A legal document, prepared by an attorney, which presents the law and facts supporting his or her client.

burden of proof

The necessity of proving facts at issue. In West Virginia, the criminal burden of proof is "beyond a reasonable doubt." The civil burden of proof is "by a preponderance of the evidence."

case

Any proceeding, action, cause, suit, lawsuit, or controversy initiated through the court system by filing a complaint, petition, or indictment.

case law

Decisions of federal and state courts interpreting and applying laws in specific fact situations. Opinions are reported in various court reporting volumes.

caseload

The number of cases a judge handles.

cause of action

A legal claim.

certiorari

A procedure for removing a case from a lower court to a higher court for review.

chain of custody

An accounting for the continuous possession of evidence, such as narcotics in a drug trial, to ensure no substitution, tampering, or improper handling affects the credibility of the evidence.

change of venue

Moving a case from one court, or location, to another.

charge to the jury

A judge's instructions to the jury regarding the laws pertaining to the case.

charging document

A written accusation alleging a defendant has committed an offense includes a citation, an indictment, information, and statement of charges.

circuit

A geographical court jurisdiction composed of one or more counties. West Virginia's 55 counties are divided into 31 circuits.

citation

A charging document, other than an indictment, information, or statement of charges, that is issued to a defendant by a peace officer or other person authorized by law to do so.

civil law

All law that is not criminal law.

closing argument

A summary of the evidence presented to the jury by the attorneys.

code

A collection of laws promulgated by legislative authority. West Virginia laws are published in the West Virginia Code.

commitment order

A court order directing that an individual be kept in custody, usually in a penal or mental facility.

common law

A system of jurisprudence based on precedent rather than statutory laws.

commutation

Change of punishment from a greater to a lesser degree or ending a sentence that has been partially served.

complaint

A civil lawsuit, filed in the magistrate or circuit courts.

concurrent jurisdiction

Jurisdiction held by two courts over the same type of case (compare "exclusive jurisdiction").

confession

A statement by an individual, either oral or written, admitting that he or she committed a certain offense (compare "admission").

contempt (civil)

Noncompliance with a court order or rule that affects another person and that is punished to compel compliance.

contempt (criminal)

An act or omission that obstructs the orderly administration of justice or impairs the dignity, respect, or authority of the court and that is punished to vindicate the honor of the court.

continuance

A postponement or delay in a court proceeding granted by a court on either oral or written motion.

costs

Fees and charges required by law to be paid to the court, the amount of which is set by statue or court rule or by an administrator authorized by law to do so.

count

A separate charge in a charging document or separate cause of action in a civil complaint.

corpus delicti

The body or material substance upon which crime has been committed; e.g., the corpse of a murdered person or the charred remains of a burned house.

court of last resort

Highest appellate court. The Supreme Court of Appeals is West Virginia's court of last resort.

criminal case

A criminal lawsuit with the State of West Virginia versus the defendant.

cross-examination

Questioning of a witness by the opposing side.

de novo

"Anew." A trial de novo is a completely new trial.

declaratory judgment

A judgment declaring the rights of the parties on a question of law.

decree

Decision or order of the court. A final decree completes the suit; an interlocutory decree is provisional or preliminary.

default judgment

Under the West Virginia Rules of Civil Procedure, when a party against whom a judgment for affirmative relief is sought has failed to plead (i.e., answer) or otherwise defend, he or she is in default and a judgment by default may be entered either by the clerk or the court.

defendant

A person charged with a crime or a person against whom a civil action is brought.

deliberations

Jury discussions and consideration of the facts presented during the trial prior to reaching a decision.

deposition

Sworn testimony taken outside the courtroom according to the rules of the court.

detainer

A notice, usually a warrant, that an inmate is wanted to face charges in another jurisdiction.

direct examination

The first questioning of a witness by the party on whose behalf he or she is called.

discovery

A pretrial proceeding where a party to an action may be informed of the facts known by other parties or witnesses.

discretionary

A type of appellate jurisdiction. The West Virginia Supreme Court of Appeals has "discretionary" jurisdiction because it may choose to hear an appeal or may refuse to hear it.

docket number

The designation assigned to each case filed in a particular court. The docket number also is known as the case number.

docket

Book containing entries of all proceedings in a court.

double jeopardy

Prohibition against more than one prosecution for the same crime.

due process

Constitutional guarantee that an accused person receives a fair and impartial trial.

en banc

"On the bench." All judges of a court sitting together to hear a case.

enjoin

To require a person to perform or to abstain or desist from some act.

et al.

"And others."

evanescent evidence

Evidence which can disappear relatively quickly, such as the amount of alcohol in a person's blood.

evidence

Any legally presented proof which may be established by witnesses, testimony, records, documents, etc.

exculpatory evidence

Evidence which tends to indicate that a defendant did not commit the crime alleged.

exhibit

Paper, document, or other object received by the court and offered as evidence during a trial or hearing.

ex parte

A proceeding brought for the benefit of one party only without notice to or challenge by an adverse party.

exception

A formal objection to an action of a court during trial, evidencing an objecting party's disagreement with the court's ruling and preserving the matter for review on appeal.

exclusive jurisdiction

Jurisdiction held by only one court over the type of case (compare "concurrent jurisdiction").

expungement

The effective removal from public inspection of police or court records.

extradition

The formal process of delivering an individual apprehended in one jurisdiction (e.g., a state or country) to the authorities of another jurisdiction in which that individual has been accused or convicted of a crime.

felony

The most serious of two categories to which criminal offense are assigned. The minimum sentence is one year (compare "misdemeanor').

felony-murder

A murder committed during the commission of a felony such as robbery, burglary, or kidnapping.

forfeiture

The loss of money or property resulting from failure to meet a legal obligation or from the illegal nature or use of the money or property.

grand jury

A panel of citizens sworn to inquire into crime and if appropriate bring accusations, or indictments, against the suspects.

guardian ad litem

A person appointed by a court to manage the interests of a minor or incompetent person whose property is involved in litigation.

habeas corpus

"You have the body." A writ of habeas corpus requires that a person be brought before a judge. It is usually used to direct an official to produce a prisoner so the court may determine if liberty has been denied without due process. An original jurisdiction petition for relief from unconstitutional confinement used mainly by inmates, but occasionally in child custody cases.

hearsay

Evidence offered by a witness based on what others have said.

home monitoring

An alternative to incarceration where an individual is confined to his or her home and monitored electronically.

hung jury

A jury that is unable to agree on a verdict after a suitable period of deliberation.

immunity from prosecution

Protection from prosecution in exchange for testimony that might not otherwise be forthcoming.

impeach

To discredit a person or thing, especially by showing that a witness is not telling the truth.

in camera

In chambers; in private.

incarcerate

To confine to a jail or correctional institution.

incompetency

Lack of capacity to understand the nature and object of the proceedings, to consult with counsel, and to assist in preparing a defense.

indictment

Written accusation of a grand jury charging a crime.

indigent

Unable by reason of poverty or insufficient financial means to pay.

information

A charging document presented by a prosecuting attorney, instead of a grand jury, and filed in a circuit court.

initial appearance

The first appearance of a defendant before a judicial officer by reason of execution of a warrant or before the court, in person or by an attorney, in response to a summons.

injunction

Court orders prohibiting specific actions from being carried out.

insanity plea

A claim by a defendant that he or she lacks the soundness of mind required by law to accept responsibility for a criminal act.

instruction

Direction given by a judge to the jury regarding the law in a case.

interrogatories

Written questions which must be answered under oath.

jointly and severally

Acting together and separately; anyone so liable can sue or be sued with or without others joining in the action.

judge

An elected public official with authority to hear and decide cases in a court of law.

judgment

Final determination by a court.

judgment document

Document that explains the sentence an offender receives from a trial court.

judicial notice

A court's recognition of the truth of basic facts without formal evidence.

jurisprudence

The science of law.

jury

People selected as prescribed by law to render a decision (verdict) in a trial. In a West Virginia criminal circuit court trial there are twelve jurors. In a civil circuit court trial there are six jurors.

juvenile waiver

A procedure by which a charge(s) against a minor is transferred from a juvenile to circuit court (compare "reverse waiver").

law

Rules and principles of conduct supported by the legislature, court decisions, or local customs.

lesser included offense

A crime composed of some, but not all, of the elements of a greater crime; commission of the greater crime automatically includes commission of the lesser included offense.

limited jurisdiction

Courts limited in the types of cases they may hear. For example, family courts are courts of limited jurisdiction.

litigant

Person or group engaged in a lawsuit.

litigation

A contest in court.

mandamus

A type of original jurisdiction petition; an order of a superior court requiring a public body, inferior court, or public official to perform a required duty.

mandatory jurisdiction

A court must hear and respond to those appeals that are "mandatory" under the state's constitution or by statute.

memorandum order

A series of short orders in one document. For example, the West Virginia Supreme Court of Appeals issues most of its workers' compensation decisions by memorandum order.

mens rea

Criminal intent.

merger

Incorporation of a lesser crime into a greater crime.

misdemeanor

The less serious of two categories to which criminal offenses are assigned (compare "felony").

mistrial

A trial that has been terminated and declared void due to prejudicial error in the proceedings or other extraordinary circumstances.

mitigation

Circumstances suggesting that a lesser sentence is appropriate.

mitigating circumstances

Do not justify or excuse an offense, but may be considered as reasons for reducing the degree of blame.

moot

Adjective: No longer presenting a controversy capable of adjudication because the issue has ceased to exist and is unlikely to recur.

motion

Oral or written request before, during, or after a trial on which a court issues a ruling or order.

negligence

The absence of ordinary care.

nolo contendere

Latin phrase meaning "I will not contest it." A plea in a criminal case which has a similar legal effect as pleading guilty. A defendant may plead nolo contendere only with the consent of the court.

oath

A written or oral pledge to keep a promise to speak the truth.

objection

A statement by an attorney opposing a specific testimony or admission of evidence.

opening statement

Outline of anticipated proof presented to the jury by the attorneys at the trial's beginning.

opinion

The written decision of a court. The West Virginia Constitution requires that Supreme Court opinions "shall be concisely stated in writing and preserved with the record; and it shall...prepare a syllabus of the points adjudicated in each case in which an opinion is written and in which a majority of the justices concurred, which shall be prefixed to the published report of the case." W.Va. Const., Article 8, Section 4.

original jurisdiction

A case heard by the court in which it is first filed; the opposite of appellate jurisdiction.

overrule

Court's denial of a motion or objection raised to the court. When a court overrules an objection to evidence (for example, testimony), the jury may properly consider it.

parole

The conditional and revocable release of an inmate by the Parole Board to parole supervision.

parties

Persons, corporations, or associations which have brought a lawsuit or are defendants in a trial.

plaintiff

In a civil case, the person who files a claim against another person or, in a criminal case, the State of West Virginia.

per curiam opinion

An opinion by the whole court, as opposed to one authored by just one justice because the court is not deciding any new issues of law. Per curiam opinions of the Supreme Court of Appeals may be cited as support for a legal arguement.

peremptory challenge

Procedure for rejecting prospective jurors without a reason. Each side is permitted a limited number of peremptory challenges.

personal recognizance

A guarantee of a defendant's appearance in court ( a.k.a. own recognizance) based solely on his or her signed promise (no bail bond required).

petition

A party to a legal action who wishes to appeal the decision of a lower tribunal must file a petition for appeal with the Supreme Court of Appeals. Under its discretionary jurisdiction, the Court may grant, accept, or refuse the petition for appeal. The Court may accept the petition, which means that the petitioner must present an oral argument before the Court grants the petition, or the Court may grant the petition based on the briefs. If the Court refuses the petition, the Court issues an order notifying the parties. The order does not state the reason why the petition was refused.

petit jury

An ordinary jury for the trial of an action.

plea

An answer to a criminal charge including: not guilty, guilty, nolo contendere, not criminally responsible by reason of insanity.

poll the jury

A procedure by which jurors are asked individually to disclose their agreement with the announced verdict to ensure unanimity.

post conviction

A procedure by which a convicted defendant challenges the conviction and/or sentence on the basis of some alleged violation or error.

power of attorney

Document authorizing another to act as one's agent or attorney in fact (not an attorney at law).

preliminary hearing

A hearing held in the circuit court, unless waived by the defendant, to determine whether there is probable cause to believe the defendant committed an offense(s). Available when the offense(s) charged is not within the exclusive jurisdiction of the circuit court.

presumption

An inference of the truth or falsity of a proposition or fact, that stands until rebutted by evidence to the contrary.

prima facie

Translated "on the first appearance"; sufficient on its face to prevail until contradicted.

privilege

A person's right not to testify on a matter or communication protected by law.

probable cause

Reasonable belief that a crime has been committed; the basis for all lawful searches.

probate

The legal process of establishing the validity of a will and settling an estate.

probation

A sentence of confinement which is suspended upon a term of probation supervision. It may include community service or restitution or both. Probation must automatically be considered if the defendant is eligible.

pro bono

Legal services provided without attorney fees.

procedural law

The method, established normally by rules, to be followed in a case; the formal steps in a judicial proceeding.

proffer

An offer of proof as to what the evidence would be if a witness were called to testify or answer a question.

prohibition

An order issued by a court of superior jurisdiction to halt the performance of a particular act by an inferior court, state agency, or public official.

pro se

Legal representation of oneself.

prosecution

Act of pursuing a lawsuit or criminal trial; the prosecution in a criminal case is brought by the state through the prosecutor.

prosecutor

Public official who performs the function of trial lawyer for the state.

pro tem

"Temporary."

quash

To set aside or to make void; with respect to process, such as a summons or subpoena, to void on motion of the person served.

rebuttal

The act of contradicting or overcoming the effect of a presumption of evidence.

recall

Cancellation be a court of a warrant before its execution by the arrest of a defendant; also, a process by which a retired judge may be asked to sit on a particular case.

recess

A short interval during which a court suspends business, but without adjourning.

redirect examination

Follows cross-examination and is exercised by that party who first examined the witness.

remand

To send back.

res judicata

The matter already has been finally decided; a rule against relitigation of issues.

restitution to victim

An amount of money the court requires the defendant to pay the victim of a crime.

sentence, concurrent

Two or more sentences which run at the same time.

sentence, consecutive

Two or more sentences which run one after another.

sentence, determinate

A sentence that states exactly the time to be served or money to be paid.

sequester

To separate or isolate; for example, to separate witnesses from each other, to isolate jurors from the public, to separate property from a party and place it in the custody of the court or a third person.

sequester a jury

To place members of a jury into 24 hour a day seclusion until a verdict is reached.

settlement conference

A meeting between parties of a lawsuit, their attorneys and a judge to attempt a resolution of the dispute without a trial.

show cause

An order requiring a person to appear in court and present reasons why a certain order, judgment, or decree should not by issued.

speedy trial

The right of an accused to a speedy trial as guaranteed by the Sixth Amendment of the United States Constitution; in West Virginia the right to be tried within days after initial appearance, unless waived.

statute

A law created by the legislature.

stay

Halting a judicial proceeding by order of the court.

stipulation

An agreement between counsel on certain facts so those facts need not be proven, or on an issue so that the issue need not be litigated.

striking a jury

Process of selecting a trial jury where attorneys “strike” or excuse jurors until the number required remains.

sua sponte

Translated from Latin, “of its own will”; commonly used when a judge does something in a case without being asked to do so by a party.

subpoena

A written legal notice requiring a person to appear in court and give testimony or produce documentary evidence.

subpoena duces tecum

"Under penalty you shall take it with you." A process by which the court commands a witness to produce specific documents or records in a trial.

summons

A writ notifying the person named that an action has been filed against the person: 1) in a criminal action, failure to appear may result in a bench warrant being issued for the person's arrest; 2) in a civil action, failure to answer may result in entry of a judgment against that person.

suppress
]

To stop, prohibit, prevent, subdue; with respect to evidence, to prevent its use by showing it was obtained illegally or is irrelevant.

sustain

Court's acceptance of any motion or objection; when a court sustains an objection to evidence (for example, testimony), the jury may not consider it.

tort

An injury or wrong committed with or without force to the person or property of another giving rise to a claim for damages.

venue

The specific county, city, or geographical area in which a court has jurisdiction.

verdict

The final formal trial decision made by a jury, read before the court, and accepted by the judge.

victim impact statement

A statement during sentencing which informs the sentencer of the impact of the crime on the victim or the victim’s family.

voir dire

(pronounced "vwar-deer") - "To speak the truth." The process of preliminary examination of prospective jurors regarding their qualifications.

waive

Relinquish. In West Virginia, used commonly to refer to the giving up of a legal right voluntarily, intentionally, and with full knowledge of the consequences.

witness

A person subpoenaed to testify under oath who possesses factual knowledge about the case.

writ

A written court order directing a person to perform or refrain from performing a specific act. See certiorari, habeas corpus, mandamus, and prohibition.