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New Jersey Board Course# 38-2013
mens rea: "the criminal mind," or "criminal intent." It's one of the basic criteria for criminal guilt, along with actus reus, or "the criminal deed." Guilty knowledge and willfulness.
A fundamental principle of criminal law is that a crime consists of both a mental and a physical element. Mens rea, a person's awareness of the fact that his or her conduct is criminal, is the mental element, the criminal intent, and actus reus, the act itself, is the physical element, the criminal deed.
Today most crimes, including common-law crimes, are defined by statutes that usually contain a word or phrase indicating the mens rea requirement. A typical statute, for example, may require that a person act knowingly, purposely, or recklessly.
"Nothing about his demeanor projected mens rea, no sense that he had done anything wrong."
habeas corpus: "you have the body," a term that represents an important right granted to individuals in America. Basically, a writ of habeas corpus is a judicial mandate requiring that a prisoner be brought before the court to determine whether the government has the right to continue detaining them. The individual being held, or their representative, can petition the court for such a writ. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.
The writ of habeas corpus ad subjiciendum is a civil, not criminal, ex parte proceeding in which a court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings are to determine whether the court which imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant's sentence has expired.
The U.S. Constitution specifically includes the habeas procedure in the Suspension Clause (Clause 2), located in Article One, Section 9. This states that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it."
In the history of the United States, there have been only two occasions in which a president has suspended the writ of habeas corpus, a person's right to challenge in court the legality of his imprisonment. The first was President Abraham Lincoln, on April 27, 1861, and the second was President George W. Bush, on Oct. 17, 2006. (Fascinating information on both of these occasions can be found easily by searching the Internet.)
a fortiori: "With even stronger reason," which applies to a situation in which if one thing is true, then it can be inferred that a second thing is even more certainly true. Thus, if Abel is too young to serve as administrator, then his younger brother Cain certainly is too young.
By applying the a fortiori argument, if it has been established that a person is deceased (the stronger reason), then one can, with equal or greater certainty, argue that the person is not breathing. "Being dead" trumps other arguments that might be made to show that the person is not breathing, such as, for instance, not seeing any sign of breathing.
causa mortis: "in contemplation of approaching death." This phrase is sometimes used in reference to a deathbed gift, or a gift donatio causa mortis, since the giving of the gift is made in expectation of approaching death. A gift causa mortis is distinguishable from a gift inter vivos, which is a gift made during the giver's lifetime. The donor must have been contemplating death more particularly than by merely reflecting that we must all die someday.
"A gift causa mortis is taxed under federal estate tax law in the same way as a gift bequeathed by a will."
mala fides: Bad faith. It is opposed to bona fides, good faith. A mala fide purchaser is one who buys property from another with the knowledge that it has been stolen. In contrast, a bona fide purchaser is one who does so with no knowledge that the seller lacks good title to the property.
in pari delicto: "in equal fault," which means that two (or more) people are all at fault or are all guilty of a crime. In contract law, if the fault is more or less equal, then neither party can claim breach of the contract by the other. In an accident, neither can collect damages, unless the fault is more on one than the other, under the rule of "comparative negligence." In defense of a criminal charge, one defendant will have a difficult time blaming the other for inducing him or her into the criminal acts, if the proof is that both were involved.
"The defendant must also have clean hands to assert the equitable defenses of estoppel, laches, and in pari delicto.
corpus delicti: Meaning "the body of the crime," this concept doesn't necessarily refer to a murder victim's corpse (though it can). It means any proof that a crime has been committed, which must be present before any conviction for that crime.
"Counsel knew that they would need corpus delicti (tangible evidence of a crime) and two unimpeachable witnesses for a valid conviction."
certiorari: "to be informed of." A writ of certiorari is an order a higher court issues in order to review the decision and proceedings in a lower court and determine whether there were any irregularities. When a court issues a writ of certiorari, it is referred to as "granting certiorari", or 'cert.' When the U.S. Supreme Court orders a lower court to transmit records for a case for which it will hear on appeal, it is done through a writ of certiorari.
"Certiorari is the common method for cases to be heard before the U.S. Supreme Court, since it has specific jurisdiction over a very limited range of disputes."
actus reus: Guilty act. As an element of criminal responsibility, the wrongful act or omission that comprises the physical components of a crime. Criminal statutes generally require proof of both actus reus and mens rea on the part of a defendant in order to establish criminal liability.
"It was determined that their actions amounted to perpetrating a massacre, the actus reus of genocide with criminal intent."
quo warranto: "by what warrant," a legal proceeding during which an individual's right to hold an office or governmental privilege is challenged. In old English practice, the writ of quo warranto, an order issued by authority of the king, was one of the most ancient and important writs. It has not, however, been used for centuries, since the procedure and effect of the judgment were so impractical.
Currently, the former procedure has been replaced by an "information in the nature of a quo warranto," an extraordinary remedy by which a prosecuting attorney, who represents the public at large, challenges someone who has usurped a public office or someone who, through abuse or neglect, has forfeited an office to which s/he was entitled.
In some states, the Attorney General must approve all quo warranto actions filed by private individuals. This protects public officers from frivolous lawsuits.
ab initio: "from the beginning; from the first act; from the inception." An agreement is said to be "void ab initio" if it has at no time had any legal validity. A party may be said to be a trespasser, an estate said to be good, an agreement or deed said to be void, or a marriage or act said to be unlawful, ab initio.
The illegality of the conduct or the revelation of the real facts makes the entire situation illegal ab initio (from the beginning), not just from the time the wrongful behavior occurs. A person who enters property under the authority of law but who then by misconduct abuses his or her right to be on the property is considered a trespasser ab initio. If a sheriff enters property under the authority of a court order requiring him to seize a valuable painting, but instead he takes an expensive marble sculpture, he would be a trespasser from the beginning. Since the officer abused his authority, a court would presume that he intended from the outset to use that authority as a cloak from under which to enter the property for a wrongful purpose. This theory, used to correct abuses by public officers, has largely fallen into disuse.
"It was illegal ab initio (from the start)."
modus operandi: "Method of working," a term used by law enforcement authorities to describe the particular manner in which a crime is committed. The term modus operandi is most commonly used in criminal cases. It is sometimes referred to by its initials, "M.O."
The prosecution in a criminal case does not have to prove modus operandi in any crime. However, identifying and proving the modus operandi of a crime can help the prosecution prove that it was the defendant who committed the crime charged.
"It was the serial killer's modus operandi to cut off a lock of his victims' hair.
volenti non fit injuria: "to the consenting, no injury is done," also referred to as "assumption of risk," a doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party.
"Traditionally, when participants have been injured in volunteer sporting activities, the legal liability has traditionally rested with the injured party, on the basis of volenti non fit injuria (voluntary assumption of risk)."
dictum (pl. dicta): "remark," a comment or opinion. An abbreviated version of obiter dictum, "a remark by the way," which is a collateral opinion stated by a judge in the decision of a case concerning legal matters that do not directly involve the facts or affect the outcome of the case.
Dictum has no binding authority and, therefore, cannot be cited as precedent in subsequent lawsuits. Dictum is the singular form of dicta.
"I was disappointed by an obiter dictum (passing comment) on sports injuries in the Sunday newspaper editorial."
flagrante delicto: "in blazing offense," or sometimes simply in flagrante, "in blazing," a legal term used to indicate that a criminal has been caught in the act of committing an offense. The colloquial "caught in the act" or "caught red-handed," are English equivalents. Sometimes used colloquially as a euphemism for someone being caught in the act of sexual intercourse.
"When the police arrived at the house, they caught the burglars flagrante delicto, with the homeowner's electronic equipment in their arms."
in limine (motion in limine): From Latin for "threshold," a motion made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial. This is most common in criminal trials where evidence is subject to constitutional limitations, such as statements made without the Miranda warnings (reading their rights).
"The motion in limine is an effective way to prevent anticipated attacks on the plaintiff, before trial and out of the presence of the jury."
in propria persona: Acting on one's own behalf, generally used to identify a person who is acting as his/her own attorney in a lawsuit. The popular abbreviation is in pro per.
In the filed legal documents (pleadings), the party's name, address and telephone number are written where the name, address and telephone number of the attorney would normally be stated. The words in propria persona or in pro per are typed where normally it would say "attorney for plaintiff."
Judges sometimes warn a party in propria persona of the old adage that "anyone who represents himself in court has a fool for a client and an ass for an attorney."
pro bono: Short for pro bono publico, a Latin phrase meaning âfor the good of the people.â
In the legal profession, the term pro bono refers to legal services performed free of charge for the public good. Unlike traditional volunteerism, pro bono services leverage the skills of legal professionals to help those who are unable to afford a lawyer.
Pro bono services help marginalized communities and underserved populations, such as children and the elderly, that are often denied access to justice. A lawyer may also accept a case pro bono, meaning that he will not charge a fee for his services.
jus naturale: The unwritten body of universal moral principles that underlie the ethical and legal norms by which human conduct is sometimes evaluated and governed. Natural law is often contrasted with positive law, which consists of the written rules and regulations enacted by government. The term "natural law" is derived from the Roman term jus naturale. Natural right is that which has the same force among all mankind.
Adherents to natural law philosophy are known as "naturalists."
sub silentio: "under silence; without any notice being taken." Passing a thing sub silentio may be evidence of consent.
"Although he does not cite Jamestown, here he also appears to apply sub silentio Brown's mode of analysis."
res perit domino: "the thing perishes for the owner." The maxim refers to the contractual principle that risk in the goods pass with ownership. The destruction of the thing is the loss of its owner.
publici juris: "of public right." This term, as applied to a thing or right, means that it is open to or exercisable by all persons. When a thing is common property so that anyone can make use of it who likes, it is said to be publici juris, as in the case of light, air, and public water. Or it designates things which are owned by âthe public"; that is, owned by the entire state or community, and not by any private person.
For example, when books or movies are no longer covered under copyright laws, they become publici juris and are free to be used by the public without fear of copyright infringement.
Today we refer to this term as "public domain."
de novo: Latin for "anew," which means starting over, as in a trial de novo. A second time; afresh. A trial or a hearing that is ordered by an appellate court that has reviewed the record of a hearing in a lower court and sent the matter back to the original court for a new trial, as if it had not been previously heard nor decided.
"The court agreed to try the case again, de novo." __________________________________________________________
onus probandi: The burden of proof. In the strict sense, a term used to indicate that if no evidence is set forth by the party who has the burden of proof to establish the existence of facts in support of an issue, then the issue must be found against that party. Sometimes shortened to onus.
"The onus (probandi)