Glossary

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

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.

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.

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.

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.

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.

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.

"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.

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.

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.

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.

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.

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.

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."

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.

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