Alameda County District Attorney's Office
Nancy E. O'Malley, District Attorney

Meet DA Nancy E. O'Malley

TERMINOLOGY

Criminal Justice and Trial Practice

Admissible Evidence: That evidence which the judge rules can be presented to the jury.

Brady v Maryland “Brady material”: Case decided by the United States Supreme Court in 1963 (Brady v Maryland 373 U.S. 83, the citation of which refers to the volume and page number where the written judicial opinion can be located). Brady, in pertinent part, refers to the obligation on the part of the prosecutor to provide the accused -- “the defendant” – with any exculpatory evidence. Brady establishes the ethical standard for prosecutors as it pertains to evidence. Brady requires the prosecution to disclose all exculpatory evidence in its possession, whether the possession is actual or constructive.

Burden of Proof: In the criminal justice process, the prosecution bears the burden to prove the case against the defendant. In a criminal action, or that action which could result in a denial of the defendant’s freedom, the burden of proof is beyond a reasonable doubt. In some portions of the criminal trial, such as review of certain type of admissible evidence, the burden is substantial evidence. In the civil action, the burden on the party filing the allegations and proffering the evidence is preponderance of evidence.

Circumstantial Evidence: that evidence which tends to prove a fact upon which a jury can rely in deciding the guilt or non guilt of the defendant. The trier of fact can give the same weight to circumstantial evidence as it gives to direct evidence.

Closing Argument: occurs at the conclusion of the evidence where the parties have the opportunity to summarize the evidence and argue the case, drawing inferences from the evidence that support their position. In a criminal trial, the prosecution goes first, then the defense and because the prosecution has the burden of proof, it has the opportunity to give a rebuttal argument following the defense.

Competent Evidence: That type of evidence upon which a finding of guilt can be based.

Constitutional Rights: In the criminal justice system, a person accused of a crime has certain constitutional rights and protections. Primarily, those rights are articulated in the Fourth, Fifth and Sixth Amendment of the US Constitution, the Bill of Rights (which are the first 10 Amendments). The rights include: 1) the right to remain silent and not be a witness against himself; 2) the right to a jury trial; 3) the right to an attorney; 4) the right to confront and cross examine the witnesses against them; 5) the right to be free from unreasonable search and seizure by the government. Defendants also have statutory rights that are enacted by the individual states.

Constructive Possession: For purposes of Brady compliance, any evidence that is in the control of any member of the “prosecution team” must be provided to the defense. Brady applies to the prosecution, and the prosecution is deemed to be in possession of any evidence that is in the possession of a member of the prosecution team, ie: if the police have a statement from a witness that is favorable to the defendant, the prosecution is deemed to have constructive possession of that statement, even if the police have not provided it to the prosecution.

Cross Examination: The party against whom the witness has testified, has the opportunity to question the witness. Leading questions are permitted on cross-examination.

Defendant: The person against whom the case has been filed, against whom the charges have been alleged through the filing of an accusatory document.

Demonstrative Evidence: Evidence which assists the trier of fact in evaluating and deciding the case. Demonstrative Evidence includes photographs, charts, etc.

Direct Evidence: That evidence which directly proves a fact or element of the crime. The trier of fact can give the same weight to direct evidence as it gives to circumstantial evidence.

Direct Examination: The party presenting the witness conducts the examination. Open questioning is the type of questions that are used; leading question are not permitted with limited exception, to wit: questioning a hostile witness and in some states, if the witness is a child under a certain age.

Discovery: The process by which the prosecution turns over all evidence against the defendant and particularly, Brady material. Discovery can includes written or oral statements. In some states, the obligation attaches once charges are filed and exists whether the case goes to trial or not. In some states, the defense is required to turn over its evidence that it intends to produce at trial.

Due Process: Ensuring the protections and rights of the defendant during the criminal justice process. In some states, such as California, due process also includes ensuring and protecting the rights of victims of crime as defined in the California Constitution.

Evidence Code/Federal Rules of Evidence (FRE): The code of laws and rules that control and pertain to the type and admissibility of evidence.

Exculpatory Evidence: Evidence which tends to exonerate the defendant, which means evidence that could be favorable to the defendant. Exculpatory Evidence is that evidence which is material and relevant. Material evidence is evidence which is of such a nature that it could change the outcome of the case. Relevant evidence is that which pertains to a fact or an element of the crime.

Expert Witness: A witness who, by training, education, experience or profession, presents testimony and/or renders an opinion that aids the trier of fact in understanding an element of the crime or matter before it. An expert witness is one who has more knowledge than the lay person who can dispel myths or misconceptions that the trier of fact may hold.

Finder (Trier) of Fact: In the criminal justice process, the trier of fact determines the guilt or non-guilt of the defendant. Through the US Constitution, Bill of Rights, the defendant has the right to be tried by a jury of his peers; however, the defendant and the prosecution can waive that right, in which case, the trier of fact is the judge.

Foundation (“Lay a Foundation”): Before certain evidence is admissible, the party proffering the evidence must meet foundational requirements. For instance, before a witness is “accepted” or deemed by the court to be an “expert” the party proffering the witness must establish the foundation for determining the witness is, in fact, an expert. Before a “spontaneous statement” or “excited utterance” can be admitted as “competent” evidence, the party proffering the evidence must establish the foundational requirements that it was, in fact, spontaneous or the result of an excited utterance.

Impeachment: A form of attacking a witness or the witness’ testimony. In some states, the Evidence Code articulates the type of evidence that can be used to impeach a witness, such as a prior statement or testimony that is different from what the witness is saying in court; whether the witness has suffered a felony conviction, etc.

Jury Deliberation: The process during which the jury discusses the facts of the case and the law as instructed by the judge with the goal of rendering the verdict as to each and every crime and allegation lodged against the defendant in the accusatory document. The jury selects a foreperson who speaks for it. To render a verdict, all twelve of the jurors must unanimously agree.

Leading question: A type of question where the question suggests the answer.

Lesser Included Offense: If the defendant is charged with a crime, the defense can request that the jury be instructed on other crimes that are reasonably related or lesser included to the charged crime. Before a lesser Included Offense (LIO) can be considered by the jury, they must first find the defendant not guilty of the greater crime.

Mistrial: Results when the case is taken away from the jury for a particular reason and the case before that jury is terminated. A case can be re-tried following a mistrial. Circumstances where a mistrial is declared by the judge include if the jury hears evidence that is inadmissible and so prejudicial against the defendant that he can no longer get a fair trial. In order for the judge to declare a mistrial based on inadmissible evidence, the defendant must personally agree. The entire case is terminated and must start again with a different jury.

Another common situation where a mistrial is declared is when the jury cannot reach a unanimous verdict as to a charge or allegation. A mistrial can be declared as to the whole case where the jury cannot agree on the entire case OR a mistrial can be declared just as to those charges or allegations on which the jury could not agree.

Motion: The method by which the attorneys present a disputed fact to the court and obtain a ruling by the judge as to the nature of the dispute or the admissibility of the evidence.

Motion in Limine: A motion that occurs before the case proceeds and is presented outside the presence of the jury.

Motion to Quash: A motion that is brought to request the judge to terminate a subpoena or other action sought by the legal process.

Objection: The manner in which one side or the other articulates an objection to the admissibility of certain evidence. In some states, the Evidence Code articulates the legal basis on which a party can object to the admissibility of evidence, such as “calls for hearsay” or “calls for speculation” or “misstates the evidence” etc.

Offer of Proof: The manner in which one side or the other gives the judge a preview of the evidence it intends to present in order to obtain a ruling on the admissibility before the party attempts to present the evidence in front of the jury.

Open question: The form of the question does not suggest the answer and requires the person being questioned to provide the answer.

Opening Statement: The part of the trial that occurs before evidence is presented. Either side has the opportunity to give a preview of the evidence to the jury of what it expects to present. Opening Statement is not argument and it is improper for the attorney to “argue” his or her case in Opening Statement.

Overruled: When an objection is made by either party, the court must determine the validity of the objection. If the judge finds the objection invalid or not supported by the questioning or answer, the judge denies the objection, allowing the witness to answer the question, by stating “overruled.”

Percipient Witness: A witness who actually sees, hears or has admissible personal knowledge of the evidence about which he is testifying. A person can be a percipient witness and an expert witness during the same proceeding. For instance, the forensic examiner can be both the percipient witness based on the fact that s/he is the one who actually performed the examination and in doing so, is an “eye witness” of sorts to that evidence; at the same time, the witness can be qualified as an expert, so long as the foudational requirements are met, and testify to facts that can educate the jury or aid the jury in understanding a fact or series of facts to be proved or can assist the jury by dispelling myths or misconceptions that may be held by the jurors.

Pro Per or Pro Se Litigant: A defendant who represents himself. Dependingon the jurisdiction, the term is either Pro Per or Pro Se. The judge must allow the Pro Per ~ Pro Se status and caselaw provides guidelines to the court in deciding that the defendant is “competent” to represent himself. “Competent” is not relevant to whether the decision is a wise decision.

Pretrial: Those matters that occur before the start of the trial. There are several matters on which the court can and does decide, such as bail, challenges to the search and/or seizure of evidence, etc. There are some matters that are decided pre-trial but are only decided by the trial judge, such as the admissibility of evidence.

Re-direct Examination / Re-cross examination: The party proffering the evidence conducts the direct examination, afterwhich the other party has the opportunity to cross-examine the witness. The proffering party then has the opportunity to ask questions through re-direct examination but can only go into those areas that were addressed in cross-examination. Re-cross examination is permitted but is limited to those areas covered in re-direct. The judge controls how many re-direct/re-cross examinations will occur.

Sentencing: At the conclusion of the case, and following a period of time during which a pre-sentence report is prepared for the judge, the judge imposes the sentence on he defendant who has been convicted of certain crimes and against whom certain allegations are found to be true.

Standard of Review: Following a conviction, the defendant can file an appeal to a reviewing court. The appeal must articulate a legal basis for reversing or setting aside the conviction, such as inadmissible evidence was considered by the jury, the court abused its discretion in making a ruling, there was misconduct on the part of the prosecution, judge or jury, to name a few.

Stipulation: A stipulation is where the parties agree to a point of fact, series of facts or a particular witness. For instance, the prosecution and defense can stipulate to a fact that otherwise must be established, including stipulating to the “expertise” of a forensic examiner witness. The parties can also stipulate to a witness, such as “The prosecution and defense stipulate that if called to testify, the witness would testify to …”

Subpoena: The legal process by which a witness is summoned into and before the court. “Personal service” refers to when a person meeting the legal requirements, hands the subpoena to the party being summoned into court. Personal service is valid as is the process of service by US mail.

Subpoena Duces Tecum: The type of subpoena that requests records to be sent to the court. SDT can be issued by either party, but the compliance with the SDT is to the court.

Sustain: When an objection is made by either party, the court must determine the validity of the objection. If the judge finds the objection valid, the judge approves the objection, preventing the witness from answering the question, by stating “sustained.”

Uncharged Act: Evidence that is presented to the jury, and which can be considered by the jury in determining the defendant’s guilt or non-guilt. Uncharged Act evidence is evidence of the defendant’s wrong-doing committed against a person or at a time other than that which is charged in the accusatory document. Classic “uncharged act” evidence is seen in a child molestation case where the charges involve victim A during a specific date and the jury is allowed to hear from victim B who testifies to being molested by the defendant during a different time. No charged crimes involve victim B so she testifies as an “uncharged act” victim to prove the defendant committed the crimes against victim A. Uncharged Act testimony can prove an element of the crime, such as intent or common plan or design OR in some states, uncharged act testimony is “character” evidence presented against the defendant.

Verdict: The decision reached by the trier of fact, whether jury or judge, at the conclusion of the case. The verdict can be guilty or not guilty.

Voir Dire: Latin for “speak the truth” voir dire is the part of the trial where members of the community are summoned to court and questioned as to their suitability to serve as a fair and impartial juror in a particular case.

Prepared by Nancy E. O’Malley, District Attorney, Alameda County.
(2009)