Definitions
Affidavit
A statement of facts sworn to or affirmed before an officer who has the authority to administer an oath, for example a notary public. The person making the signed statement (the affiant) takes an oath that the contents are, to the best of their knowledge, true. It is also signed by a notary or some other judicial officer who affirms the person signing the affidavit was under oath. Affidavits are used to present evidence in court when a witness is unavailable to testify in person. Affidavits are often used to secure the testimony of those who are unable to appear in court due to a number of issues, including incarceration, illness, and being located out-of-state or far from the court. For more on the matter, click here.
Arraignment
A criminal proceeding during which the person charged, called the defendant, is formally charged. This may include a criminal complaint, indictment, or other charging document, such as a bench warrant. The defendant is asked to enter a plea of guilty or not guilty. Depending on the jurisdiction, the court may also use this proceeding to determine whether to set bail for the defendant or grant them release on their own recognizance.
Attorney-Client Relationship
A relationship between a lawyer and the person he or she represents in which communications and correspondence are protected and private. A proper attorney-client relationship requires honesty and consistent communication between both parties.
Bail
Upon arrest, a Maryland commissioner often determines an appropriate bond for a person based on their criminal record, history of failure to appear, or potential for being a flight risk. The amount determined by the Maryland commissioner can be paid immediately. If a person is unable to pay, he will be brought before a judge within a reasonable amount of time, usually the next business day. Here, a Maryland District Court judge will weigh various factors to determine if a bond should be reduced or remain as set by the commissioner. Defendants are encouraged to be represented by counsel for this hearing.
Once a bail amount is set, friends or family members may post the bail amount on behalf of the defendant and he or she will be released pending his trial date. Often, the court will set conditions to release, such as mandatory reporting to a pre-trial services agent, mandatory drug or alcohol treatment, or monitoring by ankle bracelet. As long as a person returns for his court date, bail will be returned in the form in which it was posted.
Bail Bondsperson
When a defendant cannot come up with the money required to secure his release pending trial, a bail bondsperson can be an invaluable tool. Generally this person charges a fee (usually from 10 to 20% of the total bail amount) to the defendant in exchange for posting his bail. The defendant is still required to appear for his trial date but the fee paid to the bail bondsperson is not returned to the defendant.
Brady Rule
Is named for Brady v. Maryland, 373 U.S. 83 (1963) and requires prosecutors to disclose exculpatory evidence that is in the prosecution or government’s possession to the defense. This includes any evidence that is favorable to the accused, that goes toward negating a defendant’s guilt, that would reduce a defendant’s potential sentence, or that could be used to show the credibility of a witness. If the prosecution does not disclose such evidence under this rule, and prejudice has occurred, the evidence will be suppressed. That means the evidence cannot be considered by the judge or jury deciding the matter. Such evidence will be suppressed regardless of whether the prosecutor intentionally or accidentally withheld the evidence. The defendant, however, bears the burden of demonstrating that the undisclosed evidence was material and that there was a reasonable probably that there would have been a different outcome had the evidence been disclosed by the prosecution.
Criminal Defense Attorney
A lawyer who represents and defends those accused of criminal actions, including people who have been charged or who are under active investigation.
Custody
In legal terms, custody can apply to both people and objects. Custody is the detention of a person by lawful authority. It also refers to the retention, inspection, guarding, maintenance, or security of an item of evidence in the care or control of the person or entity to whom it is entrusted.
Detain/Detention
This occurs when a police officer, or other law enforcement member, restrains or holds a person. Detention is often the term used by police when holding a suspect for questioning. It is not considered the same as arrest, and law enforcement argues that they do not have read a detained subject their rights for that reason. Technically, it is not a form of formal arrest and, as such, a person can refuse to engage in questioning or leave. This, however, may prompt a formal arrest.
Deposition
Depositions are, in the simplest terms the testimony of a party or witness in a civil or criminal proceeding. Depositions are typically taken before trial and often in an attorney’s office with the lawyer asking questions and the deponents (i.e. the individual being deposed or questioned) providing answers that are recorded by a court reporter or a device, sometimes both. Such testimony is usually given under oath and the court reporter and the deponent will typically sign affidavits that attest to the accuracy of the transcripts generated by the testimony. Depositions are usually part of the discovery process, which occurs prior to the criminal trial. See Discovery below.
Discovery
Discovery is the process of assembling the testimony and any documentary evidence that pertains to a case before the trial commences. Prosecutors are required to turn over all discovery to the defense prior to trial. Forms of discovery can include interrogatories, which are written questions that are provided to a party and require written answers, depositions (see above) and requests for the production of documents.
Diversion Program
Diversion programs have been developed to enable those charged of criminal offenses a way to address whatever root cause of issue resulted in their legal woes. Most diversion programs center around drug and/or alcohol abuse, though many diversion programs have been created for at-risk youth in an effort to focus on rehabilitation rather than punishment. Often times, those charged with a criminal offense can avoid conviction if they agree to undergo certain diversion programs and types of behavioral treatment. Requirements may include restitution to the victim(s), completion of community service hours, education or medical treatment geared toward prevention of future issues/arrests, and avoiding certain situations, locations, and individuals for a set period of time.
Evidence
Applies to any matter of fact that a party to a criminal or civil proceeding offers to prove or disprove an issue in a court case. Congress in 1975 adopted the Federal Rules of Evidence, which are the official rules in federal court proceedings. Most states, including Maryland, have codified their own rules of evidence based on the federal rules. Both sets of rules are designed to serve as a guide for judges and attorneys to determine what can and cannot be admitted as evidence at trial. Admitting evidence means simply that the matter is allowed to be presented to a judge or jury for consideration in making a factual decision.
Exculpatory Evidence
Is evidence that is used to excuse, absolve, or justify the alleged fault or guilt of the accused. This can include statements or physical evidence. See Brady Rule.
Felony
Felonies are generally defined as serious and/or violent crimes, such as murder, rape, or robbery, and as such conviction of these crimes typically results in much harsher penalties than those applied to misdemeanor crimes. Sentences for felony crimes are typically served in state prison. Felonies for certain crimes in Maryland are classified by degree. The lower the degree, the greater the seriousness of the crime. Therefore an assault in the first degree conviction will result in a harsher penalty than a second degree felony assault conviction. In addition to incarceration, felonies can result in sizable fines and court-ordered restitution for the victim.
Misdemeanor
Misdemeanor offenses are criminal offenses that do not rise to the level of seriousness as those seen in felonies. They typically do not involve violent crimes, though some crimes – such as assault – can be filed as a misdemeanor or a felony, depending on the seriousness of the assault. Terms of incarceration for misdemeanor offenses typically result in jail time rather than prison time. Sentencing terms may also include fines.
Parole
Unlike probation, parole occurs after an individual has served their prison sentence. Parole is often granted to those who have shown promise while incarcerated and provide them with an incentive to rehabilitate themselves. When a person is granted parole, it generally has a specific period of time that it will last and strict court-ordered terms of compliance. These terms typically include instructions to report regularly to a parole officer, not associate with others convicted of similar or other criminal offenses, and avoiding any arrests or legal trouble. Some parole violations are extremely specific to the individual and the type of crime for which they were convicted. Violation of these conditions or terms can result in revocation of parole and, subsequently, the individual may be returned to prison. Parole is sometimes confused with probation, which is a type of sentence that allows a defendant who has been convicted to remain free provided they adhere to certain court-ordered conditions.
Perjury
According to Black’s Law Dictionary, the crime of perjury is defined as, “The willful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceeding.”
Preliminary Hearing
A preliminary hearing takes place in district court on felony cases to determine if the state has established probable cause to move forward. No testimony is taken from defendants or defense witnesses. Generally a police officer is simply required to establish probable cause by demonstrating to the court that sufficient evidence exists to proceed on the felony counts.
Preliminary Inquiry
In Maryland, every defendant must be advised of his right to counsel at trial. This is often done by the commissioner upon arrest or by a judge at a bond hearing. However, if a person is simply issued a citation, a preliminary inquiry date will be set by the court. The court will advise the defendant of his right to counsel on this date. If the defendant has already retained counsel to appear, this hearing will be can celled.
Probation
Probation should not be confused with parole, as probation is a type of sentence imposed on those who are convicted of criminal offenses and parole is granted to those who have been convicted and have served a portion of their jail or prison sentence. With probation, the convicted person is sentenced to jail or prison time, but the sentence is suspended for a period of months or years, allowing them to remain free. They are, however, subject to court-imposed conditions which may include public service work, paying a fine, maintaining good behavior, receiving therapeutic services, paying restitution to a victim, and reporting regularly to a probation officer. If the probationer fails to comply with the conditions of probation they may have their probation revoked and be remanded to custody to serve part or all of the original sentence.
Probation before Judgment
Probation before judgment in Maryland is defined by code Section 6-220. In general terms, probation before judgment or PBJ is a type of deferred adjudication that is allowed in certain offenses, generally those that involve a first and non-violent offense. The terms and conditions are determined at the discretion of the court. In certain jurisdictions, those who have successfully completed PBJ may be able to petition the court to have their record sealed.
Pro Se
Pro se is a Latin term that applies to defendants who do not want to be represented by a lawyer and opt instead to represent themselves. The phrase translates to “for himself.”
Show Cause Order
A show cause order, also frequently referred to as an order to show cause, is a court order that requires either a person or a representative of a corporation or organization to appear before the court to explain why the court should not take action against the individual or organization. The court will issue the order, which is used to hold a hearing after a party requests relief from certain court-ordered actions. Usually that person or representative provides an affidavit, declaration, or sworn statement alleging certain facts they want the court to consider. These orders are most often used in contempt proceedings, in cases involving relief from injunctions, and in cases where meeting the court’s timeline or deadline is of a particular concern.
Subpoena
A subpoena is an order from the court directing a person to appear in court to testify in a criminal or civil matter. The person may be required to come to court to provide testimony for trials or deposition or produce documents and other types of evidence. Judges, court clerks, and attorneys are all granted the power to subpoena witnesses for testimony and other evidence. Those who do not respond to a subpoena face the possibility of being held in contempt of court if the court finds that their failure to appear was intentional or lacked sufficient cause.