Defenses/Mitigations

justifiable homicide- a killing without evil or criminal intent, for which there can be no blame, such as self-defense, to protect oneself or to protect another, or a shooting by a law enforcement officer in fulfilling his/her duties. This is not to be confused with a crime of passion or claim of diminished capacity which refer to defenses aimed at reducing the penalty or degree of crime.

insanity- if the offender was acting at the time of committing the criminal act under such defect of reason as to not know the nature and quality of his or her actions, and did not realize that what he or she was doing was wrong

self-defence (defense) (aka defense of a third party) -if the criminal act involved the exercise of reasonable force and was committed under the necessity to protect oneself, others for whom one is responsible, and one’s property;

duress-if the crime is committed not under physical compulsion but under moral or spiritual influence;

necessity -if one broke the law in order to prevent a greater harm to people or property;

coercion - if the crime is committed under the threat of immediate death or serious personal violence;

entrapment- A person is 'entrapped' when he is induced or persuaded by law enforcement officers or their agents to commit a crime that he had no previous intent to commit

Causation- An act is treated as the cause of a death if it is a substantial and significant cause of the death even if some other cause is operating

Provocation - The act of inciting another to do something. Provocation simply, unaccompanied by a crime, does not justify the person provoked to commit a crime, but may lessen the penalty.



Important definitions

Right to be represented by counsel - the right to have an attorney present arises when judicial proceedings are initiated

Miranda rights- a warning given by police to criminal suspects in police custody, or in a custodial situation, before they are asked guilt-seeking questions relating to the commission of a crime. A custodial situation is one in which the suspect's freedom of movement is restrained although he or she is not under arrest. An incriminating statement by a suspect will not constitute admissible evidence unless the suspect was advised of his or her "Miranda rights" and made a knowing, intelligent, and voluntary waiver of those rights. The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says may be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided, at no cost, to represent him or her.

Subpena/subpoena- an order of the court for a witness to appear at a particular time and place to testify and/or produce documents in the control of the witness (if a "subpena duces tecum")

Right to a fair & speedy trial- a constitutional right in the US

5th amendment rights- the right to refuse to answer questions which may incriminate you

perpetrator - one who actually performs a criminal act 

accessory (before the fact and after the fact) - one who counsels, procures, aids or abets

accomplice - one who is present and directly participates in the crime.

Strict liability- where there is liability (responsibility) even in the absence of intent or recklessnes

parole- The conditional release of a person convicted of a crime prior to the expiration of that person's term of imprisonment, subject to both the supervision of the correctional authorities during the remainder of the term and a resumption of the imprisonment upon violation of the conditions imposed.

probation- A sentence whereby a convict is released from confinement but is still under court supervision; a testing or a trial period. Probation can be given in lieu of a prison term or can suspend a prison sentence if the convict has consistently demonstrated good behavior.

Double jeopardy/Autrefois Acquittal - Generally, if an accused has already been convicted of an offense, or acquitted of an offense, he cannot again be convicted of the same offense arising from exactly the same circumstances.

arrest/arraignment/pretrial hearing- stages in the criminal judicial process  

habeas corpus - [Latin, You have the body.] A writ (court order) that commands an individual or a government official who has restrained another to produce the prisoner at a designated time and place so that the court can determine the legality of custody and decide whether to order the prisoner's release.

capital punishment- The lawful infliction of death as a punishment; the death penalty.

circumstantial evidence - Information and testimony presented by a party in a civil or criminal action that permit conclusions that indirectly establish the existence or nonexistence of a fact or event that the party seeks to prove.

hearsay- an out of court statement. it is generally inadmissible unless there is an applicable exception. 

Priest and Penitent/doctor-patient/attorney-client/marital privilege - relationships which allow a defendant to have communications excluded from evidence based on the privileged nature of those relationships

Prima facie - Latin for "at first view." Evidence that is sufficient to raise a presumption of fact or to establish the fact/crime in question unless rebutted.

Statute of Limitations- the time limit for starting a prosecution against a defendant for a crime s/he committed



Additional reading

In the UK indictable offences (offenses) are serious offences tried on an indictment, i.e. a formal accusation, usually by a judge and a jury (e.g. murder, robbery), while summary offences are tried by lay magistrates without the right to a jury (e.g. minor traffic offences). There are also offences that are tried either way- "wobblers" in American jurisprudence.


Most civil law jurisdictions use the inquisitorial system of adjudication in which the court undertakes an active investigation of the claims in order to determine the facts of the case. In such an investigation the prosecution is a collaborator of the court in the discovery of the truth and the accomplishment of the law. By contrast, common law jurisdictions use the adversarial system of dispute resolution in which each side presents evidence and witnesses and attacks those of its opponent by cross-examination. The final ruling of the court depends on the success of each adversary (side) in convincing an impartial judge or/and jury that its interpretation of the facts of the case is the correct.
In many inquisitorial jurisdictions, the defendant is considered guilty until proven innocent. Under the American constitution such a presumption is prohibited and the defendant is considered innocent until proven guilty.


Magistrates’ Courts
If X exceeds the speed limit when driving a car, thus committing a summary offence, he or she may be reported by the police for summons. The latter is served on the accused informing him or her of the alleged offence and commanding him or her to attend the court on a specified date and time, by which criminal proceedings are initiated. If X does not appear in court, the magistrates may issue a warrant for arrest. If X chooses to attend the court, he or she may consult a solicitor to receive advice on whether to plead “guilty” or “not guilty”. A “guilty” plea may lead to a quick settlement of the case, usually by fine. If, however, X wishes to contest the accusation, he or she can plead “not guilty” and his or her solicitor will have to prepare a defence. If the defence is not successful and the defendant is found guilty, the magistrates will decide on a penalty. If the defence is successful, the defendant is acquitted.



Crown Court
If Y commits a theft which is to be tried by the Crown Court, a written accusation is drawn up and becomes an “indictment” when signed and approved by the trial judge, by which the suspect is formally charged with the respective crime. The defendant is then summoned to trial and arraigned with the court clerk calling him or her by name to the bar and asking him or her to plead “guilty” or “not guilty”. Prior to the trial there is a statutory requirement for disclosure by both prosecution and defence of any material relevant to the case, e.g. alibis, witnesses, exhibits, etc.
If Y pleads “guilty”, the prosecuting counsel outlines the broad facts of the case to the court and the antecedents of the defendant, i.e. the life history and previous convictions, are read out. Then the defence counsel may make a speech in mitigation pointing out circumstances that should be taken into consideration by the court in fixing the sentence. The judge then may retire to consider his or her decision, which is subsequently delivered together with the penalty in open court.
If Y, however, pleads “not guilty”, a jury is empaneled and sworn in, the prosecuting counsel outlines the broad facts of the case and shows how it intends to prove the case. The witnesses of the prosecution are then examined, cross-examined by the defence counsel, and if necessary re-examined by the prosecuting counsel. The defence counsel then outlines the broad facts of the defence. The witnesses of the defence are then examined, cross examined by the prosecuting counsel, and if necessary re-examined by the defence counsel. At this point, the defendant Y may elect to go into the witness box and give evidence under oath and/or protest his or her innocence. Then the prosecuting counsel delivers a closing speech. The last speech, however, is attributed to the defence counsel. Afterwards, the judge instructs the jury on the law, sums up and explains that the burden of proof  is on the prosecution to prove that the accused committed the offence beyond a reasonable doubt. The jury then retires to deliberate in secret, without any external interference. If they do not reach a unanimous decision on the verdict, the judge will order retrial and empanel a new jury. If the defendant is found guilty by the jury, the defence counsel makes a speech in mitigation before the sentence of the court is pronounced by the judge.