Legal Terminology in Criminal Record Clearing
By Mathew K. Higbee, Esq.
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- Record Sealing
- The process of sealing or destroying of court records. The term is derived from the tradition of placing a seal on specified court files that prevents anyone from reviewing the files without receiving a court order. The modern process and requirements to seal a record, including the protections sealing provides, varies by state and often varies between civil and criminal cases.
Generally, record sealing can be defined as the process of removing the records pertaining to a court case from public view. The records, however, may not completely disappear and may still be viewed in limited circumstances; in most instances, a court order is required to unseal or view records once they are sealed. Some states order records to be destroyed after they are sealed. In some states, once a record is sealed the contents are legally considered to have never occurred and are not acknowledged by the state.
The "public policy" of record sealing balances the state's desire to free citizens from the burdens caused by the information contained in state records against the state's interest to preserve records that may be beneficial to the state or its citizens.
- Adjudication withheld
- Adjudication withheld is a decision by a judge to put a person on probation without a judgment of guilt, meaning the court does not legally find a person guilty, as long as the person complies with the sentence requirements. If the person successfully completes the terms of probation and has no subsequent offenses, as long as the person complies with his or her sentence requirements, no further action will be taken on the case and the offense for which adjudication was withheld is typically not considered a prior conviction for purposes of habitual offender sentencing, unless a person is convicted during adjudication withheld. If the person does not complete the terms of probation, a finding of guilty may be entered and the person may be sentenced according to the punishments defined for the offense.
- 1) Any written document in which the signer swears under oath before a notary public or someone authorized to take oaths (like a county clerk), that the statements in the document are true. 2) In many states, a declaration under penalty of perjury, which does not require oath taking before a notary, is the equivalent of an affidavit.
- A change or addition to a legal document which, when properly signed, has the same legal power as the original document.
- 1) The arrest is the starting point of most criminal cases. Arrest means to take or hold a suspected criminal with legal authority, as by a law enforcement officer. An arrest may be made legally based on a warrant issued by a court after receiving a sworn statement of probable cause to believe there has been a crime committed by this person, for an apparent crime committed in the presence of the arresting officer, or upon probable cause to believe a crime has been committed by that person. Once the arrest has been made, the officer must give the arrestee his/her rights ("Miranda rights") prior to interrogation (questioning), and either cite the person to appear in court or bring him/her in to jail. An arrested person must be brought before a judge for arraignment in a short time (e.g. within two business days), and have his/her bail set, unless no bail is required. A private "security guard" cannot actually arrest someone except by citizen's arrest, but can hold someone briefly until a law officer is summoned. A "citizen's arrest" can be made by any person when a crime has been committed in his/her presence. Such self-help arrests, however, can lead to lawsuits for "false arrest" if proved to be mistaken, unjustified or involving unnecessary holding.
- Short for a cause of action, lawsuit, or the right to sue (as in "does he have a case against Jones?"). It is also shorthand for the reported decisions (appeals, certain decisions of federal courts and special courts such as the tax court), which can be cited as precedents. Thus, "in the case of Malarkey v. Hogwash Printing Company, the court stated the rule as…."
- 1) In a criminal case, the specific statement of what crime the party is accused (charged with) contained in the indictment, information, or criminal complaint. 2) In jury trials, the oral instruction by the judge to the jurors just before the jury begins deliberations. This charge is based on jury instructions submitted by attorneys on both sides and agreed upon by the trial judge. 3) A fee for services.
Charges are listed when a person is arrested. An arrest can include multiple charges. The prosecuting attorney or judge can charge before or after the case is filed.
- Clerk of the court
- An officer appointed by the court to work with the chief judge in overseeing the court's administration, especially to assist in managing the flow of cases through the court and to maintain court records.
- The result of a criminal trial in which the defendant has been found guilty of a crime. This finding can be made by a jury or judge, and can result from a trial or by a plea, such as no contest or guilty.
- Each separate statement in a complaint which states a cause of action which, standing alone, would give rise to a lawsuit, or each separate charge in a criminal action. An arrest or complaint may includes multiple counts. For instance, a person who breaks into a home and steals a checkbook and uses the checks can be charged with (1) burglary in the first degree, (2) theft, and (3) forgery.
- 1) Any statement made, particularly in writing. 2) A written statement made “under penalty of perjury” and signed by the declarant, which is modern substitute for more cumbersome affidavit, which requires swearing to its truth before a notary public.
- Deferred Adjudication
- Literally means to defer judgment. This is available in some jurisdictions for certain offenses and often involves probation, treatment programs, and/or some type of community supervision. If all conditions of probation are met for the allotted time handed down by the court, the offender can avoid a formal sentence. Typically, at the end of the probationary period the charges will be dismissed and no record of conviction will result. Deferred adjudication may be available to eligible defendants upon recommendation by the prosecutor or at the discretion of the court.
- Dismissal with prejudice
- When a case is dismissed for good reason and the plaintiff is barred from bringing an action on the same claim.
- Dismissal without prejudice
- When a case is dismissed but the plaintiff is allowed to bring a new suit on the same claim.
- 1) The act of voluntarily terminating a criminal prosecution or a lawsuit or one of its causes of action by one of the parties. 2) A judge's ruling that a lawsuit or criminal charge is terminated. 3) An appeals court's act of dismissing an appeal, letting the lower court decision stand. 4) The act of a plaintiff dismissing a lawsuit upon settling the case. Such a dismissal may be either dismissal with prejudice, meaning the suit can never be filed again, or dismissal without prejudice, leaving open the possibility of bringing up the suit again if the defendant does not follow through on the terms of the settlement.
- District Attorney
- An official prosecutor for a judicial district, typically a county. The City Attorney or the state’s Attorney General sometimes prosecutes crimes.
- EEOC Stands for Equal Employment Opportunity Commision. It enforces “federal laws that make it illegal to discriminate against a job applicant or an employee.”
- Principles of conduct that members of the legal profession are expected to observe in their practice. They are an outgrowth of the development of the legal profession.
- Something (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact.
Trial evidence consists of:
1. The sworn testimony of witnesses, given on both direct and cross-examination, regardless of who called the witness; 2. The exhibits, which have been received into evidence; and 3. Any facts to which all the lawyers have agreed or stipulated. Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they say in their opening statements, closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence; Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence; Testimony that has been excluded or stricken, or that the jurors have been instructed to disregard, is not evidence and must not be considered.
- Exculpatory (evidence)
- Applied to evidence which may justify or excuse an accused defendant's actions, and which will tend to show the defendant is not guilty or has no criminal intent.
- Expungement is the process of legally destroying, obliterating or striking out records or information in files, computers and other depositories relating to criminal charges. State laws, which vary by state, govern the expungement of criminal records. The records cannot be accessed for general law enforcement or civil use. An expunged record may usually not be considered by any private or public entity in employment matters, certification, licensing, revocation of certification or licensure, or registration. Some states, however, allow expunged records to be accessed for employment or licensing in certain sensitive positions, such as law enforcement or work involving children or elderly persons. Expungement of records usually requires a formal request for expungement by the subject person of the records. States laws vary regarding when a request for expungement may be made and what records, i.e., records of arrest, fingerprints, etc., may be expunged. Some laws, however, allow automatic expungement in certain instances, such as for juvenile records of adults and first offenders who successfully complete a diversionary sentence. Local laws should be consulted to determine what requirements apply to expungement in your state
- Federal Court
- The court system which handles civil and criminal cases based on jurisdictions enumerated in the Constitution and federal statutes. They include federal district courts which are trial courts, district courts of appeals and the U.S. Supreme Court, as well as specialized courts such as bankruptcy, tax, claims (against the government) and veterans' appeals.
- 1) A crime sufficiently serious to be punishable by death or a term in state or federal prison, as distinguished from a misdemeanor which is only punishable by confinement to county or local jail and/or a fine. 2) A crime carrying a minimum term of one year or more in state prison, since a year or less can be served in county jail. However, a sentence upon conviction for a felony may sometimes be less than one year at the discretion of the judge and within limits set by statute. Felonies are sometimes referred to as "high crimes" as described in the U.S. Constitution.
- Inculpatory (evidence)
- Inculpatory evidence is a legal term used to describe evidence that shows, or tends to show, a person's involvement in an act, or evidence that can establish guilt. In criminal law, the prosecution has a duty to provide all evidence to the defense, whether the evidence favors the prosecution's case, or the defendant's case. Evidence which tends to show a person's innocence is considered exculpatory evidence.
- Information or Complaint
- A document filed with the court by a prosecuting attorney that lists the charges. This is the first step in creating a criminal court case and is commonly referred to as filing charges.
- Violation or infringement; breach of a statute, contract, or obligation. The term infraction is frequently used in reference to the violation of a particular statute for which the penalty is minor, such as a parking infraction. Most courts believe infractions are too minor to expunge.
- A building designated or regularly used for the confinement of individuals who are sentenced for minor crimes or who are unable to gain release on bail and are in custody awaiting trial. Jail is usually the first place a person is taken after being arrested by police officers. Most cities or counties have at least one jail, and persons are taken directly there after they are arrested; in less populated areas, arrestees may be taken first to a police station and later to the nearest jail. Many jails are also used for the short-term incarceration of persons convicted of minor crimes. More serious offenses go to prisons, which are maintained by the state—as opposed to city or county. People released from a sentence that involved jail are usually released on probation.
- A decision by a court that describes the rights and obligations of both parties in a lawsuit. In small claims court, for example, a judgment might be entered against a customer who owes money to your business. The judgment may be that the person must pay what he or she owes, or some part of what is owed.
- In law, jurisdiction (from the Latinius, iuris meaning "law" and dicere meaning "to speak") is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility
- A lesser crime punishable by a fine and/or county jail time for up to one year. Misdemeanors are distinguished from felonies, which can be punished by a term in state prison. They are tried in the lowest local courts such as municipal, police or justice courts. Typical misdemeanors include: petty theft, disturbing the peace, simple assault and battery, drunk driving without injury to others, drunkenness in public, various traffic violations, public nuisances and some crimes which can be charged as either a felony or a misdemeanor depending on the circumstances and the discretion of the District Attorney. "High crimes and misdemeanors" referred to in the U.S. Constitution are felonies.
- A formal request made to a judge for an order or judgment.
- The National Crime Information Center (NCIC) is a computerized index of criminal justice information (i.e.- criminal record history information, fugitives, stolen properties, missing persons). It is available to Federal, state, and local law enforcement and other criminal justice agencies and is operational 24 hours a day, 365 days a year. This information assists authorized agencies in criminal justice and related law enforcement objectives, such as apprehending fugitives, locating missing persons, locating and returning stolen property, as well as in the protection of the law enforcement officers encountering the individuals described in the system. The information contained in the system is exempt from privacy laws. Contesting the information contained on the report requires the subject of the report to ask the agency that is providing information to the NCIC "to initiate action necessary to correct any stated inaccuracy."
- Nolle Prosequi
- Latin for “ 1) We shall no longer prosecute,” which is a declaration made to the judge by a prosecutor in a criminal case (or by a plaintiff in a civil lawsuit) either before or during a trial, meaning the case against the defendant is being dropped. 2) An entry made on the record, by which the prosecutor or plaintiff declares that he or she will proceed no further, even if a file has not yet been made.
- Nolo Contendere
- Latin for “ I will not contest” the charges, which is a plea made by a defendant to a criminal charge, allowing the judge to then find him/her guilty, often called a plea of no contest.
- Someone legally empowered to witness signatures and certify a document's validity and to take depositions.
- The action of an executive official of the government that mitigates or sets aside the punishment for a crime. The granting of a pardon to a person who has committed a crime or who has been convicted of a crime is an act of clemency, which forgives the wrongdoer and restores the person's civil rights. At the federal level, the president has the power to grant a pardon, and at the state level the governor or a pardon board made up of high-ranking state officials may grant the pardon.
- 1) The release of a convicted criminal defendant after he/she has completed part of his/her prison sentence, based on the concept that during the period of parole, the released criminal can prove he/she is rehabilitated and can "make good" in society. A parole generally has a specific period and terms such as reporting to a parole officer, not associating with other ex-convicts, and staying out of trouble. Violation of the terms may result in revocation of parole and a return to prison to complete his/her sentence. 2) A promise by a prisoner of war that if released he / she will not take up arms again.
- Request: a formal message requesting something that is submitted to an authority.
- 1) A place for the confinement of persons in lawful detention for a period of one year or longer, especially persons convicted of felonies. 2) A place or condition of confinement or forcible restraint; a state of imprisonment of captivity. People released from prison are usually put on parole.
- A chance to remain free (or serve only a short time), given by a judge to a person convicted of a crime either in addition to a jail sentence or instead of being sent to jail or prison, provided the person can continually demonstrate good behavior. Probation is only given under specific court-ordered terms, such as performing public service work, staying away from liquor, paying a fine, maintaining good behavior, getting mental therapy and reporting regularly to a probation office. Violation of probation terms will usually result in the person being sent to jail or sent back to jail for the normal term. Repeat criminals are normally not eligible for probation. Probation is not the same as "parole," which is freedom under certain restrictions given to convicts at the end of their imprisonment.
There are two different types of probation; formal and informal. Formal probation, also known as supervising probation, requires the person sentenced to probation to frequently report to his or her probation officer. The probation officer will monitor all aspects of compliance required by the court, such as submitting random drug tests, maintaining a employment, and/or good behavior. Informal probation, also known as summary probation, only requires the person sentenced to probation to report to a probation officer when and if he or she is called to do so, in addition to completing court ordered obligations in a timely manner, and continually avoiding criminal behavior. Under formal probation, a person’s life is more closely scrutinized.
- To preserve in writing or printing, or by film, tape, etc. It often refers to "a precise history of a suit from its commencement to its termination, including the conclusions of law thereon drawn by the proper officer for the purpose of perpetuating the exact state of facts." 159 N.E. 591, 592. The record on appeal consists of those items introduced in evidence in the lower court, as well as a compilation of pleadings, motions, briefs, and other papers filed in the proceeding in the inferior court. Thus, if an argument by an appellant is based on facts other than those presented in the court below, the appellant will be going "outside the record" (hors the record) which the appellant ordinarily cannot do.
- Returning property or the monetary value of loss to the proper owner. Sometimes restitution is made as a part of a judgment in a negligence and / or contracts case. 2) In a criminal case, one of the penalties imposed is requiring the return of stolen goods to the victim for harm caused, or returning the monetary value of loss. Restitution may be a condition of granting the defendant probation or giving him or her a shorter sentence than normal.
- Restraining Order
- A court order prohibiting or restricting a person from harassing, threatening, and sometimes merely contacting or approaching another specified person.
- A sentence forms the final act of a judge-ruled process, generally involving a decree of imprisonment, a fine and/or other punishments or requirements given to a person convicted of a crime. Those imprisoned for multiple crimes, will serve either a consecutive sentence (in which the period of imprisonment equals the sum of all the sentences) or a concurrent sentence (in which the period of imprisonment equals the length of the longest sentence). If a sentence gets reduced to a less harsh (or "softer") punishment, then the sentence is said to have been "mitigated."
- State Bar Association
- A bar association is a professional body of lawyers. Some bar associations are responsible for regulating the legal profession in their jurisdiction’ while others are professional organizations dedicated to serving their members; in many cases, the bar associations serves both functions.
- State Court
- Each of the fifty state court systems in the United States operates independently under the constitution and the laws of the particular state. The character and names of the courts vary from state to state, but they have common structural elements. State governments create state courts through the enactment of statutes or by constitutional provisions for the purpose of enforcing state law. Like the federal court system, the judicial branch of each state is an independent entity, often called "the third branch" of government (the other two being the executive and legislative branches). Though independent, state courts are dependent on the state legislatures for the appropriation of money to run the judicial system. Legislatures also authorize court systems to establish rules of procedure and sometimes direct the courts to investigate problems in the legal system. Most states have a multilevel court structure, including a trial court, an intermediate court of appeals, and a supreme court. Only eight states have a two-tiered system consisting of a trial court and a supreme court. Apart from this general structure, the organization of state courts and their personnel are determined by the laws that created the court system and by the courts own rules.
- Statute of limitations
- A statute prescribing the time period during which legal action can be taken and charges can be filled. Once the statute of limitations has expired, charges cannot be filed.
- Summary Offense
- Any offense that is traible in a magistrates’ offense. In certain states, the offense may be punishable by a fine of up to $300 and/or a maximum of 90 days in jail.
- For a judge to set aside or annul an order or judgment which he/she finds was improper, meaning that the order or judgment is no longer in place or valid. A judge my also vacate a person’s record if he or she feels that it is in the interest of society to do so, regardless of whether or not the judgment was improper.
- - The National Crime Information Center (NCIC) is a computerized index of criminal justice information (i.e.- criminal record history information, fugitives, stolen properties, missing persons). It is available to Federal, state, and local law enforcement and other criminal justice agencies and is operational 24 hours a day, 365 days a year. This information assists authorized agencies in criminal justice and related law enforcement objectives, such as apprehending fugitives, locating missing persons, locating and returning stolen property, as well as in the protection of the law enforcement officers encountering the individuals described in the system. The information contained in the system is exempt from privacy laws. Contesting the information contained on the report requires the subject of the report to ask the agency that is providing information to the NCIC "to initiate action necessary to correct any stated inaccuracy."
Mathew K. Higbee is a graduate of the University of Utah's S.J. Quinney College of Law. After serving both as a prosecutor and defender, he founded a law firm that specializes in record clearing in eleven states.
Content on this page may be distributed free of charged and used in its entirety if properly cited.