Refimprove date January 2010 A defendant or defender Delta letter in legal shorthand is any party required to answer a plaintiff s complaint in a civil lawsuit , or any party that has been formally indictment charged or accused of violating a crime criminal statute . Respondent is the parallel term used in a proceeding which is commenced by petition . In criminal law, a defendant is anyone tried as the accused. But convention in Scotland does not recognise the use of the term defendant in criminal proceedings the terms accused or panel are used instead. ref http www.scotland judiciary.org.uk 29 0 Glossary a P ref Defendants in civil actions usually make their first court appearance voluntarily in response to a summons. But criminal defendants are often taken into custody by police and brought before a court under an arrest warrant . Historically, civil defendants could be taken into custody under a writ of capias ad respondendum and be forced to post bail before being released. But modern day civil defendants are usually able to avoid most if not all court appearances if represented by a lawyer . Criminal defendants are usually obliged to post bail before being released from custody and must be present at every stage of the proceedings against them. There is an exception for very minor cases such as traffic offenses in jurisdictions which treat them as crimes. Most often and familiarly, defendants are persons either natural person s actual human beings or legal person s persona ficta under the legal fiction of treating organizations as persons. But a defendant may be an object ... case is United States v. Forty Barrels and Twenty Kegs of Coca Cola 1916 , where the defendant ... organizations. England and Wales Historically, defendant was a legal term for a person prosecuted ... Reflist See also Wiktionary defendant Wiktionary plaintiff petitioner claimant complainant Plaintiff ... Gedaagde ja pl Pozwany pt R u ru sco Defender simple Defendant sk alovan fi Vastaaja ... more details
In the United States Of America US , and possibly other Common Law countries, a relief defendant or nominal defendant is a person named in civil litigation who is not accused of wrong doing. However, it is alleged that the relief defendant has received property originally obtained illegally, and to which the relief defendant has no legitimate claim. ref name simmons cite web last Simmons first Camisha title Defrauded Parties Recovery of Funds from Innocent Third Parties The Relief Defendant url http www.abiworld.org committees newsletters litigation vol6num5 defrauded.html accessdate 16 June 2011 ref It is not necessary that the relief defendant receive the property in question knowingly however, a valid negotiated Consideration law consideration creates a legitimate claim. ref name simmons Reflist law stub Category Civil law common law ... more details
Orphan date February 2009 The Vermont Defendant Accommodation Project VDAP was a two year case study conducted by Philip J. Kinsler, Anna Saxman, and Daniel B. Fishman aimed at identifying, assessing, and accommodating the special needs of mental retardation mentally retarded criminal defendants. Background The VDAP was originally conducted to understand the difficulty mentally retarded criminal defendants have navigating the criminal justice system. During the study, however, the authors found that mentally retarded criminal defendants often suffered from a combination of disorders, such as mental illness substance abuse homelessness a history of physical and or sexual abuse a history of foster home placement difficulty in school related to learning disorders assignment to special education programs, and or school dropout a history of relatively minor criminal behaviors. ref name VDAP Vermont Defendant Accommodation Project , Psychology, Public Policy, and Law , Vol. 10, No. 1 2, 134 35 2004 . ref The VDAP authors labeled individuals with a combination of disorders as suffering from ... step in providing defendant accommodations to mentally retarded defendants and sufferers of HLD ... accommodations are appropriate in the legal context. Once a mentally retarded defendant is identified ... to guide the defendant through the legal process by asking the court to use simple language or to slow down if the defendant needs further explanation. Third, the court, prosecutors, and defense .... Vermont Initiatives for Defendant Accommodaiton One successful Vermont initiative for defendant ... suggestions for defendant accommodation, such as a revised Miranda warning for mentally retarded ... Defendant Accommodation Project , Public Policy, and Law , Vol. 10, No. 1 2, pg. 147 2004 National ... references External links http www.psyfil.net files Vermont Defendant Accommodation Project.pdf Vermont Defendant Accommodation Project http www.ojp.usdoj.gov bjs welcome.html U.S. Bureau of Justice Statistics ... more details
Nuisance lawsuit may refer to a suit of the tort of nuisance , i.e. the plaintiff claims the defendant is causing a nuisance to the plaintiff a frivolous lawsuit , i.e. by bringing the suit, the plaintiff is causing a nuisance to the defendant Disambig ... more details
Unreferenced stub auto yes date December 2009 Civil procedure United States Wiktionary About the legal term the language use Reply The reply is a response by plaintiff to defendant s answer . A reply occurs only when defendant has asserted a counterclaim or the court has ordered a reply. It is important to keep in mind that plaintiff in this context may also refer to an implead ed party. So, if a defendant impleads a party, this new party is the third party defendant and the original defendant is the third party plaintiff. The third party plaintiff must file a complaint on the third party defendant, who then must answer. The court may order a reply to this third party defendant s answer. DEFAULTSORT Reply Legal Term Category Legal terms Law term stub it Replica ... more details
Orphan date February 2009 Unreferenced date November 2007 A Sirois hearing is a legal Hearing law hearing used when a prosecutor prosecution witness either becomes unavailable to testify at trial or refuses to testify, and the prosecution alleges that this is due to the defendant s misconduct. In this situation, the prosecution may introduce the witness s prior statements at trial if it can show that the defendant is responsible for the witness s nonappearance. In order to obtain the hearing, the prosecution must allege specific facts that the defendant s conduct induced the witness s refusal. Absent waiver by the defendant, a hearing is needed to determine the admissibility of the prior statement, where the prosecution must establish defendant s responsibility for a witness refusing to testify People v. Johnson . The prosecution is required to show Clear and Convincing Proof of the defendant s malfeasance as the admission of such testimony violates the defendant s Sixth Amendment to the United States Constitution sixth amendment rights to be confronted with the witnesses against him. In addition, the Sirois ruling also results in the absent witness s statement becoming de facto unquestionable. The hearing is named after Daniel Sirois, the defendant in Holtzman v. Hellenbrand . Category Confrontation Clause case law ... more details
Unreferenced date March 2009 Antecedents are the life history and previous Conviction law convictions of a defendant in a criminal case. They are colloquially known as previous convictions or simply previous in the United Kingdom U.K. and prior convictions or simply priors in the United States and Australia . When a defendant is being sentence law sentenced for a crime , the court will be told his or her antecedents. This information is usually considered by the judge magistrate in deciding the sentence the defendant will receive. If a defendant pleads not guilty , his or her previous convictions are not usually made known to the jury during the trial. This is to prevent prejudice against the defendant, although it is argued if the defendant has previous convictions for similar types of offence, this should be part of the evidence given at the trial. Category Criminal law Category Legal terms law term stub ... more details
defendant has the right to be represented by an attorney during a plea colloquy failure of the state to provide an attorney to an indigent defendant during such proceedings is grounds for an appeal. It is possible but very difficult for a defendant who is so represented to have a plea thrown out due to ineffective assistance of counsel . The defendant must make a positive showing that but for the erroneous ... more details
unreferenced date July 2010 Parker v. North Carolina , ussc 397 790 1970 , was a case in which the U.S. Supreme Court ruled that a plea agreement was valid even if the defendant entered into it in order to avoid the death penalty and even if his decision was based on a possibly mistaken belief on the part of the defendant and his lawyer that a confession the defendant had made would be admissible in court. Category United States Supreme Court cases ... more details
Regina v. Instan , 1893 Cox. C.C. 602, was an Law of England English case that upheld a conviction for manslaughter by neglect. ref Bonnie, R.J. et. al. Criminal Law, Second Edition. Foundation Press, New York, NY 2004, p. 123 ref Factual background The defendant lived with her aunt, who supported her. The aunt contracted gangrene , but the defendant did not seek medical care for her or tell anyone about her condition. The defendant still accepted food from tradespeople at the house, and ten days later her aunt died. The defendant was convicted of manslaughter. Decision The defendant s conviction was upheld because the court found that the defendant had a clear morality moral duty to provide food and care for her aunt. ref Bonnie, p. 123 ref References reflist Category English criminal case law Category 1893 in case law Category 1893 in the United Kingdom ... more details
of the case. Self defense MPJI Cr 5 07 Self defense is a defense, and the defendant must be found not guilty if all of the following three factors are present 1 The defendant actually believed that he she was in immediate and imminent danger of bodily harm. 2 The defendant s belief was reasonable. 3 The defendant used no more force than was reasonably necessary to defend himself herself in light ... death or serious bodily harm. If the defendant is found to have used deadly force, it must be decided whether the use of deadly force was reasonable. Deadly force is reasonable if the defendant actually had a reasonable belief that the aggressor s force was or would be deadly and that the defendant needed a deadly force response. In addition, before using deadly force, the defendant is required to make all reasonable effort to retreat. The defendant does not have to retreat if the defendant was in his her home, retreat was unsafe, the avenue of retreat was unknown to the defendant, the defendant was being robbed, the defendant was lawfully arresting the victim. If the defendant was found to have not used deadly force, then the defendant had no duty to retreat. Defense of Others MPJI Cr 5 01 Defense of others is a defense, and the defendant must be found not guilty if all of the following four factors are present 1 The defendant actually believed that the person defended was in immediate and imminent danger of bodily harm. 2 The defendant s belief was reasonable. 3 The defendant ... or actual force. 4 The defendant s purpose in using force was to aid the person defended. Defense of Habitation Deadly Force MPJI Cr 5 02 Defense of one s home is a defense, and the defendant must be found not guilty if all of the following three factors are present 1 The defendant actually believed that victim was committing was just about to commit the crime of crime in at the defendant s home. 2 The defendant s belief was reasonable. 3 The defendant used no more force than was reasonably ... more details
Elsie Borden may be Elsie the Cow , cow used as Borden s advertising icon See also Lizzie Borden 1860 1927 , America murder defendant disambig ... more details
Dead time is time spent institutionalized that does not count as credit toward the defendant s sentence. An example would be time spent confined in a mental hospital while the defendant is being restored to competency to stand trial. Halfway house time pending sentencing can also sometimes be dead time. In the U.S., federal law provides that a defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences 1 as a result of the offense for which the sentence was imposed or 2 as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed that has not been credited against another sentence. ref 18 U.S.C. 3585 ref References reflist Category Imprisonment and detention ... more details
Unreferenced date December 2009 Civil procedure United States A special appearance is a term used in the United States American law of civil procedure to describe a civil defendants defendant s appearance in the court of another U.S. State state solely to dispute the in personum jurisdiction personal jurisdiction of the court over that defendant. Prior to the advent of this procedure, defendants had to either appear in the other state s court to defend the case on the merits, or not show up in court at all, and then mount a collateral attack on any Judgment law judgment rendered against them, when the plaintiff came to the defendant s state to collect on the judgment. In a legal catch 22 , if the defendant appeared solely to contest jurisdiction, the court would then be permitted to assert jurisdiction based on the defendant s presence. In response to the apparent inequity presented by this situation, most states have passed statutes permitting the defendant to make a special appearance in the courts of the state to contest jurisdiction, without further subjecting themselves to the jurisdiction of the court. The equivalent of such an appearance is possible in U.S. federal courts , for the defendant may make a motion to dismiss for lack of personal jurisdiction. Where a special appearance is permitted, the term general appearance is used to denote the normal type of appearance in court. A special appearance is in contrast to a general appearance . See also Federal Rules of Civil Procedure DEFAULTSORT Special Appearance Category Civil procedure ... more details
Regina v. Faulkner , 13 Cox C.C. 550 1877 , was a legal case case tried before the Court for Crown Cases Reserved holding that the mens rea for committing one criminal act does not necessarily transfer to all possible consequences of that act. ref Bonnie, R.J. et. al. Criminal Law, Second Edition. Foundation Press, New York, NY 2004, p. 176 ref Decision The defendant was employed on a ship transporting rum, sugar, and cotton. The defendant was not allowed into the cargo area, but he entered the area, poked a hole in a barrel of rum, and drank some of it. To be able to see while plugging the hole, the defendant lit a match. The rum caught fire, injured the defendant, and destroyed the ship. The trial court found the defendant guilty of larceny for the rum and arson for the ship. The Court for Crown Cases Reserved reversed based on jury instructions that allowed the jury to find the defendant guilty of the arson even if they found that he only had intent to commit the larceny. The court held that the intent to commit the larceny did not necessary mean that the defendant had the intent to commit the arson, so the jury instructions were improper. ref Bonnie, p. 177 ref References reflist Category English criminal law Category 1877 in case law ... more details
The Drug Trafficking Act 1994 c. 37 is an Act of Parliament Act of the Parliament of the United Kingdom . It largely replaced the Drug Trafficking Offences Act 1986 . Where the defendant is convicted of a drug trafficking offence and the prosecutor applies to the Crown Court for a confiscation order the court must determine whether the defendant has benefited from drug trafficking. If at any time the defendant has received any payment or other reward in connection with drug trafficking carried out by him or another he will be deemed to have benefited from drug trafficking and the court must make a confiscation order . The Drug Trafficking Act 1994 came into force on 3 February 1995 and any benefit received by the defendant in connection with drug trafficking prior to that date must be included when calculating the defendant s benefit. The Act embraces 69 sections and is divided into 4 Parts with 3 schedules External links UK LEG title Drug Trafficking Act 1994 type ukpga path ukpga 1994 37 Category United Kingdom Acts of Parliament 1994 ... more details
mergeto Bail date November 2011 Posting bail means for a criminal defendant or a cosigner to pay bail . Once a defendant is arrested, if he is not released on citation cited out or released on recognizance ROR , he is taken to a holding jail where he is processed by the holding authority state, county or federal . At this point the defendant may contact someone to try to arrange to post bail. Surety bond Through a surety bond , the defendant or his cosignor enters into a contract with an insurance company. A bail agent or Bail bondsman bondsman in some states guarantees that the defendant will show up for his court dates. The bail agent backs up this promise with his own assets, or works with an insurance company that has the assets. The defendant is charged a percentage of the bond, a premium generally 10 percent of the total bond . First, the bail agent interviews the defendant or his cosignor. If a bondsman does not wish to write the bond because of risk of flight or other reasons, the friend or family member will need to call other bond agencies to try to get someone to write the bond. After gathering information including the defendant s full name and social security number, the bondsman then contracts with the cosignor to pay the premium and guarantee that she will pay the entire bond or any expenses incurred by the bail agent should the defendant skip bail . This contract guarantees that the defendant will appear at all scheduled hearings and trials. If the defendant skips bail and cannot be apprehended, the bond is forfeited and the bondsman will attempt to collect the full ... bail, and have the holding authority complete the bond paperwork. Once signed off on, the defendant ... the money to post bail in cash. If a cash bond has been issued to the defendant, he can post the total ... with the court. The court will record a property lien on the property of the defendant or of his cosignor . The property must be worth at least the amount of the bail. Should the defendant skip bail , the court ... more details
that there is a factual basis for the plea. The offer of a defendant to plead guilty should not be refused solely because the defendant refuses to admit culpability. Such a plea may be refused ... have initiated measures to make sure that the plea is entered into of the defendant s own accord ... in determining the voluntary nature of the plea given by the defendant, Rules concerning voluntariness ... of the defendant by the judge and sometimes by the prosecutor and defense counsel. ref name scheb Scheb ... a plea, that the defendant understands the basic constitutional rights incident to a trial, that these rights ... that a factual basis exists for the defendant s plea, judges often have the prosecutor briefly outline available proof to establish a prima facie case of the defendant s guilt. A more extensive ... why it is necessary to establish a factual basis for the plea, before it is entered by the defendant ... if a defendant later moves to withdraw a plea and enter a plea of not guilty. ref name scheb ... more details
Orphan date July 2011 A limited appearance is a term used in the United States law of civil procedure to describe a civil defendant civil defendant s appearance in a quasi in rem action in the court of another state to dispute liability to the limited extent of the value of the property seized by that court. This strategy allows the defendant to dispute only that amount seized, though this amount is less than the total amount in controversy, thus limiting his personal liability. Before the advent of this procedural device, a defendant faced the dilemma of either allowing his property to be seized with no defense and sold at Sheriff s sale sheriff s sale to partially satisfy the claim against him or, on the other hand, to appear in court to dispute the claim but in the process expose himself to the full in personam jurisdiction of the court and therefore the entire amount in controversy. The limited appearance may be coupled with a special appearance , allowing the defendant to first dispute the personal jurisdiction of the court over the defendant, and then only if necessary disputing the limited amount in controversy. See also special appearance References http www.kentlaw.edu perritt courses civpro berger limited special.htm Professor Perritt s Civil Procedure Course Page http www.answers.com topic appearance?cat biz fin answers.com Category Civil procedure law term stub ... more details
Brown v. Kendall , 60 Mass. 292 1850 , was a case credited as one of the first appearances of the reasonable person standard in United States tort law . Factual background The plaintiff and defendant engaged their dogs in a dog fight, and in the process of trying to break up the fight the defendant hit the plaintiff in the eye with a stick. In the trial court the defendant requested that instructions be given to the jury about contributory negligence and a standard resembling the reasonable person standard, but the judge declined to give the instructions. The jury rendered a verdict for the plaintiff, and the defendant appealed. Decision The court reasoned that the defendant should only be liable if he was at fault. Fault should be determined by whether or not the defendant was acting with ordinary care and prudence, a formulation of the reasonable person standard. The court determined that the lower court should have considered this standard when determining negligence and ordered a new trial. ref Henderson, J., Pearson, R., Kysar, D., Siliciano, J. The Torts Process, Seventh Edition. Apsen Publishers, New York, NY, 2007, p. 151 152. ref References reflist Category Tort law Category Law of negligence Category 1850 in United States case law Category Massachusetts state case law Category 1850 in Massachusetts ko ... more details
Unreferenced date December 2009 Otheruses Notice is the legal concept in which a party law party is made aware of a legal process affecting their rights, obligations or duties. There are several types of notice public notice or legal notice , actual notice , constructive notice , and implied notice . Service of process At common law , notice is the fundamental principle in service of process . In this case, the service of process puts the defendant on notice of the allegation s contained within a criminal defendant to be notified of the charges and their grounds. If a court bases Personal jurisdiction United States personal jurisdiction over an out of state or foreign defendant on a long arm statute , the court must carefully select a means of notifying the defendant to comply with the notice requirement of due process. Sometimes this is done by serving agents of the defendant located within the state. Because out of state defendants can t always be located easily, some state or local laws may allow for selication. An example of this would be printing a notice of the lawsuit in a newspaper published where the defendant is believed to reside. Because the failure of a defendant to appear in court results in a default law default judgment against him, such measures must be sufficiently calculated to give actual notice to the defendant to satisfy due process. In the core case setting forth constitutional notice requirements, the United States Supreme Court U.S. Supreme Court held that notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Moreover, defendants must be notified by the best practical means available. Notice and knowledge Many statutes include that the accused knowingly have acted in violation. When a party is put on notice that they are in violation, continued action in violation may be sufficient to evidence knowledge. See al ... more details
Orphan date February 2009 Unreferenced date April 2009 An omnibus hearing is a pretrial hearing. It is usually soon after a defendant s arraignment . The main purpose of the hearing is to determine the admissibility of Evidence law evidence , including testimony and evidence seized at the time of arrest. The prosecutor and the defendant s counsel attend the hearing to discuss pretrial matters pertaining to the case. Category Legal terms law term stub ... more details
Unreferenced date June 2007 A contribution claim is a Cause of action claim brought by one or more defendant s to a lawsuit for money damages brought by a plaintiff . A contribution claim asserts the party usually a defendant is entitled to contribution from a third party for any money damages awarded to the plaintiff. For example, if a plaintiff sues a homeowner for damages caused by a garage door, the defendant homeowner could add a third party, the manufacturer of the garage door to contribute to any damages awarded to the plaintiff according to the proportionate share of responsibility, legal liability liability , or fault assigned to the homeowner and the manufacturer by the jury . In most cases, contribution claims are brought like the original lawsuit itself. The claim must be personally served on the new, third party defendant, by the third party plaintiff the defendant bringing the claim for contribution relief . In contrast, a counter claim asserts that the party usually a defendant is entitled to offset the damages awarded to plaintiff by the proportionate share of any responsibility, liability, or fault assigned to the plaintiff by the jury. Finally, a cross claim is the same as a counter claim or contribution claim, except that it is asserted by a defendant against other defendants. Counter claims and cross claims do not require personal service because no new parties are being added to the lawsuit. In some United States state court systems , a contribution claim must be opened as a new case, and thus the defendant must pay for a Court costs filing fee , Docket court docket number, or index number . In other states, however, no additional fee is required. See also Joint and several liability Tort law DEFAULTSORT Contribution Claim Legal Category Tort law Category Lawsuits law term stub ... more details
Law unref date July 2009 Resisting unlawful arrest is a possible excuse justification for breaking the law . Defendant s who use this defense legal defense are arguing that they should not be held guilty for a crime , since the action philosophy action s taken were intended to protect them from an unlawful arrest . Many courts will not tolerate any violence whatsoever committed while resisting an unlawful arrest , and almost certainly not deadly force, unless the police began to use violence before the defendant began to do so. In short, a defendant might be justified in running away from police attempting an unlawful arrest but, almost certainly will not be considered justified in shooting police who attempt to do so unless the defendant can somehow Evidence law prove Self defense theory self defense . Many states such as Illinois have clauses in the law to prevent any legal justification of resisting an unlawful arrest. See also Unlawful Arrest DEFAULTSORT Resisting Unlawful Arrest Category Criminal defenses Category Law enforcement terminology law enforcement stub ... more details
Wiktionary fictitious For literary uses see Fiction For Legal uses see legal fiction Fictitious defendants Feigned action Ejectment an action to recover land John Doe commonly named as a fictitious defendant. Disambiguation ... more details
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