Tuesday, November 11, 2014


Career prosecutors tend to have a sardonic sense of humor—some might even say they had a warped sense of humor. My wife often reminds me of this fact when, in social situations, I embark upon a story that I find uproariously funny but which tends to shock those uninitiated in criminal trial practice. One manifestation of prosecutor humor is in the area of jargon. Thinking that those outside the field of prosecution might be interested in some of the special terms used by prosecutors, I present the Prosecutor’s Dictionary. [My comments on these definitions will be found in brackets at the end of each definition].

ACCESSORY AFTER THE FACT—What many criminal defendants think their defense lawyer is supposed to be.
[Once when I was a Public Defender I had a client who wanted to give me the names and addresses of the people whom he had hired to give him a false alibi. I told him I didn’t need their addresses, I wasn’t going to suborn perjury for him. “Why not?” he asked, “You’re my lawyer. Isn’t that what you’re supposed to do?” After that discussion I always made sure that my initial client interview included a warning that “I am your advocate, not an accessory after the fact.”]

ACCOMPLICE—Star witness for the prosecution in a conspiracy case.
[When I was prosecuting drug trafficking cases I had a drug trafficker explain to me how easy it was to prosecute such cases. “You just get an indictment and go down to the jail and ask 'Who all wants to get out of jail?' ” I couldn’t convince him that trafficking cases required a little more than that.]

AMERICAN ROULETTE—The jury system.
[Russian roulette is played with revolvers. American roulette is played with jurors, sometimes with the same results. I once got dressed down by a judge for referring to the jury selection process as American roulette. (See the definition of Jury Trial below).]

BEYOND BEYOND A REASONABLE DOUBT—The burden of proof preferred by defense attorneys. This is sometimes referred to as Beyond a Whimsical Doubt.
[There actually IS a burden of proof which is greater than beyond a reasonable doubt. It’s called “proof evident or presumption great,” and it has historically come into play when deciding whether to completely deny bond to someone charged with a capital or life felony.]

CHARGING DECISION—A life changing decision made on the basis of inadequate information.
[One thing that I try to stress with the students in my classes on prosecution is the reality of the decision to charge someone with a crime. You never have all the information you need to make a fully informed decision, but given the time constraints of criminal prosecutions you must make the decision nonetheless. If you wait until all the necessary information was in hand the statute of limitations will have run.]

CIRCUS COURT—Circuit Court. A court of felony jurisdiction. Felony court is also known as Big Court to distinguish it from Little Court, which is a court of misdemeanor jurisdiction.
[Usually court proceedings are extremely dull for everyone except for the lawyers, the victims, and the defendants. At times, however, the odd and unusual occurs. Like the man who slashed his wrists in open court trying to get a continuance. Or the man who hyperventilated, threw up, and passed out when the judge sentenced him to life in prison. Or the defendant who expressed his displeasure with my cross-examination by jumping out of his chair and suckerpunching me. Or the defense attorney who had heart palpitations after his client attacked him in the holding cell behind the courtroom.]

DAMAGE TO OCCUPIED CLOTHING—Aggravated Battery. If the perpetrator uses a firearm, he commits the more serious crime of Shooting into Occupied Clothing.
[Today’s criminal defendant is quite often tomorrow’s victim. This is a relatively frequent occurrence with crimes of violence. Some career criminal defendants can make themselves so unpopular with law enforcement that there is little mourning when they get themselves shot up or cut. I vividly recall one such situation where the prosecutor (who shall remain nameless) opined that the proper penalty in such a case was probation with a special condition of marksmanship lessons.]

DEATH PENALTY—A form of punishment opposed by many thoughtful people and all murderers.

DEGREES OF HOMICIDE—1. Murder in the First Degree; 2. Murder in the Second Degree; 3. Murder in the Third Degree; 4. Manslaughter; 5. Excusable Homicide; 5. Justifiable Homicide; 6. Praiseworthy Homicide.
[Defense attorneys frequently try to persuade juries that their client committed this last degree of homicide. They are often successful.]

FORMER PROSECUTOR—1. Defense Attorney. 2. Talking head on television.
[If I had a nickel for every time some defense attorney told me “I’m a former prosecutor,” I’d be rich.]

FREQUENT FLIER—A revolving door defendant. A career criminal.
[When I first started practicing law, some of my early clients had far more courtroom experience than I did.]

HUNDRED STITCH RULE—If the victim receives a wound requiring fewer than 100 stitches, the crime is a misdemeanor.
[This is a completely fictitious “rule” which I don’t believe was ever actually used by anyone. I do, however, know of one prosecutor’s office in a large metropolitan area which actually did have a “Treated and Released Rule.” If the victim was treated and released at the emergency room, the crime was charged as a misdemeanor.]

JUDGE—a referee in a black dress.
[I had a colleague who was frequently asked why he never tried to get elected or appointed as a judge. He always responded “Because I’d rather be the quarterback than the referee.” Unlike the NFL, however, in the court system referee judges receive much better compensation than prosecutor quarterbacks.]

JURY TRIAL—A system whereby litigants have their cases decided by a group of people who are not smart enough to find a way to evade jury duty.
[I am a big fan of the jury system, but not of the way juries are selected (See definition of American Roulette above). During jury selection attorneys often attempt to eliminate the more intelligent jurors in order to obtain a group who can more easily be manipulated.]

NOLO CONTENDERE—"Not guilty but can’t prove it." A plea entered by someone who does not wish to admit guilt.
[Judges have the discretion to reject nolo contendere pleas, and many do because they think the defendant should admit guilt. When appearing before a judge who refuses to accept nolo contendere pleas, defendants enter Alford Pleas. In an Alford plea the defendant refuses to admit guilt but the judge cannot refuse to accept it.]

NONJURY TRIAL—Slow plea of guilty.
[When I first started practicing law, we’d try a dozen or so cases in a week’s time before the same jury panel. If you were a criminal defendant, you wanted to be tried on Monday, when jurors were most unfamiliar with criminal prosecutions and most likely to acquit. By Thursday, after the panel had become seasoned, acquittals were quite rare. Because judges have far more experience of the system than jurors they are, as a general rule, more likely to convict.]

PRESUMPTION OF INNOCENCE—1. For prosecutors, a rule of evidence. 2. For defense attorneys, the Eleventh Commandment.

PROBATION—A delayed entry program for prison.

SUBSTANDARD ASSISTANCE AGREEMENT—What many defendants think they have entered into when they sign a Substantial Assistance Agreement.