Frequently Used Terms


Burden of Proof is the level of convincing that the fact finder (the jury in Superior Court, the Judge in Municipal Court) is required to have before deciding an issue. The State almost always has the burden of convincing the fact finder. The amount of convincing varies depending on the issue. If the issue is guilt, the fact finder must be convinced beyond a reasonable doubt by the evidence. If the issue is a Motion to Suppress Evidence the level is clear and convincing evidence. In a civil case the burden is a preponderance of evidence. It is hard and inaccurate to define these levels in percentage terms, however for comparison purposes only beyond a reasonable doubt would require over 90%, clear and convincing 75% and a preponderance over 50%.


Arrests occurs anytime you are stopped by the police and are not free to leave. You do not have to be read your rights. This is one of the most common misconceptions. You are under arrest whether the police read you your rights or not. You have no right to be read your rights.


Right to remain silent and the right to an attorney are Constitutional rights that apply to any person who is arrested. You must waive these rights before the police can question you. The Supreme Court ruled in Miranda v. Arizona that you cannot waive your rights if you do not know what they are. That is why they are called your Miranda rights. The police must read you your rights before they question you and you must agree to talk to them anyway. If the police question you after you are arrested without reading you these rights they cannot use any statement you make. The arrest is just fine but your statement is unconstitutional. These rules vary some in the motor vehicle setting.


Stop and Search The Constitution requires all citizens to be free from unreasonable search and seizure by the police. You must remember that the Founding Fathers were much more afraid of the government than they were of simple criminals. Therefore the police must be able to establish that their intrusion on your freedom was "reasonable" or any evidence they find cannot be used in Court. You contest police actions by filing a Motion to Suppress Evidence where the State must prove reasonableness by clear and convincing evidence. These Motions are difficult to win, partly because the Judge makes this decision and not the jury. Judges tend to believe police more and apply the law more strictly than the ordinary person. The case law in this area is massive and every situation is different. For basic understanding, the police can stop you if they have an "articulable suspicion" that you are doing something against the law. This means they have to be able to put it in words. It cannot be just a hunch. Also the basis for their suspicion has to be Constitutional, for instance, they cannot stop you because you are black or young looking and they think all blacks or young people have drugs (Don't laugh it happens a lot). Once they stop you they cannot arrest or search you unless they have "probable cause". This is more than a suspicion but less than proof, in other words it is probable that you are breaking the law. Also, unless there is no time, they must have a Judge make this decision and get a warrant before they arrest or search. Obviously on the street there is normally no time.


Possession This term is utilized in most drug and weapons cases. Again, the case law defining this term is massive. Basically you possess something if you know what it is, you know where it is and you have the right to exercise "dominion and control" over it. Possession can be actual, for instance it is in your pocket, or constructive, it is not on you but all the factors exist, for instance your car is parked outside and you have the key. You may also possess something for a specific purpose. You may possession CDS with intent to distribute it or you may possess a weapon with the purpose to use it unlawfully.


C.D.S. A Controlled Dangerous Substance is any drug made illegal under N.J.S. 2C : 35 et. seq. Basically it is any drug you can only get with a prescription. It is illegal to have them, use them or sell them. CDS crimes are graded by the type of drug you possess, the amount you possess, what you are doing with it and where you are when you have it.

Assault An assault occurs anytime you touch someone without his or her consent. In sexual assaults the person may not be old enough to consent and therefore it is a crime. An assault is graded by how much injury you did or intended to do and also may be based upon who the victim is. (Assaults on police, public servants and teachers and children are graded higher) You do not have to actually harm the person if you meant to do harm, but this will require different levels of intent to be proved. The four types of injury are Harassment, where you only intended to offend, Bodily Injury, where you just caused pain, Significant Bodily Injury, where you caused temporary loss of a sense, and Serious Bodily Injury where you caused permanent harm. In sex crimes it also depend on what you did and what you touched.

Criminal Law Our criminal law has its roots in medieval England. Under early common law, criminal behavior was considered a breach of the King's peace, and therefore, considered harmful to society in general, which required governmental action. Only the major felonies, such as treason, rape, larceny, battery, kidnapping, murder, and arson were prosecuted and the only sentence was death. Today, criminal law is a vast and complex body of statutes, rules, and judicial decisions that touch nearly every aspect of our lives. State, federal, and municipal criminal codes have divided the old common-law felonies into many separate crimes and now provide an array of sentencing options. In addition, new crimes have been defined addressing drugs, automobiles, businesses, organized crime, computers and other modern situations.

A crime must be clearly defined in order to pass scrutiny under the federal Constitution, which prohibits the government from taking a person's life, liberty, or property without due process of law. A vague description of the crime or a lack of specific elements or intent needed for committing the crime leaves a person without knowledge of exactly what is prohibited. In order to be a crime, the prohibited conduct must include both a "mens rea" or intent and an "actus reus" or bad act. Accidentally hitting somebody when you draw back the baseball bat to swing at a ball is not a crime because it lacks required intent. Wishing someone would drop dead is not a crime because it lacks the bad act.

Drug violations are criminalized in both federal and state criminal justice codes, which typically list controlled substances, which are prohibited under any circumstances or may not be used except under a doctor's care. When a person uses one of these substances in violation of a criminal statute, he or she has committed a crime.

DWI/DUI means "driving while intoxicated" or "driving while under the influence" and refers to the crime of drunk driving. This offense includes driving while using drugs or alcohol and operating a car or other kind of motorized vehicle, such as a motorcycle or boat.

Federal jurisdiction refers to authority of a federal court to hear cases involving crimes charged under federal law. Crime has traditionally been the domain of individual states, but Congress is authorized through its powers under the commerce, postal, and taxing clauses in the Constitution to make criminal laws covering those areas. While a person can be prosecuted for the same incident under state and federal law, most often the choice of whether to bring an action in state or federal court is based upon resources available to investigate and prosecute the crime and on sentencing options.

Felonies are crimes punishable by over one year in prison. Most felonies are also punishable by a fine, but the critical determination for considering a crime a felony is the prison sentence.

Fraud is an important part of property crimes such as embezzlement and false pretenses. The lawbreaker must knowingly and intentionally deceive the victim in some manner for the fraud element to be satisfied.

Grand jury proceedings are a method used by prosecutors to bring criminal charges against a criminal suspect. A prosecutor will often convene a grand jury when investigating complicated criminal matters.

Juvenile crimes are called delinquent acts and handled in the juvenile court system. The major purpose of the juvenile system is to rehabilitate the offender, and many sentences require counseling or other family intervention. Juvenile court jurisdiction ends when a person turns eighteen.

Disorderly Persons Offenses are punished with less than one year in jail. Many crimes, such as theft, have degrees of seriousness with the most serious being felonies and the less serious being offenses. Disorderly persons offenses are heard in the Municipal Court without a jury.

Parole and probation are used in the sentencing phase of the criminal-justice system. Parole refers to the condition of supervised release that occurs after an offender has spent time in prison. Probation is a sentence imposed instead of prison and is usually subject to terms and conditions designed to make the offender a law-abiding citizen.

Prosecution refers to the State's case against the lawbreaker. A prosecutor - the lawyer presenting the State's case - has complete discretion to decide whether to bring a charge against an alleged offender and must prove all charges beyond a reasonable doubt.

RICO refers to the federal or State Racketeer Influenced and Corrupt Organization Act passed in 1970 as part of a larger organized crime bill. The purpose of the act is to combat the infiltration of organized crime into legitimate businesses, but also it has been used to prosecute individuals other than just those associated with organized crime.

Sex offenses include much more than the common-law crime of rape, which historically was limited to unlawful sexual intercourse by a man against a woman through the use of force or the immediate threat of force. New Jersey prohibits lesser invasions, such as unwanted touching, as well as prosecution of spouses for sexual assault. In addition, sex offenses include crimes that are defined based on the status of the victim, such as a child or therapy patient.

Traffic violations are infractions which are generally not considered part of the criminal law. However, some traffic violations can rise to the level of more serious crimes, such as vehicular homicide or leaving the scene of an accident.

Victims' rights refers to a body of emerging law that focuses on the needs and concerns of crime victims. Victims now have rights, for example, to information about the prosecution of the crime committed against them, to receive counseling and compensation, and to participate in the sentencing process.

White collar crimes refer to the group of property crimes typically committed to gain a business or professional advantage. White collar crimes include mail fraud, bank fraud, securities fraud, embezzlement, tax crimes, and environmental pollution.

Probation and Parole Probation are criminal sentences; parole is one way of completing a criminal sentence of incarceration. In most jurisdictions, first-time offenders are considered for probation, particularly if their offense was nonviolent. A person placed on probation is typically given a jail or prison sentence that is suspended as long as the person abides by the terms and conditions of probation. Common terms require the person to contact a probation officer once a week and to work, go to school, or look for work. Other terms can include required attendance at alcohol treatment or narcotic-abuse programs and educational classes on such subjects as anger management or good driving. The length of probation and its terms are enumerated at the sentencing and once the person has completed the terms of probation, he or she is free of court supervision.

Typically, an offender has been sentenced to an indeterminate or range of years in prison. After the offender has served the minimum amount of time authorized, the parole board decides if the offender is ready to be released from incarceration to finish out the sentence on parole. Parole boards consider the nature and seriousness of the crime, the views of the victim, the progress the offender made in prison, how crowded the prison is, and whether the offender has a someplace to go in the community. If parole is granted, the offender will have to abide by terms and conditions similar to those for probation for a specified period of time. If he or she completes the parole period, the criminal sentence is discharged.

Both probation and parole can be revoked if the offender commits another crime or seriously violates one of the conditions of release. The revocation proceeding requires written notice to the offender, an opportunity to explain and call witnesses, an impartial decision-maker, and a written decision stating the reasons for revocation. If parole is revoked, the parolee goes back to prison and serves the remainder of his or her sentence in jail or prison.