Some aspects of law terminology in legal prosecution



There are a plenty of things in law and specific law slang that might confuse non-lawyer or the first age student. So today I’m going to give you some examples and explanations of the words and terminology that might be used in the linguistic prosecution

1. First theme

The first part of terminology is totally connected to the process of pre-judgment processes, such as: linguistic investigations, eyewitnesses questioning, documentary tasks and others.

1. The community remedy document

The word ‘remedy’ was formed from Anglo-French ‘remedie’, Old French ‘remede’ — “remedy, cure” and directly from Latin ‘remedium’ — “a cure, remedy, medicine, antidote”. By official dates is in use since 1300.

This provision looks to provide for the victim of low-level crime or anti-social behavior to have a say in deciding the punishment imposed on, or actions required to be carried out by, offenders where they are dealt with without a formal court hearing.

2. Presumption of Validity

Presumption comes from the ancient Jewish law code, the Talmud, included reasoning from presumptions (hazakah), propositions taken to be true unless there was reason to believe otherwise, such as «One does not ordinarily pay a debt before term». [2]

The same concept was found in ancient Roman law. Medieval Roman and canon law graded presumptions according to strength: light, medium or probable, and violent.

The presumption of validity disfavors interpretations that would nullify the provision or the entire instrument. The presumption might be viewed as a species of the presumption against ineffectiveness since an interpretation that renders a provision invalid (unlawful) “obstructs” its application to the maximum.

3. Principle of Interrelating Canons

Transitive, «bring into reciprocal relation», from inter- “between» + relate (v.). Intransitive sense «come into reciprocal relation» is attested from 1912.

Principles of interpretation are guides to solving the puzzle of textual meaning, and as in any good mystery, different clues often point in different directions. It is a rare case in which each side does not appeal to a different canon to suggest its desired outcome. The skill of sound construction lies in assessing the clarity and weight of each clue and deciding where the balance lies.

4. Mandatory/Permissive Canon

The word mandatory was originally «of the nature of a mandate», from Latin ‘mandatorius’ — “pertaining to a mandator», from Latin ‘mandatus’ — “past participle of mandare”. Sense of «obligatory because commanded» is from 1818.

The word permissive was originally understood like «allowing passing through», from Old French ‘permissif’, from Latin ‘permiss’ — “to let go, let pass, let loose». In sense of «tolerant, liberal» it is first recorded 1956; by 1966 it had definite overtones of sexual freedom. Earlier it meant «permitted, allowed».

5. Legislative jurisdiction

The adjective ‘legislative’ was formed from the word ‘legistate’ — “a lawgiver, a maker of laws”, from Latin ‘legis lator’ — “proposer of a law», from ‘legis’, genitive of ‘lex’ — “law» + ‘lator’ — “proposer», agent noun of ‘lātus’ — “borne, brought, carried», which was used as past tense of ‘ferre’ — “to carry».

Jurisdiction however was formed in the meaning «administration of justice», from Old French ‘juridicion’ and directly from Latin ‘iurisdictionem’ — “administration of justice, jurisdiction», from phrase ‘iuris dictio’, genitive of ‘ius’ — “law, right» + ‘diction’ — “a saying».

This is the right of a State to pass laws that have a bearing on conduct. Some States take the view domestically that they are entitled to pass legislation covering matters which take place throughout the globe. States are entitled to protest assertions of legislative jurisdiction which are unwarranted under international law, and there is an increasing trend towards them doing so. [1]

2. Second theme

The next part of my article is going to be just about the most important thing in the whole prosecution and judgment process — linguistic prosecution. The main problem for both attorney and prosecutor is understanding each other’s words, witnesses testimony and evidences descriptions. For those in the process might be used linguists consulting.

The main thing for linguist is to explain meaning of the words, giving clear and understandable definitions to witnesses’ testimony and keeping as much of emotional coloring as is possible. They may passively accept the prosecution’s interpretation of ambiguous passages, as in different meanings of pronoun references, such as ‘it’ (the investigator’s, ‘We know you did it,’ cannot be fully understood by the suspect if the reference to ‘it’ is left unclear). They may not be familiar to the special techniques and conversational strategies used by undercover agents and cooperating witnesses.

1. Topic analysis

Topic introductions are somewhat like a team’s offence in an American football game. We try to get our points across in a manner akin to trying to score a goal.

Topic introductions are marked by obvious semantic shifts from the previous topic, by structural clues indicated by pauses and intonation changes, by discourse markers such as ‘well’, and by performative topic-changing phrases such as ‘not to change the subject but, ‘let’s move on to something else’, or ‘let me tell you something here’. Combinations of these ways to mark topic shifts are reasonably clear. Topic analysis provides attorneys with a skeletal view of the event, a kind of index of where to place their attention. [2]

2. Response analysis

An analysis of the responses given by the target to topics introduced by the agent throughout several tape-recorded conversations enabled one attorney to structure his cross-examination of the man who wore the mike as follows⁷.

In this cross-examination, the attorney made use of analysis of the many, many times the defendant’s responses used the feedback marker, to acknowledge that the confidential informant had the floor, but was not agreeing with that topic. This cross-examination exchange also gave the attorney the opportunity to bring in another major point of analysis, that it was always the confidential informant who introduced the topic of ‘doing’ the wife.

This was two most important things in the whole linguistic prosecution. It should not be forgotten that these are not the only things that must be done. Some of the features of legal process also contain need in linguistic prosecution in the middle of the judgment.

The example of what can be done by the linguist I will give right below. Here you can see the tape transcript. The original tape is the actual record of witnesses testimony taken by the police officer.

(1) I need to tell you the truth; you wouldn’t understand the pressure that I have been under. (2) I am terrified of the others; I have been threatened with personal injury. (3) I know they will do it but even so I must tell you the truth. (4) I was at the farm when that lad, the paper boy was killed. (5) I was upstairs searching for something of value, anything, money or coins. (6) Four of us had gone to the farm. (7) There were two motors, a blue Cortina Estate, which I went in with Vinny Hickey who was driving and his relation Micky. (8) I sat in the back. (9) Jimmy Robinson drove a Van I think it had a white top, it belonged to someone in the Dog and Partridge, he borrowed it for the job. (10) We arrived at the farm first and waited for Jimmy who arrived shortly afterwards. (11) We parked both motors away from the farm and walked down to the farm. (12) We didn’t all go together, me and Vinny walked down first. (13) We waited and the others joined us. (14) Jimmy broke in through a window and loosed us in. (15) They went downstairs and I went upstairs by myself. (16) I searched the bedrooms I remember taking the drawers from some furniture and after searching them I stacked them one on top of the other. (17) I had been drinking and cannot remember the exact time I was there but whilst I was upstairs I heard someone downstairs say be careful someone is coming [sic]. (18) I hid for a while and after a while I heard a bang come from downstairs. (19) I knew that it was a gun being fired. (20) I went downstairs and the three of them were still in the room. (21) They all looked shocked and were shouting at each other. (22) I heard Jimmy say, ‘It went off by accident’. (23) I looked and on the settee I saw the body of the boy. (24)There was a lot of mess, but I’m sure that he was shut in the head. (25) I was appalled and felt sick.

Right here I’m also giving you the tape how it originally was. Changes were marked.

1^st tape

P Did you hide?

(18) Yes I hid for a while and then I heard the bang I have told you about.

P What were the others doing?

(20) The three of them were still in the room.

P What were they doing?

(21) They all looked shocked and as I remember, but I can't be sure,were shouting at each other.

P Who said what?

(22) Jimmy said that it was an accident, or like this.

P Did you see any injury to the boy?

(24) Yes sir, in the head.

P What happened then?

(25) I felt sick.

3. Third theme

In common legal document there are several features that should be mentioned in this work. We should talk about actors of proceedings and their roles. In Russian legal practicing we also can mention some of those, written below.

1. Judges

Etymology: From Old French ‘juge’, from Latin ‘iudex’ — “one who declares the law» (source also of Spanish ‘juez’, Italian ‘giudice’), a compound of ‘ius’ — ‘right, law” + ‘root of dicere’ — “to say.

The role of the judges at the ICTY and ICTR was from the outset inspired by the adversarial nature of the proceedings; to an extent they act as umpires. But some provisions allow them a more active role, for example to order the parties to present additional evidence and ex officio to summon a witness.

2. Prosecutor

Etymology: From Medieval Latin ‘prosecutor’, agent noun from ‘prosequi’. Specific legal sense of «one who brings a case in a court of law» is from 1620s. comes from the word ‘prosecute’ — “follow up, pursue», from Latin ‘prosecutus’, past participle of ‘prosequi’ — “follow after, accompany; chase, pursue; attack, assail, abuse»; from ‘pro’ — “forward» + ‘sequi’ — “follow». Meaning «bring to a court of law» is first recorded 1570s. Meaning «go into detail» is from 1530s.

True to adversarial principles, the international Prosecutor enjoys a high degree of independence, albeit under some judicial supervision. One crucial difference is in the extent of their powers flowing from the more limited geographical and temporal jurisdiction of the Tribunals compared with the ICC. Each Prosecutor decides in what way the commencement of the investigation will go, the conduct of the investigation and any prosecution of a crime.

3. Defendant and defense counsel

Formed from Old French ‘defender’ — “defend, resist» and directly from Latin ‘defendere’ — “ward off, protect, guard, allege in defense; from ‘de-’ — “from, away» + ‘-fendere’ — “to strike, push”.

The defendant may put forward his or her own ‘defense case’. In turn, this requires a separate investigation conducted by the defense. The principle must be given a more liberal interpretation than at domestic courts, due to the difficulties encountered by the parties in tracing and gaining access to evidence. Under these circumstances the assistance of a defense counsel is particularly important. One may note, however, that mandatory representation is accepted in civil law systems, but contrary to the practice in common law systems this does not mean that the accused is prevented from participating actively at the trial.

4. Victims and witnesses

In the Tribunal proceedings, the victims participate as witnesses. Not even with respect to restitution of property are they parties to the proceedings. The role of victims is significantly strengthened in the ICC and they are granted a right to participation in the proceedings in pursuance of their own personal interests. It is also necessary to find practical and pragmatic solutions in light of the potentially very large number of affected victims. [3]

4. Fourth theme

In the very last theme of my article I want to mention the thing that might be the most important in the whole legal of civil process. It is the Attorney’s and Prosecutor’s last speeches.

The ability to give final shot is the most important for the attorney to play their role — to get everyone think that his client is not guilty in the crime he was judging for.

In order to legal debate the main speech of attorney and prosecutor don’t have much difference. The thing is in asking questions, having law debate and pleadings. In the context of civil judgment, attorney has to have a speech which must include:

– Material facts. Attorney may not include the conclusion to all the previous speeches or all;

– Particulars are not pleadings. You have to add your own thoughts and speech;

– You cannot just plead that the defendant was negligent and give particulars of the breach. Some judges, most of them now, will use their permission not to count attorney’s pleading if it will go such a way;

– Get up to the given structure if you are not sure about your own ability to take it right way according to your experience;

As I said in the first part, there are several thing that have to be said in the Conclusion of the case. Up those rules in the second part of my investigation I’m going to make my own attorney’s speech. This one can be used in any courts and cases.

So now I’m going to put up attorneys closing arguments like if I had to take in front of the legal counsel. We will take a case of random Mr. Smith, judged for a murder of Jane Wilson. We will try to prove he is not guilty.

“Ladies and Gentlemen, The death of Jane Wilson was truly tragic. It should never have happened. But today the Prosecution has failed to prove its case beyond a reasonable doubt — because my client is Not Guilty. As the instructions spell out — a reasonable doubt is such a doubt as would cause a reasonable person to hesitate to act in matters of importance to themselves. This case is replete with issues that would make any reasonable person hesitate to act.

As I said in our Opening Statement — “A wise man does not build his home upon a foundation of quicksand.” The foundation of the Prosecution’s case is an inadequate initial investigation and a biased follow up. Look at the initial police report. Critical eyewitnesses were not interviewed at the time of the murder. Sky Willow was working the stall right across from the murder. If he had been interviewed, the police would have known about the Zucchini incident. Fingerprints and DNA were never taken from the steering wheel of Ms Willon’s car. They could have confirmed that someone else drove the car. Police even failed to maintain the integrity of evidence seized — they lost the feather off the magic wand. This police incompetence would make any reasonable person to hesitate in important matters in their own lives.

Let’s next consider the testimony of Dr. Cavanaugh. She accepted Exhibit 5 as accurate only because it was made by a police officer. She was willing to render an opinion on legal cause of death without any factual basis. The doctor’s bias is obvious. How could any reasonable person rely on the doctor’s opinion about medical cause of death — after listening to his/her opinion about legal cause of death?

What about the follow up investigation? The Prosecution wants you to believe my client committed this crime because he knew the murder plans, was present at the market and never contacted police before or after the act. Well, all those facts are also true about Bailey Leightenen. Who was also there, who also knew. And he was not confident enough to make a call. People who get in suac a situation usually got nervous, they often fail to report what they know because of fear, misplaced loyalty or other reasons. It does not mean they committed the crime themselves. The Prosecution’s willingness to jump to such illogical conclusions should also cause reasonable people to hesitate in this case.

Finally, The Prosecution has totally failed to recognize that Jackson Smith was only 16 years when these events occurred. He was not a sophisticated adult with extensive life experience. Even so, he handled him self-esteem issues properly. But sixteen year old teenagers do not make perfect decisions. Sometimes they panic. Sometimes they rely on others when they should act themselves. Thankfully you have brought your common sense with you today. Putting Jackson Smith’s actions in proper context is one more reason that you jurors should hesitate in this case.

Member of the jury, Justice will not be done by convicting the wrong person. Justice demands that you return a verdict of Not Guilty. Do not punish this remarkable young man for something he did not do.”

References:

1. “International criminal law and procedure”, 2007 (524 pages); Cambridge University publishing;
2. “Language in legal process”, 2002 (295 pages); Palgrave Macmillan LTD;
3. “The interpretation of Legal texts”, 2012 (398 pages); Thomson/West company;