Latin Expressions In Legal English

CHAPTER 4 CASE STUDY – LATIN EXPRESSIONS FREQUENTLY USED IN COURTROOMS AND LEGAL DOCUMENTS

A number of Latin terms are used in legal terminology and legal maxims. This is a short list of these legal Latin terms, which are wholly or substantially drawn from Latin.

AMICUS CURIAE Is a legal Latin phrase, literally translated as friend of the court, that refers to someone, not a party to a case, who volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it. The information may be a legal opinion in the form of a brief, a testimony that has not been solicited by any of the parties. Here are some rules of the Supreme Court of United States defining most important aspects of the use of the amicus curiae in court. An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored. Rule 37(1), Rules of the Supreme Court of the U.S. A brief of an amicus curiae may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court, except that consent or leave shall not be required when the brief is presented by the United States or an officer or agency thereof, or by a State, Territory or Commonwealth. The brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable. Save as all parties otherwise consent, any amicus curiae shall file its brief within the time allowed

27

the party whose position as to affirmance or reversal the amicus brief will support unless the court for cause shown shall grant leave for a later filing, in which event it shall specify within what period an opposing party may answer. A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons. Rule 29. Federal Rules of Appellate Procedure (FRAP) In prominent cases, amici curiae are generally organizations with sizable legal budgets. Non-profit legal advocacy organizations such as the American Civil Liberties Union, the Electronic Frontier Foundation, the American Center for Law and Justice or NORML frequently submit such briefs to advocate for or against a particular legal change or interpretation. Barefoot v. Estelle (1983) is a Texas death penalty case in which the U.S. Supreme Court ruled on the admissibility of clinical opinions given by two psychiatrists hired by the prosecution in answer to hypothetical questions regarding the defendant's future dangerousness and the likelihood that he would present a continuing threat to society. The American Psychiatric Association submitted an Amicus Curiae brief in support of the defendant's position that such testimony should be inadmissible and urging curtailment of psychiatric testimony regarding future dangerousness and a prohibition of such testimony based on hypothetical data. Petitioner Thomas A. Barefoot stands convicted by a Texas state court of the August 7, 1978 murder of a police. First, petitioner was diagnosed as a severe criminal sociopath. The diagnostic was confirmed as a label variously defined as describing persons who lack a conscience and who do things which serve their own purposes without regard for any consequences or outcomes to other people, by the tow psychiatrists participating in the trail as amicus curiae, dr. Holbrook and dr. Grigson. Second, both psychiatrists testified that petitioner would commit criminal acts of violence in the future. Dr. Holbrook stated that he could predict petitioner's future behavior in this regard "within reasonable psychiatric certainty." Dr. Grigson was more confident, claiming predictive accuracy of "one hundred percent and absolute."

28

CERTIORARI Is a legal term in Roman, English, and American law referring to a type of writ seeking judicial review. Certiorari is the present passive infinitive of Latin certiorare, (to show, prove or ascertain). A writ of certiorari currently means an order by a higher court directing a lower court, tribunal, or public authority to send the record in a given case for review. Certiorari is an action taken after sentencing by a defendant who seeks relief for some perceived error in his criminal trial. There are a number of such post-trial actions, their differences being potentially confusing, thus bearing some explanation. District of Columbia v. Heller is a landmark legal case in which the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual's right to possess a firearm for private use. It is the first Supreme Court case in United States history to directly address whether the right to keep and bear arms is a right of individuals in addition to a collective right that applies only to stateregulated militias. In February 2003, the six residents of Washington, D.C. filed a lawsuit in the District Court for the District of Columbia, challenging the constitutionality of provisions of the Firearms Control Regulations Act of 1975, a local law. This law restricted residents from owning handguns, excluding those grandfathered in by registration prior to 1975 and those possessed by active and retired law enforcement officers. The law also required that all firearms be kept unloaded and disassembled or bound by a trigger lock. The District Court dismissed the lawsuit. On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed the dismissal in a 2-1 decision. The Court of Appeals struck down provisions of the Firearms Control Regulations Act as unconstitutional. The court also struck down the portion of the law that requires all firearms including rifles and shotguns be kept unloaded and disassembled or bound by a trigger lock. In April 2007, the District and Mayor Adrian Fenty petitioned for a writ of certiorari, arguing that the ruling creates inter- and intra-jurisdictional conflict. On May 8, the Court of Appeals for the D.C. Circuit denied the request to rehear the case, by a 6-4 vote.

29

The defendants petitioned the United States Supreme Court to hear the case. The plaintiffs did not oppose but, in fact, welcomed the petition. The Supreme Court agreed to hear the case on November 20, 2007. The court rephrased the question to be decided as follows: The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes? This represented the first time since the 1939 case United States v. Miller that the Supreme Court had directly addressed the scope of the Second Amendment. CORPUS DELICTI Is a term from Western jurisprudence which refers to the principle that it must be proven that a crime has occurred before a person can be convicted of committing the crime. For example, a person cannot be tried for larceny unless it can be proven that property has been stolen. Likewise, in order for a person to be tried for arson it must be proven that a criminal act resulted in the burning of a property. Black's Law Dictionary defines corpus delicti as the fact of a crime having been actually committed. All corpus delicti requires at a minimum the occurrence of the specific injury and some criminal agency as the source of the injury. For example: Homicide - 1. An individual has died; and 2. By a criminal act. Larceny - 1. Property missing; and 2. Because it was stolen In the Anglo-American legal system, the concept has its outgrowth in several principles. One of these is that some jurisdictions hold that without first showing independent corroboration that a crime happened, the prosecution may not introduce evidence of the defendant's statement. In the case of John George Haigh, a English serial killer during 1940s covicted for 6 murders, evidence indicated that he decided to destroy the bodies of his victims with acid because he had the mistaken belief that, in the absence of a corpse, murder could not be

30

proven because there was no corpus delicti. Haigh had misinterpreted the Latin word corpus as a literal body rather than a figurative one. On 10 August 1949, he was led to the gallows and hanged by executioner Albert Pierrepoint. CAVEAT EMPTOR Is the Latin term for Let the buyer beware. Generally caveat emptor is the property law doctrine that controls the sale of real property after the date of closing. Under the doctrine of caveat emptor, the buyer could not recover from the seller for defects on the property that rendered the property unfit for ordinary purposes. The only exception was if the seller actively concealed latent defects. The decision in Laidlaw v. Organ trail, 1817, is believed to have been the first U.S. Supreme Court case which laid down the rule of caveat emptor in U.S. law. On 18 February 1815 Organ purchased 111 hogsheads of tobacco from Laidlaw & Co. The purchase was made in the same day that news broke that a peace treaty had been accepted between America and Britain (Treaty of Ghent), lifting a naval embargo that had drastically depressed the price of American tobacco by 30 to 50 percent. Organ was aware of the lifting of the embargo because his brother had called him earlier that morning. Laidlaw was not aware of the news. During the discussion of the contract Organ was asked if he was aware of any reasons for the price to be higher; Organ stayed silent over the news of the embargo lifting. The subsequent rise in tobacco prices after the signing of the. Two days later Laidlaw & Co. repossessed the tobacco by force from Organ. Organ filed suit for breach of contract to regain the tobacco or be awarded damages. The trial court charged the jury to find for the plaintiff (Organ). On the question of whether Organ had an obligation to disclose the information he had obtained, the opinion declares to communicate it that The court is of opinion that he was not bound. HABEAS CORPUS Is a legal action, or writ, through which a person can seek relief from the unlawful detention of him or herself, or of another person. It protects the individual from harming him or herself, or from being harmed by the judicial system.

31

Rasul v. Bush is a landmark United States Supreme Court decision establishing that the U.S. court system has the authority to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were wrongfully imprisoned. The 6-3 ruling on June 29, 2004, reversed a District Court decision, which held that the Judiciary had no jurisdiction to handle wrongful imprisonment cases involving foreign nationals who are held in Guantanamo Bay. The various plaintiffs came to be in Guantanamo Bay by different routes, but were generally captured or arrested during the U.S. invasion of Afghanistan. A petition for a writ of habeas corpus was filed on February 19, 2002 by Asif Iqbal(plaintiff)

and

Shafi

Rasul(plaintiff)

of

British

citizenship,

and

David

Hicks(plaintiff) of Australian citizenship. Their petition requested that they be released, be allowed to have private, unmonitored conversations with their attorneys and that interrogations cease until the trials were complete. The case were appealed together on August 8, 2002, to the United States Court of Appeals for the District of Columbia Circuit. It affirmed the lower court's decision, stating there was no U.S. court that had jurisdiction over Guantanamo Bay. The case was appealed to the Supreme Court on and heard on April 20, 2004. Two years after he were first detained, Rasul was released to the United Kingdom with no charges filed. MANDAMUS A writ of mandamus or simply mandamus, which means "we command" in Latin, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly". Mandamus is a judicial remedy which is in the form of an order from a superior court to any government, subordinate court, corporation or public authority to do or forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of public duty and in certain cases of a statutory duty. It cannot be issued to compel an authority to do something against statutory provision.

32

Mandamus may be a command to do an administrative action or not to take a particular action, and it is supplemented by legal rights. It must be a judicially enforceable and legally protected right before one suffering a grievance can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something and abstains from doing it. The petitioner/defendant, Robert F. Allston, petitions the District Court of Appeal, Second District, for the issuance of a writ of mandamus to order Charlie Green, Clerk of Court, to recognize the jurisdiction of the Second District Court of Appeal and process one or more notices of appeal now before him, as specified by this Court, regarding petitioner's Complaint for Declaratory Judgment. Specifically, the petitioner shows this Court: I.

BASIS FOR JURISDICTION - This petition for mandamus is brought under article V of the Florida Constitution and under Florida Rules of Appellate Procedure 9.030, 9.100 and other relevant authorities. (PETITION FOR WRIT OF MANDAMUS TO THE

20TH JUDICIAL CIRCUIT FOR THE STATE OF FLORIDA, ROBERT F. ALLSTON, PETITIONER/DEFENDANT ) The petitioner requests that this Court issue an order to show cause to the respondents and ultimately issue its writ of mandamus to the Circuit Court of the 20th Judicial Circuit of the State of Florida, in and for Lee County, requiring the Court to reco gnize the jurisdiction of the 2nd District Court of Appeal and process such appeal or appeals as this Court may specify after examination of the facts and circumstances as set forth in this petition for writ of mandamus. MENS REA Is usually one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means that the act does not make a person guilty unless the mind is also guilty.

33

R v Nedrick (Ransford Delroy) (1986) is an English criminal law case dealing with mens rea. The court said that there may be no case where intention to offend is inferred, unless the actions of the defendant are so dangerous, that death or serious injury is a virtual certainty. The defendant poured paraffin oil through the letterbox of a house attempting to frighten the owner who he had a grudge against. The house and set alight resulting in a child being killed. The court set down model guidance for juries in cases where intention was unclear: Where the charge is murder and in the rare cases where the simple direction is not enough, the Jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case …The decision is one for the Jury to be reached upon a consideration of all the evidence. PER CURIAM Is a ruling issued by an appellate court with multiple judges in which the decision rendered was made by the court acting as a whole, anonymously. In contrast to regular opinions, the decision does not list the individual judge responsible for authoring the decision. Per curiam decisions are not the only type of decision that can reflect the opinion of the court. Other types of decisions can also reflect the opinion of the entire court, such as unanimous decisions, in which the opinion of the court is expressed with an author listed. The Latin term per curiam literally means by the court. The decisions of the U.S. Supreme Court are usually not per curiam. Their decisions more commonly take the form of one or more opinions signed by individual justices which are then joined in by other justices. Unanimous and signed opinions are not considered per curiam decisions, as only the court can officially designate opinions as per curiam. Per curiam decisions tend to be brief in length, and usually deal with relatively non-controversial issues. The designation is stated at the beginning of the opinion.

34

Bush v. Gore is a landmark United States Supreme Court case decided on December 12, 2000. The case effectively resolved the 2000 presidential election in favor of George W. Bush. In a per curiam decision, the Court in Bush v. Gore held that the Florida Supreme Court's method for recounting ballots was a violation of the Equal Protection Clause of the Fourteenth Amendment. The Court also held that no alternative method could be established within the time limits set by the State of Florida. Three concurring justices also asserted that the Florida Supreme Court had violated Article II of the Constitution, by misinterpreting Florida election law that had been enacted by the Florida Legislature. The decision allowed Florida Secretary of State Katherine Harris's previous certification of George W. Bush as the winner of Florida's electoral votes to stand.

RES JUDICATA Is the Latin term for a matter judged, and may refer to two things: in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal; and the term is also used to refer to the legal doctrine meant to bar (or preclude) continued litigation of such cases between the same parties, which is different between the two legal systems. In this latter usage, the term is synonymous with "preclusion". In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use res judicata to deny reconsideration of a matter. The legal concept of res judicata arose as a method of preventing injustice to the parties of a case supposedly finished, but perhaps mostly to avoid unnecessary waste of resources in the court system. Res Judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents litigants from multiplying judgments, so a prevailing plaintiff could not recover damages from the defendant twice for the same injury. England v. Louisiana State Board of Medical Examiners (1964) , was a United States Supreme Court decision that refined the procedures for U.S. federal courts to abstain from deciding issues of state law, pursuant to the doctrine set forth in Railroad

35

Commission v. Pullman Co. (1941). The plaintiffs were chiropractors in the state of Louisiana. They sued in the United States District Court to prevent state officials from applying a licensing scheme to them, arguing both that they were not within the group to whom the statute applied, and that the statute infringed the Fourteenth Amendment to the United States Constitution. The plaintiffs brought the claims in the Louisiana state court. The state court found against them on both statutory and constitutional claims. The plaintiffs then returned to the District Court seeking a new hearing on the constitutional question. The defendant then sought a dismissal on res judicata grounds, contending that the decision of the state court was binding as to the constitutional issue. NON EST FACTUM Is a Latin term for “it is not (my) deed”. This is doctrine in contract law that allows a signing party to escape performance of the agreement. A claim of non est factum means that the signature on the contract was signed by mistake, without knowledge of its meaning, but was not done so negligently. Non est factum is difficult to claim. For example, failure to read a contract before signing it will not allow for non est factum. In Lloyds Bank v. Waterhouse (1990) a father acted as a guarantor to his son’s debt when purchasing a farm. The father was illiterate and signed the bank document under the belief that he was acting as guarantor for the farm only., when the contract was actually for all the debt accumulated by his son. As he was illiterate, this was a mistake as to the document signed and the father was successful in claiming non est factum.

IN ABSENTIA Is the Latin term for “in the absence”. In legal use it usually pertains to a defendant’s right to present in court proceedings in a criminal trial. For more than 100 years, courts in United States have held that, according to the United States Constitution, a criminal defendant’s right to appear in person at the trial, as a matter of due process is protected under the Fifth, Sixth and Fourteenth Amendments.

36

The Rule 43 of the Federal Rules of Criminal Procedure in 1946, amended in 1973, provides that a defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict and at the imposition of sentence. In 1993, the United States Supreme Court revisited Rule 43 in the case of Crosby v. United States. In April 1988, a federal grand jury in the District of Minnesota indicted petitioner Michael Crosby and others on a number of counts of mail fraud. The indictment alleged that Crosby and his codefendants had devised a fraudulent scheme to sell military-veteran commemorative medallions supposedly to fund construction of a theme park honoring veterans. Crosby appeared before a federal magistrate on June 15, 1988, and, upon his plea of not guilty, was conditionally released from detention after agreeing to post a $100,000 bond and remain in the State. Subsequently, he attended pretrial conferences an hearings with his attorney and was advised that the trial was scheduled to begin on October 12. Crosby did not appear on October 12, however, nor could he be found. In opinion by Justice Harry Blackmun, expressing the unanimous view of the court, it was held that Rule 43 does not permit the trial in absentia of a defendant who is absent at the beginning of trial. This case requires us to decide whether Federal Court of Criminal Procedure 43 permits the trial in absentia of a defendant who absconds prior to trial and is absent at its beginning. We hold that it does not. […] The Rule declares explicitly: << The defendant shall be present […] at every stage of the trial […] excepts as otherwise provided by this rule>>. This list of situation in which the trial may proceed without the defendant is marked as exclusive not by the expression of one circumstance, but rather by the express use of a limiting phrase. In that respect the language and structure of the Rule could not be more clear.

37

UBERRIMA FIDES Is a Latin phrase meaning “utmost good faith”. It is the name of a legal doctrine which governs insurance contracts. This means that all parties to an insurance contract must deal in good faith, making a full declaration of all material pacts in the insurance proposal. This contrasts with the legal doctrine of caveat emptor (let the buyer beaware). Thus the insured must reveal the exact nature and potential of the risks that he transfers to the insurer, while at the same time the insurer must make sure that the potential contract fits the needs of, and benefits, the assured. A higher duty is exacted from parties to an insurance contract than from parties to most other contracts in order to ensure the disclosure of all material facts so that the contract may accurately reflect the actual risk being undertaken. The principles underlying this rule were stated by Lord Mansfield in the leading and often quoted case of Carter v. Boehm (1766). Insurance is a contract of speculation […] The special facts, upon which the contingent chance is to be computed, lie most commonly in the knowledge of the insured only: the under-writer trusts to his representation, and proceeds upon confidence that he does not keep back any circumstances in his knowledge, to mislead the under-writer into a belief that the circumstance does not exists […]. Good faith forbids either party by concealing what he privately knows, to draw the other into a bargain from his ignorance of that fact, and his believing the contrary.

(MacGillivray & Parkington, 1988: para. 544)

38