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Legal Words You Are Likely To Hear

This post is just simply listing out words that non-lawyers may hear or not have heard before.  

Acquittal- a verdict of "not guilty" in a criminal trial.

Advocate- one who speaks for and helps someone else.  A victim advocate or a victim assistant is someone trained and dedicated to serve those who are victims of crime, family members of victims of crime, and witnesses to crime.  An advocate may be a paid professional of a government or a private agency or a volunteer.

Appeal- The transfer of a case from a lower court to a higher court for a near hearing on a case. 

Arraignment- The time when a suspect appears before a judge and is charged with a crime.  It usually happens shortly after the suspect has been arrested and served a warrant or after a preliminary hearing. 

Bail or Bond- Money or property that a defendant puts up as a guarantee that he will appear in court.  Not all defendants are required to put up bail.  Some are given personal recognizance (PR) bonds. 

Clemency- Mercy or leniency.  Often refers to a judge's giving a lighter sentence to a defendant because of particular circumstances. 

Competent to stand trial- A decision by the court that a defendant is able to stand trial (usually determined by a doctor to find out his mental condition).

Disposition- Final result of the case. 

Defendant- A person arraigned and charged with a crime. 

Defense attorney- The Lawyer who speaks for the defendant and represents his interest in court. 

Discovery- The right of the defendant to know what evidence the State has against him. 

Family Court- A county court that handles cases involving families and juveniles. 

General Sessions (Circuit) Court- The higher level of county court, where serious crimes are tried. 

Grand Jury- A jury of eighteen people who listen to the evidence and decide whether or not a case should go on to General Sessions Court.  Their meetings are conducted in secret.  The Grand Jury may give a "true bill" (indictment) or a "no bill."

No Bill- A conclusion by a Grand Jury that a case should not be tried. 

True Bill- A conclusion by a Grand Jury that a case should be heard. 

Habeas Corpus- One of a variety of writs that may be issued to bring a person before a court or judge.  Its purpose is to release someone from unlawful restraint or imprisonment. 

Hung Jury- The situation where a jury cannot all agree on a verdict.  When this happens, the case may be tried all over again. 

Incident Report- A police report about something that happened.  Additional reports about the same happening are called Supplemental Reports. 

Indictment- See Grand Jury, True Bill. 

Jury- A grouped of twelve people who must listen to and watch the trial and decide whether or not the defendant is guilty. 

Jury Pool- A group of randomly chosen citizens from which jurors are selected. 

Juvenile- Usually an offender under the age of 17. 

Judge- The person in charge of the courtroom and the trial. 

Magistrate- The judge in the first level of county court. 

Nol Pros- The voluntary withdrawal of criminal charges by the prosecuting attorney. 

Objection- An attorney's telling the court that he believes someone has broke a rule of the court. 

Pardon- An act by a judge, court, governor, or other authoirty that releases the person pardoned from punishment for the crime he committed.  Often pardon provides for expungement (wiping clean) of the offender's criminal record on that particular crime. 

Parole- The conditional early release of a prisoner.  If a prisoner obeys the conditions of his release, he won't have to serve the remainder of his sentence in prison.  If he does not, he may be sent back to prison. 

Petition- A formal, written request for a court or judge to do something, for example, a petition for an appeal. 

Plea- The Defendant's answer to the charge against him.  If he pleads "guilty," a trial is not necessary.  He may plead guilty to a less serious charge than the one for which he was indicted.  If he pleads "not guilty", the case will probably be tried in court. 

Preliminary Hearing- A hearing before a judge to determine if a case has probable cause and should be sent to General Sessions Court.  The defense attorney uses this hearing to find out what evidence the State has against the defendant. 

Pre-Trial Conference- A meeting among you, other witnesses, and the solicitor prior to trial.  You will be able to discuss the case and ask questions.  

Probable Cause- Evidence that would lead a reasonable person to believe that a crime was committed by the person accused. 

Probation- Releasing a convicted offender instead of sending him to prison.  An offender on probation must agree to follow certain guidelines and limits.  If he "violates probation," that is, fails to keep the agreement, he may be sent to prison. 

Reasonable Doubt- Doubt based on a good reason.  If a jury has reasonable doubt that the defendant committed the crime, the jury must find him not guilty. 

Recess- "Time Out' in a trial.  It could be brief or last overnight or over a weekend. 

Revocation- The withdrawing of a bond or probation when the defendant fails to obey the requirements of bond or probation.  For example, a defendant released on bond or probation may be required to stay within the state.  If he leaves the state, his bond or probation may be revoked, and he may be locked up in jail or prison.  

Sentence- The punishment or legal consequences given to a convicted defendant. 

Solicitor- An attorney who prosecutes crimes.  In other states they are usually called District Attorneys. 

Subpoena- A court order for someone to appear in court. 

Testimony- the facts as stated by a witness in court. 

Trial- The presentation of the facts of a case in court before a judge (bench trial) or a judge and jury, ending with a decision about the defendant's guilt. 

Verdict- The decision by a judge or jury.

Victim Impact Statement- A victim's form, letter, or oral statement that tells the judge the ways in which the crime has affected him or her, for example, money lost, emotional difficulties, physical problems, jobs problems, etc. 

Voir Dire-The jury selection process.  Both the defense attorney and the solicitor may "strike" (reject) a limited number of people in the jury pool. 

Witness- In court, a witness is a person who testifies in court.  A witness to a crime is a person who sees, hears, or notices something that has to do with the crime. 

Writ- A written order issued by a court commanding someone to do or stop doing a particular act. 



Difference Between DUI and DUAC In South Carolina

South Carolina's DUI statute provides:

"It is unlawful for a person to drive a motor vehicle within this State while:

(1) under the influence of alcohol to the extent that the person's faculties to drive are materially and appreciably impaired;

(2) under the influence of any other drug or a combination of other drugs or substances which cause impairment to the extent that person's faculties to drive are materially and appreciably impaired; or

(3) under the combined influence of alcohol and any other drug or drugs or substances which cause impairment to the extent that the person's faculties to drive are materially and appreciably impaired."

Under South Carolina law, the legal blood alcohol (BAC) limits are:

(1) Less than .05- It is conclusively presumed that the person was not under the influence of alcohol

(2) Greater than .05 but less than .08- No inference whether the person was under the influence of alcohol, but that fact may be considered with other evidence in determining the guilt or innocence of the person

(3) Greater than .08- It may be inferred that the person was under the influence of alcohol.

Proving The Driver Was Impaired

Most of the time, solicitors prove a driver was impaired and guilty of DUI by showing, among other things: (1)  The driver was showing signs of intoxication such as slurred speech, strong odor of alcohol on the breath, red, blood-shot eyes, staggering, or swaying; (2) The driver failed a field sobriety test- Reciting ABC's, standing on one leg, walking toe-to-toe; or (3) the driver could not maintain control of the vehicle (weaving, crossing lines, driving off the shoulder).  Additionally, solicitors may provide evidence that the driver had a blood alcohol concentration (BAC) level above the legal limit using either a data master breath test or in more serious cases, a blood test.

Driving With Unlawful Alcohol Concentration- (DUAC)

Similar to DUI, South Carolina has a statue that makes it illegal to drive a motor vehicle in this state "while [a person’s] alcohol concentration is .08 percent or more."  Unlike a DUI, being "impaired" is not an element of DUAC which means that although you may be perfectly capable of driving at a BAC of .08 or more, you are guilty of DUAC if your blood level is .08 or more.  

The Solicitor has the choice of convicting a driver for a DUI (proof of impairment which may include proof of BAC) or a DUAC (proof of BAC .08 or greater and the driver is guilty.)  A driver can only be prosecuted for a DUAC if the breath (or blood) test is performed within two hours of the time of arrest and probable cause (a reasonable belief that a person has committed a crime) existed to justify the traffic stop.  A driver in South Carolina cannot be prosecuted for a DUAC if the driver was stopped at a traffic road block or driver's license check point.  Furthermore, a driver cannot be prosecuted for both a DUI and a DUAC arising from the same traffic stop.  



The main difference between DUI and DUAC is that to be convicted for a DUAC, the prosecution must prove a driver was operating a vehicle with a BAC of .08 or higher.  However, to convict a driver of DUI, the prosecution must prove that the driver's faculties to operate a vehicle were materially and appreciably impaired by alcohol, drugs, or a combination of the two.  The penalties for a DUI and DUAC are nearly identical.  Examples:

– Neither charge can be expunged from your record

– The fines and jail time are identical

–  Both offenses require the offender to complete ADSAP (Alcohol and Drug Safety Action Program)

–  Both offenses require a driver to have the expensive SR-22 insurance for three yeas

–  Both charges can enhance a subsequent arrest for either DUAC or DUI to a second offense, causing it to be prosecuted in General Sessions Court.  


The Fifth Amendment- A Right That Contradicts What My Mother Always Told Me

I can't count how many times my mother knelt to get eye level with the much younger me and said  "If you lie your punishment will be much worse than if you tell the truth."  We as children hopefully had parents who instilled in us the value to always tell the truth and that the "truth shall set you free."  For most parents, this is one of the most important lessons we teach our children and rightly so.  However, when does keeping your mouth shut cross the line to not telling the truth?  Is being silent the same as lying?  The Constitution says "no", however it seems our moral values say otherwise.  This quick blog post will discuss one of my favorite topics: The Fifth Amendment and how our values growing up can be used against us in a court of law.  This Amendment also happens to be my favorite comedian's, Dave Chappelle, favorite Amendment;  I Plead the "FIF"

The Fifth Amendment states, in a nutshell among other things, that you have the right to remain silent.  This means you do not have to answer any questions or give any statements and any defense attorney worth his salt will always recommend that a client never talk to police or give a statement, verbal or written, without the attorney present.  However, this is in theory and far from reality.  Many people charged with crimes come to their lawyers with one of two problems- they have talked to the authorities and lied about what happened or what they know or don't know; or they talked to the police before calling Thrower & Schwartz, and gave a complete statement admitting involvement or guilt.  In the majority of cases, neither is good.  It is always tough to think a client would have faired much better if he wouldn't have listened to the values instilled in him at a young age- to always tell the truth.  We want to know what happened, we want to know the truth about what happened, and most parents drill this into their children from a very young age.  

However, at what age does somebody need to be told that you shouldn't lie to your parents about the homework you did not complete or that you did not eat your broccoli and hid it in the napkin but you need to keep silent about something illegal you may have been involved in?  We tell adults constantly to never, ever talk to the police.  I've even written a blog post about what to do if the police try to talk to you here.  It's a dead horse that's been beaten to death on the internet, on YouTube, and every time I meet with a client who has given a statement before talking with us.  The reasons you shouldn't talk to the police when they ask you to come in for an interview or stop you on the street are numerous.  More times than not the police are NOT trying to clear your name as a suspect.  More times than not, if the police are contacting you it's because they already have information about you or your possible involvement.  Please understand, YOU ARE NOT GOING TO TALK YOUR WAY OUT OF IT!  The police are looking for more evidence to charge you and looking for you to trip up in your statement to drive the nail in your own coffin, so to speak.  Or, they don't have quite enough evidence to charge you and they are looking for something they can use as probable cause; in which case you are signing your own arrest warrant.  

Police detectives are good at what they do.  They interview and deal with people everyday.  They are masters of interrogation.  Some detectives have devoted their entire working career into breaking people down and getting statements. Police interrogation was even romanticized in one of my favorite TV shows of all time: The Wire.  One scene in particular shows Detective Bunk interviewing a young suspect who is clearly uneducated and very young.  His techniques can be watched here .  Now, don't get me wrong, I'm not suggesting that detectives use these exact techniques but it does highlight the process and how Bunk had nothing concrete on the young suspect yet uses his experience to get a statement.

You must remember, detectives are trained to extract statements and information, you are not trained to avoid giving statements.  Talking to a detective about a crime you may or may not be guilty of is like stepping into the ring with Mike Tyson and expecting to knock him out- good luck.  

So, back on track.  What I really wanted to talk about was the values my mother and father instilled in myself and why some suspects or defendants become helpless because of those values.  We grow up to trust the police, that they are there to help and that we should always tell the truth to one another, police included.  When telling our children to always tell the truth no matter what, we are implying that they should always speak when spoken to and to always tell the truth.  What we don't do is add a caveat into that value of "except when the police contact you."  

Obviously, there are times when our children may get hurt by speaking and telling the truth.  In an extreme example, imagine a child, Ryan, has just killed a man while defending himself.  The police are interrogating young Ryan, having themselves convinced Ryan actually committed murder.  Once Ryan starts speaking with detectives, answering their questions, unaware what the legal requirements of self-defense are, he most likely will talk himself right into an arrest and unfortunately a conviction for murder.  Even worse, he may understand the situation he is in and make up white lies about what happened to make it more favorable for him, changing key facts or evidence proved a lie by science or witnesses which contradict his own statement to police.  

Although there are times when telling the truth is the best thing to do, maybe its time to start teaching our children not to not tell the truth, but to just not say anything at all?