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The Legal Journey of Bill Gipson: Construction of the

(2011-05-10 23:57:59)
标签:

法律英语

英语案例

教育

分类: 课后选读

The Legal Journey of Bill Gipson: Construction of the

Litigation Process

Bill Gipson is a bus driver for the Swank Transport CompanyA number of years ago, when Gipson was walking to a restaurant from work, Michael Sawyer, an old intimate(亲密的)friend of his, stopped and offered him a rideThey had not seen each other for several years since Sawyer had moved to another stateThey carried on a warmly talk as Sawyer droveSuddenly a car ran through a red light and struck Sawyer’s car, whose driver is William Tord, a resident of an adjacent stateAll the three individuals are badly injured and were taken to hospitalMiserably Sawyer died from injuries received in the crash a week later

    Several days after the accident, Gipson’s boss, David Swank telephoned him, during their conversation, Swank said that he had learned that the police had found about an ounce of heroin under the front seat of Sawyer’s car and were going to charge(指控)Gipson with possession of narcotics(拥有毒品)with intent to distributeSwank also stated that the company had made decision to fire(解雇)Gipson that morning

   

There are at least two legal disputes involving Gipson that could arise out of this situation

    1A dispute among Gipson, Tord, and Sawyer’s estate(遗产法人)regarding liability for the accident

    2A dispute between Gipson and the government warding the criminal charges

    从以上分析中我们可以看出,Gipson至少面临着两场官司:

    1)交通事故; (2)刑事指控。

本节的余下内容将逐一介绍这两场诉讼过程及在此过程中碰到的重要法律词汇。

 

I.事故责任

LIABILITY FOR THE ACCIDENT

Digest 1

Gipson underwent substantial injury as a result of the crashHe could ask damages from whom, who was liable for the accident. Was Sawyer at fault? Tord? Was each of them jointly and severally liable? Gipson hired Adrian Neff to represent him. Once Gipson signed the retainer, Neff could later enter an appearance and then become the attorney of record.

 

Damages 损害赔偿

The amount of money, which a plaintiffthe person suingmay be awarded in a lawsuit. Here it means an award of moneypaid by the wrongdoer) to compensate the person who has been harmed.

被告给原告的金钱补偿,一般包括以下几种类型:

“special damages”, “general damages”

“exemplary damages”, “punitive damages”;

“liquidated damages”(约定赔偿), “unliquidated damages”

 

Joint and several liability 连带责任

When two or more persons are jointly and severally liable, they are legally responsible, together and individually. Each wrongdoer(加害人)is individually responsible for the entire judgment. The person who has been wronged can collect from one of them or from all of them together.

原告可要求共同被告的任何一人承担全部赔偿责任。

 

Retainer 聘请律师的协议

A contract between attorney and client stating the nature of the services to be rendered and the cost of the services

律师与当事人签订的协议,确认法律服务的性质、费用等。

The retainer is the advance payment(提前支付)to an attorney for services to be performed, intended to insure that the lawyer will represent the client and that the lawyer will be paid at least that amount. Most lawyers wish to be paid either in advance or promptly as the work is performed

律师通常会要求当事人提前支付一部分律师费,或者在委托事项完成之后支付。

 

Appearance 出庭

The act of a party or an attorney showing up in court. Once it is established that an attorney represents the personby filing a notice of appearance or representation or actually appearing), the lawyer may make an appearance for the client on some without the client being present.

律师出庭前,通常要向法院提交“出庭申请”(notice of appearance)。有些事项只需律师出庭,当事人可以不出庭。

 

Attorney of record 正式出庭律师

The attorney who has appeared in court and/or signed pleadings or other forms on behalf of a client. The lawyer remains the attorney of record until some other attorney or the client substitutes for him/her. He/she is allowed by the court to withdraw, or after the case is closed.

为当事人拟制各种法律文书、代表当事人利益出庭的律师。律师提交“出庭申请”(notice of appearance)后,不经法庭允许不得停止代理。

 

Digest 2

The attorney then clearly explained that some factors should be considered before deciding on the forum. Gipson might be able to bring the suit in several placesa) in a state trial court where Gipson lives,b) in a state trial court where Tord lives,c) in a state trial court where Sawyer's estate is located,d) in the federal trial court sitting in Gipson's state,e) in the federal trial court sitting in the Tord's state, orf) in the federal trial court sitting in the state where Sawyer's estate is locatedThe reason Gipson could sue in a federal count was the existence of diversify of citizenship. Neff suggested Gipson to sue in federal court. The suit would be brought in the U.S. District Court sitting in Gipson’s own state since this would be most convenient venue for Gipson

 

Forum 法院

A court, which has jurisdiction to hold a trial of a particular lawsuit or petition

有管辖权的法院。

 

Estate遗产

All the property left by a decedent from which any obligations or debts of the decedent must be paid

死者的全部财产。其生前应付而未付的债务,都从遗产中受偿。

 

Diversity of citizenship 跨州案件

A kind of jurisdiction giving a federal court the power to hear a case based upon the fact thata) the parties to the litigationfrom different statesandb) the amount of money involved exceeds the amount usually $10,000. Pursuant to Article III, section 2 of the U.S. Constitutionand the Federal judicial Code.

联邦法院管辖的案件需同时满足两个条件:(1)双方当事人分属不同的州;(2)标的超过法定金额。这是为了减少跨州案件的当事人在外州遭受歧视。

 

Venue审判地

The proper or most convenient location for trial of a case. In most judicial systems, there is more than one trial court, e.g., one for each county or district. The selection of a particular trial court within a judicial system is referred to as a choice of venue.

最适于审理某案的地区。大多司法辖区内都有不止一个法院,如果要选择一个法院,就称为“选择审判地(a choice of venue)”。

Normallythe venue in a criminal case is the judicial district or county where the crime was committed. For civil casesvenue is usually the district or county which is the residence of a principal defendant(首要被告的居住地),where a contract was executed or is to be preformed(合同履行地),or where an accident took place(事件发生地).

 

Digest 3

Having decided on a courtNeff prepared for the suit subsequentlyhe drafted a complaint, the first pleading of the casenaming Gipson as the plaintiff and stating a cause of action in tort for negligence against Ford and Sawyer’s estate as codefendants. In the complaintNeff summarized the facts that he felt established a cause of action for negligenceSome of the allegations were based upon personal knowledge of Gipson, while others were based upon information and belief. The adamnum clause of the complaint demanded $ 100,000 in damagesThen he attached a written demand for a jury trial to the complaint and filed both documents with the court

 

Complaint 起诉状

The first document filed with the courtactually with the County Clerk or Clerk of the Courtby a person or entity claiming legal rights against anotherThe party filing the complaint is usually called the plaintiff and the party against whom the complaint is filed is called the defendant or defendants

个人、团体向法庭提交的法律文书,陈述侵害事实,主张法律权利。

Complaints are pleadings and must be drafted carefullyusually by an attorneyto properly state the fact as well as legal basis for the claim (i.e.breach of contract违约),negligence(过失),violation of a civil rights act(民事侵权)name both the party making the claim and all defendantsand should state what damages or performance is demanded

起诉状属于诉讼文书,应写明双方当事人、诉讼理由、赔偿方式及数额等。

 

Pleading诉讼文书

Every legal document filed in a lawsuit with the court stating the position of one of the parties on the cause of action or on the defenses

当事人向法院提交文书,表明己方立场、诉由等。

Pleadings are required by state or federal statutes and/or court rules to be of a particular form and format: typed, signed, datedwith the name of the courttitle and number of the casenameaddress and telephone number of the attorney or person acting for himself/herself.

Good plead is an artclearlogicalwell-organized and comprehensive.】

The act of preparing and presenting legal documents and arguments

准备诉讼文书、参与法庭审理的活动。

 

Plaintiff 原告

The party initiating the lawsuit. The party who initiates a lawsuit by filing a complaint with the clerk of the court against the defendant(s) demanding damagesperformance and/or court determination of rights.

原告可以是个人、法人或其他组织,也可以是政府。

 

Cause of action诉由

The basis of a lawsuit founded on legal grounds and alleged facts whichif provedwould constitute all the “elements” required statute

法律承认的诉讼理由。如果没有合适的诉由,法庭将驳回起诉,并判原告向被告赔偿律师费等。

 

Allegation 事实主张

A claimed fact that a party will try to prove at trial

当事人主张的事实,有待证明。

The Plaintiff alleged that his loss was due to the Defendant’s breach of contract

原告声称,被告违约致使他遭受损失。

 

Codefendants 共同被告

When more then one person or entity is sued in one lawsuiteach party sued is called a codefendant.

同一诉讼中有两人以上被诉。

 

Information and belief 所知所信

A standard legal term used to indicate that the allegation is not based on the firsthand knowledge of the person making the allegation but that the personneverthelessin good faithbelieves the allegation to be true

〔重要术语〕虽然并非亲眼所见、亲耳所闻,但该人确信其主张是真实的。

This phrase is often used in legal pleadings, declarations under penalty perjury(伪证罪),and affidavits (书面证词)under oath, which the person making the statement or allegation qualifies it. In effect, he/she says: “I am only stating what I have been told, and I believe it.”

 

Ad damnum 索赔声明

A statement in the complaint in which the plaintiff asks for a specified sum of money as damages.

原告在起诉状中,要求被告给付特定金额的赔偿。

 

Jury trial 陪审团审理

A trial of a lawsuit or criminal prosecution in which the case is presented to a jury and the factual questions and the final judgment are determined by a jury. This is distinguished from a “court trial, this distribution of responsibility recognizes the special qualities of the jury and judge.

法庭从公民中挑选出陪审员,组成陪审团。陪审团负责决定事实问题,法官负责法律问题。有些案件没有陪审团,法官同时负责法律审和事实审。

If a case involves the interpretation of a contract, a question of fact is presented and a jury decision on the meaning of certain contract langrage relies on community experience as to common practices when persons enter into a contract. In contract disputes the judge decides whether a legally binding or valid contract has been made.

在涉及合同解释时,陪审团认定合同何时成立,法官判定合同是否合法有效。

 

Question of fact 事实问题

An issue which is decided by the jury and only by the judge if there is no jury.

与法律无关的问题,由陪审团决定。以强奸案为例,受害人指称被告强奸,而被告主张性行为经过受害人同意。该案中,究竟有无性行为发生,属于事实问题;有没有构成强奸,属于法律问题。

 

Question of law 法律问题

An issue arising in a lawsuit or criminal prosecution which only relates to determination of what the law is, how it is applied to the facts in the case, and other purely legal points in contention.

需要适用什么法律、如何适用等。上诉法院一般不会审查初审法院的事实判断,只审查法律问题。

 

Filed 提交

Formally presented to a court or to an opposing party.

将诉讼文书正式递交法院或对方当事人。

 

Digest 4

The next proceeding is service of process. It was achieved when a copy of the complaint and the summons was served on both Tord and on the legal representative of Sawyer’s estate. Neff need not serve these parties himself. He asked a process server who then filed an affidavit of service with the court indicating the circumstances under which service was accomplished. Service was made before the statute of limitations. Once the defendants were properly served, the court acquired in personam jurisdiction over them. Tord filed a motion to dismiss for Gipson’s failure to state a cause of action. The court denied the motion.

 

Service of process 送达

The delivery of copies of legal documents such as summons, complaint, subpoena(传唤出庭的传票), and certain other documents, usually by personal delivery to the defendant ordering him or her to appear in court in order to answer the allegations made by the plaintiff.

原告起诉后正式通知被告,敦促其应诉。送达文件包括起诉状、传票等。传票也可送达第三人(如证人)。

 

Summons 传唤

The formal notice from the court ordering the defendant to appear. The summons is issued by the court at the time a lawsuit is filed, stating the name of both plaintiff and defendant, the title and file number of the case, the court and its address, the name and address of the plaintiff’s attorney, and instructions as to the need to file a response to the complaint within a certain time (such as 30 days after service), a summons differs from a subpoena, which is an order to a witness to appear.

法庭送达给被告的正式通知,要求其到庭应诉。内容包括:原被告姓名、案件编号、法院名称及地址、原告及其律师的姓名及住所、办公地址等。

传唤主要是希望被告在规定时间内提交答辩状。

 

Process server 送达人

A person who serves (delivers) legal papers in lawsuits, either as a profession or as a government official, such as a deputy sheriff, marshal or constable.

执行送达人,可以是法警、邮差等,由当事人支付费用。

 

Affidavit 书面证词

Any written document in which the signer swears under oath before a notary public or someone authorized to take oaths (like a Clerk of the court), that the statements in the document are true.

提交证词前,证人通常要宣誓,保证其证词真实。以宗教仪式宣誓的书面证词称为affidavit,以内心诚意宣誓的证词称为affirmation。两者作用相同,格式、用词不同。

 

Statute of limitations 诉讼时效

The law establishing the period within which the lawsuit must be commenced; if the lawsuit or claim is not filed before the statutory deadline, the right to sue or make a claim is forever dead (barred).

如果当事人未在法定期间内起诉,就会丧失诉权。

The maximum period which one can wait before filing a lawsuit, depending on the type of case or claim. The periods vary by state. In some instances a statute of limitations can be extended (“tolled”) based on delay in discovery of the injury or on reasonable reliance on a trusted person. A minor’s right to bring an action for injuries due to negligence is tolled until the minor turns 18 (except for a claim against a governmental agency). There are also statutes of limitations on bringing criminal charges, but homicide generally has no tine limitation on prosecution.

不同的州、不同类型的案件,诉讼时效也不同。

 

In personam jurisdiction 对人管辖

The power of the court over the person of the defendant obtained in part by proper service of process.

送达程序完成后,法院获得对被告的管辖权(personal jurisdiction)

In a lawsuit in which the case is against a specific individual, that person must be served with a summons and complaint to give the court jurisdiction to try the case, and the judgment applies to that person and is called an in personam judgment.

Personam是拉丁语,相当于directed toward a particular person,表示“对人”或“与人有关的”。它的姊妹词是rem,相当于applies to property or “all the world” instead of a specific person,表示“对物”。

This technical distinction is important to determine where to file a lawsuit and how to serve a defendant. “In personam” means that a judgment can be enforceable against the person wherever he/she is. On the other hand, if the lawsuit is to determine title to property (in rem) then the action must be filed where the property exists and is only enforceable there.

 

Motion to dismiss请求法院撤销案件/驳回起诉

Application by a defendant in a lawsuit or criminal prosecution asking the judge to rule that the plaintiff or the prosecution has not and cannot prove its case. A motion to dismiss is a direct challenge to the legal sufficiency of the complaint.

庭审之前,如果被告认为原告没有证明其诉讼请求,或者证明得不够充分,达不到最低证据标准,它就可以提请法院驳回起诉。

[原告举证完毕,被告律师可以提出此动议,一经法庭批准,诉讼程序就此终结。该动议可以口头提出,一般在法官办公室内进行。]

Attorneys most often make this motion after the plaintiff or prosecutor has presented all the evidence they have. Quite often this is an oral motion, and arguments are made in the judge’s chambers where the jury cannot hear. Rather than immediately file an answer, a defendant may choose to file a motion to dismiss, which is granted by the trial and it court would terminate the suit immediately.

Chamber是法官办公室。有些诉讼程序在法官办公室中进行,只允许当事人及其代表出席,称为内庭聆讯“hearing in chambers”

 

Failure to state a cause of action无法定诉由

Failure of the plaintiff to allege enough facts in the complaint. Even if the plaintiff proved all the facts alleged in the complaint, the facts would not establish a cause of action entitling the plaintiff to recover against the defendant.

如果起诉状未能充分阐明诉讼请求,法院可以在庭审前结案。

 

Digest 5

Because the suit had been brought in a federal court, the procedural law governing the case would be found in the Federal Rules of Civil Procedure. Tord and Sawyer’s estate were each ordered to file an answer to Gipson’s complaint within twenty days, according to the Federal Rules of Civil Procedure. Tord filed his answer almost immediately. Since Sawyer was dead and unable to communicate with his attorney about the accident, the attorney for the estate had a number of difficulties in drafting and filing an answer within twenty days. For the purpose of avoiding a default judgment against the estate, the attorney filed a motion asking for an extension of thirty days. The motion was granted by the court.

 

Procedural law程序法

The technical rules setting forth the steps required to conduct a lawsuit. These include filing complaints, answers; serving documents on the opposition; setting hearings, preparing orders; giving notice to the other parties; conduct of trials; and all the rules and laws governing that process. Procedural law is distinguished from substantive law which establishes rights and duties of the subjects.

规定诉讼步骤、方法的一整套法律制度,包括提起诉状、送达、答辩、证据开示、申请动议等。

 

Federal Rules of Civil Procedure《联邦民事诉讼规则》

The technical rules governing the manner in which civil cases are brought in and progressed through the federal trial courts.

在联邦法院提起民事诉讼、审理民事案件所要遵循的程序。1934年,美国国会授权联邦法院频布一套民事诉讼程序制度;1938年以来,大多数州都以联邦规则为蓝本,制定了各自的诉讼法。

 

Answer 答辩

A written pleading filed by a defendant to respond to a complaint in a lawsuit filed and served upon that defendant. Once a defendant has been served with the complaint, he is required to file some sort of response. One common response is called an answer. A typical answer consists of two parts, in the first part, the defendant responds to each of the factual allegations in the complaint by either admitting that a given allegation is true or denying that allegation. In the second part of his answer, the defendant can set forth certain affirmative defense.

实行针对起诉状所作的答复文书,通常包括两部分:(1)承认或否认原告的主张;(2)提出肯定性抗辩。

 

Default judgment缺席判决

An order of the court deciding the case in favor of the plaintiff because the defendant failed to appear or to file an answer before the deadline. A defendant who fails to file an answer or other legal response when it is due can request that the default be set aside, but must show a legitimate excuse and a good defense to the lawsuit.

如果被告未在规定日期出庭或答辩,法院就会判原告胜诉。被告必须提出合法理由,才能请求法院撤销判决。

 

Motion 动议

A formal request made to a judge for an order or judgment. Motions are made in court all the time for many purposes: to continue (postpone) a trial to a later date, to get a modification of an order, for temporary child support, for a judgment, for dismissal of the opposing party’s case, for a rehearing ,or for dozens of other purposes.

当事人向法院提出的请求。庭审期间的动议通常以口头提出,但审前动议通常以书面形式提出,并要提出法律依据。

 

Digest 6

The answer filed on behalf of Sawyer’s estate denied the allegation of negligence and raised an affirmative defense of contributory negligence against Gipson. It asserted that if Sawyer had been partially liable for the accident, it was mainly because Gipson had distracted him through his conversation in the car. Certainly, the answer of Sawyer’s estate also stated a cross-claim against the codefendant Tord, alleging that the accident had been caused solely by Tord’s negligence. Tord’s answer also raised the defense of contributory negligence against Gipson and a cross-claim against Sawyer’s estate, alleging that the accident had been caused solely by the negligence of Sawyer or Sawyer and Gipson together. On this same theory, Tord’s answer also raised a counterclaim against Gipson.

 

Defense 抗辩

A response to the claims of the other party setting forth reasons why the claims should not be granted. The defense may be as simple as a flat denial of the other party’s factual allegations or may involve entirely new factual allegations.

一方证明对方的主张没有合法根据。

 

Affirmative defense积极抗辩

A defense that is based on new factual allegations by the defendant not contained in the plaintiff’s allegations. Affirmative defense can contain allegations, take the initiative against statements of facts contrary to those stated in the original complaint against them, and include various defenses based on legal principles.

原告未提出某个主张,被告主动提出某个新事实,并基于该事实人抗辩。

 

Cross-claim交互诉讼请求

A claim by one codefendant against another codefendant.

共同被告之间相互提出的诉讼请求。

 

Counterclaim 反诉

A retaliatory claim(报复性诉讼请求)by a defendant against a plaintiff in a lawsuit included in the defendant’s answer and intending to off-set and/or reduce the amount of the plaintiff’s original claim against the defendant.

被告答辩时,针对原告诉求提出相反主张。

 

Digest 7

The three parties were ready to seek discovery. Once the pleadings were filed, each attorney first served written interrogatories on the opposing parties, which were followed by depositions and requests for admissions. Tord rejected to answer some questions during his deposition. As a result, Gipson’s attorney had to file discovery motion, asking for an order from the court compelling Tord to answer. A hearing was then held on Gipson’s motion. After listening to the parties’ argument, the judge granted the motion and ordered Tord to answer the remaining questions. Each party then filed a motion for summary judgment. The judge denied the motions and the case was ready for trial.

 

Discovery 证据开示程序

The pretrial devices that can be used by one party to obtain facts and information about the case from the other party in order to assist in preparing for trial. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets from the other. These useful devices are designed to operate without active involvement by the courts.

开庭之前,当事人有权相互挖掘信息,取得证据。全过程由律师主导,不需法院批准。该程序利于各方认清形势,调整策略,也利于双方和解,但有时会被用作非法目的,如拖延时间、增加对方律师费等。

 

Interrogatories 问卷

A set of written questions to a party to a lawsuit asked by the opposing party as part of the pretrial discovery process. These questions must be answered in writing under oath or under penalty of perjury (伪证罪)within a specified time (such as 30 days).

一方向对方所作的书面询问,对方必须在规定时间内答复并宣誓。

 

Deposition 会谈

The taking and recording of testimony of a witness under oath before a court reporter in a place away from the courtroom before trial. A deposition is part of permitted pre-trial discovery, set up by an attorney for one of the parties to a lawsuit demanding the sworn testimony of the opposing party (defendant of plaintiff), a witness to an event, or an expert intended to be called at trial by the opposition.

一方口头询问对方当事人或证人,由法庭助理逐字记录。会谈地点通常选在律师事务所,持续时间较长,内容详细且攻击性强。会谈中经常出现争议,律师往往高潮通过协议解决争议,或留待法院解决。证人的回答可用于交叉询问。

 

Requests for admissions请求对方表态

Written statements of facts concerning the case which are submitted to an adverse party and which that party is required to admit or deny; those statements that are admitted will be treated by the court as having been established and need not be proved at trial.

一方向对方提出一些事实主张,并要求对方回答YesNo。如果对方承认,法院就可将该事实作为既定事实,无争议事实(stipulated fact)处理。

Requests for admissions are usually made toward the end of the discovery phase of a suit, after other discovery tools have revealed the basic facts of the case. Admissions shorten and simplify a trial, and a plaintiff is often well-advised to eliminate as many contested issues as possible through requests for admissions.

该程序通常发生于证据开示即将结束时。它能简化庭审程序,因此当事人经常通过它解决争议。

 

Order 法庭或法官的命令

Every direction or mandate of a judge or a court which is not a judgment or legal opinion (although both may include an order) directing that something be done or that there is prohibition against some act. This can range from an order that a case will be tried on a certain date, to an order that a convicted defendant be executed at the state prison.

由法官或法院发生的针对某一事项的命令。它不同于法院意见或判决,内容可以是宣布某天开庭,也可以是命令罪犯服刑。

 

Hearing 听证会

Any proceeding before a judge or other magistrate (such as a hearing officer or court commissioner) without a jury in which evidence and/or argument is presented to determine some issue of fact of both issues of fact and law: Hearings occur in court as well as in administrative agencies.

庭审之前,法官或主管官员主持,确认并裁判案件的先决问题。该程序一般在法官办公室进行,无关人士(包括陪审员)不得列席。

 

Motion for a summary judgment简易判决动议

A request by a party that a decision shall be reached on the basis of testimony recorded outside court, affidavits, depositions, admissions of fact and/or answers to written interrogatories without having to go through with the entire trial: This written request asks for a judgment in the moving party’s favor. A summary judgment is normally allowed only when there is no dispute between the parties as to any of the material or significant facts. Summary judgment can be granted on the entire cases or on some of the claims raised within it.

不经庭审,直接根据文书、证言、庭外证据等做出判决。该动议涉及双方实体权利义务,一般不会涉及重大问题。

 

Digest 8

As the trial date approached, each of the attorneys received a notice requiring them to appear before a Magistrate for pretrial conference. During the conference, the magistrate prepared a pretrial statement for the trial judge on the case with the help of the attorneys, the statement contained those facts that had been stipulated, the facts that were still in issue, and a list describing the tangible evidence and witnesses that each attorney intended to introduce during the trial.

 

Magistrate 裁判官

A judicial officer having some but not all of the powers of a judge: in the federal trial courts, the magistrate may conduct many of the preliminary or pretrial proceedings in both civil and criminal cases.

享有部分司法权利的官员,一般负责主持联邦法院的民刑事案件审前程序。

 

Pretrial conference 审前会议

A conference held between the judge (or magistrate) and the attorneys to prepare the case for trial: At this conference, the presiding officer often encourages the parties to settle the disputes on their own in order to avoid a trial.

In any action, the court may in its discretion direct the attorneys for the parties to appear before the pretrial conference for such purposes as (1) expediting the disposition of the action, (2) discouraging wasteful pretrial activities, (3) improving the equality of the trial through more thorough preparation, and (4) facilitating the settlement of the case.

在复杂案件中,证据开示之后、庭审之前,法官、双方律师法院要召开审前会议,明确庭审要解决的问题。主管官员通常会努力促成双方和解,避免案件进入诉讼。审前会议是联邦法院的常规程序,但在州法院中,只有复杂案件才举行审前会议。

 

Stipulated 既定[事实]

Agreed to: A stipulation of fact will not be contested or disputed so that no cvidence need be presented as to the truth or falsity of that fact at trial.

当事人一旦承认了某个事实,就不可再对该事实提出异议。

 

Tangible evidence 实物证据

Physical evidence that can be seen or touched, e.g., letters, photographs, skeletons: Testimonial evidence is evidence that can be heard, e.g., the statements made by anyone sitting in the witness box.

指有形证据,如信件、照片等。

 

Introduce 提交[证据]

To place evidence formally before the court so that it will become part of the record for consideration by the judge and jury.

当事人向法庭提交证据后,该证据记入庭审笔录。

 

Digest 9

The case was eventually set for trial. The three parties, their attorneys and the witnesses assembled in the courtroom. The judge entered, took the bench, and instructed the bailiff to summon a jury panel for the trial. After the prospective jurors were seated in the jury box, voir dire began. Several jurors were challenged for cause and dismissed. Several other jurors were dismissed as a result of peremptory challenge. A panel of twelve jurors plus two alternates was ultimately selected.

 

Set for trial 开庭审理

To schedule a date when the trial is to begin.

为案件开庭选定日期。

 

Bailiff 法警

A court official, usually a deputy sheriff, who keeps order in the courtroom and handles various errands for the judge and clerk: “Bailiff” has its origin in Old French and Middle English for custodian (管理人、保管人), and in the Middle Ages was a significant position in the English court system.

维持法庭秩序并协助法官的司法人员。

 

Jury panel 陪审团

A group of citizens who have been called to jury duty: From this group, juries for particular trials will be selected. The suitability of an individual for the responsibility of jury service is examined during voir dire (see below). Moreover, during the trial the jury is observable by the court, by counsel, and by court personnel.

公民有陪审义务。法庭经过挑选和审查,确定部分公民组成陪审团。

 

Voir dire 审理候选陪审员的资格

From French “to see to speak,” the questioning of prospective jurors by the lawyers, by the judge, or by both the lawyers and the judge for purposes of selecting a jury: Voir dire is used to determine if any juror is biased and/or cannot deal with the issues fairly, or if there is cause not to allow a juror to serve.

源于法语。由律师或法官询问候选陪审员,内容包括姓名、年龄、住址、职业、先前诉讼经历等,用于了解陪审员是否会有偏见。

 

Challenge for cause 请求回避

A request that a prospective juror be dismissed because there is a specific and forceful reason to believe the person cannot be fair, unbiased or capable of serving as a juror: Causes include acquaintanceship with either of the parties, one of the attorneys or a witness, the potential juror’s expression during voir dire of inability to be unbiased due to prior experience in a similar case (having been convicted of drunk driving, being a battered wife, etc.), any obvious prejudice, or inability to serve (such as being mentally disturbed [精神失常]). It is for the judge to make determination whether the person shall be dismissed.

如果一方或其代理人质疑某陪审员的资格,则可向法院提出回避请求。候选陪审员在接受资格审查时,会回答人际交往方面的问题,包括他与当事人的关系等。当事人可基于他的回答而向法院提出回避请求。

 

Peremptory challenge 无条件回避异议

The right of plaintiff and the defendant in a jury trial to have a juror dismissed before trial without stating a reason: This challenge is distinguished from a “challenge for cause” (see above). The number of peremptory challenges for each side will differ based on state law, the number of parties to a case, and whether it is a civil or criminal trial. The usual phrasing used by lawyers exercising the challenge is “Juror number seven may be excused.”

当事人或其代理人可不陈述任何理由,直接要求某陪审员回避。这是一项重要的程序性权利(procedural rights),行使次数受到限制。当事人可用它避开不友好或不可靠的陪审员,但不能表露种族偏见。

 

Alternate 替补陪审员

An extra juror who will sit with the regular jurors and who will take the place of a regular juror if one becomes incapacitated during the trial.

如果某陪审员在诉讼中由于意外原因被剥夺资格,其位置将由候补陪审员顶替。

 

Digest 10

Gipson’s attorney rose and asked the judge that he wished to invoke the rule on witness after the jury had been seated. The bailiff led all of the witnesses out of the courtroom with the judge’s instruction. Gipson’s attorney then began the trial with his opening statement to the jury. When he finished, the attorneys for Tord and Sawyer’s estate also delivered their opening statements. Subsequently, Gipson’s attorney began to call his witness because that Gipson had the burden of proof. The first witness is a ten-year-old girl who had seen the accident that day. Tord’s attorney quickly rose and asked for a bench conference. On the conference, he declared the he objected to the witness on the basis of competency. The judge then excused the jury while he conducted an examination of the girl. As a result, the judge overruled the objection upon being satisfied that the witness was old enough to understand the obligation to tell the truth she knew.

 

Rule on witness 证人规则

A rule that requires certain witnesses to be removed from the courtroom until it is time for their individual testimony so that they will not be able to hear each other’s testimony.

证人作证时必须一项规则:一名证人作证,其他证人不得不庭。

 

Opening statement 开场陈述

After the jury has been impaneled, counsel for each party is given the opportunity to make an opening statement to the jury, with plaintiff’s counsel going first. The defendant’s attorney may delay the opening statement for the defense until the plaintiff’s evidence has been introduced. Unlike a “closing argument,” the opening statement is supposed to be a factual presentation and not an argument.

律师对陪审团发表的开场白式的陈述。在其陈述中,律师将概括其在案件审理中力图证明的各项事实。与……不同,……只是对事实的陈述而非辩论。

 

Burden of proof 举证责任

The responsibility of proving a fact at the trial: Generally, the party asking the factual allegations has the burden of proof as to that allegation.

当事人应向法院证明其主张。刑事、民事案件中,一般都实行“谁主张谁举证”规则。刑事案件审结后,受害人可以另行提起民事诉讼,如果被告拒绝赔偿,应当承担举证责任。

 

Bench conference 庭前交谈

A discussion between the judge and the attorneys held at the judge’s bench so that the jury cannot hear what is being said.

律师直到法官席前面,与法官低声交谈,不能让陪审员听见。

 

Competency 资格

Legal capacity to testify.

证人的作证资格。

 

Excuse the jury 陪审团退席

To ask the jury to leave the room.

 

Examination 询问

The questioning of one party or witness by an attorney.

庭审时,律师对一方或证人进行的询问。

 

Overrule 否决、推翻

Deny: This word is also used when a court repudiates the holding of a prior opinion written by the same court.

可用于法院否决先前的判决,或者上级法院推翻下级法院判决。

 

Objection 反对、异议

A formal challenge usually directed at the evidence that the other side is trying to pursue or introduce.

质疑对方证据,反对法庭听取某证据。

 

Digest 11

The jury then was summoned again into the courtroom, and Gipson’s attorney immediately began his direct examination. After several questions, Tord’s attorney again objected on the theory that the child’s answer had been hearsay. This time the judge upheld the objection and ordered the jury to disregard the girl’s answer and strike it from the record. Gipson’s attorney then continued his examination of the witness for several questions before announcing that he had no further questions to ask. The attorney for Sawyer’s estate then rose to conduct her cross-examination of the girl. Tord’s attorney also conducted a brief examination. There was no re-direct examination.

 

Direct examination 直接询问

The first questioning of a witness during a trial or deposition (testimony out of court), as distinguished from cross-examination (交叉询问)by opposing attorneys and re-direct examination when the witness is again questioned by the original attorney: Normally the attorney who calls the witness to the stand conducts the direct examination.

庭审时,律师首先对本方证人发问。直接询问是交叉询问的基础。

 

Hearsay 传闻证据

Second-hand evidence in which the witness is not telling what he/she knows personally, but what others have said to him/her.

传闻证据不是证人亲身经历所得的证据,而是转述他人言语,或者呈递他人制作的文件(如收费单据等)。传闻证据通常不可采信。例如,如果有证人说“我看到那辆汽车撞了人”,这是描述亲眼看到的场景,可以采信;如果证人说“警察说那辆车撞了人”,这就是传闻证据,通常不可采信。

 

Strike from the record 剔除证据

To remove the testimony or evidence from the written record or transcript of the trial.

删除庭审笔录、案卷中的某个证据。

 

Cross-examination 交叉询问

Questioning the witness after the other side has completed the direct examination: The questions on cross-examination are limited to the subjects covered in the direct examination of the witness, but importantly, the attorney may ask leading questions, in which he/she is allowed to suggest answers or put words in the witness’s mouth. (For example, “Isn’t it true that you told Mrs. Jones she had done nothing wrong?” which is leading, as compared to “Did you say anything to Mrs. Jones?”)

一方律师结束直接询问后,另一方律师可对该证人进行交叉询问。交叉询问的形式与直接询问类似,内容与主题不能超出直接询问。如果交叉询问的问题与案情无关,或者可能误导法庭,本方律师可以反对,由法官裁决是否继续提问。

 

Re-direct examination 再度直接询问

Questioning the witness after the cross-examination: The attorney who conducted the direct examination conducts the redirect examination.

交叉询问结束后,本方律师可以补充询问,澄清交叉询问中的不利问题。

 

Digest 12

Gipson’s attorney called several other witnesses who had seen the accident. Each witness was examined and cross-examined. Then the judge announced a recess for lunch and ordered everyone to be back by 2:00p.m. After the lunch recess, Neff called his fifth witness, Dr. Jones to begin her direct examination with a number of questions about the medical knowledge and experience. He then filed with a motion that Dr. Jones be recognized as an expert witness. The judge granted the motion regardless of the objections by either defense counsel. Gipson’s attorney then told the doctor to identify as to the nature and extent of the injuries that Gipson had suffered from the accident. The doctor asserted that Gipson had suffered a broken knee, which had been permanently injured in addition to multiple cuts and bruises. In order to show the expense these injuries had cost Gipson, the attorney also produced the original copies of the bills that the doctor had sent to Gipson. The judge ordered the clerk to mark the bills as plaintiff’s exhibit number one. After the bills had been inspected by the defense counsel, Gipson’s attorney then moved the bills into evidence.

 

Recess 休庭

Period of time when the trial is stopped: It means the meeting will break and then continue at a later time.

暂时中止庭审,常见于“lunch recess”(午间休庭)。

 

Expert witness 专家证人

A person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case: If the expertise is challenged, the attorney for the party calling the “expert” must make a showing of the necessary background through questions in court, and the trial judge has discretion to qualify the witness or rule he/she is not an expert, or is an expert on limited subjects.

专家证人应当具有相关专业的学历背景,或者在特定领域有专长。法官有权裁量其作证资格。如果法院确定某证人有专家资格,该证人就可以提供专业技术意见,使陪审团能充分了解某问题。需要专家证人的场合,法官、陪审员如果不具备特定知识,就无法清楚地了解案情。以人身伤害案为例,医学专家可以帮助法院确定受害人的受伤程度、痊愈的可能性。再以跨国诉讼为例,专家可以帮助确定文件的含义。

 

Clerk 法庭书记员

An official or employee who handles the business of a court or a system of courts, maintains files of each case, and issues routine documents.

负责协助法官、整理涉案文件等事项的法院工作人员。

 

Exhibit 证据

1A document or object (including a photograph) introduced as evidence during a trial: These are subject to objections by opposing attorneys just like any evidence.

2A copy of a paper attached to a pleading, declaration, affidavit or other documents, which is referred to and incorporated into the main document.

两种含义:可以指一方向法院在庭审时提交的证据,也可以指附件,即附于诉状、证词等诉讼文书之后的文件。

 

Move……into evidence 请求法庭采纳……证据

To request that the items be formally declared admissible (which is not the same as declaring them to be true; they are admitted simply for consideration as to their truth or falsity).

这是证据可采性的问题。律师向法庭提交证据后,可以请求法庭宣布该项证据是可被采纳的。但是证据可采性与证据真实性不是一回事。

 

Digest 13

After Gipson’s attorney finished his direct examination with the final witness, Gipson himself. The attorneys for the defendants began to cross-examined Gipson. Gipson’s attorney rested his case after all the defense counsel had completed their questions. Then the judge adjourned the trial in the late afternoon.

On the following morning, the attorney for Sawyer’s estate told the judge that she had a preliminary matter to bring up before the jury was brought into the courtroom. She then proceeded on making a motion for a directed verdict in favor of the estate. Tord’s attorney made a similar motion on behalf of his client. The judge made his decision after all the parties’ argument. As to the estate, the judge would neither grant nor deny the motion but would take it under advisement. As to Tord, the motion was denied because Gipson had produced sufficient evidence to make out a prima facie case of negligence which should go to the jury.

 

Rest one’s case 举证完毕

To announce formally that you have concluded the presentation of evidence (e.g., through the introduction of tangible evidence, through direct examination of your own witnesses.

律师告诉法庭,该方已经举证完毕(包括示证、询问本方证人等)。

 

Adjourn 休庭

To halt the proceedings temporarily.

暂停诉讼程序。庭审中途休庭30分钟,称为”adjourned of 30minutes”.庭审告一段落后,法官宣布择日再审,称为”adjourned to a date to be fixed”

 

Directed verdict 直接裁决

To order the jury to reach a verdict for the party making the motion on the ground that the other side, who has just rested its case, has failed to produce enough convincing evidence to establish a cause of action.

一方举证完毕,如果对方认为其证据没有说服力,不能证明该案有正当的诉由,就可请求陪审团直接判决。

 

Prima facie case 立案的最低证据标准

The party’s evidence, if believed by the jury, would be legally sufficient to support a verdict in favor of that party. If the plaintiff fails to establish a prima facie case, the judge will decide the case in favor of the defendant without any further proceedings. If the judge finds that there is a prima facie case, the defendant will be allowed an opportunity to produce contrary evidence. The case will then go to the jury to decide which version of the facts is true.

一方必须提供足够证据,证明其具有合法诉由,证明其主张受法律保护。

 

Take……under advisement 把某事搁置

To delay ruling on the motion until another time.

法官收到当事人的动议请求后,推迟裁决。

 

Digest 14

The jury was brought into the courtroom for the second day of the trial. The attorney for Sewyer’s estate began the trial with an opening statement to the jury. She then called her witnesses individually to conduct her direct examination. It took about half an hour for her to conclude her case. After a lunch recess, Tord’s attorney proceeded to present his case in the afternoon. He had rested his case by late afternoon. The judge dismissed the jury until the following morning. He also ordered the attorneys to submit any jury instructions that they would like to request and be prepared for closing arguments. Finally, the judge announced that he had decided to deny the estate’s earlier motion for a directed verdict.

 

Jury instructions 陪审团指示

A statement of the guidelines and law given by the judge to the jury which they are to used in deciding the issues of fact: The instructions to the jury are also referred to as the charge to the jury. The attorneys are usually allowed to submit proposed instructions(建议性指示)for consideration by the judge.

在陪审团做出裁决之前,法官将告知陪审团在决定案件的事实方面的问题的过程中将会用到的法律、规则。通常,在法官做出指示前,律师可向法官提出一些“proposed instructions”供参考。

法官的指示是对有关法律原则的陈述,以尽可能简明的术语提出。对陪审团的指示必须清楚,在法律上也须精确,标准化的指示通常被用于重复案件。

 

Closing argument 结束性辩论

The final statement by the attorneys summarizing the evidence that they think have established and the evidence that they think the other side has failed to establish.

律师向法庭所作的最后陈述,在其陈述中,律师将归纳概括本方的证据、观点,并且指出他方未能确立证实的证据。在律师的最后辩论中,允许进行情感上的恳求,但有经验的律师同样也会暗示自己一方的证据具有压倒一切的说服力。

 

Digest 15

Closing argument began the following morning. Each attorney asked for a verdict in favor of his or her client. Then the judge began to instruct the twelve jurors as to the law they were to follow in finding the facts and in reaching a verdict. He explained the concept of burden of proof and illustrated which party has to carry this burden of proof as to each of the assorted elements of negligence. Each element should be proved b a preponderance of the evidence. This was the standard of proof for this sort of case. The jury was then led out of the courtroom to deliberate on the verdict.

 

Verdict 裁决

The decision of a jury after a trial, which must be accepted by the trial judge to be final: A judgment by a judge sitting without a jury is not a verdict.

由陪审团就案件所做出的最后决定。由法官做出的判决(judgment)不是裁决,裁决可分为以下几种:“special verdict”, “directed verdict”, “chance verdict”, “compromise verdict”

 

Element 诉由要素

An essential requirement to a cause of action (the right to bring a lawsuit to enforce a particular right): Each cause of action (negligence过失;breach of contract违约;trespass侵害;assault人身攻击、殴打;etc.) is made up o a basic set of elements which must be alleged and proved.

在这里是作为专门的法律术语来使用的,意即诉由的各个组成部分。

 

Preponderance of the evidence 证据充分性标准

The greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury of judge without a jury) to decide in favor of one side or the other: This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Preponderance of the evidence is required in a civil case and is contrasted with “beyond a reasonable doubt”, which is the more severe test of evidence required to convict in a criminal trial.

民事案件中常用的一种证据标准。原告必须提交足以使陪审团合理地做出原告胜诉裁决的证据,否则,法官将以证据不足为理由撤销案件。

 

Standard of proof 证据标准

A statement of how convincing the evidence must be in order for a party to comply with his or her burden of proof. The main standards of proof are proof beyond a reasonable doubt (in criminal case only), proof by clear and convincing evidence, and proof by preponderance of the evidence.

诉讼当事人在承担起举证责任时所作的关于证据可信度的陈述。刑事案件为90%,民事案件一般为50%,特殊情况下要求75%

 

Digest 16

After about an hour and a half, the bailiff summoned everyone back to the courtroom. The jury came next. At the request of the clerk, the foreman rose to read the verdict. On Gipson’s original complaint against Tord for negligence, the jury found for Gipson and against Tord, awarding Gipson $40,000 in damages. However, on Gipson’s complaint against Sawyer’s estate, the jury decided in favor of the estate, finding that Sawyer had not been negligent. The jury found for the estate on its cross-claim against the Tord, its codefendant, awarding $800,000 damages to the estate. Finally, the jury found against Tord on his own cross-claim against the estate, as well as on his counterclaim against Gipson. The judge entered a judgment against Tord in the amounts awarded by the jury. Tord’s attorney made a motion for a judgment notwithstanding the verdict which was denied by the judge immediately. Tord’s attorney then immediately filed a motion for a new trial. When this motion was denied again by the judge, he moved for a reduction of the verdict on the grounds that the amounts awarded were excessive. After the motion had been denied, the attorney declared his intention to appeal. The judge granted a stay of the judgment, conditioned upon Tord’s filing a timely notice of appeal and posting the bond.

 

Judgment 判决

The final decision by a court in a lawsuit, criminal prosecution or appeal from a lower court’s judgment, except for an “interlocutory judgment” (诉讼期间的判决)which is tentative until a final judgment is made. The word “decree”(法庭判令)is sometimes used as synonymous with judgment.

法院解决双方当事人争议,并确定其权利与义务的最后决定。很多判决往往命令败诉一方做或不做某事(如停止侵害、赔偿他方损失等),宣告性判决书(declaratory judgment)则只是确定双方的权利和义务,并不要求败诉方做或不做某事。

 

Judgment nowithstanding the verdict 不信陪审团裁决而作出的判决

Reversal of a jury’s verdict by the trial judge when the judge believes there was no factual basis for the verdict or it was contrary to law: The judge uses the power to reverse the verdict to prevent injustice. This process is commonly called “judgment N.O.V.” or simply “N.O.V.”, for Latin non obstante veredicto.

在陪审团裁决中败诉的一方,可要求法院做出与陪审团裁决相反的判决,那么,法院的判决将在实质上导致陪审团裁决无效。

 

Motion for a new trial 再审动议

A request made by the loser for the case to be tried again on the basis that there were significant legal errors in the way the trial was conducted and/or the jury or the judge sitting without a jury obviously came to an incorrect result: This motion must be made within a few days after the judgment is formally entered and is usually heard by the same judge who presided at the trial. Such a motion is seldom granted unless there is some very clear error which any judge would recognize.

法庭判决后,一方认为判决不公正,请求法院再审。常见于严重程序瑕疵的场合,如律师、陪审员或法官有不正当行为。该动议在民事案件中很少见。

 

Reduction of the verdict 裁决金额缩减

Lowering the amount of the damage award reached by the jury.

陪审团裁决后,一方请求法院减少陪审团确定的赔偿额。

 

Appeal 上诉

v. To ask a higher court to reverse the decision of a trial court after final judgment or other legal ruling .

n. The name for the process of appealing ,as in “he has file an appeal”.

一审判决之后,一方不服,请求上级法院重新审理案件。上诉是一套独立程序,目的在于审查初审判决是否合法。

 

Stay 中止执行、暂停执行

To delay enforcement or execution of the court’s judgment waiting for the appellate result.

在上诉期间,一审法院判决暂停执行。

 

Notice of appeal 上诉通知

A document announcing an intention to appeal filed with the appellate court and served on the opposing party.

一方决定上诉之后,必须向上级法院呈递诉状,并送达对方。

 

Bond 保证金

A sum of money deposited with the court to assure compliance with some requirement.

上诉人向法院交纳一笔金额,保证遵守法院规定或命令。

 

Digest 17

Since Gipson had originally sued for $100,000 and the amount awarded by the verdict was $40,000, Tord felt worried whether Gipson later sued him again for the rest of the amount he claimed. His attorney said that Gipson could not sue Tord again on the same cause of action, because Gipson had received a judgment on the merits that would be res judicata and would prevent any later suit on the same negligence of cause of action. Subsequently, Tord’s attorney filed his notice of appeal with the United States Court of Appeals and posted bond the following week. Being the attorney of the appellant, he should make sure that the transcripts and copies of exhibits, were dispatched to the Court of Appeals and the case was docketed by the clerk. Then Tord’s attorney served his brief on the appellees. Gipson and Sawyer’s estate, who immediately filed their briefs concerning on the issues on appeal.

 

Judgment on the merits 实质性判决

A decision on the substance of the claims raised. Normally, a judgment of dismissal based solely on some procedural error is not a judgment on the merits. A party who has received a judgment on the merits cannot bring the same suit again.

对诉讼当事人的主张进行实体方面的判决。适用“一事不二审”原则。如果法院因程序瑕疵而裁决不予受理,该裁决不影响当事人的实体权利义务,不是实质性判决。

 

Res judicata 既判力规则,一案不二审

Latin for “the thing has been judged”, which means the issue before the court has already been decided by another court, between the same parties. Therefore, the court will dismiss the case before it as being useless. Example: an Ohio court determines that John is the father of Betty’s child. John cannot raise the issue again in another state.

一项重要法律原则,有时写作res adjudicata。初审法院作出“实质性判决”后,原告不得基于同一事实再行起诉。

法院的职责是为当事人实现司法公正,解决冲突。该职责履行完毕之后,同一事项不得再有争议,除非特殊情况。

 

Appellant 上诉人

The party initiating the appeal. The party who is complaining of errors made by the lower court.

一审判决之后,一方不服,认为法院认定事实或适用法律有误,因而申请上级法院审查。

 

Transcript 誊本

Word-for-word typed record of everything that was said “on the record” during the trial.

庭审笔录,即由法庭书记员逐字记录的庭审实况。

 

Docket 待审案件表

The cases on a court calendar.

待审案件目录。

 

Appellee 被上诉人

The party against whom the appeal is brought. (also called the respondent) Generally the appellee is satisfied with what the trial court did and wished the appellate court to approve of or affirm the trial court’s judgment.

被上诉人,即上诉审的被告。被上诉人通常服从初审法院的判决。

 

Brief 上诉法律意见书

A written legal argument, usually in a format prescribed by the courts, stating the legal reasons for appeal and the positions of the parties on those issuesrelating to the claimed errors that occurred during the trial.

上诉人递交给上诉法院的意见书,内容包括:遗留争议、初审判决的错误。

 

Issue on appeal 上诉争议

The claimed errors of law committed by the trial judge below. The appellate court does not retry the case. No witnesses are called, and no testimony is taken by the appellate court. The court examines the record and determines whether errors of law were committed by the trial judge.

上诉方认为,初审法院适用法律有误。上诉法院不必重新审理案件,不需传唤证人出庭,也不采纳新的证据,仅仅通过案卷,判断初审法院适用法律时是否有错。

 

Digest 18

Twenty days past before the attorneys received a notice that the appeal had been scheduled for oral argument of the court. The arguments were heard a few weeks later. Six month after oral argument, the parties received the court’s decision in its written opinion. The court affirmed the judgments against Tord. Subsequently, Tord petitioned for a rehearing by the court en banc. The petition was denied. Tord followed his attorney’s advice and no further appeal was attempted.

 

Oral argument 口头辩论

A verbal presentation made by the attorneys before the appellate court during which arguments about the validity or invalidity of what the trial judge did were presented.

双方律师在上诉法院进行的口头辩论。内容包括:争议事实、初审判决是否合法。

[美国最高法院的一些早期案件各方辩论长达数天。现在,每方通常只有15分钟。在部分上诉法院,只有特别复杂的案件,才允许进行口头辩论。]

 

Opinion 法院意见

The explanation of a court’s judgment. One case can contain several opinions: a majority opinion, a dissenting opinion which disagrees with the majority opinion, and a concurring opinion which agrees with the result, but apply different emphasis, precedents or logic to reach the determination.

结案后,法官出具书面判决理由。一个案件可能包括几种意见:多数意见、补充意见、反对意见等。

 

Affirm 维持原判

To agree with or uphold the lower court judgment. If the appellate court remanded the case it would be sending it back to the lower court with instructions to correct the irregularities specified in the appellate opinion. If the appellate court reversed the court below, it would have changed the result reached below.

上级法院维持原判。除此之外,也可将案件发回重审(remand)或者撤销原判(reverse)。

 

Rehearing 重新听证

A second hearing by the appellate court to reconsider the decision it made after the first appellate hearing.

上诉法院召开第一次听证会之后,如果一方不服,可以进行重新听证。

 

Petition 请求,申请

To make a formal request; similar to a motion.

诉讼当事人向法院提出的正式申请,如离婚、破产等,需要提交请求状。

 

Writ of certiorari 调卷令

A writ (order) of a higher court to a lower court to send all the documents in a case to it so the higher court can review the lower court’s decision. Certiorari is most commonly used by the U.S. Supreme Court, which is selective about which cases it will hear on appeal.

上级法院要求下级法院提交某个案件的卷宗,是重审的前置程序。通常用于美国最高法院。

 

Mandate 命令、指示

Order of an appeals court to a lower court (usually the original trial court in the case) to comply with an appeals court’s ruling, such as holding a new trial, dismissing the case or releasing a prisoner whose conviction has been overturned.

上诉法院对一审法院的指示、命令。

 

.刑事指控

The Criminal Charges

Digest 1

As the negligence suit was under way, Gipson had been involved in a second dispute. Gipson was defending himself in a criminal prosecution for possession of narcotics with intent to distribute. After Gipson having recovered from his injury, two police officers appeared in the hospital. They produced a warrant and informed Gipson that he was under arrest. Gipson was taken to the police station after he had read his rights.

 

Prosecution 起诉

In criminal law, the government attorney charging and trying the case against a person accused of a crime. (occasionally also used to mean the processing of a civil claim by a party)

针对某人提起刑事指控,主要由政府律师负责。

 

Warrant 逮捕状、搜查令

An order from a judicial officer authorizing the arrest of an individual, the search of property, etc.

由司法官员授权的逮捕令、搜查令等。

Digest 2

The following morning Gipson was taken before a judge for his initial appearance. The judge told Gipson that he had been charged with a felony, possession of narcotics with intent to distribute. Since Gipson was unemployed and without adequate funds to pay, an attorney was assigned to represent Gipson.

 

Initial appearance 初始应诉

A court proceeding during which (a) the accused is told of the charges, (b) a decision on bail is made, and (c) arrangements for the next judicial proceeding are specified.

刑事诉讼程序的一种,主要包括以下几个步骤:

(1)     告知嫌疑人其被控罪名;

(2)     决定是否给予保释;

(3)     决定下一步诉讼如何进行。

 

Assigned counsel 指定律师

Attorney appointed to represent an indigent (poor) defendant.

法庭为贫困当事人指定的律师。

美国宪法规定,刑事被告应当有律师。但是申请法律援助的标准非常严格,案件种类也有限。

 

Digest 3

When the case was recalled, the attorney filed a praecipe and formally entering his name as attorney of record for Gipson. The attorney proceeded to discuss the matter of bail. The prosecutor was then given an opportunity to speak. He suggested a high bond for the defendant was unemployed and had no close relatives in the area. The judge nevertheless agreed to release Gipson on his personal recognizance and set a date for a preliminary hearing the following week. At the preliminary hearing, the only witness was the police officer who had been at the scene of the accident. The policeman said that when he helped pull Gipson out of the car, he found a small paper box sticking out from under the passenger’s side of the front seat. A glassine envelope containing a white powdery substance had spilled out of the box. The substance, about an ounce, was proved to be pure heroin. After Gipson’s attorney cross-examined the policeman briefly, the judge advised that here was probable cause to hold the defendant and ordered the case for grand jury action.

 

Bail 保释,保释金

The money or bond put up to secure the release of a person who has been charged with a crime. The theory is that bail guarantees the appearance of the defendant in court when required. While the Constitution guarantees the right to reasonable bail, a court may deny bail in cases charging murder or reason, or when there is a danger that the defendant will flee or commit mayhem.

刑事被告向法院交纳保释金,保证在规定时间内到庭。以下情况不可保释:(1)被控谋杀、叛国;(2)实行可能逃跑;(3)被告具有人身伤害性。

To post money or bond to secure an accused defendant’s release. This is generally called “bailing out” a prisoner.

保释,即暂时释放刑事犯罪嫌疑人。保释可能无条件,也可能基于以下条件:(1)交保释金;(2)提供保证人;(3)定时向警署报到等。

 

Personal recognizance 自我担保

The defendant’s sworn promise that he or she will return to court at the designated times. No bail money is required.

刑事被告宣誓,保证将在规定时间出庭。不必缴纳保证金,即可暂时释放。

 

Bail bond 保释金

A written obligation to pay a sum of money deposited with the court in order to insure that the defendant will reappear in court at designated times.

被告向法庭出具书面保证,保证其将在规定时间出庭;如果不出庭,就缴纳特定数目的金钱。

 

Preliminary hearing 初步聆讯

In criminal law, a hearing to determine if a person charged with a felony should be tried for the crime charged, based on whether there is some substantial evidence that he/she committed the crime. If the judge finds sufficient evidence to try the defendant, the case is sent to the appropriate court for trial. If there is no such convincing evidence, the judge will dismiss the charges.

法庭要求检察官出具充分的证据,否则驳回指控。

 

Probable cause 可能成立的诉由

Sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime. Probable cause must exist for a law enforcement officer to make an arrest without a warrant, search without a warrant, search without a warrant, or seize property in the belief that the items were evidence of a crime.

能证明实行确实犯有被控罪行的合理根据及理由。

 

Grand jury 大陪审团

A jury in each county or federal court district which serves for a term of a year and is usually selected form a list of nominees offered by the judges in the county or district. A grand jury has responsibility to hear evidence of criminal accusations in possible felonies and decide whether the accused should be indicted and tried for a crime.

法官从当地居民中提名,选出陪审员,组成特别陪审团,协助法庭审理重罪。陪审员任期通常是一年。大陪审团的职责包括:(1)听取检察官提出的被告犯有重罪的证据;(2)决定是否提出控告,要求被告候审。

 

Digest 4

After the preliminary hearing, Gipson’s attorney went to the prosecutor in order to convince him to enter a nolle prosequi on the charge, explaining that Gipson had simply been offered a ride home and was not aware of the fact that the heroin was in the car. The prosecutor was not content to drop the charge. However, he was willing to drop the felony charge if Gipson would agree to plead guilty to the lesser offense of simple possession of drug, a misdemeanor. When Gipson’s attorney told him about the plea bargaining session, and advised him to accept the prosecutor’s offer. Gipson said he was innocent and was not intent to plead guilty, even to a misdemeanor. Three weeks went by before Gipson’s attorney was informed that the grand jury had returned an indictment against Gipson. The next proceeding would be the arraignment on the following week. On that date, Gipson was formally notified of the indictment. The judge then set a date for trial.

 

Nolle prosequi 不起诉

Latin for “we shall no longer prosecute,” which is a declaration made to the judge by a prosecutor in a criminal case (or by a plaintiff in a civil lawsuit) either before or during trial, meaning the case against the defendant is being dropped. The statement is an admission that the charges cannot be proved, that evidence has demonstrated either innocence or a fatal flaw in the prosecution’s claim or the district attorney has become convinced the accused is innocent. In the 1947 courtroom movie, Boomerang! The climactic moment arrived when the district attorney himself proved the accused person innocent and declared nolle prosequi.

检察官发表声明,撤回起诉。原因通常有:(1)指控有疑点;(2)发现被告的无罪证据。

Enter a nolle prosequi 检察官向被告人承诺撤回起诉。

 

Plead 答辩

To deliver a formal answer. In a criminal case, to plead means to admit or deny the charges made by the prosecutor.

此处指正式答辩。在刑事案件中,plead意为承认或否认检察官的指控。

 

Plea bargain 辩诉交易

In criminal procedure, a negotiation between the defendant and his attorney on one side and the prosecutor on the other, in which the defendant agrees to plead “guilty” or “no contest” to some crimes, in return for reduction of the severity of the charges, dismissal of some of the charges. Sometimes one element of the bargain is that the defendant reveals information such as location of stolen goods, names of others participating in the crime of admission of other crimes (such as a string of burglaries).

检察官与被告及其律师在正式审讯前协商:如果被告一方愿意承担某项罪名,那么检察官就放弃其他指控(通常是更严重的罪名)。

一般用于鼓励被告揭发同伙、窝赃等地。

 

Indictment 刑事起诉状

A charge of a felony (serious crime) voted by a Grand Jury based upon a proposed charge, witnesses’ testimony and other evidence presented by the public prosecutor.

大陪审团根据检察官提供的证据、证人证言,决定起诉被告。

 

Arraignment 提审、传讯

The hearing in which a person charged with a crime is arraigned in his or her first appearance before a judge. This is the initial appearance of a criminal defendant (unless continued from an earlier time) in which all the preliminaries are taken care of.

被告面见法官之前,先召开听证会。

 

Digest 5

The day for the trial arrived, Voir dire had been held before a jury was impaneled. The prosecutor and the attorney presented their opening statements and presented their witnesses individually. Gipson was the only witness of his attorney. Then the prosecutor rose and advised the jury that Gipson had a previous conviction for shoplifting. Gipson’s attorney successfully objected that the conviction, which had happened eleven years ago, should not be used to impeach Gipson’s testimony. The prosecutor concluded his cross-examination after a few questions. Following the lunch recess, both sides made their closing arguments. The judge then instructed the jury that the burden of proof in a criminal case is on the government (ere, the prosecutor). He explained that the burden is to show each element of the offense beyond a reasonable doubt. It took the jury and hour to reach its verdict that Gipson was acquitted of the offense. A poll of the jury, which had been requested by the prosecutor, confirmed the result, and the judge told Gipson that he was free.

 

Impaneled 陪审员就位

Selected, sworn in, and seated.

陪审员被选定,并宣誓入席。

 

Impeach 提出异议

To attack or discredit by introducing evidence that the testimony of the witness is not credible (believable).

举出反证,质疑某个证人证言,证明其不可信。

 

Beyond a reasonable doubt 无合理疑点

Part of jury instructions in all criminal trials, in which the jurors are told that they can only find the defendant guilty if they are convinced “beyond a reasonable doubt” of his or her guilt. Sometimes referred to as “to a moral certainty”. By comparison it is meant to be a tougher standard than “preponderance of the evidence”, used as a test to give judgment to a plaintiff in a civil (non-criminal) case.

刑事案件的举证标准。控方必须证明被告犯罪的机率高达90%以上。(一般民事案件的举证标准为50%,特殊情况下的标准是75%)法律对刑事犯罪的惩罚最严厉,因此举证标准也最高。如果证据有任何疑点,法庭都会推定被告无罪。

 

Acquit 开释,无罪

Find not guilty, absolve of guilt.

罪名不成立。

 

Poll 核实陪审团意见

To question jurors individually in open court as to whether each agrees with the verdict announced by the foreman.

陪审团主席宣布裁决之后,法官向陪审员逐一核实裁决。

 

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