CRIMINAL LAW (LAW 604 522 3121) Professor Byron L. Warnken GLOSSARY OF CRIMINAL LAW TERMS & ABBREVIATIONS Glossary of Criminal Law Terms Abrogated: Elimination of a rule of law by a court (when a legislature eliminates a rule of law, it is called “repealed”; when a court eliminates a rule of law, it is called “abrogation”). Accomplice: Principal in the second degree, aider and abettor, accessory before the fact, or accessory after the fact. Actus reus: Criminal act. Affidavit: Sworn written statement. Affirmative defense: “I did the actus reus, but I am not guilty.” Agency theory for felony murder: No felony murder for deaths caused by non-felons, unless the Defendant created a human shield. Agreed statements of fact: The State and the Defendant agree to the existence of a fact (sometimes referred to a stipulation of fact. Allegata: That which is alleged. Assault: Placing another in fear of imminent offensive contact or substantial step toward offensive contact. “Back end” of malice: That portion of malice that is rebuttably presumed to exist (lack of justification, lack of excuse, and lack of mitigation). Battery: Offensive contact in a grossly negligent manner. Bifurcated insanity proceeding: Case in which guilt-innocence phase and insanity phase (not criminally responsible phase) are bifurcated. Blockburger: Analysis that treats a lesser included offense as the same offense as the greater offense into which it merges. Breaking: Create or enlarge an opening in a realty structure or enter a realty structure by threat or fraud. Burden of production, prima facie case, & sufficiency of the evidence: Prosecution’s evidentiary requirement in order to be eligible to have the fact finder (a judge or jury) deliberate on that count and render a verdict. Burden of persuasion: Requirement of the moving party (prosecution as to elements and prosecution or defense as to affirmative defenses) to persuade the finder of fact by the requisite burden of persuasion. Burden of proof: Combination of burden of production and burden of persuasion. Burglary: The breaking and entering of the dwelling house of another in the nighttime with the

1 intent to commit a felony therein. Bursting the bubble: Generating or raising an issue, with sufficient evidence, of that which was otherwise rebuttably presumed against the generator. Carjacking: Unauthorized control of a vehicle from victim’s actual possession by force or threat of force. Extortion: Theft or attempted theft by threat of harm or threat of placing the victim in disrepute. Child sex abuse: Sexual molestation or sexual exploitation of a minor. Chilling effect: An indirect intrusion upon a constitutional right. Circumstantial evidence, permissible inferences of fact, & inferred fact: Evidence other than direct evidence to establish a fact. Competency to stand trial: Possessing the ability to understand the nature and objection of the proceedings and the ability to rationally and factually assist counsel. Compounding a felony: Receipt of consideration for an agreement not to prosecute or inform on someone who is known to have committed a felony. Concurrent sentence: Serving multiple sentences at one time. Concurring opinion: Opinion that agrees with the disposition of a case, but not with the rationale. Conjunctive: In the aggregate. Constructive: The legal fiction that, even though something is not so, it will be treated as if it were so, e.g., constructive possession. Corpus delecti: The body of the crime (sometimes the term is used to mean the elements of the offense (actus reus and mens rea) and sometimes referred to as the body of the crime, plus the criminal agency of the Defendant). Count: One offense that is charged in one count when considering whether there were multiple criminal transactions and whether there were multiple units of criminality. Court: An individual judge or multiple judges sitting as a court. Crime of violence: Abduction, first degree arson, kidnapping, voluntary manslaughter, murder, rape, robbery, carjacking, first and second degree sex offense, use of handgun in commission of felony or crime of violence, attempts thereto, and first and second degree assault. Custody: Legal interest in personal property that is less than possession. Deadly force: Force reasonably calculated to cause death or serious bodily harm. Deception: Knowing misrepresentation. Defendant: Person or entity that is charged with a crime. Deposition: Sworn oral statement subject to cross examination. Depraved heart: Wanton and wilful extreme indifference for human life. Dicta: An aside in a judicial opinion that is not necessary to support the court’s holding or rationale.

2 Diminished capacity: Partial insanity (only applies to specific intent offenses, and does not apply at all in Maryland). Disjunctive: In the alternative. Dissent: One or more judges who do not agree with the majority of the court’s disposition of a case. Division of Correction: Statewide prison in Maryland where inmates serving in excess of 18 months are housed.. Duplicity: Charging document that is defective because it charges two or more offenses in one count. Duress: Commission of a crime under fear of imminent death or serious bodily harm. Dwelling house: Realty regularly used for human habitation. Ejusdem generis: Statute with a “laundry list” that is open-ended, e.g., A, B, C, and things like A, B, and C. Elements: Actus reus and mens rea or, alternatively, actus reus, mens rea, and criminal agency. Enterprise liability: Liability as an entity and not as an individual. Expressio unius, exclusio alterius: Expression of one thing is exclusion of other things, e.g., A, B, and C. Fault liability: Liability requiring a mental state. Felony: A high-level crime. Finder of fact: Judge in a court trial and jury in a jury trial. Firearm: Short barrel or long barrel weapon that fires bullets by explosion. Flagship offense: Greatest offense under Blockburger. Generating an issue: “Bursting the bubble” with evidence that places an issue before the fact finder that had been rebuttably presumed against the generator. Government: The prosecution in a criminal case in federal court. Handgun: Short barrel firearm capable of being concealed. Heat of passion: Hot blooded response to legally adequate provocation without time to cool off. Imperfect defense: Honest but unreasonable belief in a necessity-based defense. In camera hearing: Hearing outside the presence of the public (usually in a judge’s chambers) to determine whether prior sex is admissible as evidence of consent in a rape or sex offense case. In pari materia: Statutes that address the same subject and are interpreted in the context of each other. Inchoate: Preparatory. Inference of fact: All facts that implicitly flow from direct evidence, e.g., testimony that a gun was fired at close range at the head of a person = direct evidence; the shooter intended to cause death or serious bodily harm = inference of fact.

3 Insanity: Not criminally responsible by reason of insanity. Insufficient funds: Not enough funds to cover an issued check and all other outstanding checks. Intent: mental state of specific intent or general intent. Irresistible impulse test: Insanity under the test of whether the Defendant had the ability to make his or her conduct confirm to the requirements of law. Judge: Trial court if a trial judge, a three-judge panel of judges on the CSA, and a seven-judge en banc panel on the COA. Judicial gloss: Judicial interpretation of enacted law. Judicial notice: Court’s acceptance, without requiring proof, of a well known and indisputable fact. Jurisdiction: Power of a court over a matter, such as “subject matter jurisdiction,” “juvenile jurisdiction,” or “personal jurisdiction.” Jury: Usually 12 citizens who serve as finders of fact, but it may be (but not in Maryland) as low as six jurors. Justice: Judicial officer of the Supreme Court. Juvenile: Individual below the age of adult criminal capacity. Knowledge: Actual knowledge or knowing, practically certain, or willfully blind; constructive knowledge of should have known. Larceny: Taking and carry away tangible personal property of value from another’s superior possessory interest, by trespass, with intent to permanently deprive. Legally inconsistent verdict: “Not guilty” on a lesser included offense and “guilty” on a greater offense. Legislative history: Written explanation of what a legislative body intended with legislation. Lucri causa: Not necessary to prove that the Defendant received or intended to receive goods in false pretenses. Mala in se: Conduct that is inherently wrong. Mala prohibita: Conduct that is not inherently wrong but is prohibited solely because the legislature makes it a crime Malice: Intentional doing of a wrongful act without justification, excuse, or mitigation. Manslaughter: Killing of a human being by a human being with mitigation. Mens rea: Mental state, scienter, guilty mind, criminal mind, criminal intent, or criminal culpability. Merger doctrine: Sentence for a lesser included offense is absorbed into the sentence for a greater offense arising from the same transaction. Misdemeanor: Low-level crime. Misprision of a felony: Act of concealing knowledge of a felony and not reporting that knowledge to appropriate authorities.

4 M’Naghten test: Insanity under the test of whether the Defendant had the ability to understand the criminality of the conduct. Mullaney: Due process requirement of placing the burden of production on the prosecution and placing the burden of persuasion on the prosecution beyond a reasonable doubt. Mullaney jurisdiction: Jurisdiction that places the burden of persuasion on the prosecution to disprove affirmative defenses. Multiplicity: Charging document that is defective because it charges the same offense in multiple counts. Murder: Killing of a human being by a human being with malice. Necessity: Having to commit a crime when facing a choice of evils and choosing the lesser evil. Nighttime: The time when one cannot discern a person’s face by natural daylight. No fault liability: Criminal liability not requiring a criminal mental state. Objective fault: The existence of a criminal mental state in the mind of a theoretical Defendant, whether or not that mental state actually exists in the mind of the Defendant in question. Patterson jurisdiction: Jurisdiction that places the burden of persuasion on the Defendant to prove affirmative defenses. Perfect defense: Honest and reasonable belief in a necessity-based defense. Personal jurisdiction: Power of a court over a Defendant for an act committed in that jurisdiction. Permanent settled condition: Alcohol or drug use that has reached the level of insanity, both when the alcohol or drugs are in the Defendant’s system and when they are no longer in the Defendant’s system.. Pinkerton rule: Entering into a conspiracy constituting commission of the substantive crime itself as an accessory before the fact. Plain on its face: Reasonable minds cannot differ as to the meaning of a statute. Possession: Actual or constructive dominion and control. Presumption of innocence: Another way of stating that the State bears the burden of production and burden of persuasion in a criminal case. Probata: That proven. Prosecution: “The State” in state courts (“the People” in a few states) and “the Government” in federal courts. Rape shield: Sexual reputation of the victim is inadmissible. “Read in”: The process of interpreting a statute that is silent as to mental state as having a mental state and not being a statute of strict liability. Reckless endangerment: Creation of substantial risk of imminent serious physical injury. Redline rule: No felony murder for the death of co-felon who was killed during a justified homicide.

5 Required evidence test: An analysis of the legal elements of a crime, and not an analysis of the facts of a crime, when determining whether one offense merges into another offense. Reverse waiver: Transferring a case form criminal court jurisdiction to juvenile court jurisdiction. Rogue & vagabond: Possession of burglar tools with an intent to commit theft. Rule of consistency: Requirement of the same verdict if two (and only two) co-conspirators are tried jointly. Separation of powers: The three branches of government (legislative, executive, and judicial), with each branch separate in terms of functions and powers. Severability: If one portion of a statute is unconstitutional, declare that portion of the statute unconstitutional, and sever or vacate that portion of the statute, and maintain the constitutional part of the statute. Situs/locus: Location of a criminal offense. Sodomy: Non-consensual anal intercourse. Specific intent: Committing an act with the plan or purpose for that act to result in another act, e.g., the general intent of firing a gun with the specific intent that that act result in death. Stare decisis: Like cases should be decided in like manner. State: The prosecution in a criminal case in a state court. Stipulations as to testimony or physical evidence: The State and the Defendant agree that there is evidence of that to which they have stipulated, but they do not necessarily agree that those facts actually exist. Strict liability: Liability based solely on a criminal act with no criminal mental state required. Sua sponte: On the trial court’s own motion. Subject matter jurisdiction: Power of a court to hear a given matter. Subjective fault: The existence of a criminal mental state in the mind of this Defendant and not in the mind of a theoretical Defendant. Substantial step test: Actus reus for the crime of attempt. Thayer-Wigmore rebuttable presumption of law: Shifting the burden or production from the State to the Defendant as to a few rebuttably presumed elements and all affirmative defenses. Theft: Obtaining unauthorized control of property with intent to deprive. Transaction: One criminal episode. Transferred intent: Kill B with no intent to kill B, but with intent to kill A. Trespass: Wrongfulness. Unemancipated: Individual who has not yet reached the age of 18. Unit of offense or criminality: One criminal act or one criminal count in a charging document. Unnatural or perverted practices: Non-consensual fellatio, cunnilingus, anilingus, or anal

6 intercourse. Uttering: Passing or attempting to pass a known forged instrument. Venue: County where a crime occurred and where the case should be tried. Viable fetus: Fetus capable of living outside its mother’s womb. Vicarious liability: Liable for the act of another person based solely on the relationship to that person. Wilful blindness: Deliberate indifference. Winship: The due process requirement of placing the burden of production and the burden of persuasion on the prosecution beyond a reasonable doubt. Criminal Law Abbreviations ABA: American Bar Association. ALI: American Law Institute. Amend.: Amendment. APA: American Psychiatric Association. Art.: Article. CDS: Controlled dangerous substances (alternatively, “drugs” or “narcotics”). Ch.: Chapter. COA: Court of Appeals of Maryland. CSA: Court of Special Appeals of Maryland. DHMH: Department of Health & Mental Hygiene. DOC: Division of Correction. DPC: The Fifth Amendment Due Process Clause (as a limitation on the power of the federal government) and the Fourteenth Amendment Due Process Clause (as a limitation on the power of state governments). Fed. R. Crim. P.: Federal Rules of Criminal Procedure. H.B.: House Bill. Md.: Maryland. Md. Ann. Code: Maryland Code Annotated.. Md. Const.: Maryland Constitution.. Md. Crim. Law Code Ann.: Maryland Criminal Law Code Annotated. Md. Crim. Proc. Code Ann.: Maryland Criminal Procedure Code Annotated. Md. Decl. of Rights: Maryland Declaration of Rights. MGA: Maryland General Assembly.

7 MJOA: Motion for Judgment of Acquittal. MPC: Model Penal Code. MPJI-Cr: Maryland Criminal Pattern Jury Instructions. MR. & MRS. LAMB: Common law felonies of murder, rape, mayhem, robbery, sodomy, larceny, arson, manslaughter, and burglary. MRS. BAKER: Common law inherently dangerous felonies supporting felony murder (mayhem, rape, sodomy, burglary, arson, kidnapping, escape, and robbery).. NCR: Not criminally responsible by reason of insanity. OAH: Office of Administrative Hearings. S.B.: Senate Bill. SCOTUS: Supreme Court of the United States. U.S.: United States. U.S.C.: United States Code. USCA: Uniform Statutory Construction Act. U.S. Const.: United States Constitution.. §: Section.

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