THE MEDILL JUSTICE PROJECT
ILLINOIS CRIMINAL JUSTICE PRIMER
Copyright 2013 by The Medill Justice Project
Disclaimer: The Medill Justice Project does not give legal advice. This document is not meant to be a substitute for consulting with attorneys or reading Illinois law.
Dear readers:
As a journalism-based organization that investigates potentially wrongful convictions, The Medill Justice Project hopes, with this primer, to begin to demystify the criminal justice system in Illinois for the public. Special thanks to the Cook County State’s Attorney’s Office, the Office of the Appellate Public Defender (fourth district) and Northwestern University’s Office of General Counsel for their valuable feedback on this document.
While this guide serves as an overview of the criminal justice system in Illinois, it is by no means comprehensive. Please see section five of this document for some additional resources for further study.
Sincerely,
Prof. Alec Klein
Northwestern University
Director, The Medill Justice Project
I. HOW ILLINOIS CRIMINAL CASES WORK
Investigation
When a crime occurs, law enforcement responds by investigating. Officers interview victims, witnesses, suspects. They measure the crime scene, take photographs and obtain physical evidence. While investigating, officers must secure a warrant to search and seize evidence.
During the investigation, a law enforcement officer may conduct what’s called a Terry stop, or a brief detention; it is not an arrest. Indeed, it falls short of probable cause, or grounds to make an arrest.
A Terry stop does not require a warrant; however, it cannot be conducted without a reason. Rather, to briefly detain someone, the officer must have reasonable suspicion of involvement in criminal activity and be able to articulate it. The officer may conduct a limited search of a suspect’s outer garments for weapons—again, if the officer has reasonable suspicion that he or she can articulate that the person may be armed.
Another encounter with law enforcement that may not involve search and seizure or a warrant is known as “community caretaking,” which could include giving emergency aid or an act of public service.
Arrest
This Terry stop may lead to grounds for an arrest and further search of the suspect. In Illinois, if a suspect is arrested without a warrant, the courts have ruled that he or she can be held for about 48 hours without being charged with a crime. If someone is held beyond this time, any confession that is made may be thrown out in court. If arrested with a warrant, the suspect generally will see a judge the next day to face charges.
During this period of detention, prior to charging the suspect with a crime, law enforcement will continue to investigate. Officers may conduct a showup, where a suspect is individually shown to a witness, or a lineup, which may be done in person or by photos. Investigators may want to obtain biological samples from a suspect, which requires that person’s consent or a warrant.
Officers also interview witnesses and suspects during an investigation. It is during this time that a confession may occur, which must be voluntary in order to be admissible in court. While in police custody and before interrogation, suspects should be made aware of and show that they understand their Miranda rights, which are the right to remain silent and the right to an attorney. If a person cannot afford a private attorney, he or she has a right to be represented by a free attorney, a public defender. Statements made by suspects before, during and after interrogation can be used against them in court.
Law enforcement may ask, but cannot force anyone to take a polygraph, commonly known as a lie detector test. Polygraphs cannot be admitted as evidence in Illinois courts; however, law enforcement may use polygraphs as an investigative tool.
In Illinois, a mandate exists to record police interrogations during detentions in homicide cases. In 2003, Illinois became the first state in the nation to require police to record all custodial interrogations and confessions in homicide cases; this was a result of years of potentially false confessions obtained under former Chicago Police Department detective Commander John Burge at Chicago’s Area Two police headquarters. Burge is accused of torturing more than 200 criminal suspects between 1972 and 1991, to force confessions. He was fired in 1993 and convicted for obstruction of justice and perjury in 2011.
After a suspect is arrested, law enforcement or a prosecutor writes a complaint for misdemeanors and files it with the court. This is the official charging document until formal charges are filed. For felonies, an indictment or information, a concise written statement of the facts about the alleged offense that is signed by an attorney for the government must be made.
Initial Court Appearance
Usually the next day, the defendant will be taken to bond court (in Cook County, Ill.; practices may vary by circuit) for his or her first court appearance. The appearance may double as a Gerstein hearing, which determines that there was probable cause to detain the defendant if there was no arrest warrant. The first appearance also serves as the bond hearing. This is where it is decided how much money a person must post to be released from jail while the criminal charges are pending. The judge takes several factors into consideration when setting the bond amount: Is there a flight risk? What kind of offense is the person being accused of? Does the person have a criminal history? Does the person have special medical needs?
If the defendant posts bond, the judge could make further stipulations, regarding curfew and electronic monitoring.
Probable Cause Determination
In Illinois, a preliminary hearing must be held or formal charges by indictment or information must be brought against a defendant within 30 days of arrest if they remain in custody or within 60 days from the time of arrest if the person is out on bond.
To be formally charged with a felony, a case must be reviewed to see if there is probable cause to believe the person committed the crime.
There are two ways to determine whether there is probable cause: 1) a preliminary hearing before a judge with the help of a defense attorney (can be waived) or 2) a grand jury hearing without the help of a defense attorney. The state alone decides which course of action to take.
At a preliminary hearing, the judge hears testimony. If he or she determines there is no probable cause, the case usually ends there. However, the state is allowed to send the case to a grand jury
even if the judge finds no probable case. If the judge does find probable cause, then the case proceeds to assignment to a felony courtroom for arraignment.
At a grand jury hearing, which is a secret proceeding where the state presents evidence about the case, there could be two results: 1) the grand jury could indict the defendant, issuing a true bill, and the case is transferred for assignment to a felony courtroom for arraignment, or 2) the grand jury does not return a true bill, and the case ends there.
Arraignment
About 21 days after a judge finds probable cause at a preliminary hearing (or after a grand jury returns a true bill), a defendant formally faces his or her criminal charges before a judge for the first time in felony court. This is where the case remains until a verdict is issued. The defendant is expected to enter a plea at this point: guilty, not guilty or an Alford plea (where a defendant claims innocence, but admits there is enough evidence to convince a judge or jury of reasonable doubt). An Alford pleas is a guilty plea, though with varying degrees of consequences.
Case Preparation
After arraignment, the prosecution and defense investigate, obtain and exchange evidence with each other in a process called discovery, controlled by the Illinois Supreme Court Rules.
Each side is obligated to turn over names of witnesses who may testify at trial and other evidence. The state has the additional duty to disclose any information that would be favorable to the defense. A Brady violation occurs when the state does not disclose evidence that may deprive the defendant of a fair trial.
In turn, lawyers for the defendant must reveal the nature of their defense, such as an affirmative defense like self-defense or insanity. The defense must also disclose the alibi. During discovery, the lawyers may subpoena, issue a written order to compel witnesses to give testimony and records to be turned over.
The lawyers also may file pre-trial motions. Some pre-trial motions include: motion for substitution of judge; motion to reconsider bond; motion to dismiss indictment; motion to challenge constitutionality of statute or procedure; motion to quash arrest; motion to suppress statements; motion to suppress results of search and motion to suppress lineup identification procedure.
Plea Bargains
The case then enters a plea bargaining stage, or the case goes to trial. A plea bargain is an agreement where the defendant agrees to plead guilty to a charge (or a less serious charge) in return for a more lenient sentence or in return for the dismissal of other charges. The decision on how to plead is up to the defendant. On request, the judge also may directly participate in the plea bargain discussion with the defense and the prosecution in a meeting called a Rule 402 conference. The judge tells the defender what sentence can be expected based on the guilty plea.
Not every plea is negotiated. A defendant may plead guilty without any expectation of a reduced sentence.
If no agreement is reached, the case goes to trial.
Trial
In Illinois, a person’s right to a speedy trial is defined as 120 days if the defendant is in custody or 160 days if the defendant is out of custody, from the time a written trial demand has been filed. However, some delays are accepted, depending on defense motions filed or if the defense agrees to continuances.
A person must be fit for trial, meaning that he or she must know and understand the charge and what is going on, including the nature of the trial, the roles of those involved, awareness of the defense and an understanding of the consequences. A defendant needs to be able to behave appropriately in court, make decisions and communicate with the defense attorney.
If a person is not fit for trial and is unlikely to become fit within a year, there will be a discharge hearing. If the person is likely to be fit within a year, he or she will be treated by the Illinois Department of Human Services.
In Illinois, the defendant may choose between two types of trials, a bench trial or a jury trial. A bench trial is one where the judge decides whether the defendant is guilty or not guilty. A jury trial is one where 12 selected citizens must unanimously agree whether the defendant is guilty or not guilty. In Illinois, unanimous jury decisions are required in all criminal cases. If there is disagreement, then that means it is a hung jury, resulting in a mistrial. At that point, the state must decide whether to try the case again or not.
At trial, a defendant also has the right to testify or to remain silent.
To be found guilty in criminal cases, the state must prove to the judge or jury that the defendant is guilty beyond a reasonable doubt. In other words, the burden of proof is on the state.
For jury trials, the first stage of the process is jury selection. The judge and attorneys narrow down potential jurors until everybody agrees on 12 people. The way potential jurors are selected
or eliminated is by asking them questions that would reveal any bias or conflict of interest in rendering an impartial verdict in the case.
The trial begins as attorneys make brief opening statements to the jury. They outline their side of the case. These statements are not considered evidence. The state makes the first opening statement, followed by the defense.
After opening statements, each side presents evidence by calling witnesses (some are experts and some are everyday people who may have facts about the case) and presenting exhibits such as photographs or videos. Witnesses for the prosecution are called first. After swearing to tell the truth (if witnesses lie, they commit the offense of perjury), they answer the state’s questions, and the defense cross-examines them. The process repeats itself as the defense calls its witnesses, followed by the state’s cross-examination.
As evidence is presented, each side is allowed to make objections, which go into the record. This is important because the jury may review what was said during the trial as it decides the verdict, and it also makes a difference in the appeals process when the court reviews arguments based on what is in the record. Attorneys may make objections about the relevance of what’s being said. They also may object on the grounds of hearsay (indirect information, or what someone says someone else says) or speculation, which is drawing a conclusion that is not based on the facts.
Closing arguments are the final opportunity for attorneys to make their case to jury. Like opening statements, these are not evidence. The state goes first, but the defense does not necessarily get the last word. The prosecutor may make final comments in response to the defense attorney’s closing argument.
Before the judge or jury receives the case, the defense can make a motion for a directed verdict of acquittal, which is asking the court to drop the charges against the defendant because the state has not proven its case. After the judge or jury deliberates, or decides the verdict, the defense can make a motion for judgment notwithstanding the verdict or a motion in arrest of judgment; this allows the judge to override the jury’s verdict and acquit the defendant.
After closing arguments, the judge instructs the jury members on how they should apply the law in the case. The jurors then leave the courtroom to deliberate, or decide the verdict, which could take minutes, hours, days, weeks or more. When the jurors do reach a verdict, they are escorted back into the courtroom where their decision is read aloud.
If the defendant is found not guilty or acquitted, the case ends there. If the defendant is found guilty or convicted, he or she is sentenced about 30 days later.
Other outcomes in the case include NGRI, which stands for not guilty by reason of insanity, if the defense establishes a mental disorder or defect and an inability to understand the criminality of one’s actions. Someone could also be found guilty but mentally ill, which means the person has a mental illness, but not legally insane at the time of the crime.
Sentencing
Before sentencing, the defendant must file a motion for a new trial to preserve any issue for possible appeal. If this appeal is denied, then the case goes to the sentencing phase.
Illinois law sets forth a penalty range for each offense. The judge then determines what punishment to give the defendant within that range and bases his or her decision on several factors: the kind of offense, the type of victim and the guilty person’s criminal history or life circumstances.
A presentence investigation helps to inform the judge about the defendant’s background.
The defendant may be sentenced to a fine, repayment to the victim, supervision, conditional discharge, period of probation or incarceration. In 2011, Illinois Gov. Pat Quinn abolished the death penalty. Parole, mandatory supervised release, follows time served in the penitentiary. An inmate’s actual time incarcerated can be 50, 75, 85 or 100 percent of his or her sentence, depending on the offense. Under Illinois’ truth in sentencing law, first-degree murder offenses that occurred after June 1998 carry an automatic 100 percent sentence. For first-degree murder offenses that occurred before June 1998, prisoners serve half of their sentence. In Illinois, there also are a few forms of sentence credits available to offenders, including time earned for participation in prison programs, such as education and life skills courses. Credit for good conduct, up to 180 days, is at the discretion of the director of the Illinois Department of Corrections or whomever he or she designates.
A defendant can challenge his or her sentence by filing a motion to reduce or reconsider his or her sentence. This must be filed within 30 days of sentencing. If the motion is denied, the defendant has another 30 days to file a notice of appeal.
The Illinois Department of Corrections oversees all state prisons and parole services. The Illinois governor appoints the director of this agency.
Appeals
Any convicted person has the right to appeal his or her case, which means asking a higher court to review the case for a legal error. If a serious mistake is discovered, it could result in a conviction reversal, a new trial or a new sentence. If no major mistake is discovered, the court will uphold the conviction. Examples of trial errors include evidence being admitted or excluded that should not have been, incorrect instructions to the jury, prosecutorial misconduct or violations of constitutional rights. However, criminal appeals are limited to the court record, which consists of the evidence presented and words said during the original trial. New evidence may not be introduced in criminal appeals. Post-conviction remedies (see below), which are similar to appeals, are not limited to the trial record.
If the defendant cannot pay for an appeals attorney or wants an appointed attorney, the Office of the State Appellate Defender steps in and releases the trial court from the case.
In a criminal appeal, attorneys write briefs. The appellant, or person challenging a conviction or sentence, files a brief and argues why the conviction or sentence was legally wrong. The state responds with its own brief and argues why the conviction or sentence should be upheld. This may lead to a response from the appellant, and the appellate court may hear oral arguments from each side before deciding whether to grant the direct appeal or not. If the conviction is upheld, the convicted person may (or the state also may) seek leave to appeal to the Illinois Supreme Court with a petition for leave to appeal. The Illinois Supreme Court will grant the petition and review the appellate court’s decision, or it will deny the petition. On review, if the conviction is again upheld, the prisoner can appeal to the United States Supreme Court with a petition for writ of certiorari. This petition asks the Supreme Court to review the lower court’s decision. If the Supreme Court issues a writ of certiorari, that means it has decided to hear the appeal.
Post-conviction relief or remedies, filed as petitions in various courts, depending on the remedy, also are ways for the prisoner to prove his or her innocence or show that some aspect of the original trial was unconstitutional. Unlike criminal appeals, post-conviction remedies are not limited to the trial record and can introduce new evidence, but they cannot bring up the same issues raised and decided on direct appeal (res judicata, Latin for “a matter judged”) or issues that could have been raised on direct appeal—that is, something reflected in the trial record itself. There is some flexibility with this requirement if the prisoner can prove the attorney on direct appeal was incompetent and should have raised the issues because it would have made a difference in the appeal’s outcome.
Post-conviction remedies in Illinois include a Section 2-1401 petition, a post-conviction petition and habeas corpus petitions. A Section 2-1401 petition can be filed 30 days after sentencing, but no later than two years. Also known as a “petition for relief from judgment,” it must introduce new facts about the case that, had the court known about them, it would not have convicted the defendant. A petition filed after two years must have a justifiable excuse for its lateness, such as a disability. A post-conviction petition examines whether a person’s constitutional rights have been violated, based on matters outside the trial record that could not have been argued on direct appeal. Post-conviction petitions are filed in the court where the defendant was convicted. A habeas corpus petition, similar to a post-conviction petition, examines the constitutionality of a person’s imprisonment in a civil suit filed in federal court, usually against the warden who is holding the defendant in custody.
In Illinois, the Post-conviction Hearing Act is a way to revisit the question of a convicted person’s innocence or guilt and the fairness of the original trial. In Illinois, convicted people are generally allowed to file one post-conviction petition, though some exceptions exist, including claims of actual innocence based on newly discovered evidence. However, this kind of claim must demonstrate that the evidence was not discovered before the original trial.
There are some time restrictions to filing a post-conviction petition (six months from the conclusion of the appeal to the United States Supreme Court or from the time the petition for writ of certiorari would have been due, or three years after sentencing if no direct appeal was
filed), though these restrictions can be waived if the prisoner can show the delay was not purposeful or negligent—but not beyond 10 years. Generally, a post-conviction petition is not filed until the denial of a direct appeal, but due to the various time limits, a convicted person may need to file it while the direct appeal is pending.
There are three steps to post-conviction petitions: 1) The circuit court examines the petition to make sure it is not frivolous. 2) If the petition is not dismissed, then it proceeds to formal adversarial proceedings. A public defender may be appointed. To keep the petition from being dismissed at this stage, the defender must use the trial record and affidavits to show that a constitutional violation occurred. 3) If the petition survives, the prisoner is given an evidentiary hearing to prove his or her claims, after which the court decides whether or not to uphold (or “affirm”) the conviction—which is a rejection of the appeal.
A prisoner may also file a habeas corpus petition in state or federal court. The federal option serves to challenge a criminal conviction, while the state process challenges whether a court had the authority to judge a defendant—which most of time, it does, unless, for example, a sentence was miscalculated. This petition asks for the inmate to be brought to the court to see if he or she is being imprisoned lawfully or not. The court then decides to order a writ of habeas corpus or deny the petition for the writ. Before going the federal route, however, a prisoner must have exhausted the state appeal options (state habeas excluded).
In Illinois, a prisoner may file a petition of executive clemency, which is the process for asking for the governor’s full pardon or lessened sentence. In 2003, former Illinois Gov. George Ryan declared a blanket commutation and gave life sentences to 167 inmates on the state’s death row or those waiting to be sent to death row. The Prisoner Review Board has guidelines for clemency petitions and lists the requirements on its website (www.illinois.gov/prb).
Prisoners may also write to the President of the United States for clemency.
II. HOW ILLINOIS CRIMINAL COURTS ARE ORGANIZED
Illinois’ constitution calls for a unified three-part judiciary: circuit courts, appellate courts and the Illinois Supreme Court. There also are federal courts in Illinois.
The Illinois Attorney General is the state’s chief legal officer and represents the state in all proceedings, including criminal appeals, from habeas corpus petitions (state and federal) to the Illinois Supreme Court. Illinois voters elect the Attorney General. The Attorney General also is tasked with enforcing the Freedom of Information Act across the state, which gives citizens the right to access public documents.
Prosecutors and defenders are divided by county state’s attorney’s offices and public defender offices. In a partisan race, voters elect the county state’s attorney, who serves a four-year term.
The Cook County State’s Attorney’s Office is the second largest prosecutor’s office in the United States. In other parts of the country, the state’s attorney may be referred to as a district attorney or commonwealth attorney.
The Circuit Court In Illinois, cases start in circuit court, be it for a traffic violation or first-degree murder. There are 22 judicial circuits, each made up of one or more counties. This is where first court appearances and bond hearings take place, preliminary hearings, grand jury proceedings and trials. Each circuit has circuit judges, elected by voters, and a chief judge, appointed annually by the circuit judges. In a partisan election, the circuit judges are elected for a six-year term, based on their circuit or county of residence. To serve additional terms, the judges then run in uncontested, nonpartisan retention elections. Circuit judges also appoint associate judges for four-year terms. Associate judges cannot hear felony cases, unless the Supreme Court authorizes them.
The circuit court has a civil division where it hears non-criminal cases. Civil cases deal with disputes between people; between people and companies; or between people and the government. For example, someone who has been exonerated of a crime who alleges police brutality could file a civil lawsuit against a city.
The Appellate Court
The Illinois Appellate Court is divided among five judicial districts. These courts hear appeals from the trial courts. While all people convicted of crimes have the right to file an appeal, appellate courts do not conduct trials and do not hear testimony like circuit courts do. Rather, the appellate court decides whether a legal error occurred during the original trial by examining written briefs from attorneys in the case. Sometimes the court will hear arguments from both sides in addition to reading the briefs. Three appellate justices review the case and vote on whether an error occurred. The majority rules, so a vote of two is needed to reverse or remand the trial court decision. Otherwise, the court will affirm the trial court’s decision. In a partisan race, Illinois voters elect appellate justices, who serve 10-year terms. Unopposed retention elections are nonpartisan. The Supreme Court of Illinois The state Supreme Court not only decides cases on appeal, but it also is in charge of legislative redistricting and determining if the governor is fit to serve in office. The Supreme Court also has original jurisdiction in cases regarding state revenue.
The Supreme Court has seven justices who represent districts in the state. The majority rules, so it takes four votes to decide a case. Voters elect the Supreme Court justices, who serve 10-year terms. Supreme Court justice races are partisan as well. Uncontested elections for subsequent terms are nonpartisan. Federal courts Apart from the state’s three-part judiciary, federal cases take place in federal court, and Illinois has three districts: Northern, Central and Southern. Each district has a chief judge, district judges and magistrate judges. There also is a federal appeals court in Illinois, the United States Court of Appeals for the Seventh Circuit. It is headquartered in Chicago and has jurisdiction over federal courts in Illinois, Indiana and Wisconsin. Federal courts have jurisdiction over criminal cases involving violations of the U.S. Constitution or federal laws.
Federal courts also hear civil cases.
III. GLOSSARY
Definitions for the following legal terms come from various reference materials, including the Illinois Attorney General’s “A Guide to the Illinois Freedom of Information Act,” the Illinois Supreme Court Rules, the Illinois General Assembly website, Illinois Legal Aid, Merriam-Webster’s Dictionary of Law, Merriam-Webster’s Dictionary, Britannica Academic Edition, the Federal Judicial Center, USLegal.com, the Legal Information Institute, Nolo’s Plain-English Law Dictionary, LexisNexis, Tech Law Journal and the “Pro Se Handbook: The Manual for the Litigant Filing Without Counsel.”
Acquittal: To absolve (a criminal defendant) of a charge by judicial process. Actual innocence: Factual innocence, not mere legal insufficiency. Adjourn: To put off further proceedings indefinitely or until a later stated time; to close formally. Adjudicate: To come to a judicial decision. Affidavit: a sworn statement in writing made especially under oath or on affirmation before an authorized magistrate.
Affirmative defense: A defense that does not deny the truth of the allegations against the defendant but gives some other reason (as insanity, assumption of risk, or expiration of the statute of limitations) why the defendant cannot be held liable. Alford plea: A plea in a criminal case in which the defendant does not admit guilt, but agrees that the state has enough evidence against him or her to secure a conviction. Allows the defendant to enter into a plea bargain with the state. If the judge accepts the Alford Plea, a guilty finding is made on the record. Allegation: A statement not yet proven. Allen charge: An instruction given by a court to a deadlocked jury to encourage it to continue deliberating until it reaches a verdict. Alternate juror: a juror who is selected in the same manner as a regular juror and hears the evidence in a case along with the regular jurors, but does not help decide the case unless called on to replace a regular juror.
Amicus curiae brief: Literally, friend of the court. A person with strong interest in or views on the subject matter of an action, but not a party to the action, may petition the court for permission to file a brief, ostensibly on behalf of a party but actually to suggest a rationale consistent with its own views. Such amicus curiae briefs are commonly filed in appeals concerning matters of a broad public interest; e.g., civil rights cases. They may be filed by private persons or the government. In appeals to the U.S. courts of appeals, an amicus brief may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court, except that consent or leave shall not be required when the brief is presented by the United States or an officer or agency thereof.
Answer: A court document, or pleading, in a civil case, by which the defendant responds to the plaintiff's complaint. Appeal: Asking a higher court to review the decision or sentence of a trial court because the lower court made an error; a legal proceeding in which the appellant resorts to a higher court for the purpose of obtaining a review of a lower court decision and a reversal of the lower court's judgment or the granting of a new trial. Appearance: The official court form filed with the court clerk which tells the court that you are representing yourself in a lawsuit or criminal case or that an attorney is representing you. All court notices and calendars will be mailed to the address listed on the form. When a defendant in a civil case files an appearance, the person is submitting to the court’s jurisdiction. Appellant: The party appealing a decision or judgment to a higher court. Appellee: The party against whom an appeal is taken.
Arraignment: The first court appearance of a person accused of a crime. The person is advised of his or her rights by a judge and may respond to the criminal charges by entering a plea. Usually happens the morning after a person is arrested. Arrest: When a person is taken into custody by a police officer and charged with a crime. Associate judge: The member of a judicial panel who is neither a chief judge nor a presiding judge. Attorney general: The state's chief legal officer Attorney of record: Attorney whose name appears in the permanent records or files of a case. Autopsy: An examination of a body after death to determine the cause of death or the character and extent of changes produced by disease. Bail: Also called bond. Money or property given to the court for the temporary release of a defendant, to ensure that the defendant will return to court. Bail bondsperson/bondsman: A person who lends money to a defendant to pay for bail. Bail commissioner: A state-appointed person who may set the amount of bond for persons detained at a police station prior to arraignment in court and who recommends to the court the amount of bond that should be set for the defendant on each criminal case. Bar: Refers to attorneys as a group. Bench warrant: Court papers issued by the judge, "from the bench," for the arrest of a person. Bench trial: A trial in which there is no jury and the judge decides the case. Bond: Also called bail. Money or property given to the court for the temporary release of a defendant, to ensure that the defendant will return to court. Brady motion: A defendant's request for evidence concerning a material witness which is favorable to the defense and to which the defense may be entitled. Favorable evidence includes not only evidence that tends to exculpate the accused, but also evidence that may impeach the credibility of a government witness. Brady violation: The failure to disclose evidence to the defense that deprives the defendant of a fair trial. Brief: A written document prepared by a lawyer or party on each side of a dispute and filed with the court in support of their arguments.
Burden of proof: The responsibility of producing sufficient evidence in support of a fact or issue and favorably persuading the trier of fact (as a judge or jury) regarding that fact or issue. Capital felony: A criminal offense in which the death penalty may be imposed. Case: A lawsuit or action in a court. Case conference: A meeting scheduled by the court to review the case. Charge: Formal accusation of a crime. Charge to jury: In trial practice, an address delivered by the court to the jury at the close of the case instructing the jury as to what principles of law they are to apply in reaching a decision. Chief judge: The principal, presiding, or most senior judge of especially a lower level court or of a circuit. Circuit court: A court that sits in more than one place in a judicial district: as a: a state court usually with original jurisdiction and sometimes with appellate jurisdiction b: any of the federal courts of appeals not used technically. Circuit judges: A judge who holds office in a circuit court. Closing arguments: After all the evidence has been presented in a trial, lawyers' presentations summarizing the evidence and attempting to persuade the jury to draw conclusions favorable to their clients. Closing arguments, like opening statements, are not themselves evidence. Common law: Laws that develop through case decisions by judges. Not enacted by legislative bodies. Complaint: A legal document that tells the court what you want, and is served with a summons on the defendant to begin the case. Contempt of court: A finding that someone disobeyed a court order. Can also mean disrupting court, for example, by being loud or disrespectful in court. Continuance: The adjournment or postponement of a court case to another day. Convict/conviction: To be found guilty of committing a crime. Coroner: A government official who confirms and certifies the death of an individual within a jurisdiction. A coroner may conduct or order an investigation into the manner or cause of death. Count: The different parts of a complaint, which could each be a basis or grounds for the lawsuit.
Court-appointed attorney: An attorney who is asked by the court (judge) to represent a party to the case, or to serve in some other capacity that the case requires. Court clerk: The person who maintains the official court record of your case. The court clerks’ office receives all court papers and assigns hearing dates. This individual is charged with the responsibility of keeping the records and accounts of the court. Specifically, the clerk assists the judge with court files, calling cases for a court call, and keeping track of all of the papers filed in court. Additionally, the clerk administers an oath to jurors and swears in witnesses. Court interpreter: The person who translates court hearings from English to another language. Court reporter: The primary responsibility of the court reporter is to record all audible utterances in a court proceeding, and, on request, produce a written transcript of that proceeding. Each and every word spoken by any person must appear in the record. These records are important in case the ruling by the trial court is appealed. Since there are no witnesses or testimony heard at the appellate court level, the court relies on the transcript which is generated to review the trial court's actions. Court services officer: A person who assists the judge and oversees cases as they go through the court. It is the responsibility of the officer to call court to order and maintain order and dignity in the courtroom, as well as provide secure surroundings for the judges, attorneys, witnesses, court reporter, clerk and all other individuals in the court environment. Additionally, the court officer assists the judge in many capacities, including insuring the jurors' safety and privacy in jury trials. Cross-examination: Questioning by a party or the attorney of an adverse party or a witness. Daubert standard: The standard used by a trial judge to make a preliminary assessment of whether an expert’s scientific testimony is based on reasoning or methodology that is scientifically valid and can properly be applied to the facts at issue. Under this standard, the factors that may be considered in determining whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Daubert standard is the test used in the federal courts and some state courts. In the federal courts, it replaced the Frye standard. Death penalty: Death as punishment for a crime; called also capital punishment Defendant: In civil cases, the person who is given court papers, also called a respondent. In criminal cases, the person who is arrested and charged with a crime. Defense: A defending party or group.
Defense attorney: A lawyer who represents a defendant in a lawsuit and prepares and argues defenses on the defendant's behalf. Deliberate: To think about and weigh or discuss issues and decisions carefully. Detention: Holding in custody. Deposition: Testimony of a witness taken, under oath, in response to another party's questions. Testimony given outside the courtroom, usually in a lawyer's office. A word for word account (transcript) is made of the testimony. Directed verdict of acquittal: A verdict to acquit rendered by a jury on instruction by the judge that they must bring in that verdict because one of the parties has not proved their case as a matter of law. Discovery: A formal request by one party in a lawsuit to disclose information or facts known by other parties or witnesses. Dismissal: A judge's decision to end the case. Dismissal without prejudice: A judge’s decision to end the case which permits the complainant or prosecutor to renew the case later. In contrast, dismissal "with prejudice" prevents the complainant or prosecutor from bringing or maintaining the same claim or action again. Dispose: Ending a legal case or a judicial proceeding. Docket: A list of cases scheduled to be heard in court on a specific day or week. Evidence: Testimony, documents or objects presented at a trial to prove a fact. Evidentiary hearing: A formal examination of charges by the receiving of testimony from interested persons, irrespective of whether oaths are administered, and receiving evidence in support or in defense of specific charges which may have been made. Ex parte: Done for, or at the request of, one side in a case only, without prior notice to the other side. Experts/expert witnesses: A person with special or superior skill or knowledge in a particular area; a witness (as a medical specialist) who by virtue of special knowledge, skill, training, or experience is qualified to provide testimony to aid the fact finder in matters that exceed the common knowledge of ordinary people. Federal court: A court established by the federal government and having jurisdiction over questions of federal law.
Felony: an offense for which a sentence to a term of imprisonment in excess of one year or death is authorized. Felony murder: A murder committed while the person is also committing a felony. First court appearance: A criminal defendant’s first appearance in court. Usually, this is when the charges are read to the defendant or the defendant is given a copy of the charges, the defendant is advised of his rights and enters a plea, and the amount of bail (if bail is not denied) is determined. Filing: Giving the court clerk legal papers which become part of the case file. Finding: The court’s or jury’s decision on issues of fact. First degree murder: A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death: (1) he either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or (2) he knows that such acts create a strong probability of death or great bodily harm to that individual or another; or (3) he is attempting or committing a forcible felony other than second degree murder. Freedom of Information Act: A pro-disclosure law embedded in the fundamental principle that citizens have a right to access public documents of their government, while balancing the government necessary ability to conduct the business of the people. Frye standard: In the context of criminal law, the Frye test refers to a standard for admitting scientific evidence at trial. It derives from a 1923 case, U.S. v. Frye, 293 F. 1013 (D.C. Cir. 1923), in which the defendant offered the results of a lie detector test that he claimed demonstrated that he was telling the truth when he denied killing the victim. The court ruled that the evidence was inadmissible because the scientific principles on which the procedure was based were not "sufficiently established to have gained general acceptance in the particular field in which it belongs." This became known as the Frye general acceptance test and remained the standard used in both federal courts and state courts around the country for many years. Illinois uses the Frye test to admit scientific and medical testimony under which counsel must show the opinion an expert will render has gained general acceptance in his or her field and that the particular methodology on which the opinion is based is reasonable. Gerstein hearing: Equivalent to a pre-arrest warrant hearing, at which probable cause must be demonstrated to be granted a warrant. It is non-adversarial in nature. The hearing may be conducted in the defendant's absence, and the probable cause determination may be based on hearsay testimony. Guilty: Having committed a crime.
Grand jury: A jury that examines accusations against persons charged with crime and if the evidence warrants makes formal charges on which the accused persons are later tried. Habeas corpus: A court order used to bring a person physically before a court to test the legality of the person's detention. Usually, it is directed to the official or person detaining another, commanding him to bring the person to court for the judge to determine if that person has been denied liberty without due process of law. Hearsay: Testimony given by a witness who tells second- or third-hand information. Hung jury: A jury whose members cannot reconcile their differences of opinion and thus cannot reach a verdict. Illinois Department of Corrections: The government agency that operates the state’s prisons and parole services. Illinois Supreme Court: The highest court in Illinois. Indict/indictment: To charge with a crime by the finding or presentment of a grand jury in due form of law; the action or the legal process of indicting. Interrogation: The process of questions asked by police of a person arrested or suspected to seek answers to a crime. Such person is entitled to be informed of his rights, including right to have counsel present and the consequences of his answers. If the police fail or neglect to give these warnings, the questions and answers are not admissible in evidence at the trial or hearing of the arrested person. Incarceration: Confinement to a state correctional institute or prison. Judge: A person who hears and decides cases for the courts. As a judge presiding in a court of law, it is the judge's responsibility to insure that justice is administered in a fair and impartial manner. The judge makes rulings on all questions relative to law and legal procedure within the courtroom. In a jury trial, the judge is responsible for making rulings and instructing the jury on the law as it applies to each particular case. When the judge is not presiding over a trial, he/she is working in their office (called chambers) conducting pre-trial conferences, doing legal research, or attending to other judicial matters. Judgment: A court decision. Also called a decree or an order. Jurisdiction: Power and authority of a court to hear and make a judgment in a case. Juror: Member of a jury. Jury trial: A trial in which a jury, generally12 members, serves as the trier of fact. For civil cases in state court, except for family-law cases, the plaintiff may choose a six or 12 person jury.
Jury charge: The judge's formal instructions on the law to the jury before it begins deliberations. Jury instructions: Directions given by the judge to the jury concerning the law of the case. Lineup: A line of persons assembled by police especially for possible identification of a suspect by a witness to a crime. Magistrate judge: A municipal, state, or federal judicial officer commonly authorized to issue warrants, hear minor cases and conduct preliminary or pretrial hearings. Medical examiner: A medical examiner is an appointed official who must be a physician, licensed to practice medicine in the State of Illinois and be certified by the American Board of Pathology in anatomic and forensic pathology. A coroner inquiries into the cause and manner of a death and writes the death certificate, but he or she may not have any medical expertise or training. Miranda rights/warnings: Miranda warnings are required warnings the police have been required to recite to an arrested person, involving the right to remain silent and the right to an attorney. These are also often referred to as the "Miranda rights." When you have been read your rights, you are said to have been "Mirandized." Miranda warnings are required to be given after being taken into custody and before questioning by authorities. A person who has been taken into custody and not been given a Miranda warning may have any statements or confessions they made excluded as evidence in their prosecution. Misdemeanor: Offenses lower than felonies and generally those punishable by fine, penalty, foreclosure, or imprisonment other than in a penitentiary. Mitigating circumstances: Circumstances that may be considered to reduce the guilt of a defendant. Usually based on fairness or mercy. Mittimus judgment: Also called a Mitt. The formal document prepared by the court clerk to present a convicted defendant in a criminal case to the Department of Corrections for incarceration. Motion: Usually written request to the court in a case. Filed with the clerk’s office. Motion in limine: Usually a pretrial motion that requests the court to issue an interlocutory order which prevents an opposing party from introducing or referring to potentially irrelevant, prejudicial, or otherwise inadmissible evidence until the court has finally ruled on its admissibility.
Newly discovered evidence: Evidence that existed at the time of a motion or trial but that could not have been discovered with reasonable diligence prior to a court ruling on the motion or the trial's completion.
Nolo contendere: It means "no contest." A plea in a criminal case that allows the defendant to be convicted without admitting guilt for the crime charged. Although a finding of guilty is entered on the criminal court record, the defendant can deny the charges in a civil action based on the same acts. No contest: A plea in a criminal case that allows the defendant to be convicted without admitting guilt for the crime charged. Also called nolo contendre. Although a finding of guilty is entered on the criminal court record, the defendant can deny the charges in a civil action based on the same acts. NGRI: Not guilty by reasons of insanity; a plea by a criminal defendant who admits the criminal act, but claims he or she was so mentally disturbed at the time of the crime that he or she lacked the mental capacity necessary to commit a crime. Not guilty: A plea by a criminal defendant who intends to contest the charges. Not guilty by reason of insanity: A plea by a criminal defendant who admits the criminal act, but claims he or she was so mentally disturbed at the time of the crime that he or she lacked the mental capacity necessary to commit a crime; also called NGRI. Oath: To swear/affirm to the truth of a statement/document. Objection: A reason or argument forming the ground of an objection; Note: Objections at trial are generally made for the purpose of opposing the admission of improper evidence. Such an objection must be made in a timely manner. Objections prevent the jury from seeing or hearing the evidence and preserve the issue for appeal. Objections may also be made on the ground of the opposing counsel's improper methods (as leading a witness) or for other technical reasons. Office of the State Appellate Defender: A state agency created by the State Appellate Defender Act (725 Illinois Compiled Statutes, Act 105). The principal function of the Office of the State Appellate Defender is to represent indigent persons on appeal in criminal cases when appointed by the Illinois Supreme Court, the Appellate Court or the Circuit Court. Opening statements: a statement to the jury by trial counsel before the presentation of evidence that usually explains the nature of the case, the factual matters to be proven and the evidence to be presented and that summarizes the arguments to be made. Order: A written direction of a court or judge to do or refrain from doing certain acts. Pardon: A release from the legal penalties of an offense. Parole: Release from incarceration after serving part of a sentence. Penitentiary: A state or federal prison for the punishment and reformation of convicted felons.
Peremptory challenge: The rejection of a prospective juror by the attorneys in a case, without having to give a reason. State law defines the number of peremptory challenges available. Perjury: Making false statements under oath. Petition: A formal written request to a court, which starts a special proceeding. In juvenile court, which is a court responsible for the trial or supervision of children (17-year-olds charged with misdemeanors go to juvenile court; 17-year-olds charged with felonies go to adult criminal court), the legal document which specifies the complaint against the juvenile and/or family; it includes the name, age and address of the minor and his or her guardian, as well as the statutory grounds and facts on which the request for the court intervention is based. Petition for executive clemency: The process one must undertake to receive a Governor’s pardon. Petition for leave for appeal: A petition to the Illinois Supreme Court to review the appellate court’s denial of the direct appeal. Petition for relief from judgment: A petition that can be filed up to two years after a conviction in which the court is asked to review new facts about the case that, had it known about them at the original trial, it would not have convicted the defendant ; also called section 2-1401 or 2-1401. Petition for writ of certiorari: A document which a losing party files with the U.S. Supreme Court asking the Supreme Court to review the decision of a lower court. It includes a list of the parties, a statement of the facts of the case, the legal questions presented for review and arguments as to why the court should grant the writ. Plea: An accused person’s answer to a criminal charge. For example: not guilty; guilty; no contest. Accused person makes a formal reply to a charge in a criminal court. Plea bargain: The agreement a defendant makes with the prosecutor to avoid a trial. Usually involves pleading guilty to lesser charges in exchange for a lighter sentence. Pleadings: The court documents filed with the court by the parties in a civil or criminal case. For example: motion to dismiss; motion for modification. Polygraph: Polygraph refers to instrumentation to test or question individuals for the purpose of detecting deception or verifying truth of statements. A polygraph examiner is any person who purports to be able to detect deception or verify truth of statements through instrumentation or the use of a mechanical device. Polygraph test results are not admissible in court in Illinois. Posting bond: To pay the court-ordered bond amount with cash or property. Post-conviction Hearing Act: The act that allows a defendant to file a post-conviction petition to raises constitutional claims not shown by the record, such as ineffective assistance of counsel,
coercion to plead guilty, or knowing use of perjured testimony. If a defendant takes a direct appeal, every issue that was or could have been raised on direct appeal will normally be considered waived for post-conviction proceedings. Post-conviction petition: A petition filed by a person who has been convicted or sentenced for a crime by a court of this state that seeks post-conviction relief. Post-conviction relief or remedies: General term related to appeals of criminal convictions, which may include release, new trial, modification of sentence and such other relief as may be proper and just. Preliminary hearing: A hearing held after a criminal defendant's first appearance in court especially for the purpose of determining whether there is probable cause to believe that the defendant committed the felony with which he or she is charged. Presentence investigation: An investigation made by a probation officer in preparing a presentence report. Preservation order: A temporary suspension of document retention destruction policies for the documents that may be relevant to a lawsuit or that are reasonably anticipated to be relevant. Pretrial hearing: Conference with attorneys to determine scope of possible trial with view toward resolving issues through agreement. Prisoner: A person deprived of liberty and kept under involuntary restraint, confinement, or custody. Probable cause: A reasonable ground in fact and circumstance for a belief in the existence of certain circumstances (as that an offense has been or is being committed, that a person is guilty of an offense, that a particular search will uncover contraband, that an item to be seized is in a particular place, or that a specific fact or cause of action exists). Probable cause hearing: A hearing held before a judge in criminal cases to determine if enough evidence exists to prosecute. The probable cause hearing must be conducted within 60 days of the filing of the complaint or information, unless the accused person waives the time or the court grants an extension based on good cause. Probation: When a convicted offender receives a suspended term of incarceration and is then supervised by a probation officer for a period set by a judge. Promise to appear: A type of non-financial bond where the defendant agrees to return to court without giving cash or property. Protective order: A motion for protective order refers to a party's request that the court protect it from potentially abusive action by the other party. Such a request is often made in relation to discovery, as when one party seeks discovery of the other party's trade secrets. In certain
instances, the court will craft a protective order for protecting one party's trade secrets by ordering that any secret information exchanged in discovery shall be used for the pending suit only and it shall not in any manner be publicized. Pro se: A Latin phrase meaning for "yourself"--representing yourself in any kind of case. Prosecute: To carry on a case or judicial proceeding. To proceed against a person criminally. Prosecution: The institution and carrying on of a criminal action involving the process of seeking formal charges against a person and pursuing those charges to final judgment. Prosecutor: Also called the state's attorney. Represents the state in a criminal case against a defendant. Prosecutorial misconduct: Conduct which violates court rules or ethical standards of law practice. Public defender: An attorney appointed and paid by the state who defends a person in a criminal case after the court finds that the person is indigent--financially unable to hire a private attorney. Record: The pleadings, exhibits and transcript made by the court reporter of all proceedings in a trial. Res judicata: a thing, matter or determination that is adjudged or final, as a: a claim, issue, or cause of action that is settled by a judgment conclusive as to the rights, questions, and facts involved in the dispute; b: a judgment, decree, award or other determination that is considered final and bars re-litigation of the same matter (the trial court interpreted the earlier order as a dismissal with prejudice and thus res judicata as to the subsequent complaint. Respondent: One who answers or defends in various proceedings. Rule 23 order: A written decision from the Illinois Appellate Court. Rule 402 conference: Referring to Illinois Supreme Court Rule 402, which provides for a judge to be part of a plea negotiation. Seal: A court order closing a case file from public review, usually in cases of youthful offenders and acquittal. Prevents the public from obtaining information on the cases. Section 2-1401: The Illinois statute for a petition for relief from judgment. Sentence: The penalty imposed by a judge after the defendant is convicted of a crime. Sentences can be: Concurrent - multiple sentences will be served at the same time (i.e., sentences of 10 years, 8 years and 2 years - to be served concurrently - equal a total effective sentence of 10 years.) Consecutive - the sentences are served back-to-back. The same example above would equal a total effective sentence of 20 years.
Sentencing: When a criminal defendant is brought before a judge after conviction for ordering the terms of the punishment. Shaken-baby syndrome: According to the National Institutes of Health, shaken-baby syndrome is a severe form of child abuse caused by violently shaking an infant or child. Showup: A presentation of a criminal defendant or arrestee individually to a witness for identification. States attorney: An attorney who represents the state in criminal cases. The prosecutor. Statute: A law enacted by a legislative body. Statute of limitations: A certain time allowed by law for starting a case. Stay: Temporarily stopping a judicial proceeding. Strickland: Also known as “ineffective assistance of counsel,” a standard based on a United States Supreme Court case, Strickland v. Washington, 466 U.S. 669 (1984), which looks at representation of a criminal defendant, at trial or on appeal, by a court-appointed lawyer or a retained lawyer, that involved errors that were so serious that they resulted in the denial of a fair trial. Most errors do not rise to the level of ineffective assistance, though some are (such as failing to investigate the defendant's background in a death-penalty case, where the evidence might have led jurors to impose a sentence of life without parole instead of death). Subpoena: A command to appear in court to testify as a witness. Subpoena duces tecum: A legal paper requiring someone to produce documents or records for a trial. Substitute charge: In a criminal case, a charge that replaces the original charge by the prosecutor. Supreme Court of Illinois: The highest court in Illinois. Supreme Court of the United States: The highest court in the judicial branch of the U.S. government that has original jurisdiction over controversies involving ambassadors or other ministers or consuls but whose main activity is as the court of last resort exercising appellate jurisdiction over cases involving federal law. Suspect: A person suspected of a crime. Terry stop: A stop and limited search of a person for weapons justified by a police officer's reasonable conclusion that a crime is being or about to be committed by a person who may be armed and whose responses to questioning do not dispel the officer's fear of danger to the officer or to others.
Testimony: Statements made by a witness or party under oath. Time served: A sentence of incarceration equal to the amount of time a defendant has already spent in state custody waiting for disposition of the case. Transcript: The official written record of everything that was said at a court proceeding, hearing, or deposition. Trial de novo: A new trial or retrial in which the whole case with evidence and witnesses is presented as if no previous trial had been held. True bill: A bill returned by a grand jury that has found the evidence in a bill of indictment sufficient to warrant prosecution; indictment. Unconditional discharge: A sentence in a criminal case in which the defendant is released without imprisonment, probation, supervision or conditions. Vacate: To cancel or rescind a court order. Venue: The court location. Voir dire: "To speak the truth." The process of questioning prospective jurors or witnesses about their qualifications. Warrant: A written order issued by a judicial officer or other authorized person commanding a law enforcement officer to perform some act incident to the administration of justice. Witness: A person who testifies to what they saw, heard, observed or did.
IV. WEBSITES AND OTHER RESOURCES FOR FURTHER STUDY
Britannica Academic Edition http://info.eb.com/products/britannica-academic-edition/ Federal Judicial Center http://www.fjc.gov Guide to the Criminal Justice System http://www.cookcountygov.com/portal/server.pt/community/public_defender%2C_law_office_of/260/guide_to_the_criminal_justice_system/367 Handbook on Briefs and Oral Arguments http://www.state.il.us/defender/handbook.html Illinois Attorney General’s “A Guide to the Illinois Freedom of Information Act” http://www.illinoisattorneygeneral.gov/government/FOIA_guide.pdf Illinois Compiled Statutes: Rights and Remedies http://www.ilga.gov/legislation/ilcs/ilcs.asp The Illinois Criminal Justice Information Authority http://www.icjia.state.il.us/public Illinois Legal Aid http://www.illinoislegalaid.org/ Illinois Pro Bono: Criminal Law Basics http://www.illinoisprobono.org/index.cfm?fuseaction=home.dsp_Content&contentID=7718 Illinois State Bar Association isba.org Illinois Supreme Court Rules http://www.state.il.us/court/supremecourt/rules/
Legal Information Institute www.law.cornell.edu/ LexisNexis: Area of Law Outlines https://www.lexisnexis.com/lawschool/study/outlines/ Merriam-Webster’s Dictionary of Law http://www.merriam-webster.com/dictionary/law Nolo’s Plain-English Law Dictionary http://www.nolo.com/dictionary
Prisoner Review Board www.illinois.gov/prb Teachers’ Resource Guide for Law & Justice http://19thcircuitcourt.state.il.us/resources/Documents/Publications/Law-JusticeGuideForTeachers_070308.pdf Tech Law Journal http://www.techlawjournal.com/ The“Pro Se Handbook: The Manual for the Litigant Filing Without Counsel.”
United States Department of Justice http://www.justice.gov/jmd/ls/illinois1.htm USLegal.com
