By:  Thomas Barnard, Marissa Dorough, John Butler

As a lawyer, there is nothing worse than being in the dark — or having to feign understanding — while judges or other lawyers talk about key issues in shorthand (usually the name of the landmark case on that issue).  Hopefully, this convenient guide to some of the lingo for legal concepts and factual situations commonly arising in federal criminal or civil matters will be helpful.  Let this summary of those phrases, with their associated cases and meaning, serve as your courthouse companion and water cooler cheat sheet.  

• “1983” Claim 

• • 42 U.S.C. § 1983

• • A 1983 claim occurs when a plaintiff is subject to conduct that occurred under color of state law, and that conduct deprived the plaintiff of rights, privileges, or immunities guaranteed under federal law, or the U.S. Constitution. 

• Agnostic Defense

• • Zafiro v. United States, 506 U.S. 534 (1993)

• • An agnostic defense occurs when the defense of one co-defendant is accusatory of the other co-defendant.  It is within the trial judge’s discretion to decide whether or not the prejudice to the defense is so great that a limiting instruction to the jury cannot cure.  If not, severance of trials is necessary.  

• Alford Plea

• • North Carolina v. Alford, 400 U.S. 25 (1970)

• • An Alford plea occurs when a criminal defendant enters a plea of guilty and in doing so, admits that the Government has sufficient evidence which would likely persuade a judge or jury of guilt, but maintains his or her innocence.  

• Batson Challenge

• • Batson v. Kentucky, 476 U.S. 79 (1986)

• • A Batson challenge, which arises during jury selection, is the allegation by one party that an opposing party’s use of peremptory challenges to eliminate potential jurors in a criminal case is impermissibly predicated upon the basis of race, ethnicity, or religion.  

• • The party making the challenge is required to provide specific, factual instances to show that the use of peremptory challenges was unlawful.  While difficult to prove, if successful, the remedy is to re-seat the prior stricken jurors or to impanel an entirely new jury pool. 

• • Batson was extended to civil trials in Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), and gender became a forbidden reason to strike a juror in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). 

• Bivens Claim 

• • Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)

• • A Bivens claim (or Bivens action) refers to a complaint for damages upon a federal officer acting under the color of federal authority, which alleges to have violated the U.S. Constitution. A plaintiff in a Bivens action must prove that a constitutionally protected right has been violated by the federal officer(s).

• Boykin Hearing 

• • Boykin v. Alabama, 395 U.S. 238 (1969)

• • When criminal defendants enter into a plea bargain (guilty plea), they waive their Sixth Amendment right to a trial by jury. This waiver can only occur knowingly, voluntarily, and intelligently.  In order to find that a defendant has sufficiently waived this Constitutional right, a Boykins hearing is held to inquire into the defendant’s state of mind during the guilty plea to assure that the waiver is understood. 

• Blockburger Test

• • Blockburger v. United States, 284 U.S. 299 (1932)

• • The Blockburger test sets the standard to prevent double jeopardy.  Each offense charged must have an element the other offenses does not in order for a defendant to be tried for both offenses.  A lesser included offense is considered the same offense for purposes of double jeopardy, i.e., a defendant found guilty of both 1st and 2nd degree assault for the same offense, will only be sentenced to the 1st degree assault, and the 2nd degree will merge.   

• Brady Violation

• • Brady v. Maryland, 373 U.S. 83 (1963)

• • Under Brady, a prosecutor must disclose before trial all exculpatory evidence or information pertaining to the defendant, including evidence that would enable the defense to more effectively impeach the credibility of a government witness (see Giglio below). When this does not occur, it is a Brady violation.   

• • The remedy is at the discretion of the trial judge.  In the past, a Brady violation has merited a new trial after conviction.  

• • In U.S. v. Bagley, 473 U.S. 667 (1985), the Supreme Court clarified that the violation must be “material,” meaning there must be a reasonable probability that, had the evidence been disclosed to the defendant, the result of the proceeding would have been different.  

• Bruton Challenge

• • Bruton v. United States, 391 U.S. 123 (1968)

• • Bruton bars the introduction of a non-testifying co-defendant’s confession that impliedly implicates the defendant, even if the defendant’s name was redacted from the confession.  

• • By raising a Bruton challenge, a co-defendant may force (1) a bifurcation of trials of co-defendants and (2) a redaction of any reference, even if trivial, made by the non-testifying co-defendant which could hypothetically lead a jury to infer guilty upon the other defendant(s).

• Carroll Doctrine

• • Carroll v. United States, 267 U.S. 132 (1925) 

• • The Carroll doctrine refers to the Supreme Court upholding the warrantless search of an automobile as Constitutional given the impracticability to secure a warrant in light of the vehicle’s mobility.  The Court explained that so long as law enforcement has probable cause that is specific to the vehicle itself, they can stop and search the vehicle without a warrant. 

• • This Court clarified this doctrine in California v. Acevedo, 550 U.S. 565 (1991), holding that, in a warrantless search of an automobile, police can search any container in the vehicle where they have probable cause to believe that it holds contraband or evidence.  

• Checkpoint Exception (to the Fourth Amendment)

• • Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) 

• • Sitz is a Supreme Court ruling in which the Court found that a surprise DUI sobriety checkpoint, where every driver in the area was forced to stop, did not constitute an unreasonable search and seizure because the State (in that case, Michigan) had a substantial governmental interest to stop drunk driving.  The checkpoint exception was found to be rationally related to achieving the goal of stopping drunk driving with a negligible impact upon drivers. 

• Chevron Deference

• • Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) 

• • Chevron deference is a type of judicial deference afforded to federal administrative agencies pertaining to statutes that an agency is tasked to enforce.  While significant deference is provided to the enforcing agency, an agency’s interpretation must be grounded in a reasonable construction of the statute. 

• Daubert Standard 

• • Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) 

• • In overturning the Frye-Reed standard, the Supreme Court set forth the criteria to  determine the admissibility of expert witness testimony under FRE 702.  The five criteria comprising the Daubert standard are:  (1) whether the expert’s 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.

• Franks Hearing 

• • Franks v. Delaware, 438 U.S. 154 (1978) 

• • A Franks hearing is a criminal proceeding which challenges the truth of information relied upon by law enforcement to obtain a search warrant.  This hearing typically occurs after the execution of a search and seizure warrant and, if successful, results in the suppression of evidence obtained by executing the warrant.

• Wong Sun Exclusion 

• • Wong Sun v. United States, 371 U.S. 471 (1963) 

• • A Wong Sun exclusion arises under the Fruit of the Poisonous Tree Doctrine, where verbal evidence (an out-of-court declaration) obtained at or near the time of an unlawful entry and/or unauthorized arrest is inadmissible as evidence in a court proceeding.

• • The Wong Sun decision is also well-known for the Court’s pronouncement that all evidence is not “fruit of the poisonous tree” simply because it would not have come to light but for illegal police action, but instead depends on whether the evidence “has been come by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

• Garrity Warning 

• • Garrity v. New Jersey, 385 U.S. 493 (1967) 

• • The Garrity warning is an advisement of rights to a public sector employee (like police or public school teachers), typically given by federal, state, or local investigators to their own employees who may be the subject of an internal investigation.

• • The Garrity warning advises public employees of their criminal and administrative liability for any statements they may make, and therefore advises them of their right to remain silent on matters that tend to implicate them in a crime.  Coerced statements cannot be used in a subsequent criminal prosecution, so it ensures that public employees are not forced to sacrifice their rights against self-incrimination in order to retain their jobs.  

• Giglio Material 

• • Giglio v. United States, 405 U.S. 150, 153 (U.S. 1972) 

• • In Giglio, the Supreme Court extended the prosecution’s obligations under Brady to disclose impeachment evidence.  Thus, after Giglio, all impeachment evidence, even if not a prior statement by a witness, falls within the Brady disclosure rule.  Giglio material (as enforced in conjunction with Brady) includes prior criminal records or other acts of misconduct of government witnesses, as well as promises of leniency or immunity offered to government witnesses.

• Jencks Material 

• • 18 U.S.C. § 3500 (The Jencks Act) 

• • The Jencks Act requires that a federal prosecutor produce a verbatim statement or report made by a government witness or prospective government witness, but only after the witness has testified and only to the extent the witness’ statements related to his or her trial testimony.  Typically, Jencks material is described as inculpatory, favoring the government’s prosecution of a criminal defendant, and does not necessarily trigger the exculpatory disclosure requirements of Brady.

• Kastigar Hearing 

• • Kastigar v. United States, 406 U.S. 441 (1972)

• • The Supreme Court ruled in Kastigar that a witness can be compelled to testify over an assertion of the Fifth Amendment privilege against self-incrimination where the government has granted immunity from prosecution.  By providing “use and derivative use” immunity, the Court found that the government can overcome a claim of Fifth Amendment privilege by granting immunity to a witness in exchange for his or her testimony.  A Kastigar hearing arises when the government later seeks to prosecute the witness, and often involves a complex and fact-specific analysis, as it is the government’s burden to convince the court that no evidence used in its prosecution of the witness was founded upon that witness’ compelled testimony.

• Kalkines Warning 

• • Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973)

• • A Kalkines warning is an advisement of rights by the United States Government to federal employees during internal investigations. This warning compels employees to make statements or, in the alternative, face disciplinary actions up to, and including dismissal.  However, the employees must be provided criminal immunity for their statements.

• • Although similar, a Garrity warning is issued when the employee may still face federal criminal liability, where a Kalkines warning is issued when immunity has been granted from federal criminal liability.

• McDonnell Douglas Burden-Shifting 

• • McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

• • McDonnell Douglas burden-shifting requires, in Title VII (employment discrimination) cases, that the plaintiff (employee) must establish a prima facie case of discrimination.  If established, then the defendant (employer) must produce evidence of a non-discriminatory reason for its actions.  Upon this showing, the plaintiff then has to prove that the defendant’s explanation is insufficient or the defendant’s actions were unlawful under discriminatory parameters.

• Monell Doctrine 

• • Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978)

• • Under Monell, a municipality may be held liable for an officer’s actions when it is established by a plaintiff that the officer(s) in question violated a constitutional right, and that violation was caused by an official municipal policy, or an unofficial custom.  A Monell Violation has also been found when a municipality was deliberately indifferent in the failure to train or supervise the officer(s) in question.

• Miranda Rights (or Miranda Warning) 

• • Miranda v. Arizona, 384 U.S. 436 (1966)
  • A Miranda warning is the advisement of rights that must be provided by police officers (acting in their official capacity) to criminal suspects in police custody.  The specific Miranda rights are: (1) the right to remain silent, (2) if you do say anything, it can be used against you in a court of law, (3) the right to an attorney, (4) if you cannot afford an attorney, one will before provided for you. 

• Sell Hearing 

• • Sell v. United States, 529 U.S. 166 (2003)

• • A Sell hearing is one in which the court considers four criteria to determine whether the involuntary administration of medication to an incompetent pretrial defendant is proper:  (1) whether the defendant committed a serious crime, (2) whether there is a substantial likelihood that involuntary medication will restore the defendant’s competence and do so without causing side effects that will significantly interfere with the defendant’s ability to assist counsel, (3) whether involuntary medication is the least intrusive treatment for restoration of competence, and (4) whether the proposed treatment is medically appropriate.

• Barker Test (Speedy Trial Rights) 

• • Barker v. Wingo, 407 U.S. 514 (1972)

• • The Supreme Court fashioned the Barker test to determine whether a defendant’s right to a speedy trial in a criminal prosecution has been violated.  The determination is made on a case-by-case basis, taking into account: (1) the length of the delay, (2) the reason for the delay, (3) the time and manner in which the defendant has asserted his or her right to a speedy trial, and (4) the degree of prejudice to the defendant which the delay has caused.

• Terry Stop  

• • Terry v. Ohio, 392 U.S. 1 (1968)

• • A Terry stop allows the police to briefly detain any person based upon a reasonable and articulable suspicion of involvement in criminal activity.  It is a lower standard than probable cause, which is what is needed to make a legal arrest.  When making a Terry stop, the police must have specific and articulable facts that indicate that the individual is, or is about to engage in criminal activity, considering the totality of the circumstances.  

• Touhy Regulations  

• • United States ex rel. Touhy v. Regan, 340 U.S. 462 (1951)

• • Touhy regulations refer to the regulations enacted by various federal agencies to govern the release of information by federal employees, whether testimony or documents, typically in response to a subpoena.  In Touhy , the Supreme Court held that it was Constitutional and a prosper exercise of executive authority for the U.S. Department of Justice to deny information to a party in accordance with its internal regulations.  Accordingly, it is important to follow the particular agency’s Touhy regulations when seeking information from that agency.
  • Tip:  Touhy is pronounced “Too-ee.”

• Twiqbal Standard (a.k.a. Twombly and Iqbal)

• • Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009)

• • In these landmark Supreme Court decisions, the Court read the pleading standards of the Federal Rules of Civil Procedure to require more than “notice pleading” and effectively restrict a plaintiff’s ability to sue in federal court.  Rule 8(a) requires a plaintiff’s claim to allege enough factual content to demonstrate a plausible entitlement to relief (instead of providing enough detail to simply put a defendant on notice), even as to allegations of intent, knowledge, and other conditions of the mind that Rule 9(b) allows to be alleged “generally.”

• Upjohn Warning 

• • Upjohn Co. v. United States, 449 U.S. 383 (1981)

• • An Upjohn warning is essentially a corporate Miranda warning.  Under Upjohn, the Supreme Court held that communications between corporate counsel of the Corporation are privileged.  However, prior to obtaining information, the corporate employee should be notified that:  (1) the attorney-client privilege over communications between the attorney and the employee belongs solely to the corporation, (2) the corporation may choose to waive the privilege and disclose what the employee.

Local jurisdictions also have shorthand terminology which can also be confusing for a lawyer who is inexperienced or who practices in another jurisdiction.  For example, below are some relevant terms to criminal practitioners in Maryland state courts:

• Gibson Hearing (a/k/a Rule 4) 

• • Gibson v. State, 328 Md. 687 (1992)

• • A Gibson hearing occurs upon the State’s claim of an alleged violation of probation.  It is an evidentiary hearing upon which, if the violating act is proved by a preponderance of the evidence, is grounds for violation of probation.  

• Beach Motion 

• • Beach v. State, 75 Md. App. 421 (1988)

• • Under Beach, when the State alleges a violation of probation, the State is required to make reasonable efforts to serve the notice of violation upon the alleged violator to notify him or her of its intent to enforce the violation.  A defendant may make a Beach motion to allege that the State has failed to make such reasonable efforts. 

• Nance/Hardy Rule

• • Nance v. State, 331 Md. 549 (1993)

• • The Nance/Hardy rule concerns the admissibility of prior inconsistent statements.  In conjunction with Md. Rule 5–802.1, this rule arises when witnesses do not uniformly testify that they had no memory of their sessions with police or the grand jury in which they made identifications or statements relevant to a criminal prosecution, but remember only some parts of these earlier events.  A witness may not feign an inability to recall, so upon laying the foundation that such feigned-memory has occurred, the prior recorded statement of the witness may be entered into evidence as a whole.   

Let this shorthand guide prop you up on your next trip to court, a negotiation, or the local watering hole.  It can help you “talk the talk” confidently among your judiciary, partners, peers, and clients—even if you have not had to “walk the walk” just yet.  Good luck!