News Civil Law
16.05.24
US Court Terminology & its Relevance in the Australian Legal System
The USA’s influence on the Australian way of life is hard to ignore. Comments made by Trump infiltrate our own politics, and American stars dictate the local fashion and popular culture. American TV shows and movies influence what people believe happens in Australian courtrooms. The way they depict their legal system has a huge impact.
Explaining some matters makes it easier to use the terms we know. This can involve using terms from American English that are unknown in the Australian legal system.
Hopefully, the impact of US court terms on Australian law will become far less prominent in the future. For now, I’ve identified some standard terms from the USA and explained their meanings or equivalents in our system, to help bridge the gap between the USA and Australian legal terms.
Alimony: Money a court requires one spouse to pay the other spouse for support before and/or after a divorce is granted. In Australia, it is mostly referred to as spousal maintenance.
Continuance: The adjournment or postponement of a court case to another day. We call it a remand or an adjournment.
Deposition: Testimony of a witness taken under oath in response to another party’s questions. Witnesses give testimony outside the courtroom, typically in a lawyer’s office.
A word-for-word account (transcript) of the testimony is made, and it is often video recorded. We do not have this in Australia. We have affidavits, which are evidence on paper in the form of a written narrative but not taken orally.
Felony: Any criminal offence for which a person may be sentenced to a term of imprisonment of more than one year in the USA. There is no equivalent in Australia, but it effectively means more serious offences, which we refer to as indictable or strictly indictable offences.
Felony Murder: A murder committed while the person is also committing a felony. We do not have this in Australia.
Misdemeanour: A crime that carries a maximum penalty of one year and/or a $2,000 fine. We call these strictly summary offences – less serious offences handled by a lower court like a Magistrates Court or Local Court.
Probable Cause Hearing: A hearing held before a judge in criminal cases to determine if enough evidence exists to prosecute.
In the USA, the probable cause hearing must be conducted within 60 days of the filing of the complaint or information in the Superior Court unless the accused person waives the time or the court grants an extension based on good cause.
We do not have this, but this loosely means a committal hearing where the magistrate determines whether there is enough evidence to commit the matter for trial in a higher court such as the Supreme Court or District Court.
Grand Jury: In Anglo-American law, a grand jury is a group that examines accusations against persons charged with a crime and, if the evidence warrants, makes formal charges on which the accused persons are later tried. Through the grand jury, laypersons participate in bringing suspects to trial. We do not have an equivalent of a grand jury in Australia.
Witness stand: Nope. In Australia, it is the witness box.
Gavel: The wooden hammer that American judges use. They don’t use gavels here.
“You can’t handle the truth”: A saying we all use when we have to win the case towards the end of any trial. It happens all the time!
Objection – sustained/overruled: Nope. We argue objections to evidence but the judge does not say “sustained” or “overruled”. Often this process can take hours and even days to determine, with cases being handed up and often written submissions made.
Sidebar: An area in a courtroom near the judge’s bench where lawyers may be called to speak to a judge so that the jury cannot overhear. Does not happen here. Judges will not speak with lawyers in a case about the case unless it is openly recorded. There are no hands over the microphone and talking to the judge or being talked to by the judge in this way.
“Counsellors meet me in chambers to discuss”: Never. Cases are not discussed in chambers in Australia. It must be in open court and on the record.
Walking around the courtroom and up to witnesses: Nope. We have to stand behind the bar table, and we can’t walk around the courtroom and get close to witnesses.
Shouting “order”, “order in the court”: I’ve never heard a judge do that in Australia. They just usually say – “Mr Aulich, be quiet”.