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In a civil proceeding or criminal prosecution under the common law or under statute, a defendant may raise a defense (or defence) [a] in an effort to avert civil liability or criminal conviction. A defense is put forward by a party to defeat a suit or action brought against the party, and may be based on legal grounds or on factual claims.
Originating in the legal profession, argument in the alternative is a strategy in which a lawyer advances several competing (and possibly mutually exclusive) arguments in order to pre-empt objections by his adversary, with the goal of showing that regardless of interpretation there is no reasonable conclusion other than the advocate's. [1]
For example, the Constitution of Oregon requires that the guilty verdict of a first-degree murder must be unanimous. In State v. Zweigart , 344 Or. 619 (Or. 2008), the Oregon Supreme Court held that "a jury must agree, not only that a defendant is guilty of a crime, but also on all the facts material to prove the crime ."
A loaded question is a form of complex question that contains a controversial assumption (e.g., a presumption of guilt). [1] Such questions may be used as a rhetorical tool: the question attempts to limit direct replies to be those that serve the questioner's agenda. [2] The traditional example is the question "Have you stopped beating your wife?"
Proper reasons for objecting to a question asked to a witness include: Ambiguous, confusing, misleading, vague, unintelligible: the question is not clear and precise enough for the witness to properly answer. Arguing the law: counsel is instructing the jury on the law. Argumentative: the question makes an argument rather than asking a question.
A leading question is a question that suggests a particular answer and contains information the examiner is looking to have confirmed. [1] The use of leading questions in court to elicit testimony is restricted in order to reduce the ability of the examiner to direct or influence the evidence presented. Depending on the circumstances, leading ...
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For example, a lawyer who must prepare a contract and who has prepared a similar contract before will often re-use, with limited changes, the old contract for the new occasion. Or a lawyer who has filed a successful motion to dismiss a lawsuit may use the same or a very similar form of motion again in another case, and so on.