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M'Naughten rule
n. a traditional "right and wrong" test of legal insanity in criminal prosecutions. Under M'Naughten (its name comes from the trial of a notorious English assassin in the early 1800s), a defendant is legally insane if he/she cannot distinguish between right and wrong in regard to the crime with which he/she is charged. If the judge or the jury finds that the accused could not tell the difference, then there could not be criminal intent. Considering modern psychiatry and psychology, tests for lack of capacity to "think straight" (with lots of high-priced expert testi-mony) are used in most states either under the American Law Institute's Model Penal Code or the "Durham Rule.
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M. O.
n. slang for modus operandi, the way or pattern in which a repeat criminal usually commits his/her crime.
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magistrate
n. 1) a generic term for any judge of a court, or anyone officially performing a judge's functions. 2) in a few states, an officer of the court at the lowest level who hears small claims lawsuits, serves as a judge for charges of minor crimes and/or conducts preliminary hearings in criminal cases to determine if there is enough evidence presented by the prosecution to hold the accused for trial. 3) in federal courts, an official who conducts routine hearings assigned by the federal judges, including preliminary hearings in criminal cases.
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Magna Carta
n. Latin for "Great Charter," it was a document delineating a series of laws establishing the rights of English barons and major landowners and limiting the absolute authority of the King of England. It became the basis for the rights of English citizens. It was signed reluctantly by King John on June 15, 1215, at Runnymede, at a table set up in a field under a canopy surrounded by the armed gentry. The Magna Carta was confirmed by John's son, Henry III, and in turn by Henry's son, Edward I. As John Cowell would write four centuries later: "although this charter consists of not above thirty seven Charters or Lawes yet it is of such extent, as all the Law wee have, is thought in some form to depend on it." Essentially a document for the nobility, it became the basis of individual rights as a part of the English Constitution, which is generally more custom than written documents. It is also spelled Magna Charta.
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mail box rule
n. in contract law, making a written offer or acceptance of offer valid if sent in the mail, with postage, within the time in which the offer must be accepted, unless the offer requires acceptance by personal delivery on or before the specified date. The rule may also apply to mailing payments of insurance premiums when due. However, relying on this so-called "rule" can be dangerous, since the party awaiting the acceptance or payment may cancel the offer if there is no response in hand when the time runs out.
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maim
v. to inflict a serious bodily injury, including mutilation or any harm which limits the victim's ability to function physically. Originally, in English common law it meant to cut off or permanently cripple a body part like an arm, leg, hand or foot. In criminal law, such serious harm becomes an "aggravated" assault, which is a felony subject to a prison term.
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majority
n. 1) the age when a person can exercise all normal legal rights, including contracting and voting. It is 18 for most purposes, but there are rights such as drinking alcoholic beverages which is set at 21. 2) 50 percent, plus one of votes cast.
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make
v. 1) to create something. 2) to sign a check, promissory note, bill of exchange or some other note which guarantees, promises or orders payment of money.
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make one whole
v. to pay or award damages sufficient to put the party who was damaged back into the position he/she would have been in without the fault of another.
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maker
n. 1) the person who signs a check or promissory note, which makes him/her responsible for payment. 2) a person who endorses a check or note over to another person before it is delivered, making the endorser obligated to pay until it is delivered.
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malfeasance
n. intentionally doing something either legally or morally wrong which one had no right to do. It always involves dishonesty, illegality or knowingly exceeding authority for improper reasons. Malfeasance is distinguished from "misfeasance," which is committing a wrong or error by mistake, negligence or inadvertence, but not by intentional wrongdoing. Example: a city manager putting his indigent cousin on the city payroll at a wage the manager knows is above that allowed and/or letting him file false time cards is malfeasance; putting his able cousin on the payroll which, unknown to him, is a violation of an anti-nepotism statute is misfeasance. This distinction can apply to corporate officers, public officials, trustees and others cloaked with responsibility.
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malice
n. a conscious, intentional wrongdoing either of a civil wrong like libel (false written statement about another) or a criminal act like assault or murder, with the intention of doing harm to the victim. This intention includes ill-will, hatred or total disregard for the other's well-being. Often the mean nature of the act itself implies malice, without the party saying "I did it because I was mad at him, and I hated him," which would be express malice. Malice is an element in first degree murder. In a lawsuit for defamation (libel and slander) the existence of malice may increase the judgment to include general damages. Proof of malice is absolutely necessary for a "public figure" to win a lawsuit for defamation.
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malice aforethought
n. 1) the conscious intent to cause death or great bodily harm to another person before a person commits the crime. Such malice is a required element to prove first degree murder. 2) a general evil and depraved state of mind in which the person is unconcerned for the lives of others. Thus, if a person uses a gun to hold up a bank and an innocent bystander is killed in a shoot-out with police, there is malice aforethought.
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malicious prosecution
n. filing a lawsuit with the intention of creating problems for the defendant such as costs, attorneys' fees, anguish, or distraction when there is no substantial basis for the suit. If the defendant in the lawsuit wins and has evidence that the suit was filed out of spite and without any legal or factual foundation, he/she may, in turn, sue for damages against the person who filed the original action. If malice is clearly proved against the party who brought the original suit, punitive damages may be awarded along with special and general damages. In recent cases, courts have ruled that an attorney who knowingly assists a client in filing a worthless lawsuit out of malice or spite may be liable for damages along with the client. The suit by the victim to recover damages for a malicious prosecution cannot be filed until the original lawsuit is decided in favor of the victim.
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malpractice
n. An act or continuing conduct of a professional which does not meet the standard of professional competence and results in provable damages to his/her client or patient. Such an error or omission may be through negligence, ignorance (when the professional should have known), or intentional wrongdoing. However, malpractice does not include the exercise of professional judgment even when the results are detrimental to the client or patient. Except in cases of extremely obvious or intentional wrongs, in order to prove malpractice there must be testimony of an expert as to the acceptable standard of care applied to the specific act or conduct which is claimed to be malpractice and testimony of the expert that the professional did not meet that standard. The defendant then can produce his/her own expert to counter that testimony. Professions which are subject to lawsuits based on claims of malpractice include lawyers, physicians, dentists, hospitals, accountants, architects, engineers and real estate brokers. In some states in order to file an action for malpractice against a medical caregiver, there must be a written demand or notice which gives the physician or hospital a chance to settle the matter before a suit is filed. In actions against attorneys it is mandatory that the plaintiff prove that the error, if any, caused damages. This means that a lawsuit, claim or negotiation the attorney was handling would have resulted in a win or better recovery except for the malpractice. Thus, there is a requirement of proving the original "case within the case" during the trial of the malpractice claim. Contrary to public perception, substantial judgments in malpractice actions are rare, with studies showing that only a small percentage of the claims result in recovery for the allegedly aggrieved client or patient. The principal reason is that most cries of malpractice are unfounded and are based on unhappiness with the result of the original services no matter how well handled, a breakdown in communication between attorney or doctor and client or patient, anger with the professional, retaliation for attempts to collect unpaid fees or greed.
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malum in se
(mal-uhm in say) adv. Latin referring to an act that is "wrong in itself," in its very nature being illegal because it violates the natural, moral or public principles of a civilized society. In criminal law it is one of the collection of crimes which are traditional and not just created by statute, which are "malum prohibitum." Example: murder, rape, burglary and robbery are malum in se, while violations of the Securities and Exchange Act or most "white collar crimes" are malum prohibitum.
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malum prohibitum
(mal-uhm prohibit-uhm) adj. Latin meaning "wrong due to being prohibited," which refers to crimes made so by statute, compared to crimes based on English common law and obvious violations of society's standards which are defined as malum in se. Statutory crimes include criminal violations of regulatory acts, "white collar crimes" such as improper use of insider information, issuance of stocks without a permit which are intentionally not supported by real assets and tax avoidance.
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mandamus
(man-dame-us) n. Latin for "we order," a writ (more modernly called a "writ of mandate") which orders a public agency or governmental body to perform an act required by law when it has neglected or refused to do so. Examples: After petitions were filed with sufficient valid signatures to qualify a proposition for the ballot, the city refuses to call the election, claiming it has a legal opinion that the proposal is unconstitutional. The backers of the proposition file a petition for a writ ordering the city to hold the election. The court will order a hearing on the writ and afterwards either issue the writ or deny the petition. Or a state agency refuses to release public information, a school district charges fees to a student in violation of state law, or a judge will not permit reporters entry at a public trial. All of these can be subject of petitions for a writ of mandamus.
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mandate
n. 1) any mandatory order or requirement under statute, regulation, or by a public agency. 2) order of an appeals court to a lower court (usually the original trial court in the case) to comply with an appeals court's ruling, such as holding a new trial, dismissing the case or releasing a prisoner whose conviction has been overturned. 3) same as the writ of mandamus, which orders a public official or public body to comply with the law.
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mandatory
adj., adv. absolutely demanded or required.
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mandatory joinder
n. the required inclusion of a party in a lawsuit whom the court finds is absolutely necessary to a resolution of all issues in the case.
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manifest
1) adj., adv. completely obvious or evident. 2) n. a written list of goods in a shipment.
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Mann Act
n. a federal statute making it a crime to transport a woman across state lines for "immoral" purposes. The Mann Act was intended to prevent the movement of prostitutes from one state to another or in and out of the country in the so-called "white slave" trade. However, it also applies to a male taking his under-age girlfriend to a love-nest in a neighboring state, or a female transporting an under-age boy across the state line for such purposes. Maximum term is five years in a federal prison.
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manslaughter
n. the unlawful killing of another person without premeditation or so-called "malice aforethought" (an evil intent prior to the killing). It is distinguished from murder (which brings greater penalties) by lack of any prior intention to kill anyone or create a deadly situation. There are two levels of manslaughter: voluntary and involuntary. Voluntary manslaughter includes killing in heat of passion or while committing a felony. Involuntary manslaughter occurs when a death is caused by a violation of a non-felony, such as reckless driving (called "vehicular manslaughter"). Examples: Eddy Hothead gets into a drunken argument in a saloon with his acquaintance Bob Bonehead, and Hothead hits Bonehead over the head with a beer bottle, causing internal bleeding and death. Brent Burgle sneaks into a warehouse intent on theft and is surprised by a security man, whom Burgle knocks down a flight of stairs, killing him. Both are voluntary manslaughter. However, if either man had used a gun, a murder charge is most likely since he brought a deadly weapon to use in the crime. The immediate rage in finding a loved one in bed with another followed by a killing before the passion cools usually limits the charge to voluntary manslaughter and not murder, but prior attacks could convince a District Attorney and a jury that the killing was not totally spontaneous. Lenny Leadfoot drives 70 miles per hour on a twisting mountain road, goes off a cliff and his passenger is killed in the crash. Leadfoot can be charged with involuntary manslaughter.
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marital deduction
n. an estate tax deduction allowed a surviving spouse of half of the value of the estate of the deceased spouse. Thus, the minimum value of the estate before there is a possible federal estate tax rises from $600,000 (the level where estate tax begins to be calculated and charged) to $1,200,000 at the death of the first spouse to die. In trusts which a married couple creates, they can agree that on the death of the first to go, the amount of the property which is given to the survivor is limited to the amount which will not be subject to federal estate tax, thus delaying some or all estate tax until the death of the surviving spouse. Such trust provisions should be written only by an attorney and with consultation with an accountant or financial adviser.
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marital rights
n. an old-fashioned expression for the rights of a husband (not rights of a wife) to sexual relations with his wife and to control her operation of the household.
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maritime law
n. Also called "admiralty law" or "the law of admiralty," the laws and regulations, includ-ing international agreements and treaties, which exclusively govern activities at sea or in any navigable waters. In the United States, federal courts have jurisdiction over maritime law.
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mark
n. an "X" made by a person who is illiterate or too weak to sign his/her full name, used in the expression "His Mark," or "Her Mark." On the rare occasion that this occurs, the "X" should be within or next to a notation such as "Theresa Testator, her mark." If the mark is intended as a signature to a will it should be formally witnessed (as signatures are) to make the will valid.
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marked for identification
adj. documents or objects presented during a trial before there has been testimony which confirms their authenticity and/or relevancy. Each item is given an exhibit identification letter or number and thus is marked for identification. The marked exhibits are actually introduced into evidence (made part of the official record) upon request of the lawyer offering the evidence and approval by the judge or by stipulation of both attorneys. Occasionally an exhibit marked for identification is rejected as evidence due to the judge agreeing (sustaining) with an opposing lawyer's objection such as for lack of relevancy or failure to show it is genuine or best evidence.
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market value
n. the price which a seller of property would receive in an open market by negotiation, as distinguished from a "distress" price on a forced or foreclosure sale, or from an auction. Market value of real property is normally determined by a professional appraiser who makes comparisons to similar property sales in the area, which are often called "comparables.
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