Legal Dictionary

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Proof of Service

In the United States, suing someone, or taking them to court for some other legal action, requires that they be notified that the legal action has been initiated, and just what that action is. This is done by providing them with a copy of the official legal documents filed with the court in a specific manner, called “ service of process .” The person or entity instigating the action, the “ plaintiff ,” is then required to provide proof that the other party, the “ defendant ,” has been properly served by filing a Proof of Service form with the court. To explore this concept, consider the following proof of service definition.

Definition of Proof of Service

  • An official affidavit , signed under oath, and filed with the court by an individual after successfully serving legal documents to someone.

What is Proof of Service

In the U.S., one party cannot take another to court without giving them proper notice of the impending court proceeding. This is done to ensure legal proceedings are run fairly, and that both the plaintiff and the defendant have the opportunity to prepare and present their arguments regarding the case. Since the plaintiff is required by law to notify the other party, a proof of service, also called an “affidavit of service,” must be filed with the court as evidence that proper service of process was accomplished within the time period specified by law.

Proof of Service Form

The proof of service form varies slightly by jurisdiction , as well as by the specific court action within the jurisdiction. The basic information that must be stated on each proof of service includes:

  • The name of the court in which the action is filed
  • The case name and case number
  • The name of the individual to whom the documents were served
  • A list of each document served
  • The date and time of service
  • The manner of service
  • The location at which the documents were served
  • Whether the documents were served by mail or in person

The individual serving the documents must then sign the affidavit, under penalty of perjury , that he or she did in fact serve the documents as stated in the proof of service. While every court has standardized proof of service forms available, and they are easy to use, an affidavit of service may be written or typed out, so long as it includes the required information.

A court’s standardized proof of service form often includes check boxes that allow the person who served the documents to quickly identify the documents included in the service, such as:

Check all that apply:

  • Alternative Dispute Resolution Package
  • Civil Case Cover Sheet
  • Cross-Complaint
  • Other ___________________

Who Can Serve Legal Documents

Because of the potential for a plaintiff to falsely state he has served the documents on the defendant, a plaintiff to the legal action cannot serve the documents himself, nor can any other person involved in the case, such as a witness , serve the documents. No matter the method of service, it must be done and testified to by an uninvolved third party.

Service of process can be done by:

  • A professional process server
  • A county sheriff, marshal, or constable
  • A friend, relative, or coworker who is over the age of 18

Methods of Service

The laws in each jurisdiction state specifically what method must be used to serve court documents in different situations. In all cases, the initial court documents, usually the Summons and a complaint, must be personally served, which means they must be personally delivered to the defendant named in the lawsuit. Once the action has begun and properly personally served, subsequent documents in the case may often be served by mail, though there are certain requirements for this as well. It is critical that legal documents be served in the manner specified in the law, or the case may be delayed or even dismissed.

Personal Service

Personal service requires that the documents be personally delivered to the party being served. This means the server hands the papers to that party, though this may take place anywhere the defendant can be located. Personal service may occur at the party’s home or workplace, at a restaurant or store, or on the street. The person serving the papers must ensure the identity of the person they are serving, then hand the documents to him, and inform him that they are court documents.

It is not necessary for the party to accept the documents being served, as this would be a sure and easy for any individual to delay or avoid court proceedings. It the party refuses to take the documents, or closes the door after being told what they are, the server may simply leave the papers on the ground at their feet, or in front of the door. Even if the party tears the documents up and throws them away, service is deemed to have been properly made. Proof of personal service must state the date, time, and location where the documents were given to the party.

Service by Mail

Once the court action is under way, most subsequent documents may be served by mailing them to the other party. The documents must be placed in an envelope that is securely closed, addressed to the party’s address on file with the court, or the address at which that party has requested service to be made. This is often his attorney’s office. There must be sufficient postage on the envelope to cover delivery by the post office, as parties are not required to accept “postage due” mail.

The proof of service by mail must state the address to which the envelope was mailed, what class postage was used (such as first-class mail), and the address from where the documents were mailed. The date of mailing is important, as mailed documents are not considered to have been served until 5 days after mailing in most jurisdictions. This allows enough time for the recipient to actually receive the documents.

Service by Substitution

If several attempts at personal service have been unsuccessful, some jurisdictions allow what is called “substituted service.” There are specific rules as to how many times and places personal service must be attempted, and each must be documented in order to turn to substituted service. Such requirements generally include:

  • Minimum number of attempts, usually at least three
  • Personal service attempted at the party’s home on different days of the week, and different times of day when that party is deemed likely to be home
  • Unsuccessful attempts to serve the party at their place of employment, if known

In this case, the server may leave the documents with an individual over the age of 18 who also resides at the party’s home, or with someone of authority, over the age of 18, at the party’s place of employment. The server must tell the person with whom the documents are left that they are legal papers for the party. Immediately after service by substitution, the server must mail a copy to the party at the address where the documents were left.

For example:

Mary attempts to serve divorce documents on her best friend’s husband, Todd. Mary goes to his house four different times, and even attempts to deliver the documents to Todd at his office. Todd is evidently trying to avoid being served, as she is unsuccessful. Mary finally gives the documents to Todd’s boss at the office, telling him they are important legal papers. Mary then places another copy of the documents into an envelope and mails them to Todd at his office. She then documents, on her proof of service, all of her attempts at serving Todd, as well the identity of the person with whom she finally left the papers, and the date she mailed the second copy.

Proof of service by substitution must contain document of all attempts at personal service, referred to as a “declaration of due diligence,” as well as the name and address of the person on whom substituted service was accomplished, as well as the fact that the documents were subsequently mailed. Service by substitution is not considered valid until 10 days after the documents are mailed.

Related Legal Terms and Issues

  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
  • Summons – An order or citation to appear in court, or to appear before a judge or magistrate.

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Glossary of Terms

Abuse of Trust

Section 3B1.3 enhances a defendant’s sentencing range if the defendant used his or her position of trust, or used a special skill, to facilitate committing or covering up the offense. A person who occupies a position of trust is often subject to less supervision than others and exercises a high degree of independence. Examples in the guideline include an attorney who embezzles the funds of a client and a bank executive who engaged in a fraudulent loan scheme.

Acceptance of Responsibility

The guideline at §3E1.1 directs that the sentencing judge reduce the defendant’s offense severity score by either two or three offense levels if the defendant accepts responsibility for the offense before sentencing. Often defendants receive this reduction if they plead guilty rather than go to trial. But, a plea is not required, and pleading guilty does not guarantee receipt of this reduction. The guideline lists factors for sentencing judges to consider in deciding whether to give the reduction for acceptance of responsibility.

Accessory After the Fact

A person who knows that a crime has been committed and who helps the offender escape arrest or punishment.

Advisory Guidelines

This term is used to describe the current legal status of the sentencing guidelines, as well as to distinguish the guidelines in effect after the Supreme Court’s decision in United States v. Booker , which made the guidelines advisory, from the guidelines before Booker , which are often referred to as “mandatory” or “presumptive” guidelines.

Aggravated Identity Theft

18 U.S.C. § 1028A provides a two-year consecutive statutory penalty if the defendant commits identity theft in relation to a felony or terrorism offense.

Aiding and Abetting

Aiding and abetting occurs when a person actively promotes the commission of a crime in some way, even if the person does not commit the criminal acts himself or herself. A person who aids and abets may be punished in the same way as the person who performed the criminal acts.

Alternative Base Offense Levels

Some guidelines have multiple alternative base offense levels that apply depending on whether the offense involves certain conduct, the defendant was convicted under a certain statute, or, the defendant has certain prior convictions. The general rule is to use the highest offense level among alternative base offense levels that applies to a defendant.

An amendment is a change to the Guidelines Manual . Amendments are adopted only after the Commission has proposed the change and the public has had a chance to comment on it. At least four Commissioners must vote, at a public meeting, to adopt an amendment. Congress then has 180 days to reject the amendment. If Congress does not enact legislation rejecting an amendment, the change becomes a part of the Guidelines Manual .

A non-hierarchical collective of hackers, Anonymous uses hacking (and cracking) techniques to register political protest in campaigns known as “#ops.” Best known for their distributed denial of services (DDoS) attacks, past activities have included attacks against the Church of Scientology, Visa, PayPal, and others.

Anticipated Term of Imprisonment

A term of imprisonment that a federal sentencing judge anticipates that a state court judge will impose after the federal sentence is imposed. In Setser v. United States , 566 U.S. 231 (2012), the Supreme Court held that a federal court has discretion to run the federal sentence concurrently or consecutively to the anticipated state sentence. However, USSG §5G1.3(c) requires that, if the anticipated term of imprisonment is for an conviction based on criminal conduct is relevant conduct in the federal case, the sentence for the federal conviction shall be imposed to run concurrently with the anticipated term of imprisonment.

This part of the Guidelines Manual contains a list of federal statutes, referencing each to a Chapter Two guideline (or multiple Chapter Two guidelines to choose from) that should be used to begin determining the guideline range.

This part of the Guidelines Manual contains selected statutes relevant to sentencing, such as those governing presentence reports, the factors to be considered in imposing a sentence, and appellate review of sentences, among others.

This part of the Guidelines Manual contains every amendment made to the guidelines. Each entry contains the amendment language as well as the Reason for Amendment and effective date of the amendment.

Application Note

Application notes come after the text of most guidelines, and explain how to apply the guideline, sometimes using definitions or examples.

Armed Career Criminal

A statutory sentencing enhancement ( See  18 U.S.C. § 924(e) and USSG §4B1.4) for a defendant convicted under 18 U.S.C. § 922(g) (prohibited person in possession of a firearm) who has at least three prior convictions for a “violent felony” or “serious drug offense” or both committed on occasions different from one another. A defendant sentenced as an Armed Career Criminal faces a mandatory minimum prison term of 180 months.

An effort to commit a crime without success. An attempt may be punished the same as if the defendant had succeeded at committing the crime.

Base Offense Level

The starting point for determination of the guideline range under the guidelines in Chapter Two. Each offense-specific guideline states a starting point on the severity scale. The final offense level may increase or decrease from the starting point, depending on additional factors.

Bitcoin (BTC)

Created in 2009, Bitcoin is a form of digital cryptocurrency that is distributed on a peer-to-peer basis. It has no central bank, and transactions are conducted directly between individuals with permanent, public records stored in a blockchain ledger. Bitcoin is arguably the most well-known cryptocurrency.

A payment processing company and software application that allows merchants such as eBay, Amazon, and other online shopping sites to accept bitcoin as payment for goods and services.

A digital file distributed to everyone participating in a cryptocurrency network. The blockchain acts as a kind of general ledger, keeping track of all the transactions that take place in the network. Everyone can look at the blockchain to see what transactions have taken place on the network, and the blockchain is sealed using cryptography so that no one can tamper with it.

A program that automates a simple action so that it can be done repeatedly at a much higher rate of speed and for a more sustained period than a human operator could. Bots are, in themselves, benign and used for many legitimate purposes, such as online content delivery. However, bots are often used in conjunction with cracking. For instance, bots may be used maliciously to make content calls that comprise denial of service attacks. “Bot” is also a term used to refer to the individual hijacked computers that make up a botnet.

A group of computers controlled without their owners’ knowledge and used to send spam or to make denial of service attacks. Malware is used to hijack the individual computers, also known as “zombies,” and to send them directions.

Bureau of Prisons

The federal agency that houses federal inmates. The BOP is part of the Department of Justice.

Career Offender

A defendant is a Career Offender if (1) he or she has been convicted in federal court of a felony crime of violence or drug-trafficking offense committed as an adult, and (2) has at least two prior felony convictions for either a crime of violence or drug trafficking offense or both that receive criminal history points under the guidelines. A Career Offender’s guidelines sentence ordinarily is required to be at or near the statutory maximum for his or her federal conviction.

The method for determining whether a defendant’s offense (usually a prior conviction) fits within a given definition, such as for a “crime of violence,” “violent felony,” “drug trafficking offense,” or other term describing a specific type of offense. The categorical approach requires the court to compare the elements of the prior offense to the relevant definition. The court is not permitted to look to the conduct underlying the prior conviction to determine the elements of the prior offense. Rather, the court must examine the elements of the relevant penal statute. Also see Modified Categorical Approach .

One Commissioner is appointed by the President and confirmed by the Senate as the Chair of the Commission and is responsible for presiding over Commission meetings and for seeking and spending congressional appropriations.

Chapter Three Adjustment

Adjustments such as Role in the Offense (Chapter Three, Part B), Obstruction of Justice (§3C1.1) and Acceptance of Responsibility (§3E1.1) that could apply to a defendant after application of the Chapter Two guidelines.

The power of the President in the federal system, or a Governor in the state system, to pardon a criminal or commute a sentence.

Clerk of Court

An officer of the court responsible for clerical and administrative matters, for example maintaining case files, making certified copies of documents for the public, etc. Each federal district has one Clerk of Court, who in turn has Deputy Clerks responsible for day to day court activities.

Commissioner

An individual who is appointed by the President and confirmed by the United States Senate to serve as a voting member on the United States Sentencing Commission. By statute, there also are two non-voting ex officio Commissioners (the Attorney General or his or her designee and the Chair of the United States Parole Commission).

Common Scheme or Plan

Offenses that are outside the offense of conviction but are Relevant Conduct because they are substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi .  See  USSG §1B1.3(a)(2) and Application Note 5(B).

Community Confinement

Residence in a community treatment center, halfway house, mental health facility, or some other similar community facility. Community confinement may be imposed as a condition of probation or supervised release and also may be a substitute for some or all of the term imprisonment for guideline sentences in Zones B and C of the Sentencing Table. See USSG §5C1.1.

Community Service

Service work in the community that may be ordered as a condition of probation or supervised release and generally should not be imposed in excess of 400 hours. See USSG §5F1.3.

18 U.S.C. § 3582(c)(1)A) allows the Bureau of Prisons, or a prisoner, to petition the court for a reduction in a term of imprisonment under limited circumstances. For example, the prisoner may be elderly, or may be facing a life-threatening illness or experiencing extenuating family circumstances. Candidates for compassionate release must have served a significant portion of their sentence and cannot be a danger to another person or to the community.

Concurrent Sentence

A sentence for a conviction that a court orders a defendant to serve simultaneously with the defendant’s sentence for a different conviction. A sentence may be fully or partially concurrent.

Consecutive Sentence

A sentence for a conviction that a court orders a defendant to serve only after he has discharged a sentence for a different conviction A sentence may be fully or partially consecutive.

An agreement by two or more people to commit an unlawful act. For many types of conspiracy one of more conspirators also must commit at least one “overt act” toward to the goal of the conspiracy for there to be criminal liability.

Controlled Substance Offense

Generally, an offense involving an illegal drug. However, in the specific context of the guidelines, a “controlled substance offense” is offense under federal or state law punishable by imprisonment exceeding one year that prohibits the manufacture, import, export, distribution or dispensing of a controlled substance or possession with intent to do so. See USSG §4B1.2(b).

The result of a criminal court proceeding which ends in a judgment that the defendant is guilty as charged.

Costs of Prosecution

Some statutes require the court to impose the costs of prosecution on a defendant.

Breaking into a secure computer system, frequently to do damage or for financial gain. However, cracking is also employed to protest government policies or to make social statements.

Crime of Violence

Any offense under federal or state law, generally punishable by imprisonment exceeding one year, that has as an element the use, attempted use, or threatened use of physical force against the person of another. Crime of violence also includes certain enumerated offenses such as murder, voluntary manslaughter and kidnapping. Different variations of the definition of crime of violence are found in federal statutes. The Guidelines’ definition is found at USSG §4B1.2.

Criminal History Category

The category assigned to the defendant based on the defendant’s prior criminal history. The criminal history category (sometimes referred to as “CHC”) is determined according to rules contained in Chapter Four of the Guidelines Manual . The criminal history category is reflected in the horizontal axis of the sentencing table. A higher criminal history category increases the guidelines range.

Criminal Justice Sentence

A sentence countable under §4A1.2 having a custodial or supervisory component, although for the latter active supervision is not required. Two points are assigned in the calculation of the defendant’s criminal history under §4A1.1(d) if he/she committed any part of the instant offense while under a criminal justice sentence.

Criminal Livelihood

A Chapter Four “override” that applies when the defendant commits an offense as part of a pattern of criminal conduct engaged in as a livelihood.  See USSG §4B1.3 (Criminal Livelihood).

Critical Infrastructure

Fraud can affect critical infrastructures. Critical infrastructures are systems and assets vital to national defense, national security, economic security, public health or safety. Examples include gas and oil production, water supply systems, electrical power delivery systems and emergency services such as fire and rescue and police. See §2B1.1(b)(19) and App. Note 15(A). Section 2B1.1(b)(19) enhances a defendant’s sentencing range for certain types of fraud affecting critical infrastructures.

Cross Reference

An instruction to apply another offense guideline. Cross references are found in several Chapter Two guidelines and often instruct that such a reference should be used only if it results in a greater offense level.

Cryptocurrency

The broad name for digital currencies that use blockchain technology to work on a peer-to-peer basis. Cryptocurrencies don't require a bank to carry out transactions between individuals. The nature of the blockchain means that individuals can conduct transactions even if they don't trust or know each other. The cryptocurrency network keeps track of all transactions and ensures that no one reneges.

Dangerous Weapon

An instrument capable of inflicting death or serious bodily injury, or an object that closely resembles such an instrument. The definition of dangerous weapon in §1B1.1 also includes anything a defendant might use to give the impression of a dangerous weapon.

An individual who has been accused of a crime in a court proceeding. If a defendant is convicted of a crime, he or she may be referred to as an “offender”.

Defense Attorney

A lawyer who represents a defendant in a criminal proceeding.

Denial of Federal Benefits

The court has the statutory authority under 21 U.S.C. § 862 to deny the eligibility for certain federal benefits to any person convicted of distribution or possession of a controlled substance (§5F1.6).

Denial of Service Attack (DoS)

DoS is used against a website or computer network to make it temporarily unresponsive. This is often achieved by sending so many simultaneous content requests to the site that the server overloads. Content requests are the instructions sent, for instance, from your browser to a website that enables you to view content on that website. Some groups have used DoS attacks as a protest tool while others have used them for financial gain.

A sentence outside the guideline range in accordance with the Guidelines Manual . Chapter Five, Part K lists factors that may constitute grounds for departure, and other departures are located throughout the Guidelines Manual . However, there may be other grounds for departure that are not mentioned in the guidelines. Departures can be above or below the guideline range. The most commonly applied departure is the downward departure based on the defendant’s substantial assistance to the government in the investigation or prosecution of others. The substantial assistance departure is found at §5K1.1 of the Guidelines Manual .

Deportation

The act of removing a non-citizen from the United States to another country.

Destructive Device

An article specifically described by statute (26 U.S.C. § 5845(f)) that has an explosive or incendiary nature.

Diminished Capacity

The guidelines provide for a downward departure if the defendant suffers from a significantly reduced mental capacity that contributed substantially to the commission of the offense (§5K2.13).

Discharged Term of Imprisonment

A term of imprisonment that has been completed.

The power of a judge to make an independent decision concerning an issue based on his or her opinion informed by general legal principles rather than based on fixed legal rules. Ordinarily, an appellate court will not reverse a lower court’s discretionary decisions, unless the judge clearly “abused” his or her discretion.

Discretionary Conditions

Non-mandatory conditions that the court may place on a defendant who is on probation or supervised release. The court may impose certain conditions based on the defendant’s background or the particular circumstances of the case.

Dismissed Conduct

Conduct constituting an offense that was originally charged in an indictment and later dismissed by the court. The guidelines allow the court to consider dismissed conduct at sentencing if the court finds by a preponderance of the evidence that the defendant committed the conduct.

Diversionary Disposition

A diversionary disposition allows the defendant to avoid receiving a criminal conviction if the defendant successfully completes certain conditions of pretrial or probationary supervision. Diversionary dispositions are not counted for criminal history unless there is a finding of guilt by the court (§4A1.2(f)).

Double Counting

The application of more than one specific offense characteristic or adjustment related to the same conduct. The Guidelines Manual provides specific instructions regarding when not to apply certain specific offense characteristics or adjustments if another guidelines provision already accounted for the conduct. The default rule is that it is permissible to apply more than one provision based on the same conduct unless the guidelines specifically say not to do so.

Drug Equivalency Tables

The Drug Equivalency Tables provide marijuana equivalents for various controlled substances not otherwise addressed in the guidelines’ Drug Quantity Table.

The guidelines provide for a downward departure if the defendant committed the offense because of serious threats, coercion, or pressure. (§5K2.12).

Early Disposition Program

Also known as “Fast Track” Programs, these programs allow for a downward departure of not more than four levels for an expedited guilty plea program authorized by the Attorney General of the United States and the United States Attorney in a specific district. (§5K3.1).

Embezzlement

Theft of funds placed in one’s trust or belonging to one’s employer.

Ethics and Compliance Programs

Ethics and compliance programs are designed to prevent and detect criminal conduct in organizations. (§8B2.1).

Ex Post Facto Clause

The Ex Post Facto Clause in the U.S. Constitution forbids increasing a criminal penalty after a person has committed an offense, and also forbids making an act illegal after a person has performed that act. (See also “One Book Rule”.)

Ex Post Facto Law

A law that applies retroactively, especially in a way that negatively affects a person’s right, as by criminalizing an action that was legal when it was committed.

Expanded Relevant Conduct

A relevant conduct principle that allows the court to consider acts, often uncharged, that are part of the “same course of conduct, common scheme or plan” as the offense of conviction in application of Chapters Two and Three of the Guidelines Manual .

Expunged Convictions

Convictions that have been expunged (removed from a person’s criminal record) are not counted in the determination of the defendant’s criminal history (§4A1.2(j)), but may be considered for an upward departure under Adequacy of Criminal History (§4A1.3).

Extreme Conduct

An upward departure from the guidelines range may be appropriate if the defendant’s conduct was unusually heinous, cruel, brutal, or degrading to the victim (§5K2.8).

Extreme Psychological Injury

An upward departure from the guidelines range may be appropriate if a victim or victims suffered psychological injury much more serious than that normally resulting from commission of the offense (§5K2.3).

Failure to Report for Service of a Sentence

Failure to report for service of a sentence is treated as an escape from such sentence. Accordingly, the defendant will receive two criminal history points for the “status” of being under a “criminal justice” sentence (§4A1.1(d)).

Family Ties and Responsibilities

Family ties and responsibilities are not ordinarily relevant in determining whether a departure is warranted. In certain circumstance, the guidelines prohibit a departure for family ties and responsibilities entirely (§5H1.6).

“Fast Track” Programs

See “Early Disposition Program”.

An offense punishable by a term of imprisonment exceeding one year.

Felony Murder

A killing that occurs during the commission of another inherently dangerous felony, such as kidnapping or robbery.

The court must impose a fine in all cases, unless the defendant can establish that he or she is unable to pay a fine and is not likely to become able to pay any fine. The court may also order a fine as a condition of probation or supervised release. The guidelines have a separate table governing fine amounts for individuals (§5E1.2) and organizations (§8C1.1.).

The fine range is established by the final offense level and guides the court in determining the appropriate fine. Fine ranges for individual defendants are found at §5E1.2 in the Guidelines Manual . Fines for criminal organizations are addressed in §8C1.1.

Any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive. The frame or receiver of any such weapon, a muffler or silencer or any destructive device also qualify as firearms. A “BB” or pellet gun in not considered a firearm. (See also “Dangerous Weapon”).

A system using hardware, software, or both to prevent unauthorized access to a network, computer system, or device.

Foreign Convictions and Sentences

A conviction that occurred in a country other than the United States. Foreign convictions and any sentences imposed for them are not counted for criminal history, but may be considered for a departure under Adequacy of Criminal History (§4A1.3).

Forfeiture provisions exist in various criminal statutes and permit the government to take certain private property if the property is associated with criminal conduct.

Good Time Credit

Refers to the reduction of up to 54 days per year a defendant may earn for good conduct in prison. The Bureau of Prisons awards the credit, which applies to sentences greater than 12 months. Also called “good conduct” credit.

Government Health Care Program

Fraud can affect government health care programs. Government health care programs include Medicare and TRICARE. Loss is these cases is the aggregate dollar amount of fraudulent bills submitted to the Government health care program unless rebutted. Section 2B1.1(b)(7) enhances a defendant’s sentencing range for certain types of fraud affecting government health care programs.

Grade A Violation

A Grade A violation occurs when a defendant breaks the rules of his or her supervision by engaging in conduct constituting a federal, state or local offense punishable by a term of imprisonment exceeding one year that is a crime of violence, a drug trafficking offense or involves the possession of certain firearms or any other federal, state or local offense punishable by a term of imprisonment exceeding twenty years.

Grade B Violation

A violation for conduct constituting any other federal, state of local offense punishable by a term of imprisonment exceeding one year.

Grade C Violation

A violation for conduct constituting a federal, state or local offense punishable by a term of imprisonment of one year or less or a violation of any other condition of supervision.

Grouping of Multiple Counts

Chapter Three, Part D of the Guidelines Manual provides rules for determining a single offense level for all the counts of which a defendant is convicted. For certain offenses, multiple counts are treated as one count of conviction when determining the guidelines range (for example drug-trafficking and fraud offenses). For other offenses, a separate guidelines range is calculated for each count of conviction (for example robbery, assault) and the grouping rules determine the incremental increase in punishment for each additional count.

Guideline Range

The result of determining the final offense level and criminal history category for the defendant. The intersection of these determinations on the Sentencing Table provides the applicable guideline range.

The manipulation of code in the device or software for which the code was written. Some prefer the term “cracking” to describe hacking into a machine or program without permission.

Hate Crime Motivation

Chapter Three provides an enhancement if the court determines beyond a reasonable doubt that the defendant intentionally selected any victim because of the actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability or sexual orientation of that person (§3A1.1).

The Office of Education and Sentencing Practice at the Commission operates a helpline that provides guidance to stakeholders in the federal criminal justice field. Staffers provide guidance in matters related to guideline application.

Historical Note

A Historical Note, found at the end of each individual guideline, cites each time the guideline has been amended. The text of each amendment is located in Appendix C of the Guidelines Manual .

Home Detention

A program of confinement and supervision that restricts the defendant to his or her place of residence continuously, except for authorized absences. Home detention may be imposed as a condition of probation and supervised release.

Identity Theft

Identity theft is the fraudulent acquisition and use of a person's private identifying information, such as their name or social security number, usually for financial gain.

Immigration

The act of entering a country with the intention of settling there permanently.

Imprisonment

The act of confining a person in a penal institution such as a jail or prison for the purpose of serving a sentence imposed by a court.

Inadequacy of Criminal History

A departure provision in the Guidelines Manual providing authority to impose a sentence above or below the guideline range if the court determines that the defendant’s criminal history category substantially under-represents or over-represents the seriousness of the defendant’s criminal history or the likelihood the defendant will commit other crimes. See USSG §4A1.3.

A formal, written accusation of a crime made by a grand jury and presented to a court for prosecution of a person.

Information

A formal, written accusation of a crime made by a prosecutor in those jurisdictions that do not use grand juries.

Instant Offense

The term “instant” is used in connection with “offense” to distinguish crime for which the defendant is being currently sentenced from a prior or subsequent crime that the defendant committed.

Intermittent Confinement

A sentence consisting of periods of confinement interrupted by periods of freedom. See USSG §5F1.8, comment. (n.1). Intermittent confinement may be imposed a condition of probation or supervised release. See USSG §5F1.8.

Internet Protocol (IP) Address

A distinct numeric fingerprint assigned to each device connected to a network using Internet Protocol. Through an IP address, a computer’s activity can be tracked, its location discovered, and its user identified. Crackers can use an IP address to access a computer though one of its many ports, which regulate the flow of information to the computer.

Invalidated Conviction

A conviction that is no longer legally binding because it has been vacated or reversed by a court.

Investment Fraud

Investment fraud, also known as stock fraud or securities fraud, is a deceptive practice in the stock or commodities markets that induces investors to make purchase or sale decisions on the basis of false information, frequently resulting in losses, in violation of securities laws.

Jointly Undertaken Criminal Activity

A relevant conduct principle addressing conduct in concert with others that allows a defendant to be held accountable for the conduct of others under the guidelines (§1B1.3).

A public official appointed or elected to hear and decide legal matters. Federal district and circuit judges, as well as Supreme Court Justices, are appointed for life.

Judgment and Commitment Order

Often called the “judgment,” a written record of the defendant’s convictions and the sentence the court pronounces.

Juvenile Delinquency Act

The Juvenile Delinquency Act governs juveniles convicted of an offense in federal court. The guidelines do not directly apply to defendants sentenced under the Juvenile Delinquency Act. However, the sentence imposed on a juvenile defendant may not ordinarily be greater than the maximum of the guideline range that would apply to an adult defendant in similar circumstances. (§1B1.12).

If a person is abducted, taken hostage, or unlawfully restrained to facilitate the commission of an offense or to facilitate escape from the scene of a crime, an upward departure may be warranted (§5K2.4). If a person is convicted of a kidnapping offense, they may be sentenced under the kidnapping guideline, found at §2A4.1.

Lack of Guidance as a Youth

Lack of guidance as a youth cannot be a basis for departure from the guidelines range (§5H1.12).

Lesser Harms

A departure provision that, in some situations, allows a reduced sentence in a case in which a defendant commits a crime to avoid a perceived greater harm (§5K2.11).

Local Ordinance Violations

Local ordinance violations (except those that are also violations under state law) are excluded from criminal history calculations (§4A1.2(c)(2)).

Loss is the greater of “actual” or “intended” loss. Actual loss is the reasonably foreseeable pecuniary (monetary) harm resulting from the offense. Intended loss is the pecuniary harm that the defendant purposefully sought to inflict but which did not cause actual loss in the amount intended.

A table containing graduated increases to a defendant’s sentencing range accounting for the pecuniary loss caused by the defendant’s crime. See §2B1.1(b)(1) .

A software program designed to hijack, damage, or steal information from a device or system. Examples include spyware, adware, viruses, and many more. The software can be delivered in a number of ways, including decoy websites, spam, and infected USB drives.

Mandatory Conditions

Non-discretionary conditions required by statute for defendants placed on probation or supervised release.

Mandatory Minimum

A non-discretionary penalty required by statute. In federal law, many drug trafficking offenses carry mandatory minimum penalties. There are also mandatory minimums prescribed for some firearms offenses, as well as other types of offenses.

Means of Identification

Means of Identification is defined by statue at 18 U.S.C. §1028(d)(7) and has to be of an actual, not fictitious, individual. Means of identification includes any name or number that can be used alone or in conjunction with other information to identify a specific individual. Examples include a name, a social security number or date of birth.

Military Sentences

A sentence pronounced by a military court. Only military sentences that are imposed by a general or special court-martial are counted for criminal history (§4A1.2(g)).

Misdemeanor

An offense punishable by one year of imprisonment or less.

Misprision of a Felony

A concealment and nondisclosure of a felony by a person who did not participate in the crime.

Modified Categorical Approach

Similar to the categorical approach, the modified categorical approach is used to determine whether an offense (usually a prior conviction) fits within a given definition, such as for “crime of violence,” ”drug trafficking offense,” or similar term. The court must compare the elements of the offense of conviction to the relevant definition. Under the modified approach, the court may use certain official court documents, such as a charging document or plea agreement from the prior case, to determine the elements of the offense of conviction.

Money Laundering

Concealing illegally-obtained assets by transferring them to a legal business or investment for the purpose of disguising their illegal nature.

National Origin

The national origin of a defendant is not relevant in the determination of a sentence (§5H1.10).

Negligent behavior is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation.

Obstruction of Justice

The guidelines provide an enhancement if the defendant willfully obstructs or attempts to obstruct the administration of justice (§3C1.1).

Occupational Restrictions

Occupational restrictions may be imposed on a defendant as a condition of probation or supervised release.

Under the guidelines, the offense of conviction and all relevant conduct under §1B1.3. The term “instant” used in connection with “offense” may be used to distinguish a violation for which the defendant is being sentenced from a previous or subsequent offense that the defendant committed.

Offense of Conviction

The offense conduct charged in the indictment or information of which the defendant has been convicted.

Offense Level

The severity level of an offense, ordinarily determined in Chapters Two and Three of the Guidelines Manual , and reflected on the vertical axis of the Sentencing Table. In some cases (such as career offenders and repeat dangerous sex offenders against minors) the offense level is determined in Chapter Four.

One Book Rule

The “one book” rule requires the court to use the Guidelines Manual in effect on the date of sentencing unless the use of that manual would violate the Ex Post Facto Clause.

A written direction or command issued by a court or a judge.

Chapter Eight of the Guidelines Manual provides guidelines for the sentencing of organizations, including corporations. Prosecutions may involve both individual and organizational co-defendants.

A form of conditional early release from prison (before the full term of imprisonment expires). Upon violation of a parole condition, a parolee may be placed back in prison to complete the remainder of the sentence. In the federal system, parole was abolished with the passage of the Sentencing Reform Act of 1984 and does not apply to defendants sentenced for offenses committed on or after November 1, 1987.

Peer-to-Peer (P2P)

Networked systems that work like an organized collective by allowing individuals to interact directly with others in the P2P environment. In the case of Bitcoin, the network is built in such a way that each user is broadcasting the transactions of other users.

ricking someone into giving you their personal information, including login information and passwords, credit card numbers, and so on by imitating legitimate companies, organizations, or people online. Phishing is often done through fake emails or links to fraudulent websites.

Plea Agreement

An agreement whereby a defendant pleads guilty instead of proceeding to trial. The agreement contains promises that the prosecutor and defendant must each abide by. Each party to the plea agreement usually gains some benefit and gives up (or waives) a right in return for that benefit.

A statement, generally of guilty or not guilty, made formally by the defendant before the judge.

Ponzi Scheme

A form of fraud in which belief in the success of a nonexistent investment is fostered by the payment of quick purported returns to the first investors from money invested by later investors, which in turn encourages more victims to invest.

Predicate Offense

A prior conviction that is the basis of an increased sentence for the instant offense.

Presentence Report (“PSR”)

A report, filed under seal by a probation officer, which contains information about the offense and offender, the statutory range of punishment, and the guidelines calculation, as well as any bases for imposing a sentence above or below the guideline range.

Presentence Writer

A probation officer who conducts presentence investigations of defendants and writes presentence reports containing the guidelines determinations and other information relevant to sentencing.

Pretrial Services Officer

An officer of the court responsible for monitoring a person who has been charged with a federal offense and has been released on bond while that person awaits trial or sentencing.

Prior Sentence

A sentence for criminal conduct that is not part of Relevant Conduct that was imposed prior to sentencing on the instant offense. See USSG §4B1.2(a).

A sentencing option instead of a sentence of imprisonment, although probation may involve a condition of a short amount of incarceration (such as weekends in jail), confinement in a halfway house, or home detention. A person on probation is monitored by a probation officer and must follow certain rules announced by the judge at the time of sentencing and listed on the judgment form.

Probation Officer

An officer of the court responsible for monitoring offenders on probation or supervised release. Probation officers also conduct presentence investigations on offenders and write presentence reports to determine the proper guideline range and to provide the judge with information about the defendant relevant to sentencing.

Representative of the Department of Justice (in federal court) responsible for bringing and prosecuting charges against a person or organization. The prosecutor represents the interests of society. Less formally referred to as “the government”.

The minimum number of members required to conduct business or take a vote. The Commission must have four voting members for a quorum.

Racketeering

Also known as RICO (Racketeer Influenced and Corrupt Organizations Act). A system of organized crime involving a pattern of illegal activity carried out as part of a larger criminal enterprise.

Real Offense Sentencing

An approach to sentencing that accounts for all of a defendant’s conduct in relation to the offense of conviction, not just the specific conduct of which the defendant has been convicted (which would be a “charged offense” approach). The Guidelines Manual does not take a pure “real offense” approach and, instead, takes a modified real offense approach that generally accounts for some but not all of the defendant’s real offense conduct. See USSG, Ch. 1, Pt. A.4.

The return to criminal behavior as reflected by re-arrest, re-conviction, or re-incarceration.

Conduct characterized by a substantial risk of harm to others by a conscious disregard or indifference to that risk. See, e.g. , USSG §3C1.2 (Reckless Endangerment During Flight).

The guidelines provision located at §1B1.3 of the Guidelines Manual , which specifies the conduct for which a defendant may be held accountable in the determination of the offense-severity level. The court may find the facts constituting relevant conduct by a preponderance of the evidence standard; a jury trial is not required. Relevant conduct may include the defendant’s conduct as well as the conduct of other participants in a jointly undertaken criminal activity.

Restitution

Money owed to a victim of an offense to compensate for damages caused by the defendant. Restitution may be ordered as a part of a sentence, and in some types of cases, is mandatory.

Retroactive Guideline

When the Commission has amended the Guidelines Manual to reduce guideline terms of imprisonment for some defendants, it is authorized (but not required) to make that amendment retroactive. If the defendant exercises its discretion to do so, eligible defendants may move their sentencing courts to be resentenced under the retroactively amended guideline. See USSG §1B1.10.

An annulment, cancellation or reversal of an act. With regard to probation or supervised release, the term generally refers to the judicial act of canceling the supervision in response to the offender violating the terms of supervision, and imposing a term of incarceration.

Revocation Table

The table is found at Chapter Seven, Part B of the Guidelines Manual (§7B1.4). The table displays imprisonment ranges, stated in months, that apply to a case in which the defendant’s term of probation or supervised release has been revoked. To find the applicable imprisonment range, the judge must determine the Classification of the Violation and the defendant’s Criminal History Category from the original sentencing.

Role in the Offense

The defendant’s role in the offense, which can either be an aggravating factor (§3B1.1) or a mitigating factor (§3B1.2).

Safety Valve

Codified at 18 U.S.C. § 3553(f), this provision allows the court to sentence a defendant without regard to an otherwise applicable mandatory minimum term of imprisonment for certain types of drug-trafficking offenses if the defendant satisfies the five criteria in the statute. A corresponding guidelines provision is USSG §5C1.2. In addition, §2D1.1(b)(17) provides for a 2-level decrease in the offense level for defendants who satisfy the safety valve criteria, regardless whether they are subject to a mandatory minimum.

Sentencing Commission

An independent agency in the judicial branch of government created by the Sentencing Reform Act of 1984. Congress enacted the SRA in response to widespread disparity in federal sentencing, ushering in a new era of federal sentencing through the creation of the Commission and the promulgation of federal sentencing guidelines. Several states also have sentencing commissions that promulgate sentencing guidelines that apply to their state’s criminal offenses.

Sentencing Options

The choices that the court has once the court has properly determined the defendant’s sentencing range in the Sentencing Table. Depending on the Zone on the table in which a defendant’s range falls, sentencing options include probation (with or without a condition of home detention or community confinement), a split sentence, or a term of imprisonment. The Guidelines Manual addresses sentencing options at Chapter Five, Part F.

Sentencing Procedures

The procedural rules governing sentencing hearings and preparation leading up to it. Rules are found in the Guidelines Manual at Chapter Six. Sentencing procedures are also governed by statute and at Federal Rule of Criminal Procedure 32.

The table displays imprisonment ranges, stated in months, that apply to a case after the court as determined the offense severity level and the criminal history category of the defendant. The table is found at Chapter Five, Part A of the Guidelines Manual .

Serious Drug Offense

As defined at 18 U.S.C. § 924(e), an offense under the Controlled Substances Act and related federal statutes, or an offense under State law punishable by at least 10 years in prison, involving manufacturing, distributing or possessing with intent to manufacture or distribute a controlled substance.

Shepard Documents

The narrow class of additional documents the court is permitted to consult when using the modified categorical approach to determine the elements of the prior conviction.

Email or other internet mass marketing conduct used to contact a large number of potential victims.

Spear Phishing

A more focused type of phishing that targets smaller groups of victims ranging from a department within a company or organization to a single individual.

Special Assessment

Special payments required by statute. A special assessment is required by statute for each count of conviction. One such statute is 18 U.S.C. § 3013.

Specific Offense Characteristic

Aggravating or mitigating factors in the guidelines in Chapter Two that, provided the court finds by a preponderance of evidence that they exist, either increase or decrease the offense severity level.

Split Sentence

A sentence of imprisonment that includes a term of supervised release with a condition of community confinement or home detention as a substitute for a portion of the guideline minimum (§5C1.1(c)(2), (d)(2)). Split sentences are sentencing options in Zones B and C of the Sentencing Table.

Altering the header of an email so that it appears to come from a legitimate or reputable source. A hacker might alter his or her email header so it appears to come from the victim’s bank. Internet Protocol (IP) spoofing is the computer version in which a packet is sent to a computer with the IP altered to imitate a trusted host in the hope that the packet will be accepted and allow the sender access to the target machine.

A type of malware that is programmed to hide on a target computer or server and send back information to the master server. Data sought by spyware often include login and password credentials, bank account information, and credit card numbers.

Imposing consecutive sentences for multiple counts of conviction.

Statement of Reasons (“SOR”)

A form issued by the Judicial Conference of the United States Courts (Form AO245(b)), which is generally filed under seal, in which the federal defendant receives a sentence for a felony or Class A misdemeanor offense. The form contains various check boxes and spaces for judges to explain the reasons for imposing the sentence in the case. The Sentencing Commission collects this form as one of five sentencing documents that courts must send at the close of the case. See also 28 U.S.C. § 994(2)(1)(B) (requiring the Chief Judge to submit the form to the Commission, along with other sentencing documents, within 30 days of entry of the judgment).

Supervised Release

A period of court supervision that often follows an offender’s service of a federal prison sentence. The primary purpose of supervised release is not to punish, but instead to facilitate the defendant’s reentry into the community. The court sets conditions of supervised release at the time of sentencing but may modify them later, or in the case of a violation, may revoke a defendant’s term of supervised release and return the defendant to prison to serve additional time.

Supervision

Monitoring of an offender by a pretrial services officer or probation officer, whether while awaiting trial or sentencing, or after serving a prison sentence. An offender on probation or parole is also under supervision. Violation of the conditions of supervision can lead to a revocation of the supervision and incarceration of the offender.

Supervising Officer

An officer of the court responsible for monitoring an offender or an accused person’s behavior, generally for a set period of time. In the federal system, the supervision officer is a pretrial services officer or probation officer.

Substantial Assistance

The act of assisting the government in its investigation and/or prosecution of another individual or an organization. The government has the option of filing a motion for a reduced sentence if it finds the defendant substantially assisted the government. A federal statute, 18 U.S.C. §3553(e), provides that a court may sentence a defendant below a mandatory minimum based on a defendant’s substantial assistance, and USSG §5K1.1 provides that a court may sentence below the minimum of the guideline range based on a defendant’s substantial assistance even if no statutory mandatory minimum applies. Both the statute and guideline require the government to file a motion requesting a downward departure before a court may depart.

Total Punishment

The combined length of sentences determined by the court for multiple counts of conviction. Total punishment incorporates the combined offense level, the Criminal History Category, and the corresponding guideline range on the Sentencing Table. In some cases, the total punishment is determined by “stacking” a consecutive mandatory minimum statutory sentence on top of the guideline sentence for a different count of conviction.

Tribal Court Sentences

Sentences imposed by tribal ( i.e. , Native American or American Indian) courts. These sentences are not counted in criminal history, but may be considered under Adequacy of Criminal History as a basis for an upward departure (§4A1.3).

Undischarged Term of Imprisonment

A term of imprisonment imposed in connection with one conviction that has not yet been completed at the time a defendant is sentenced in connection with another conviction.

To make void. For instance, a court of appeals may vacate a sentence and remand back to the district court for resentencing based on some error at the original sentencing.

Vacated Conviction

A conviction that a court has made void. A conviction and any corresponding sentence that have been vacated because of an error of law is not counted in criminal history.

A sentence outside the applicable guideline range (above or below) for any reason that is not in accordance with the guidelines or policy statements. A variance reflects the judge’s consideration of the factors at 18 U.S.C. § 3553(a).

An individual or organization harmed by a crime. The guidelines provide adjustments for certain cases involving victims such as official victims (§3A1.2) and vulnerable victims (§3A1.1). The guidelines also provide adjustments for cases involving the restraint of a victim (§3A1.3).

Victim Table

A fraud or theft defendant’s sentencing range can be enhanced depending on the number of victims and the extent of harm to the victims. See §2B1.1(b)(2).

Conduct that violates any judicial order imposing supervision of a defendant. Violations of probation and supervised release are addressed in Chapter Seven of the Guidelines Manual .

Violent Felony

As defined at 18 U.S.C. § 924(e), any crime punishable by imprisonment exceeding one year or a juvenile delinquent act involving the use or carrying of a firearm, knife or destructive device, that has as an element the use, attempted use, or threatened use of physical force against the person of another, or certain enumerated offenses including, burglary, arson, extortion, and felony offenses involving the use of explosives.

Self-replicating malware that injects copies of itself into the infected machine. A virus can destroy a hard drive, steal information, log keystrokes, and perform many other malicious activities.

Vulnerable Victim

The guidelines provide an enhancement for cases involving victims who are unusually vulnerable to due age, physical or mental condition or who are otherwise particularly susceptible to the criminal conduct (§3A1.1).

To validly give up a right, such as a right to trial or right to remain silent. Waivers of rights can be oral or in writing.

An order by the court directing an official, such as police officer or probation officer, to act in some manner (such as arrest a person). A defendant who commits an offense while a warrant alleging a violation of a condition of probation, parole, or supervised release is outstanding will receive criminal history points for “status” for being under a “criminal justice sentence” (§4A1.2(m)).

The guidelines’ Sentencing Table is divided into Zones (A, B, C, and D) which provide different types of sentencing options. The zones are described at §5C1.1.

The guidelines allow the following types of sentences in Zone A of the Sentencing Table: a fine only, a sentence of probation (with or without a condition of community confinement or home detention), and a sentence of imprisonment.

The guidelines allow the following types of sentences in Zone B of the Sentencing Table: a sentence of probation with a condition of community confinement or home detention, a split sentence, and a sentence of imprisonment.

The guidelines allow the following types of sentences in Zone C of the Sentencing Table: a split sentence and a sentence of imprisonment.

The guidelines allow the following types of sentences in Zone D of the Sentencing Table: imprisonment.

Rule 5. Serving and Filing Pleadings and Other Papers

Primary tabs.

(a) Service: When Required.

(1) In General. Unless these rules provide otherwise, each of the following papers must be served on every party:

(A) an order stating that service is required;

(B) a pleading filed after the original complaint, unless the court orders otherwise under Rule 5(c) because there are numerous defendants;

(C) a discovery paper required to be served on a party, unless the court orders otherwise;

(D) a written motion, except one that may be heard ex parte; and

(E) a written notice, appearance, demand, or offer of judgment, or any similar paper.

(2) If a Party Fails to Appear. No service is required on a party who is in default for failing to appear. But a pleading that asserts a new claim for relief against such a party must be served on that party under Rule 4 .

(3) Seizing Property. If an action is begun by seizing property and no person is or need be named as a defendant, any service required before the filing of an appearance, answer, or claim must be made on the person who had custody or possession of the property when it was seized.

(b) Service: How Made.

(1) Serving an Attorney. If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party.

(2) Service in General. A paper is served under this rule by:

(A) handing it to the person;

(B) leaving it:

(i) at the person's office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or

(ii) if the person has no office or the office is closed, at the person's dwelling or usual place of abode with someone of suitable age and discretion who resides there;

(C) mailing it to the person's last known address—in which event service is complete upon mailing;

(D) leaving it with the court clerk if the person has no known address;

(E) sending it to a registered user by filing it with the court's electronic-filing system or sending it by other electronic means that the person consented to in writing—in either of which events service is complete upon filing or sending, but is not effective if the filer or sender learns that it did not reach the person to be served; or

(F) delivering it by any other means that the person consented to in writing—in which event service is complete when the person making service delivers it to the agency designated to make delivery.

(3) Using Court Facilities. [Abrogated (Apr._, 2018, eff. Dec. 1, 2018)]

(c) Serving Numerous Defendants.

(1) In General. If an action involves an unusually large number of defendants, the court may, on motion or on its own, order that:

(A) defendants’ pleadings and replies to them need not be served on other defendants;

(B) any crossclaim, counterclaim, avoidance, or affirmative defense in those pleadings and replies to them will be treated as denied or avoided by all other parties; and

(C) filing any such pleading and serving it on the plaintiff constitutes notice of the pleading to all parties.

(2) Notifying Parties. A copy of every such order must be served on the parties as the court directs.

(d) Filing.

(1) Required Filings; Certificate of Service.

(A) Papers after the Complaint. Any paper after the complaint that is required to be served—must be filed no later than a reasonable time after service. But disclosures under Rule 26(a)(1) or (2) and the following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing: depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, and requests for admission.

(B) Certificate of Service . No certificate of service is required when a paper is served by filing it with the court's electronic-filing system. When a paper that is required to be served is served by other means:

(i) if the paper is filed, a certificate of service must be filed with it or within a reasonable time after service; and

(ii) if the paper is not filed, a certificate of service need not be filed unless filing is required by court order or by local rule.

(2) Nonelectronic Filing . A paper not filed electronically is filed by delivering it:

(A) to the clerk; or

(B) to a judge who agrees to accept it for filing, and who must then note the filing date on the paper and promptly send it to the clerk.

(3) Electronic Filing and Signing.

(A) By a Represented Person —Generally Required; Exceptions. A person represented by an attorney must file electronically, unless nonelectronic filing is allowed by the court for good cause or is allowed or required by local rule.

(B) By an Unrepresented Person —When Allowed or Required. A person not represented by an attorney:

(i) may file electronically only if allowed by court order or by local rule; and

(ii) may be required to file electronically only by court order, or by a local rule that includes reasonable exceptions.

(C) Signing. A filing made through a person's electronic-filing account and authorized by that person, together with that person's name on a signature block, constitutes the person's signature.

(D) Same as a Written Paper. A paper filed electronically is a written paper for purposes of these rules.

(4) Acceptance by the Clerk. The clerk must not refuse to file a paper solely because it is not in the form prescribed by these rules or by a local rule or practice.

(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.)

Notes of Advisory Committee on Rules—1937

Note to Subdivisions (a) and (b) . Compare 2 Minn.Stat. (Mason, 1927) §§9240, 9241, 9242; N.Y.C.P.A. (1937) §§163, 164, and N.Y.R.C.P. (1937) Rules 20, 21; 2 Wash.Rev.Stat.Ann. (Remington, 1932) §§244–249.

Note to Subdivision (d) . Compare the present practice under [former] Equity Rule 12 (Issue of Subpoena—Time for Answer).

Notes of Advisory Committee on Rules—1963 Amendment

The words “affected thereby,” stricken out by the amendment, introduced a problem of interpretation. See 1 Barron & Holtzoff , Federal Practice & Procedure 760–61 (Wright ed. 1960). The amendment eliminates this difficulty and promotes full exchange of information among the parties by requiring service of papers on all the parties to the action, except as otherwise provided in the rules. See also subdivision (c) of Rule 5. So, for example, a third-party defendant is required to serve his answer to the third-party complaint not only upon the defendant but also upon the plaintiff. See amended Form 22–A and the Advisory Committee's Note thereto.

As to the method of serving papers upon a party whose address is unknown, see Rule 5(b).

Notes of Advisory Committee on Rules—1970 Amendment

The amendment makes clear that all papers relating to discovery which are required to be served on any party must be served on all parties, unless the court orders otherwise. The present language expressly includes notices and demands, but it is not explicit as to answers or responses as provided in Rules 33, 34, and 36. Discovery papers may be voluminous or the parties numerous, and the court is empowered to vary the requirement if in a given case it proves needlessly onerous.

In actions begun by seizure of property, service will at times have to be made before the absent owner of the property has filed an appearance. For example, a prompt deposition may be needed in a maritime action in rem. See Rules 30(a) and 30(b)(2) and the related notes. A provision is added authorizing service on the person having custody or possession of the property at the time of its seizure.

Notes of Advisory Committee on Rules—1980 Amendment

Subdivision (d) . By the terms of this rule and Rule 30(f)(1) discovery materials must be promptly filed, although it often happens that no use is made of the materials after they are filed. Because the copies required for filing are an added expense and the large volume of discovery filings presents serious problems of storage in some districts, the Committee in 1978 first proposed that discovery materials not be filed unless on order of the court or for use in the proceedings. But such materials are sometimes of interest to those who may have no access to them except by a requirement of filing, such as members of a class, litigants similarly situated, or the public generally. Accordingly, this amendment and a change in Rule 30(f)(1) continue the requirement of filing but make it subject to an order of the court that discovery materials not be filed unless filing is requested by the court or is effected by parties who wish to use the materials in the proceeding.

Notes of Advisory Committee on Rules—1987 Amendment

The amendments are technical. No substantive change is intended.

Notes of Advisory Committee on Rules—1991 Amendment

Subdivision (d) . This subdivision is amended to require that the person making service under the rule certify that service has been effected. Such a requirement has generally been imposed by local rule.

Having such information on file may be useful for many purposes, including proof of service if an issue arises concerning the effectiveness of the service. The certificate will generally specify the date as well as the manner of service, but parties employing private delivery services may sometimes be unable to specify the date of delivery. In the latter circumstance, a specification of the date of transmission of the paper to the delivery service may be sufficient for the purposes of this rule.

Subdivision (e) . The words “pleading and other” are stricken as unnecessary. Pleadings are papers within the meaning of the rule. The revision also accommodates the development of the use of facsimile transmission for filing.

Several local district rules have directed the office of the clerk to refuse to accept for filing papers not conforming to certain requirements of form imposed by local rules or practice. This is not a suitable role for the office of the clerk, and the practice exposes litigants to the hazards of time bars; for these reasons, such rules are proscribed by this revision. The enforcement of these rules and of the local rules is a role for a judicial officer. A clerk may of course advise a party or counsel that a particular instrument is not in proper form, and may be directed to so inform the court.

Notes of Advisory Committee on Rules—1993 Amendment

This is a technical amendment, using the broader language of Rule 25 of the Federal Rules of Appellate Procedure. The district court—and the bankruptcy court by virtue of a cross-reference in Bankruptcy Rule 7005—can, by local rule, permit filing not only by facsimile transmissions but also by other electronic means, subject to standards approved by the Judicial Conference.

Notes of Advisory Committee on Rules—1996 Amendment

The present Rule 5(e) has authorized filing by facsimile or other electronic means on two conditions. The filing must be authorized by local rule. Use of this means of filing must be authorized by the Judicial Conference of the United States and must be consistent with standards established by the Judicial Conference. Attempts to develop Judicial Conference standards have demonstrated the value of several adjustments in the rule.

The most significant change discards the requirement that the Judicial Conference authorize local electronic filing rules. As before, each district may decide for itself whether it has the equipment and personnel required to establish electronic filing, but a district that wishes to establish electronic filing need no longer await Judicial Conference action.

The role of the Judicial Conference standards is clarified by specifying that the standards are to govern technical matters. Technical standards can provide nationwide uniformity, enabling ready use of electronic filing without pausing to adjust for the otherwise inevitable variations among local rules. Judicial Conference adoption of technical standards should prove superior to specification in these rules. Electronic technology has advanced with great speed. The process of adopting Judicial Conference standards should prove speedier and more flexible in determining the time for the first uniform standards, in adjusting standards at appropriate intervals, and in sparing the Supreme Court and Congress the need to consider technological details. Until Judicial Conference standards are adopted, however, uniformity will occur only to the extent that local rules deliberately seek to copy other local rules.

It is anticipated that Judicial Conference standards will govern such technical specifications as data formatting, speed of transmission, means to transmit copies of supporting documents, and security of communication. Perhaps more important, standards must be established to assure proper maintenance and integrity of the record and to provide appropriate access and retrieval mechanisms. Local rules must address these issues until Judicial Conference standards are adopted.

The amended rule also makes clear the equality of filing by electronic means with written filings. An electronic filing that complies with the local rule satisfies all requirements for filing on paper, signature, or verification. An electronic filing that otherwise satisfies the requirements of 28 U.S.C. §1746 need not be separately made in writing. Public access to electronic filings is governed by the same rules as govern written filings.

The separate reference to filing by facsimile transmission is deleted. Facsimile transmission continues to be included as an electronic means.

Committee Notes on Rules—2000 Amendment

Subdivision (d) . Rule 5(d) is amended to provide that disclosures under Rule 26(a)(1) and (2), and discovery requests and responses under Rules 30, 31, 33, 34, and 36 must not be filed until they are used in the action. “Discovery requests” includes deposition notices and “discovery responses” includes objections. The rule supersedes and invalidates local rules that forbid, permit, or require filing of these materials before they are used in the action. The former Rule 26(a)(4) requirement that disclosures under Rule 26(a)(1) and (2) be filed has been removed. Disclosures under Rule 26(a)(3), however, must be promptly filed as provided in Rule 26(a)(3). Filings in connection with Rule 35 examinations, which involve a motion proceeding when the parties do not agree, are unaffected by these amendments.

Recognizing the costs imposed on parties and courts by required filing of discovery materials that are never used in an action, Rule 5(d) was amended in 1980 to authorize court orders that excuse filing. Since then, many districts have adopted local rules that excuse or forbid filing. In 1989 the Judicial Conference Local Rules Project concluded that these local rules were inconsistent with Rule 5(d), but urged the Advisory Committee to consider amending the rule. Local Rules Project at 92 (1989). The Judicial Conference of the Ninth Circuit gave the Committee similar advice in 1997. The reality of nonfiling reflected in these local rules has even been assumed in drafting the national rules. In 1993, Rule 30(f)(1) was amended to direct that the officer presiding at a deposition file it with the court or send it to the attorney who arranged for the transcript or recording. The Committee Note explained that this alternative to filing was designed for “courts which direct that depositions not be automatically filed.” Rule 30(f)(1) has been amended to conform to this change in Rule 5(d).

Although this amendment is based on widespread experience with local rules, and confirms the results directed by these local rules, it is designed to supersede and invalidate local rules. There is no apparent reason to have different filing rules in different districts. Even if districts vary in present capacities to store filed materials that are not used in an action, there is little reason to continue expending court resources for this purpose. These costs and burdens would likely change as parties make increased use of audio- and videotaped depositions. Equipment to facilitate review and reproduction of such discovery materials may prove costly to acquire, maintain, and operate.

The amended rule provides that discovery materials and disclosures under Rule 26(a)(1) and (a)(2) must not be filed until they are “used in the proceeding.” This phrase is meant to refer to proceedings in court. This filing requirement is not triggered by “use” of discovery materials in other discovery activities, such as depositions. In connection with proceedings in court, however, the rule is to be interpreted broadly; any use of discovery materials in court in connection with a motion, a pretrial conference under Rule 16, or otherwise, should be interpreted as use in the proceeding.

Once discovery or disclosure materials are used in the proceeding, the filing requirements of Rule 5(d) should apply to them. But because the filing requirement applies only with regard to materials that are used, only those parts of voluminous materials that are actually used need be filed. Any party would be free to file other pertinent portions of materials that are so used. See Fed. R. Evid . 106; cf . Rule 32(a)(4). If the parties are unduly sparing in their submissions, the court may order further filings. By local rule, a court could provide appropriate direction regarding the filing of discovery materials, such as depositions, that are used in proceedings.

“Shall” is replaced by “must” under the program to conform amended rules to current style conventions when there is no ambiguity.

GAP Report . The Advisory Committee recommends no changes to either the amendments to Rule 5(d) or the Committee Note as published.

Committee Notes On Rules—2001 Amendment

Rule 5(b) is restyled.

Rule 5(b)(1) makes it clear that the provision for service on a party's attorney applies only to service made under Rules 5(a) and 77(d). Service under Rules 4, 4.1, 45(b), and 71A (d)(3)—as well as rules that invoke those rules—must be made as provided in those rules.

Subparagraphs (A), (B), and (C) of Rule 5(b)(2) carry forward the method-of-service provisions of former Rule 5(b).

Subparagraph (D) of Rule 5(b)(2) is new. It authorizes service by electronic means or any other means, but only if consent is obtained from the person served. The consent must be express, and cannot be implied from conduct. Early experience with electronic filing as authorized by Rule 5(d) is positive, supporting service by electronic means as well. Consent is required, however, because it is not yet possible to assume universal entry into the world of electronic communication. Subparagraph (D) also authorizes service by nonelectronic means. The Rule 5(b)(2)(B) provision making mail service complete on mailing is extended in subparagraph (D) to make service by electronic means complete on transmission; transmission is effected when the sender does the last act that must be performed by the sender. Service by other agencies is complete on delivery to the designated agency.

Finally, subparagraph (D) authorizes adoption of local rules providing for service through the court. Electronic case filing systems will come to include the capacity to make service by using the court's facilities to transmit all documents filed in the case. It may prove most efficient to establish an environment in which a party can file with the court, making use of the court's transmission facilities to serve the filed paper on all other parties. Transmission might be by such means as direct transmission of the paper, or by transmission of a notice of filing that includes an electronic link for direct access to the paper. Because service is under subparagraph (D), consent must be obtained from the persons served.

Consent to service under Rule 5(b)(2)(D) must be in writing, which can be provided by electronic means. Parties are encouraged to specify the scope and duration of the consent. The specification should include at least the persons to whom service should be made, the appropriate address or location for such service—such as the e-mail address or facsimile machine number, and the format to be used for attachments. A district court may establish a registry or other facility that allows advance consent to service by specified means for future actions.

Rule 6(e) is amended to allow additional time to respond when service is made under Rule 5(b)(2)(D). The additional time does not relieve a party who consents to service under Rule 5(b)(2)(D) of the responsibilities to monitor the facility designated for receiving service and to provide prompt notice of any address change.

Paragraph (3) addresses a question that may arise from a literal reading of the provision that service by electronic means is complete on transmission. Electronic communication is rapidly improving, but lawyers report continuing failures of transmission, particularly with respect to attachments. Ordinarily the risk of non-receipt falls on the person being served, who has consented to this form of service. But the risk should not extend to situations in which the person attempting service learns that the attempted service in fact did not reach the person to be served. Given actual knowledge that the attempt failed, service is not effected. The person attempting service must either try again or show circumstances that justify dispensing with service.

Paragraph (3) does not address the similar questions that may arise when a person attempting service learns that service by means other than electronic means in fact did not reach the person to be served. Case law provides few illustrations of circumstances in which a person attempting service actually knows that the attempt failed but seeks to act as if service had been made. This negative history suggests there is no need to address these problems in Rule 5(b)(3). This silence does not imply any view on these issues, nor on the circumstances that justify various forms of judicial action even though service has not been made.

Changes Made After Publication and Comments Rule 5(b)(2)(D) was changed to require that consent be “in writing.”

Rule 5(b)(3) is new. The published proposal did not address the question of failed service in the text of the rule. Instead, the Committee Note included this statement: “As with other modes of service, however, actual notice that the transmission was not received defeats the presumption of receipt that arises from the provision that service is complete on transmission. The sender must take additional steps to effect service. Service by other agencies is complete on delivery to the designated agency.” The addition of paragraph (3) was prompted by consideration of the draft Appellate Rule 25(c) that was prepared for the meeting of the Appellate Rules Advisory Committee. This draft provided: “Service by electronic means is complete on transmission, unless the party making service is notified that the paper was not received.” Although Appellate Rule 25(c) is being prepared for publication and comment, while Civil Rule 5(b) has been published and otherwise is ready to recommend for adoption, it seemed desirable to achieve some parallel between the two rules.

The draft Rule 5(b)(3) submitted for consideration by the Advisory Committee covered all means of service except for leaving a copy with the clerk of the court when the person to be served has no known address. It was not limited to electronic service for fear that a provision limited to electronic service might generate unintended negative implications as to service by other means, particularly mail. This concern was strengthened by a small number of opinions that say that service by mail is effective, because complete on mailing, even when the person making service has prompt actual notice that the mail was not delivered. The Advisory Committee voted to limit Rule 5(b)(3) to service by electronic means because this means of service is relatively new, and seems likely to miscarry more frequently than service by post. It was suggested during the Advisory Committee meeting that the question of negative implication could be addressed in the Committee Note. There was little discussion of this possibility. The Committee Note submitted above includes a “no negative implications” paragraph prepared by the Reporter for consideration by the Standing Committee.

The Advisory Committee did not consider at all a question that was framed during the later meeting of the Appellate Rules Advisory Committee. As approved by the Advisory Committee, Rule 5(b)(3) defeats service by electronic means “if the party making service learns that the attempted service did not reach the person to be served.” It says nothing about the time relevant to learning of the failure. The omission may seem glaring. Curing the omission, however, requires selection of a time. As revised, proposed Appellate Rule 25(c) requires that the party making service learn of the failure within three calendar days. The Appellate Rules Advisory Committee will have the luxury of public comment and another year to consider the desirability of this short period. If Civil Rule 5(b) is to be recommended for adoption now, no such luxury is available. This issue deserves careful consideration by the Standing Committee.

Several changes are made in the Committee Note. (1) It requires that consent “be express, and cannot be implied from conduct.” This addition reflects a more general concern stimulated by a reported ruling that an e-mail address on a firm's letterhead implied consent to email service. (2) The paragraph discussing service through the court's facilities is expanded by describing alternative methods, including an “electronic link.” (3) There is a new paragraph that states that the requirement of written consent can be satisfied by electronic means, and that suggests matters that should be addressed by the consent. (4) A paragraph is added to note the additional response time provided by amended Rule 6(e). (5) The final two paragraphs address newly added Rule 5(b)(3). The first explains the rule that electronic service is not effective if the person making service learns that it did not reach the person to be served. The second paragraph seeks to defeat any negative implications that might arise from limiting Rule 5(b)(3) to electronic service, not mail, not other means consented to such as commercial express service, and not service on another person on behalf of the person to be served.

The Advisory Committee recommended that no change be made in Civil Rule 6(e) to reflect the provisions of Civil Rule 5(b)(2)(D) that, with the consent of the person to be served, would allow service by electronic or other means. Absent change, service by these means would not affect the time for acting in response to the paper served. Comment was requested, however, on the alternative that would allow an additional 3 days to respond. The alternative Rule 6(e) amendments are cast in a form that permits ready incorporation in the Bankruptcy Rules. Several of the comments suggest that the added three days should be provided. Electronic transmission is not always instantaneous, and may fail for any of a number of reasons. It may take three days to arrange for transmission in readable form. Providing added time to respond will not discourage people from asking for consent to electronic transmission, and may encourage people to give consent. The more who consent, the quicker will come the improvements that will make electronic service ever more attractive. Consistency with the Bankruptcy Rules will be a good thing, and the Bankruptcy Rules Advisory Committee believes the additional three days should be allowed.

Committee Notes on Rules—2006 Amendment

Amended Rule 5(e) acknowledges that many courts have required electronic filing by means of a standing order, procedures manual, or local rule. These local practices reflect the advantages that courts and most litigants realize from electronic filing. Courts that mandate electronic filing recognize the need to make exceptions when requiring electronic filing imposes a hardship on a party. Under amended Rule 5(e), a local rule that requires electronic filing must include reasonable exceptions, but Rule 5(e) does not define the scope of those exceptions. Experience with the local rules that have been adopted and that will emerge will aid in drafting new local rules and will facilitate gradual convergence on uniform exceptions, whether in local rules or in an amended Rule 5(e).

Changes Made after Publication and Comment . This recommendation is of a modified version of the proposal as published. The changes from the published version limit local rule authority to implement a caution stated in the published Committee Note. A local rule that requires electronic filing must include reasonable exceptions. This change was accomplished by a separate sentence stating that a “local rule may require filing by electronic means only if reasonable exceptions are allowed.” Corresponding changes were made in the Committee Note, in collaboration with the Appellate Rules Committee. The changes from the published proposal are shown below. [Omitted]

Committee Notes on Rules—2007 Amendment

The language of Rule 5 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

Rule 5(a)(1)(E) omits the former reference to a designation of record on appeal. Appellate Rule 10 is a self-contained provision for the record on appeal, and provides for service.

Former Rule 5(b)(2)(D) literally provided that a local rule may authorize use of the court's transmission facilities to make service by non-electronic means agreed to by the parties. That was not intended. Rule 5(b)(3) restores the intended meaning—court transmission facilities can be used only for service by electronic means.

Rule 5(d)(2)(B) provides that “a” judge may accept a paper for filing, replacing the reference in former Rule 5(e) to “the” judge. Some courts do not assign a designated judge to each case, and it may be important to have another judge accept a paper for filing even when a case is on the individual docket of a particular judge. The ministerial acts of accepting the paper, noting the time, and transmitting the paper to the court clerk do not interfere with the assigned judge's authority over the action.

Committee Note - 2018 Amendment

Subdivision (b). Rule 5(b) is amended to revise the provisions for electronic service. Provision for electronic service was first made when electronic communication was not as widespread or as fully reliable as it is now. Consent of the person served to receive service by electronic means was required as a safeguard. Those concerns have substantially diminished, but have not disappeared entirely, particularly as to persons proceeding without an attorney.

The amended rule recognizes electronic service through the court’s transmission facilities as to any registered user. A court may choose to allow registration only with the court’s permission. But a party who registers will be subject to service through the court’s facilities unless the court provides otherwise. With the consent of the person served, electronic service also may be made by means that do not utilize the court’s facilities. Consent can be limited to service at a prescribed address or in a specified form, and may be limited by other conditions.

Service is complete when a person files the paper with the court’s electronic-filing system for transmission to a registered user, or when one person sends it to another person by other electronic means that the other person has consented to in writing. But service is not effective if the person who filed with the court or the person who sent by other agreed-upon electronic means learns that the paper did not reach the person to be served. The rule does not make the court responsible for notifying a person who filed the paper with the court’s electronic-filing system that an attempted transmission by the court’s system failed. But a filer who learns that the transmission failed is responsible for making effective service.

Because Rule 5(b)(2)(E) now authorizes service through the court’s facilities as a uniform national practice, Rule 5(b)(3) is abrogated. It is no longer necessary to rely on local rules to authorize such service.

Subdivision (d). Rule 5(d)(1) has provided that any paper after the complaint that is required to be served “must be filed within a reasonable time after service.” Because “within” might be read as barring filing before the paper is served, “no later than” is substituted to ensure that it is proper to file a paper before it is served.

Under amended Rule 5(d)(1)(B), a certificate of service is not required when a paper is served by filing it with the court’s electronic-filing system. When service is not made by filing with the court’s electronic-filing system, a certificate of service must be filed with the paper or within a reasonable time after service, and should specify the date as well as the manner of service. For papers that are required to be served but must not be filed until they are used in the proceeding or the court orders filing, the certificate need not be filed until the paper is filed, unless filing is required by local rule or court order.

Amended Rule 5(d)(3) recognizes increased reliance on electronic filing. Most districts have adopted local rules that require electronic filing, and allow reasonable exceptions as required by the former rule. The time has come to seize the advantages of electronic filing by making it generally mandatory in all districts for a person represented by an attorney. But exceptions continue to be available. Nonelectronic filing must be allowed for good cause. And a local rule may allow or require nonelectronic filing for other reasons.

Filings by a person proceeding without an attorney are treated separately. It is not yet possible to rely on an assumption that pro se litigants are generally able to seize the advantages of electronic filing. Encounters with the court’s system may prove overwhelming to some. Attempts to work within the system may generate substantial burdens on a pro se party, on other parties, and on the court. Rather than mandate electronic filing, filing by pro se litigants is left for governing by local rules or court order. Efficiently handled electronic filing works to the advantage of all parties and the court. Many courts now allow electronic filing by pro se litigants with the court’s permission. Such approaches may expand with growing experience in the courts, along with the greater availability of the systems required for electronic filing and the increasing familiarity of most people with electronic communication. Room is also left for a court to require electronic filing by a pro se litigant by court order or by local rule. Care should be taken to ensure that an order to file electronically does not impede access to the court, and reasonable exceptions must be included in a local rule that requires electronic filing by a pro se litigant. In the beginning, this authority is likely to be exercised only to support special programs, such as one requiring e-filing in collateral proceedings by state prisoners.

A filing made through a person’s electronic-filing account and authorized by that person, together with that person’s name on a signature block, constitutes the person’s signature.

Biden won’t be charged in classified docs case; special counsel cites instances of ‘poor memory’

WASHINGTON — Special counsel Robert Hur has declined to prosecute President Joe Biden for his handling of classified documents but said in a report released Thursday that Biden’s practices “present serious risks to national security” and added that part of the reason he wouldn't charge Biden was that the president could portray himself as an "elderly man with a poor memory" who would be sympathetic to a jury.

“Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,” the report said, but added that the evidence “does not establish Mr. Biden’s guilt beyond a reasonable doubt.”

The report from Hur — who previously appointed by former President Donald Trump as one of the country's top federal prosecutors — also made clear the "material distinctions" between a theoretical case against Biden and the pending case against Trump for his handling of classified documents, noting the "serious aggravating facts" in Trump's case.

Biden said in remarks from the White House after the report was made public that he was pleased that the report cleared him.

"The decision to decline criminal charges was straightforward," Biden said.

He also said: “My memory’s fine.”

Hur’s report included several shocking lines about Biden’s memory, which the report said “was significantly limited” during his 2023 interviews with the special counsel. Biden’s age and presentation would make it more difficult to convince a jury beyond a reasonable doubt that the now-81-year-old was guilty of willfully committing a crime.

“We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” it said. “Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him — by then a former president well into his eighties — of a serious felony that requires a mental state of willfulness.”

Later in the report, the special counsel said that the president’s memory was “worse” during an interview with him than it was in recorded conversations from 2017.

“He did not remember when he was vice president, forgetting on the first day of the interview when his term ended (‘if it was 2013 — when did I stop being Vice President?’), and forgetting on the second day of the interview when his term began (‘in 2009, am I still Vice President?’),” the report said.

Biden also had difficulty remembering the timing of his son Beau’s death, as well as a debate about Afghanistan, the report said.

“He did not remember, even within several years, when his son Beau died,” the report said.

Defenders of the president quickly pointed out that he sat for the interview in the days after Hamas’ Oct. 7 attack on Israel. Biden, giving previously scheduled remarks on Thursday, appeared to nod to that, saying, “I was in the middle of handling an international crisis.”

He also added that he was “especially pleased” that the special counsel “made clear the stark differences between this case and Donald Trump.”

Andrew Weissman, who served on special counsel Robert Mueller’s team, said Thursday on MSNBC that Hur’s decision to lodge criticisms of Biden’s memory problems was “gratuitous” and reminded him of when former FBI Director James Comey held a news conference criticizing Hillary Clinton in the months before the 2016 election.

“This is not being charged. And yet a person goes out and gives their opinion with adjectives and adverbs about what they think, entirely inappropriate,” he said. “I think a really fair criticism of this is, unfortunately, we’re seeing a redux of what we saw with respect to James Comey at the FBI with respect to Hillary Clinton in terms of really not adhering to what I think are the highest ideals of the Department of Justice.”

page 131 photo hur report

In a Monday letter to Hur and his deputy special counsel, Richard Sauber and Bob Bauer, Biden’s personal counsel, disputed how the report characterized the president’s memory.

“We do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate,” Sauber and Bauer wrote in the letter, which was also released on Thursday. “The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events.”

Separately, Sauber responded to the report by saying the White House is “pleased” it has concluded and that there were no criminal charges.

“As the Special Counsel report recognizes, the President fully cooperated from day one,” he said in a statement. “His team promptly self-reported the classified documents that were found to ensure that these documents were immediately returned to the government because the President knows that’s where they belong.”

Sauber went on to appear to criticize the report but raised no specific points.

“We disagree with a number of inaccurate and inappropriate comments in the Special Counsel’s report,” Sauber said in his statement. “Nonetheless, the most important decision the Special Counsel made — that no charges are warranted — is firmly based on the facts and evidence.”

Hur’s report said there were “clear” material distinctions between a potential case against Biden and the pending case against Trump, noting that unlike “the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts.”

service report in court meaning

Most notably, the report said, “after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite.” In contrast, it said, “Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview, and in other ways cooperated with the investigation.”

Some of the report focuses on documents about Afghanistan, from early in Barack Obama’s presidency. About a month after Biden left office as vice president, in a recorded conversation with his ghostwriter in February 2017, Biden remarked that he “just found all this classified stuff downstairs,” the report said. He told him, “Some of this may be classified, so be careful," in one recording. Biden was believed to have been referring to classified documents about the Afghanistan troop surge in 2009, which Biden opposed.

The announcement tops off a lengthy saga that began in November 2022, after one of Biden’s personal attorneys found classified documents that appeared to be from the Obama administration at the Penn Biden Center for Diplomacy and Global Engagement, which Biden had used as a personal office after his vice presidential term concluded. Classified documents were later also found at Biden’s Delaware home.

The existence of classified documents at Biden’s home and former office were first reported in January 2023. CBS News first reported the existence of the documents at the Penn Biden Center.

Attorney General Merrick Garland in January 2023 announced that he would appoint Hur as special counsel to oversee the investigation into Biden, saying the appointment authorized him “to investigate whether any person or entity violated the law in connection with this matter.”

Biden was interviewed in October as part of the investigation, the White House said. The interview was voluntary, according to White House spokesman Ian Sams.

“As we have said from the beginning, the President and the White House are cooperating with this investigation, and as it has been appropriate, we have provided relevant updates publicly, being as transparent as we can consistent with protecting and preserving the integrity of the investigation,” Sams said at the time.

NBC News has also previously reported that the special counsel had interviewed Hunter Biden as well, according to a source familiar with the matter.

With Hur’s announcement, Donald Trump remains the only president in history to face criminal charges, which include seven criminal charges in connection with mishandling classified documents found at Mar-a-Lago. According to the indictment in that case, Trump had more than 100 classified documents at his Florida home, including documents with “Top Secret” classification markings.

service report in court meaning

Ryan J. Reilly is a justice reporter for NBC News.

service report in court meaning

Ken Dilanian is the justice and intelligence correspondent for NBC News, based in Washington.

service report in court meaning

Megan Lebowitz is a politics reporter for NBC News.

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What do realtimers do?

Court reporters using their highly developed skill in stenography can provide a nearly instantaneous feed through a computer translation system to provide a readable and searchable record of ongoing events. Some reporters employ someone to proofread or scope the feed as it happens to provide a live transcript with an even greater degree of readability.

Sometimes the realtime reporters will also prepare official transcripts of legal proceedings in addition to a realtime feed. While a realtime feed can serve as an on-the-fly tool for the judge or parties to a case to consult and can aid in quicker access to justice, the official record or "transcript" safeguards the legal process by providing a document to consult when litigants want to exercise their right to appeal. During the discovery phase, attorneys also use realtime transcripts to prepare for trial during depositions for many reasons, including the possibility of lowering costs by allowing some parties to be in different locations but still have access to the record through a realtime feed transmitted by the reporter. While a court reporter providing realtime, which is the only proven method for immediate voice-to-text translation, allows attorneys and judges to have immediate access to the transcript, realtime also provides a way for members of the deaf and hard-of-hearing community to participate in the judicial process.

Court reporters earn an average of nearly $60,000 a year. Reporters who provide realtime, especially those who are certified by NCRA or by a state in providing realtime, often earn even more. Realtime reporters also have more options in pursuing alternative paths, such as captioning, and find themselves in demand for jobs that can allow them to work from home or travel to unusual places.

Realtime reporters can further their marketability and earn recognition for achieving high levels of expertise in particular reporter markets by pursing certification. Learn more about  NCRA's professional certifications .

NCRA members have become realtime proficient to meet the demands of the market. Providing realtime also allows court reporters to differentiate their skills from other methods of making the record. NCRA encourages state associations and individual members to carry the realtime message to reporter colleagues. Experience has shown that learning in small group settings is ideal for helping court reporters make the transition to realtime.

The resources below can aid in learning more about realtime. Please feel free to use them on your own or with other like-minded court reporters.

Fast-track realtime

Fast-track your learning to get you on your way to writing realtime.

Below are some useful links that will provide information on your realtime technical needs, writing tips, and ideas on how to face challenges. If you don’t have access to a local realtime group, you have access to some great information just for you. And if you are involved in a realtime group, here are some fresh ideas and tips to have in mind before your next meeting.

Realtime tips

Hardware tips.

  • Realtime: Computer recommendations  — choosing and preparing a new computer for realtime
  • Realtime: Hardware  —  realtime output hardware types
  • Realtime: Hardware accessories  —  setting up your new computer
  • Realtime: Basic troubleshooting  —  guides to help you become a tech-savvy reporter
  • Realtime resources

Software tips

  • Vendor software  
  • Realtime Resource Guide

Writing tips

  • Dictionary maintenance
  • Improving your writing

Fighting fear tips

  • Realtime fears
  • Realtime horror stories
  • Realtime bloopers

Court reporter career paths

More than 70 percent of the nation’s 50,000-plus court reporters work outside of the court. Because court reporting involves a highly specialized skill set, reporters have a variety of career options:

Freelance reporters are hired by attorneys, corporations, unions, associations, and other individuals and groups who need accurate, complete, and secure records of pretrial depositions, arbitrations, board of director meetings, stockholder meetings, and convention business sessions.

Hearing court reporters use verbatim methods and equipment to capture, store, retrieve, and transcribe pretrial and trial proceedings or other information. Also includes captioners who operate computerized stenographic captioning equipment to provide captions of live or prerecorded broadcasts for viewers who are hard of hearing.

Legislative

Legislative court reporters transcribe proceedings in the United States Congress and in state legislatures around the country.

Official court reporters work for the judicial system to convert the spoken word into text during courtroom proceedings. The reporter also prepares official verbatim transcripts to be used by attorneys, judges, and litigants. Official court reporters are front and center at controversial or famous cases – criminal trials, millionaire divorces, government corruption trials, and lawsuits – ensuring that an accurate, complete, and secure record of the proceedings is produced. Official court reporters may also provide realtime during a courtroom setting to allow participants to read on a display screen or computer monitor what is being said instantaneously. Learn more

A scopist is a professional transcript editor for court reporters. However, unlike an editor or a proofreader, a scopist has the ability to compare a court reporter’s shorthand to the finished transcript. By “scoping” the transcript, mistranslate errors can be identified, thereby helping the court reporter preserve an accurate record. Learn more

The value of court reporting

Court reporters are cost-effective.

  • Court reporters in many jurisdictions bear most, if not all, of the expenses for their equipment, making sophisticated voice-to-text technology available to the court system at no additional expense to the courts.
  • Digital audio systems require yearly maintenance costs, and software and hardware upgrades do occur, which are additional costs to the court system’s budget that negate and potentially exceed any claimed cost savings.

Court reporters are highly skilled and educated professionals

  • Court reporters provide the most reliable and most accurate transcript.
  • They undergo several years of academic and skills training to achieve different levels of certification. This allows them to post speeds upwards of 280 words per minute, enabling them to capture every word of the proceedings.
  • They are required to pursue ongoing continuing education throughout their careers to maintain their certification(s), ensuring that they are up to date on the latest technology and processes in the legal industry.
  • Court reporters are able to certify and testify, if necessary, to the accuracy and integrity of the record.

Court reporters are high-tech

  • Court reporters are at the forefront of technology and constantly upgrade their software and hardware to ensure that they remain the most reliable and most accurate method of capturing the record.
  • They can synchronize their transcript with a digital audio or digital video recording to provide a searchable multimedia record.

Court reporters cannot be replaced by electronic reporting

Why can't electronic reporting replace court reporters, court reporters have the capability to provide realtime ..

  • Realtime is a process that instantly captures the spoken word so that judges, law clerks, court clerks, parties to a proceeding, jurors, and members of the media as well as those who are deaf or hard of hearing have immediate access to a transcript.
  • Realtime feeds can be accessed remotely and by multiple devices, saving time and money. Wireless technology delivers realtime feeds simply and securely.

Court reporters help the court provide an invaluable public service.

  • Through stenographic realtime, the court and legal system are made accessible to people with hearing loss.
  • The reliability and accuracy of a court reporter cannot be replaced by voice recognition in the foreseeable future.
  • Court reporters have the skill and training to provide the public accurate and reliable court records, ensuring a full and fair appellate review to all parties.

Court reporters can perform functions that other technologies cannot.

  • Court reporters can go beyond the transcript. With transcripts of court proceedings available on demand, a reporter can provide clarification on any moment of the court record, saving time and money.
  • They are able to discriminate between testimony and background noise and can clarify otherwise inaudible or heavily accented speech.
  • Court reporters do not inadvertently record off-the-record attorney-client exchanges.

Court reporters provide fast turnaround of transcripts.

  • Court reporters are able to produce both electronic and paper transcripts, offering virtually instantaneous resources and added flexibility to accommodate the needs of the court.
  • They are able to provide certified transcripts at the close of business each day to those involved in complicated and/or high-stakes trials.

What's next?

Discover if a career in court reporting or captioning is the right career for you.

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Find out more with these resources

  • NCRA DiscoverSteno®
  • NCRA A to Z® Intro to Steno Machine Shorthand
  • NCRA-Approved Court Reporting Programs
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  • CaptioningMatters.org
  • Court Reporting & Captioning Week resources

Learn about court reporters in your area

  • Contact your local court reporters association by visiting our website for a  directory of other state and affiliated associations .     
  • Find a reporter: Visit  NCRA PROLink .

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  • Federal Court Finder

Federal Court Reporting Program

Federal court reporters record proceedings and produce transcripts of court proceedings.

Last updated Oct. 2, 2023

The Court Reporter Statute, 28 U.S.C. § 753 sets forth the proceedings to be recorded including:

  • all proceedings in criminal cases had in open court;
  • all proceedings in other cases had in open court unless the parties with the approval of the judge shall agree specifically to the contrary; and
  • such other proceedings as a judge of the court may direct or as may be required by rule or order of court as may be requested by any party to the proceeding.

By law, each session of court and every proceeding designated by rule or order of the court or by one of the judges shall be recorded verbatim by shorthand, stenotype, stenomask, or electronic sound recording equipment. The method of recording may be elected by the district judge.

Transcripts

One of the primary responsibilities of the court reporter is to provide a written transcript of court proceedings upon the request of a party or order of court. Written transcripts are prepared within the Judicial Conference’s guidelines on page format, page rates, and delivery schedules. The transcripts of proceedings recorded by electronic sound recording equipment are produced by private transcription services designated by the court to transcribe federal court proceedings.

The court reporters and transcribers may charge and collect fees for transcripts requested by the parties, including the United States. The fee schedule should be posted prominently in the district court clerk’s office or available on a court’s web site. When a transcript is ordered, the first party to order it pays the original transcript rate, and subsequent requesters pay a copy rate (see Maximum Per Page Transcript Rates ). When a court reporter or transcriber delivers the original transcript to the ordering party, the court reporter or transcriber is also required to file a certified electronic copy to the clerk of court.

The Judicial Conference has made it explicit that official court reporters may charge only copy fees for transcripts provided to parties when the original transcript was produced at the request of a judge.

The Judicial Conference approved a policy regarding the availability of transcripts of court proceedings filed with the clerk of court in electronic format. A transcript provided to a court by a court reporter or transcriber will be available at the office of the clerk of court for inspection only, for a period of 90 days (unless extended by the court) after it is delivered to the clerk. During the 90-day period:

  • a copy of the transcript may be obtained from the court reporter or transcriber at the rate established by the Judicial Conference;
  • the transcript will be available within the court for internal use; and
  • an attorney who obtains the transcript from the court reporter or transcriber may obtain remote electronic access to the transcript through the court’s Case Management/ Electronic Case Files (CM/ECF) system for purposes of creating hyperlinks to the transcript in court filings and for other purposes.

During the 90-day period (which may be extended by the court), access to the transcript in CM/ECF is restricted to court staff, public terminal users, attorneys of record or parties who have purchased the transcript from the court reporter/transcriber, and other persons as directed by the court (e.g., appellate attorneys). Also, during this time, parties may redact personal identifiers. After the 90-day period has ended, the filed transcript will be available for inspection and copying in the clerk’s office and for download from the court’s CM/ECF system through the judiciary’s PACER system.

Contract Court Reporter Services

Under the Court Reporter Statute, the district courts may contract for court reporting services when necessary. Contract court reporters should be administered an oath for recording court proceedings.

Maximum Per Page Transcript Rates

Rates effective Oct. 1, 2023.

Cambridge Dictionary

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Meaning of service court in English

  • He played a wild double fault , in which the second ball failed to land even in the next service court , let alone the one he had been aiming for.
  • approach shot
  • mixed doubles
  • passing shot
  • table tennis

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After his latest court ruling, Trump could now face $540 million in fines. Does he have the money to pay?

He was ordered to pay $354 million plus interest in his civil fraud case Friday.

Following Friday's decision in former Donald Trump's New York civil fraud trial , in which he was fined $354 million plus interest, the former president faces what could be $540 million in potential damages and fines resulting from his civil trials over the last year.

Late week, the judge overseeing E. Jean Carroll's defamation case against Trump ordered Trump to pay the former Elle magazine columnist $83.3 million in damages on top of the $5 million he owes her from an earlier sexual assault trial. This week, the judge overseeing Trump's civil fraud trial fined the president $354 plus interest of around $100 million for what the judge determined was a decade of fraudulent business deals.

The costly cases shine a renewed light on the former president's finances and could call into question Trump's liquidity, as he runs headlong into multiple criminal trials and an historic presidential election this year.

MORE: Trump civil fraud trial updates

While Trump's donors have largely footed the bill for his campaign expenses -- with Trump's political committee spending more than $50 million on his campaign in 2023 -- the legal cases present a stickier challenge for Trump, who has built a reputation around his wealth. Courts allow defendants multiple mechanisms to collect damages, including liens and wage garnishments, and the fines are not dischargeable through traditional protections like bankruptcy.

Multiple legal experts who ABC News spoke with suggested that Trump is unlikely to front the fines immediately, and will instead opt to delay any payment using a bond secured by his assets until after he exhausts his appeal options.

"You can post the full amount yourself or you can get a bond posted by a third party," according to former federal prosecutor Josh Naftalis. "You can kind of think of it as insurance, with a third party on the hook and you pay a portion."

Here's how Trump might deal with his civil obligations.

When a jury first awarded Carroll $5 million in damages last year, Trump opted to cover the bill by moving cash into an escrow account.

Last year when Trump was deposed in the civil fraud case, the former president claimed his company had more than $400 million in cash.

"We have, I believe, 400 plus, and going up very substantially every month," Trump said.

Trump's 2021 statement of financial condition -- the last year available from his trial -- represented that the former president had $293,800,000 in cash and cash equivalents. However, the New York attorney general alleges that the number was falsely inflated, including $93.1 million which Trump should not have listed as a cash equivalent.

The Trump Organization has scored multiple profitable deals since Trump left the White House, while also slowing their acquisitions. In 2021, Trump and Vornado Realty Trust -- the former president's partner in a San Francisco skyscraper -- received $617 million from a $1.2 billion bond sale. Trump owns a minority stake in the property, and it's unclear how much Trump directly netted from the deal.

In the following year, Trump sold his Washington, D.C., hotel for $139,408,146 which netted him a profit of $126,828,600 according to the attorney general. Last year's sale of a New York golf course also resulted in nearly $60 million in profit.

PHOTO: In this July 12, 2005, file photo, real estate mogul Donald Trump speaks during a groundbreaking ceremony for his Trump International Hotel & Tower Las Vegas.

It's unclear how much of those profits Trump held onto as cash, rather than using the profits to service other debts or fund projects. Based on his 2023 personal financial disclosure, Trump paid off multiple loans and reduced his Deutsche Bank loan down to $45 million, while also taking out new loans from Axos Bank. Listing over 100 sources of income -- and doubling his number of business holdings since leaving the White House -- Trump reported having over a billion dollars in earnings.

But even with hundreds of millions in cash and equivalents, Trump is more likely to cover his legal obligations using what's called a "supersedeas bond," secured using some of his other assets, according to Stuart Levine, a Baltimore-based business attorney.

"He's in a rarefied world -- it's quite different from the one that you and I inhabit," Levine said.

If Trump opts to secure his bond using one of his properties as collateral, a bond company would likely want the asset to cover roughly 125% to 150% of total amount, according to Ryan Saba, a civil litigation and trial attorney.

"The problem is nobody knows what Trump's collateral is or what collateral he has," Saba said. "Think of a bond as like a mortgage -- a bank is not going to give you a mortgage unless the value of the property exceeds the mortgage."

In fact, if Trump ultimately loses his fraud case appeal or loses the right to do business in New York, he might consider rapidly liquidating his New York-based assets, Levine said.

Trump owns multiple properties in New York, including his eponymous Trump Tower on Fifth Avenue, an adjoining retail space called Niketown, Trump International Hotel and Tower, 40 Wall Street, a partial stake in 1290 Avenue of the Americas, two upstate golf courses, and an estate called Seven Springs.

Appraised in 2016 by Cushman and Wakefield at approximately $56.6 million, the 230-acre Seven Springs estate is used as a "retreat" for the Trump family, according to Trump International Realty. However, a unique and historical property like Seven Springs has a high upkeep and maintenance cost that eliminates many buyers, according to expert appraiser Ronald McInerney Jr.

"This type of estate does take a special type of person," McInerney Jr. said.

Trump also owns golf courses in New York's Hudson Valley and Westchester regions, but the sale of those properties is unlikely to make a serious dent in Trump's legal obligations. A review of golf course sales in New York over the last five years conducted by golf course appraiser Robert Gorman found that the average course sold for roughly $2.5 million.

With high overhead costs and low overall revenue, the courses often attract a limited array of buyers, according to Gorman.

MORE: Trump's $370M civil fraud trial is nearing an end. Here's what to know

Trump's 2021 financial statement valued his New York City properties as roughly $2.2 billion, but quickly selling those properties in a period when New York has a historically high commercial vacancy rate could be difficult, according to multiple appraisers who spoke with ABC News. Adding to the difficulty of selling the properties is Trump's mixed reputation in New York.

"It's really difficult when you're talking about properties like this, which are owned by a controversial president who is now involved in this major fraud case," said Michael Vargas of Vanderbilt Appraisal Company. "The regular measures of value I don't think really apply to properties that are involved with his ownership."

Even Trump's famous penthouse in Trump Tower -- which competes in size and location with other high-end residences -- might be a challenge to sell, according to expert appraiser Michael Maloney.

"It's a great size apartment, so it truly is a trophy property sitting on top of Trump Tower," Maloney said. "But he's got a lot of people -- 50 percent of America -- who don't like the man."

However unlikely, Trump could consider having some of his companies declare bankruptcy based on the decision, according to Cardozo Law School professor Pamela Foohey. Chapter 11 bankruptcy could allow some of the companies involved in the case to reorganize, could keep the businesses afloat, and would set a long-term plan to pay off debts.

Trump's businesses -- such as the Taj Mahal in Atlantic City and the Plaza Hotel in New York -- filed for Chapter 11 bankruptcy protection in the 1990s, which the former president defended as smart business moves.

"I've done it four times out of hundreds, and I'm glad I did it. I used the laws of the country to my benefit," Trump said in a 2015 debate.

But bankruptcy is unlikely to be an effective long-term solution for Trump, according to both Foohey and Illinois College of Law professor Robert Lawless. Filing bankruptcy to avoid legal fines and penalties might invite a lawsuit, and legal fines are generally not dischargeable through bankruptcy, according to Lawless.

And as Trump approaches the 2024 election, filing for bankruptcy could be a political liability.

"Donald Trump has made a big deal about how he never personally filed bankruptcy," Foohey said. If Trump does go down that path, said Foohey, "I don't think they will file until the election is over."

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Disposition vs. Sentencing: What Is The Difference?

10 min read

A judge gavel and person writing a disposition vs sentencing

Table of Contents

Click a chapter to scroll directly to it.

What Does Disposition Mean?

What about sentencing, what disposition means on a criminal background check, background checks & compliance, get comprehensive criminal background checks with goodhire.

In the process of conducting a criminal background check for potential hires, you may run across terms that aren’t part of your regular vocabulary. Is there a difference between being acquitted vs. not guilty? What do the words “disposition” and “sentencing” mean? What other disposition terms are important to know?

Here’s a closer look at what disposition and sentencing mean, how they could impact your background check review process, and how to make informed decisions while following employment laws.

Understanding the information that’s revealed in a criminal background check can be critical for hiring managers. It’s what enables you to make informed choices about the people you hire—to minimize risk, safeguard your assets and employees, and protect your organization’s reputation. 

Both disposition and sentencing relate to the outcome of a legal case, but each term refers to a different aspect of the process. To help you make the best hiring decisions and adhere to fair hiring practices , let’s break down what disposition and sentencing mean, and discuss how the information related to disposition and sentencing might impact your background check review process.

In the simplest terms, a disposition is a court’s final determination in a criminal charge. On a criminal background report, disposition may refer to the current status of an arrest or the final outcome of an interaction with the court in relation to a criminal matter. For example, was the person tried in court and found guilty, not guilty, or was the case dismissed?

When running a criminal background check on a candidate you’re considering for a job, dispositions give you a high-level view of any convictions, non-convictions, and pending cases that may be relevant to the position. 

Here are a few common terms you might come across when reviewing dispositions, along with their meanings:

Convicted: The person has been found guilty or has pleaded guilty.

Deferred Adjudication or Diversion: A court has deferred judgment, typically as part of a plea agreement, to give the defendant the chance to meet requirements such as drug and alcohol treatment, probation, or community service, in order to have their case reconsidered and possibly dismissed. 

Acquitted: The person has been found not guilty. As for the difference between being acquitted vs. not guilty, the terms “acquitted” and “not guilty” are often used interchangeably. Being found “not guilty” is not a determination of innocence. A person may be found “not guilty” because there was not enough evidence for a conviction. An acquittal may also happen when a judge or appeals court decides there is not enough evidence to go to trial.

Charges Dismissed: A prosecutor or judge has dropped charges against the person—the case did not move forward.

No Charges Filed: The person has been accused or arrested for a crime but a prosecutor has decided they will not move forward with a case.

Sentence Vacated: A guilty plea or guilty verdict has been set aside. When a sentence is vacated, the guilty verdict is erased as if the person had never been convicted of the crime.

Pending: The case against this person is ongoing. They are still under investigation or subject to prosecution.

Suspended Sentence: The person’s sentencing has been delayed, often because they have been offered a chance to complete probation, community service, or a treatment program.

As you can see, these terms don’t necessarily reveal whether the person in question was pleading guilty vs. not guilty in court—only the final outcome of the case. 

If you’re wondering, what does court disposition mean? And what does disposition of the offense mean? These are other disposition terms that may be used on a background check , but have a similar meaning. Dispositions always relate to a specific offense. For example, an individual can be charged with three offenses in the same criminal proceeding, and have two of them be dismissed and the other one be a conviction.

Run Criminal Background Checks With GoodHire

Illustration showing a criminal background check

Sentencing is the legal consequence of a conviction. To understand the difference between disposition vs. sentencing, think of disposition as the indication of a crime (or the absence of it) and sentencing as the punishment. Sentencing doesn’t apply to every disposition: Clearly, if a case is acquitted or dismissed—and the person is not found guilty—sentencing does not apply.

As far as what shows up on a criminal background check , sentencing information may not be clear at first glance. In some cases, a report will clearly show the sentence date and term. In others, you may not see the sentence given. However, using the date of disposition, you should be able to review a candidate’s history of incarceration and match the sentence to the disposition and offense.

A criminal background check will also reveal any pending cases. Keep in mind that the disposition will change in a pending case if the person is convicted or acquitted in the future and a final disposition is made. The same applies to dispositions with suspended or delayed sentencing. If the person fails to comply with the terms of their probation or treatment program, for example, they may be subject to sentencing in the future.

Ultimately, what do dispositions mean on a criminal background check? For prospective employers, the information revealed in dispositions may have a significant impact on hiring decisions. If a report shows that a candidate has a serious conviction—or even multiple convictions—the perceived risk in hiring them may rise substantially. Additionally, the outcome of a “pending disposition” could affect a candidate’s ability to do a job in the future.

It’s important to note that criminal records and their resulting dispositions may only appear on a candidate’s criminal background check report for a limited time. While felonies and misdemeanors may continue showing up on a person’s record permanently in some states, other states limit this reporting to seven years for felonies, and five or seven years for misdemeanors. Infractions are limited to seven years under federal law. Depending on the types of searches ordered, a criminal background report may contain results from national, federal, state and county databases .

It’s a common misconception that a non-conviction means that a person will not have a criminal record on their background check report. A non-conviction in relation to a criminal matter in the court will always result in a criminal record and may appear on a background check for up to seven years; however, the disposition, or outcome of interaction with the court, is what’s important to understand. 

To help employers comply with guidance from the Equal Employment Opportunity Commission (EEOC) and with state laws that restrict the use of arrest records in employment screening, some background check providers, including GoodHire, do not report non-convictions on background check results. (However, GoodHire does report pending cases and convictions that are deemed reportable under federal and state laws to ensure employers are aware of the candidate’s criminal records.)

Because a candidate’s criminal history is sensitive information, it’s important to understand how to read a background check and handle the process with care. In order to run a criminal background check, the Fair Credit Reporting Act (FCRA) requires employers to obtain written consent from the candidate, and follow the adverse action process if they decide to decline a candidate based on the results of information found in a background screening. 

Hiring practices must be consistent and non-discriminatory, and should be clearly outlined in your company’s hiring policy. EEOC guidance suggests delaying background checks and records-related inquiries until after making a conditional offer of employment. The EEOC also offers the following guidelines—sometimes called “Green factors” after the case Green vs. Missouri Pacific Railroad—to guide your consideration of a candidate’s criminal background:

  • The nature and gravity of the offense
  • The time elapsed since the offense
  • The nature of the job sought

Making decisions based on accurate, up-to-date information on a candidate’s criminal background can help you minimize risk and ensure a more secure workplace for your organization’s employees and customers. GoodHire’s criminal background checks show felony convictions, misdemeanors, active warrants, and infractions, as well as appearance in sex offender registries .

Working with an accredited employment screening provider like GoodHire can help you access comprehensive criminal background information that is relevant to the position you’re hiring for—including any past or current dispositions and sentences.

GoodHire Is A Leader In Background Checks

G2 ranks GoodHire #1 for user satisfaction.

The resources provided here are for educational purposes only and do not constitute legal advice. We advise you to consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.

About the Author

Gayle Sato headshot

Gayle writes about GoodHire’s screening services to inform employers about background check best practices.

Keep Reading

How to read a background check: a guide for employers.

What terms appear on a criminal background check, and how should employers read them? Learn how to read and understand them in a few simple steps.

Felonies vs. Misdemeanors vs. Infractions On A Criminal Background Check

When reviewing a criminal background check, it’s important to understand how offenses are categorized by relative severity, class or level.

Federal Background Checks: A Comprehensive Guide

Before bringing aboard a new employee, particularly someone in a position where they’re handling finances, you may want to conduct a federal criminal background check.

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Document and records retrieval, photocopying, legal courier services, skip tracing, legal support services, court filing and efiling, court filing and electronic court filing, court filing, what is court filing.

Court Filing and eFiling

Court filing is the process of submitting your documents, either electronically or in physical form, to commence or supplement an ongoing legal action. Filing documents in a timely manner is imperative for the success of a legal case. Filing after the statute of limitations will result in having your legal action dismissed with prejudice. In ongoing legal matters, missed deadlines can be detrimental to your case. Be sure to check with the applicable code of civil procedure to make sure you are submitting your filings in a timely manner.

Who needs to file papers in court?

What type of paperwork should be filed to submit a case, what does it mean when your case is filed, what is a court filing fee, what are the different types of court cases for which you can file documents.

Any person submitting a lawsuit, filing into an ongoing case, or reopening an old case, whether it be a civil, criminal, probate, or family matter. Common filers are pro se (self-represented litigants / private parties) or law firms on behalf of their clients.

In addition, many legal support firms offer court filing services for both case initiation and subsequent filings on a case. Quite often, legal support or process serving firms will offer filing of an affidavit of service as part of their services for an additional fee.

If you want to hire a legal support firm or process server to assist in case filing, please use the search bar on the top of this page.

Different documents need to be filed depending on the type of case and the status of the case. It is best to contact the appropriate court or hire an attorney to ensure the appropriate documents are filed.

When a case is filed, it refers to the commencement of a legal action. Case initiating documents, such as a complaint, summons, and cover sheet are submitted to the court clerk for review. The documents must meet a specific criteria in a particular jurisdiction to be accepted by the clerk.

Each court filing has an associated fee. How much you pay depends on the court, case type, and type of document filed. If filing your documents with the court is a financial burden, you may be exempt from paying filing fees. Your court clerk will be able to provide a list of all the filing fees and will be able to let you know if you are exempt from paying fees.

There are two main case types that require filing. Civil cases are brought before a district court by individuals or companies in order to settle a dispute between them and another party. Criminal cases have been investigated by law enforcement and the individual’s guilt is determined by the court.

Electronic Court Filing (eFiling)

What is efiling.

Court Filing and eFiling

eFiling is electronically submitting your paperwork into the court system. Federal, state, and municipal courts have varying rules and regulations for eFiled documents. Be sure that your filings meet the appropriate jurisdiction's filing criteria. In many courts, electronic filing is mandatory and they do not allow in person, physical filing. As eFiling is becoming more popular, it is important to contact a legal professional who can handle your eFiling needs.

In addition, you can hire a legal support firm on ServeNow.com to assist you with electronic court filing. Please use the search bar on the top of this page.

Who needs eFiling?

Who completes efiling, where is efiling accepted, what is an electronic filing service provider (efsp), what's the difference between efiling and filing by mail, what are the advantages of efiling, is efiling mandatory, efiling help.

Anyone commencing legal action, filing into an ongoing matter, or reopening a closed case in a jurisdiction that allows or requires the electronic submission of documents and pleadings is permitted to eFile.

Depending on the type of court, lawyers, companies, and private individuals can use eFiling, but contacting a legal support firm or process server who has experience in the legal system may prove beneficial for filing electronically within the court's standards. In some state courts, only lawyers or county clerks have access to eFiling. Oftentimes, you must register in order to complete your eFiling.

To find a legal support firm to assist you with your eFiling needs, please use the search bar on the top of this page.

eFiling is becoming more commonplace throughout the US. Be sure to contact the court that you are filing into to verify whether or not they accept eFiling.

An EFSP is an online service that can help you file your documents and serves as the intermediary between you and the court system. Typically, an EFSP will offer a variety of additional services in addition to filing and you can use these services to evaluate which EFSP works best for your filing needs.

The process of eFiling is completely digital and done over the internet while filing by mail requires physically sending documents via mail.

The biggest advantages of eFiling over more traditional filing methods are that it is significantly faster to process and it reduces the amount of printed paper. Traditional filing meant that law firms needed to have a document runner to deliver multiple paper copies of legal documents and pleadings to the corresponding courts and parties. There is also less room for error as data entry errors will likely be caught before you complete the process. But keep in mind, the technology is still maturing so technological failure is a potential disadvantage to eFiling.

Depending on the county or jurisdiction, eFiling may be mandatory or on its way to becoming mandatory. Check your court's website to see whether it is mandatory where you are filing.

Do you need help filing your court documents? It may be beneficial to contact a legal support service professional.

Find a legal support professional

There’s no better way to ensure your papers are served efficiently and legally than by using a professional process server.  ServeNow.com is a trusted network of local, pre-screened process servers and legal support professionals. To find a professional process server that can help you with e-filing services, please do a search for a city or zip code.

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News Analysis

Special Counsel’s Report Puts Biden’s Age and Memory in the Spotlight

After an inquiry concluded that President Biden was “well-meaning” but had “a poor memory,” he angrily fired back in an attempt at political damage control.

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President Biden looking down. He is wearing a blue suit.

By Michael D. Shear

Reporting from Washington

The decision on Thursday not to file criminal charges against President Biden for mishandling classified documents should have been an unequivocal legal exoneration.

Instead, it was a political disaster.

The investigation into Mr. Biden’s handling of the documents after being vice president concluded that he was a “well-meaning, elderly man with a poor memory” and had “diminished faculties in advancing age” — such startling assertions that they prompted a fiery and emotional attempt at political damage control from the president within hours.

‘My Memory Is Fine,’ President Biden Says

The president defended his ability to serve when questioned by reporters on his memory and age during a news conference, hours after a special counsel cleared him of criminal charges in the handling of classified documents..

[Reporter] “President Biden, something the special counsel said in his report is that one of the reasons you were not charged is because, in his description, you are a well-meaning, elderly man with a poor memory.” “I’m well meaning, and I’m an elderly man, and I know what the hell I’m doing. I’ve been president, and I put this country back on its feet. I don’t need his recommendation. That’s totally –” [Reporter] “How bad is your memory, and can you continue as president?” “My memory is so bad I let you speak. That’s –” [Reporter] “Do you know if your memory has gotten worse, Mr. President?” “My memory is not – My memory is fine. My memory – Take a look at what I’ve done since I’ve become president. None of you thought I could pass any of the things I got passed. How did that happen? You know, I guess I just forgot what was going on.”

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Speaking to the cameras from the Diplomatic Reception Room at the White House, Mr. Biden on Thursday evening blasted the report by Robert K. Hur , the special counsel, accusing the report’s authors of “extraneous commentary” about his age and mental capacity.

“They don’t know what they’re talking about,” the president said flatly.

Mr. Biden appeared to take special exception to the report’s assertion that during interviews with F.B.I. investigators, he could not recall what year his son Beau died.

“How the hell dare he raise that,” the president said, appearing to choke back tears. “Every Memorial Day we hold a service remembering him attended by friends and family and the people who loved him. I don’t need anyone, I don’t need anyone to remind me when he passed away.”

The president’s remarkable appearance before reporters underscored the political damage that Mr. Hur’s report could do despite the lack of criminal charges. The report’s discussion of the president’s memory and age was repeated throughout the 345-page document, and was quickly seized on by Republicans, including Mr. Biden’s likely opponent in the 2024 election, former President Donald J. Trump.

In the report, Mr. Hur said the memory of the then-80-year-old president was so hazy during five hours of interviews over two days that it would be difficult to convince jurors that Mr. Biden knew his handling of the documents was wrong. Mr. Hur predicted in the report that if the president were charged, his lawyers “would emphasize these limitations in his recall.”

In part because of Mr. Biden’s memory, Mr. Hur declined to recommend charging the president for what the report described as willful retention of national security secrets, including some documents shared by the president that implicated “sensitive intelligence sources and methods.”

“It would be difficult to convince a jury that they should convict him — by then a former president well into his 80s — of a serious felony that requires a mental state of willfulness,” Mr. Hur wrote.

In his own written statement issued just after the report became public, Mr. Biden appeared to suggest a reason for why he was distracted.

“I was so determined to give the special counsel what they needed that I went forward with five hours of in-person interviews over two days on Oct. 8 and 9 of last year, even though Israel had just been attacked on Oct. 7 and I was in the middle of handling an international crisis,” he wrote. “I just believed that’s what I owed the American people.”

The president’s lawyers, Bob Bauer and Richard Sauber, took exception in a Feb. 5 letter with Mr. Hur’s description of the president’s memory.

“It is hardly fair to concede that the president would be asked about events years in the past, press him to give his ‘best’ recollections and then fault him for his limited memory,” the lawyers wrote. “The president’s inability to recall dates or details of events that happened years ago is neither surprising nor unusual.”

Concerns about Mr. Biden’s age have been a recurring theme of his presidency over the past three years. Fueled in part by video of the president appearing weak or stumbling in public, many voters have expressed concern about his mental and physical fitness as he seeks to remain in the White House until he is 86 years old.

Mr. Biden has tried to laugh off the issue, insisting that with age comes wisdom.

During fund-raisers on Wednesday , Mr. Biden twice recalled a 2021 conversation with Helmut Kohl, the onetime German chancellor, who died in 2017. His spokeswoman later said he misspoke, as many public officials do. In his remarks on Thursday evening, Mr. Biden confused the presidents of Mexico and Egypt, making exactly the kind of mistake that his staff would have wanted him to avoid at a time when his mental acuity is being questioned.

On Thursday, he angrily disputed the suggestion that he was not fit to serve. Asked about polls showing that the American people have concerns about his age, he pointed at the reporter and said: “That is your judgment. That is your judgment.”

He then added: “That is not the judgment of the press,” though he appeared to mean it was not the judgment of the public. Asked why he should not step aside and let someone else in his party be the Democratic nominee, he said, “Because I’m the most qualified person in this country to be president of the United States and finish the job I started.”

Mr. Biden’s aides have repeatedly insisted that despite how the president sometimes comes across in public, he remains sharp and tireless when he is in private, in discussions with aides or in meetings with foreign leaders.

But the report released on Thursday challenges those descriptions, not by relying on short snippets of Mr. Biden posted to social media but rather on hourslong interactions with the president in controlled settings. And the descriptions of his memory were more vivid than what is normally found in legal documents like the one released on Thursday.

In the report, Mr. Hur wrote that in a 2017 recorded conversation between Mr. Biden and the ghostwriter for his book, Mr. Biden struggled to “remember events” and was “straining at times to read and relay his own notebook entries.” Mr. Hur said that the interviews in 2023 with investigators were even worse.

“He did not remember when he was vice president, forgetting on the first day of the interview when his term ended (‘if it was 2013 — when did I stop being vice president?’), and forgetting on the second day of the interview when his term began (‘in 2009, am I still vice president?’),” the report said. “He did not remember, even within several years, when his son Beau died.”

Mr. Hur was nominated by Mr. Trump to be the U.S. attorney in Maryland, but was later chosen by Attorney General Merrick Garland to lead the investigation into Mr. Biden’s handling of classified documents.

Mr. Biden’s lawyers have been arguing for more than a year that the discovery of classified documents at Mr. Biden’s offices and Delaware home was no more than accidental oversight, and certainly not criminal behavior like the 37 felony charges brought against Mr. Trump for his handling of classified material after leaving office.

On Thursday, the special counsel came to the same conclusion after reviewing a total of seven million documents, a fact celebrated inside the White House and at the president’s re-election campaign headquarters, where aides are preparing to wage a fierce battle to prevent Mr. Trump’s return to the White House.

But the report refuted the longstanding argument by the president’s lawyers that Mr. Biden never put the nation’s national security at risk. Investigators found documents at Mr. Biden’s home in a “box in the garage, near a collapsed dog crate, a dog bed, a Zappos box , an empty bucket, a broken lamp wrapped with duct tape, potting soil and synthetic firewood.”

While concluding that “the evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt,” Mr. Hur nonetheless wrote that Mr. Biden took classified documents and notebooks about Afghanistan with him in 2017 after leaving the vice presidency, and shared some of those documents with his ghostwriter.

The tough language by Mr. Hur could set the stage for Mr. Trump and his allies to launch a fresh round of political attacks on Mr. Biden for doing the very same kinds of things Mr. Trump is accused of doing. And it will probably complicate the monthslong effort by Mr. Biden and his advisers to draw sharp distinctions between the actions of the two presidents.

But the most searing political damage is likely to be about Mr. Biden’s age, which many veteran Democrats already believe is the president’s biggest weakness. Some have privately said they worried that something would come along to remind voters about the age issue, including the possibility of a fall or a mental stumble.

Republicans began using the report to attack Mr. Biden almost immediately, sometimes going much further than the prosecutor’s actual conclusions.

Senator Marco Rubio, Republican of Florida, said on social media, falsely, that “the special counsel decided not to bring charges against Biden because they believe he has age related dementia.”

In some ways, Thursday’s report was the worst of all worlds: an official description of Mr. Biden behind the scenes, suggesting that with age come stumbles.

Michael D. Shear is a White House correspondent for The New York Times, covering President Biden and his administration. He has reported on politics for more than 30 years. More about Michael D. Shear

Biden’s Mental Acuity Under Scrutiny

Comments about president biden’s age and memory in the special counsel’s report have captured democrats’ fears ahead of the november election and fueled republicans in their efforts to cast the president as weak..

An Age-Old Question: How old is too old to be president? The report has thrust the issue back into the spotlight  just as America seems poised to elect a commander in chief well past typical retirement age, no matter who wins in November.

Implications for 2024 Election: Why is the age issue hurting Biden  so much more than Donald Trump? Both are over 75, but voters are much less likely to worry that Trump is too old to serve .

Voter Reactions: To Americans in their 70s and 80s, the renewed questions swirling around Biden’s age have resonated in deeply personal ways . Many agree that it’s an issue, while others feel the criticism of Biden is insulting.

Rebuffing the Report: Vice President Kamala Harris and other White House officials have sought to discredit the report , suggesting that it was more of a political attack than an unbiased legal document .

The Science of Memory Loss: After the report’s release, medical experts noted that the special counsel’s judgments on Biden’s mental health did not appear to be based on science .

A Protective White House: Biden’s top aides have created a cocoon around him out of concern that his mistakes could be amplified and damage his image. The events that followed the report’s release emphasized those risks in striking ways .

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