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Indictment

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Not to be confused withindiction.

Anindictment(/ɪnˈdaɪtmənt/[1]in-DYTE-mənt) is a formal accusation that apersonhas committed acrime.Injurisdictionsthat use the concept of felonies, the most seriouscriminal offenseis afelony;jurisdictions that do not use that concept often use that of anindictable offense,an offense that requires an indictment.

Australia

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Section 80 of the Constitution of Australiaprovides that "the trial on indictment of any offence against any law of the Commonwealth shall be by jury". TheHigh Court of Australiahas consistently used a narrow interpretation of this clause, allowing theParliament of Australiato define which offences proceed on indictment rather than conferring a universal right to a jury trial. Section 4G of theCrimes Act 1914provides that "offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears".[2]

Canada

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A direct indictment is one in which the case is sent directly to trial before apreliminary inquiryis completed or when the accused has been discharged by a preliminary inquiry.[3][4]It is meant to be an extraordinary, rarely used power to ensure that those who should be brought to trial are in a timely manner or where an error of judgment is seen to have been made in the preliminary inquiry.[5]In the aftermath of the2016 Jordan decision,in which theSupreme Court of Canadaimposed time limits on the Crown to bring criminal cases to trial, the Crown has started to use the procedure more frequently.[6]

United Kingdom

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England and Wales

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InEngland and Wales(except inprivate prosecutionsby individuals) an indictment is issued by the public prosecutor (in most cases this will be theCrown Prosecution Service) on behalf of theCrown,which is the nominalplaintiffin all public prosecutions underEnglish law. This is why a publicprosecutionof a person whose surname is Smith would be referred to in writing as "R v Smith" (or alternatively as "Regina v Smith" or "Rex v Smith" depending on the sex of the Sovereign,ReginaandRexbeing Latin for "Queen" and "King" and in either case may informally be pronounced as such) and when cited orally in court would be pronounced "the Crown against Smith".[7]

All proceedings on indictment must be brought before theCrown Court.[8]By virtue of practice directions issued under section 75(1) of theSenior Courts Act 1981,an indictment must be tried by aHigh Court judge,acircuit judgeor arecorder(which of these depends on the offence).

As to the form of an indictment, see theIndictments Act 1915and theIndictment Rules 1971made thereunder.

The Indictment Rules 1971 were revoked by the Criminal Procedure (Amendment) Rules 2007[9](on the whole) incorporated into the Criminal Procedure Rules 2010.[10]The form and content and the service of an indictment are governed by Rule 14 of the CPR 2012.[11]Additional guidance is contained in the Consolidated Criminal Practice Direction Part IV.34.[12]

As to the preferring of a bill of indictment and the signing of an indictment, see section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 and the Indictments (Procedure) Rules 1971 (S.I. 1971/2084) made thereunder, as amended and modified by the Indictments (Procedure) (Amendment) Rules 1983 (S.I. 1983/284), the Indictments (Procedure) (Amendment) Rules 1988 (S.I. 1988/1783), the Indictments (Procedure) (Amendment) Rules 1992 (S.I. 1992/284), the Indictments (Procedure) (Amendment) Rules 1997 (S.I. 1997/711), the Indictments (Procedure) (Modification) Rules 1998 (S.I. 1998/3045) and the Indictments (Procedure) (Amendment) Rules 2000 (S.I. 2000/3360).

Northern Ireland

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See the Indictments Act (Northern Ireland) 1945.[13][14]

Scotland

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In Scotland, all of these cases brought in theHigh Court of Justiciaryare brought in the name of theLord Advocateand will be tried on indictment. In asheriff courtwhere trials proceed using thesolemn proceedingsthey will also be tried on indictment and are brought in the name of theLord Advocate.All solemn indictments are designed in the manner Her (or His) Majesty's Advocate v Smith, or, more frequently HMA v Smith.

United States

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TheFifth Amendmentof theUnited States Constitutionstates in part: "No person shall be held to answer for acapital,or otherwise infamous crime, unless on a presentment or indictment of aGrand Jury,except in cases arising in the land or naval forces, or in the Militia when in actual service in time of War or public danger. "The requirement of an indictment has not beenincorporatedagainst the states; therefore, even though the federal government uses grand juries and indictments, not all states do.[15]As of 2019, all states besides Pennsylvania and Connecticut still use grand juries to indict suspects for some offenses.[16]

In many jurisdictions that use grand juries, prosecutors often have a choice between seeking an indictment from agrand juryand filing a charging document directly with the court.[17]Such a document is usually called aninformation,accusation,orcomplaint,to distinguish it from a grand-jury indictment. To protect the suspect'sdue processrights in felony cases (where the suspect's interest in liberty is at stake), there is usually apreliminary hearing,at which a judge determines whether there was probable cause to arrest the suspect who is in custody. If the judge finds such probable cause, they bind, or hold over, the suspect for trial.[17]

The substance of an indictment or other charging instrument is usually the same, regardless of the jurisdiction: it consists of a short and plain statement of where, when, and how the defendant allegedly committed the offense. Each offense is usually set out in a separatecount.Indictments for complex crimes, particularly those involvingconspiracyor numerous counts, may run to hundreds of pages. In other cases, however, an indictment for a crime as serious asmurdermay consist of a single sheet of paper.

Indictable offenses are tried byjury,unless the accused waives the right to a jury trial. Even though theSixth Amendmentof the Constitution mandates the right to a jury trial in any criminal prosecution, the vast majority of criminal cases in the US are resolved by theplea-bargainingprocess.[17]

Types

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A sealed indictment stays non-public, for various reasons, until it is unsealed (for example, once the indicted is arrested or notified by police).[18]A superseding indictment takes the place of the previously active one. Aspeaking indictmentgoes beyond the legally required statement of the elements of the charged crime(s) and also includes a narrative of the alleged underlying acts in more detail.

See also

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References

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  1. ^"indictment".Dictionary.com Unabridged(Online). n.d.Retrieved2019-08-12.
  2. ^Fricke, Graham."Trial by Jury".Research Papers 1996-97.No. 11. Australian Parliamentary Library.Retrieved7 January2022.
  3. ^"Criminal Code, Revised Statutes of Canada 1985, c. C-46, Section 577".Department of Justice, Canada. 2008-10-09. Archived fromthe originalon 2011-06-05.Retrieved2008-10-29.
  4. ^"Direct Indictments"(PDF).Crown Policy Manual.Province of Ontario, Ministry of Attorney General. 2005-03-21.Retrieved2008-10-29.
  5. ^"Direct Indictments".The Federal Prosecution Service Deskbook.Department of Justice, Canada. 2008-04-04. Archived fromthe originalon 2008-12-20.Retrieved2008-10-29.
  6. ^Hasham, Alyshah (October 16, 2016)."Courts scramble under new rules on trial delays".Toronto Star.
  7. ^"Understanding UK Case Law"(PDF).Soas.ac.uk.Archived fromthe original(PDF)on October 10, 2017.Retrieved2016-01-21.
  8. ^"Senior Courts Act 1981".Opsi.gov.uk.Retrieved2016-01-21.
  9. ^"The Criminal Procedure (Amendment) Rules 2007".Legislation.gov.uk.2014-01-06.Retrieved2016-01-21.
  10. ^"Rules and Practice Directions".Justice.gov.uk.2015-10-20.Retrieved2016-01-21.
  11. ^"The Criminal Procedure Rules 2012".Legislation.gov.uk.2015-08-03.Retrieved2016-01-21.
  12. ^"Part IV: Further Practice Directions Applying in The Crown Court – Criminal Procedure Rules".Justice.gov.uk.Archived fromthe originalon 2016-01-15.Retrieved2016-01-21.
  13. ^"Indictments Act (Northern Ireland) 1945".Legislation.gov.uk.2011-05-26.Retrieved2016-01-21.
  14. ^"Can A Felon Vote in Northern Ireland".felony.2019-05-26.Retrieved2019-01-21.
  15. ^Hurtado v. California,110 U.S. 516(1884).
  16. ^Taylor, Daniel (2019-03-21)."Which States Use Criminal Grand Juries?".FindLaw.Retrieved2023-03-17.
  17. ^abcDressler, Joshua; Thomas, George C.; Medwed, Daniel S. (2020).Criminal procedure: principles, policies, and perspectives(7 ed.). St. Paul, MN: West Academic Publishing. pp. 857–900, 1097–1101.ISBN978-1-64242-236-8.OCLC1163600897.
  18. ^"Sealed Indictment Law and Legal Definition".USLegal.Retrieved2017-07-19.
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