Indictment: Wikis

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From Wikipedia, the free encyclopedia

In the common law legal system, an indictment (pronounced /ɪnˈdaɪtmənt/ in-DITE-mənt) is a formal accusation that a person has committed a criminal offense. In those jurisdictions which retain the concept of a felony, the serious criminal offence would be a felony; those jurisdictions which have abolished the concept of a felony often substitute the concept of an indictable offence, i.e. an offence which requires an indictment.

Traditionally an indictment was handed up by a grand jury, which returned a "true bill" if it found cause to make the charge, or "no bill" if it did not find cause. Most common law jurisdictions (except for much of the United States) have abolished grand juries.

Contents

Australia

In Australia, an indictment is issued by a government official (the Attorney-General, the Director of Public Prosecutions, or one of their subordinates). A magistrate then holds a committal hearing, which decides whether the evidence is serious enough to commit the person to trial.

Brazil

In Brazil an indictment (called denúncia) is issued by the public prosecutor, a member of the Public Ministry, and it is the document that starts the criminal prosecution.

The denúncia for most offenses is exclusively issued by the public prosecutor. However, some offenses (like rape or threatening) require the victim to sign a permission (called representação) in order to allow the prosecutor to file the indictment.

The indictment for lesser offenses (notably those against the victim's honor, such as defamation or calumny) can be filed only by the victim themself (represented by a lawyer), in which case it is called queixa-crime.

England and Wales

In England and Wales (except in private prosecutions by individuals) an indictment is issued by the public prosecutor (in most cases this will be the Crown Prosecution Service) on behalf of the Crown, who is nominally the claimant in all public prosecutions under English law.

This is why a public prosecution of a man called Mr. Smith would be referred to in writing as "R v Smith" (or alternatively as "Regina v. Smith" or "Rex v. Smith" depending on the gender of the Sovereign reigning at the time of the case; Regina and Rex are Latin for Queen and King respectively) (and in either case may informally be pronounced as such) and when cited orally in court would be pronounced "the Queen against Smith" or "the King against Smith" (again depending on the gender of the reigning Sovereign)..[1]

All proceedings on indictment must be brought before the Crown Court.[2] By virtue of practice directions issued under section 75(1) of the Supreme Court Act 1981, an indictment must be tried by a High Court judge, a Circuit judge or a recorder (which of these it is depends on the offence).

United States

The Fifth Amendment to the Constitution of the United States states in part: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Military when in actual service in time of War or public danger..."

In many (though not all) U.S. jurisdictions retaining the grand jury, prosecutors often have a choice between seeking an indictment from a grand jury, or filing a charging document directly with the court. Such a document is usually called an information, accusation, or complaint, to distinguish it from a grand jury indictment. To protect the suspect's due process rights in felony cases (where the suspect's interest in liberty is at stake), there is usually a preliminary hearing where a judge determines if there is probable cause that the charged crime was committed by the suspect in custody. If the judge finds such probable cause, he or she will bind or hold over the suspect for trial.

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 the time, place and manner in which the defendant is alleged to have committed the offense. Each offense is usually set out in a separate count. Some indictments for complex crimes, particularly those involving conspiracy or numerous counts, can run to hundreds of pages, but many indictments, even for crimes as serious as murder, consist of a single sheet of paper.

Indictable offenses are normally tried by jury, unless the accused waives the right to a jury trial. The Sixth Amendment mandates the right of having a jury trial for any criminal offense punishable by imprisonment for more than six months. Notwithstanding the existence of the right to jury trial, the vast majority of criminal cases in the U.S. are resolved by the plea bargaining process.

Direct indictment

A direct indictment is one in which the case is sent directly to trial before a preliminary inquiry is 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]

Sealed indictment

An indictment can be sealed so that it stays non-public until it is unsealed. This can be done for a number of reasons. It may be unsealed, for example, once the named person is arrested or has been notified by police.

See also

References

  1. ^ Smith, A.T.H., Glanville Williams: Learning the Law, 13th Edition, 2006, page 44
  2. ^ The Senior Courts Act 1981, section 46(1) OPSI
  3. ^ "Criminal Code, Revised Statutes of Canada 1985, c. C-46, Section 577". Department of Justice, Canada. 2008-10-09. http://laws.justice.gc.ca/en/ShowDoc/cs/C-46/bo-ga:l_XIX_1::bo-ga:l_XX//en?page=13&isPrinting=false#codese:577. Retrieved 2008-10-29. 
  4. ^ "Direct Indictments". Crown Policy Manual. Province of Ontario, Ministry of Attorney General. 2005-03-21. http://www.attorneygeneral.jus.gov.on.ca/english/crim/cpm/2005/DirectIndictment.pdf. Retrieved 2008-10-29. 
  5. ^ "Direct Indictments". The Federal Prosecution Service Deskbook. Department of Justice, Canada. 2008-04-04. http://www.justice.gc.ca/eng/dept-min/pub/fps-sfp/fpd/ch17.html. Retrieved 2008-10-29. 
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1911 encyclopedia

Up to date as of January 14, 2010

From LoveToKnow 1911

INDICTMENT (from Anglo-Fr. enditement, enditer, to charge; Lat. in, against, dictare, declare), in English law, a formal accusation in writing laid before a grand jury and by them presented on oath to a court of competent jurisdiction. The accusation is drawn up in the form of a ” bill " of indictment, prepared by the officer of the court or the legal adviser of the prosecution, engrossed on parchment, and sent before the grand jury. The grand jury hear in private the witnesses in support of the accusation (whose names are endorsed on the back of the bill), and, if satisfied that a prima facie case has been made out, find the bill to be a true bill and return it to the court as such. If otherwise, the jury ignore the bill and return to the court that they find " no true bill." Indictments differ from presentments, which are made by the grand jury on their own motion and their own knowledge; and from informations, which are instituted on the suggestion of a public officer without the intervention of a grand jury.

An indictment lies for "all treasons and felonies, for misprision of treasons and felonies and for all misdemeanours of a public nature at common law." And if a statute prohibit a matter of public grievance or command a matter of public convenience all acts or omissions in disobedience to the command or prohibition of the statute are treated as misdemeanours at common law, and unless the statute otherwise provides are punishable on indictment. In other words, the ordinary common law remedy in respect of criminal offences is by indictment of the accused and trial before a petty jury; and except in the case of informations for misdemeanour and summary proceedings by a court of record for " contempt of court " it is the only remedy, except where a statute creates another remedy, e.g. by trial before a court of summary jurisdiction.

The form of an indictment is still in the main regulated by the old common law rules of pleading, which as to civil pleadings were often amended during the 19th century, and finally abolished under the Judicature Acts.

An indictment may consist of one or more counts charging different offences. Each count consists of three parts: (I) the commencement, (2) the statement, (3) the conclusion. The formal commencement runs thus: " Surrey to wit." The first count begins " The jurors for our Lord the King (i.e. the grand jurors) upon their oath present that, &c."; and the subsequent counts begin, the " jurors aforesaid on their oath aforesaid do further present." The first words, which are placed in the margin of the document, are the " venue," i.e. the county or district over which extends the jurisdiction of the court before which the indictment is found. Subject to certain statutory exceptions it is necessary to prove that the acts or omissions alleged to constitute the offence occurred within that area. The conclusion consists of the words following: " against the form of the statute (or statutes) in that case made and provided, and against the peace of our Lord the King, his crown and dignity." Where the offence is statutory the whole phrase is used; where it is at common law only the second part is used. A formal conclusion is not now essential to the validity of the indictment, but from inveterate habit is in continued use. The statement sets forth the circumstances alleged to constitute the offence, i.e. the accusation made. There are still in force a number of rules as to the proper elements in the statement; but in substance it is only necessary to set forth the facts alleged against the accused with accuracy and sufficient precision as to the time and place and circumstances of the alleged offence, and to indicate whether felony or misdemeanour are charged, and so to frame the statement as to indicate a definite offence for which a lawful sentence may be imposed.

The following example illustrates the form of the statement: " That A. B. on the first day of June in the year of our Lord 1906 one oak tree of the value of five pounds the property of C. D. then growing in a certain park of the said C. D. situate in the parish of E. in the county of F. feloniously did steal take and carry away contrary to the statute, &c." Only one offence should be stated in one count; and separate and distinct felonies should not be charged in the same indictment. If they are, the court makes the prosecution choose one upon which to proceed. This rule is altered by statute in certain cases: e.g. by allowing a limited number of separate thefts, or receivings of stolen property to be included in the same indictment. Misdemeanours and felonies may not be included in the same indictment because of the difference of procedure on the trial; but any number of misdemeanours may be included in different counts of the same indictment, subject to the right of the court to order separate trials or to quash the indictment if it is rendered vexatious by the agglomeration of charges.

There is no general limitation of the time within which indictments may lawfully be preferred; but various limitations have been fixed by statute for certain offences, e.g. in the case of certain forms of treason, of riot, of night poaching and of corrupt and illegal practices at elections. In this respect English law differs from European law, in which limitations of time for prosecution are the rule and not the exception.

Until the mitigation of the draconic severity of the English law in the early part of the 19th century, little or no power existed of amending defective statements or indictments, and the courts in favorem vitae insisted strictly on accurate pleading and on proof of the offences exactly as charged. Since 1827 numerous enactments have been passed for getting rid of these technicalities, which led to undeserved acquittals, and since 1851 the courts have had power to disregard technical objections to the form of indictment and to amend in matters not essential in case of variance between the indictment and the evidence. These changes apply to ordinary offences; but for the most part do not touch charges of treason, as to which the old law in the main still applies. At the present time the looseness of pleading in criminal cases is carried almost too far; for while there is no danger in such looseness when times are quiet and when law is administered by the judges of the High Court in England, yet when crimes of a certain character are committed in times of great political excitement and the law is administered by an inferior judiciary, there may be some danger of injustice if the strictness of pleading and procedure is too much relaxed. In the Criminal Code drafted by Sir James Fitz James Stephen and revised by a judicial commission (Lord Blackburn and Lords Justices Lush and Barry), it was proposed to substitute for the old form of indictment a statement of the particulars of the offence with a reference to the section of the code defining the offence.

The law of Ireland as to indictments is in substance the same as that of England; but is to a certain extent expressed in different statutes.

In Scotland the terms indictment or criminal letters are used to express the acte d'accusation. But except in the case of high treason there is no grand jury, and the indictment is filed like an English criminal information by the lord advocate or one of his deputies: and it is only by order of the court of justiciary that a prosecution can be instituted without the general or particular assent of the lord advocate. By the Criminal Procedure Scotland Act 1887 the form of Scots indictments is much simplified. They are drawn in the second and not in the third person.

In those of the British colonies in which by settlement or statute the English criminal law runs, the form of indictment is substantially the same, and is found by a grand jury as in England. But in certain colonies, e.g. the Australian states, an indictment by a public officer without the intervention of a grand jury has been adopted. In India and British Asiatic possessions the procedure is regulated by the Indian Procedure Code or its adaptations. In South Africa indictments are framed under Roman Dutch law as modified by local legislation.

In the United States prosecution or indictment by a grand jury is the rule: the form of indictment is the same, substituting the state or commonwealth of the United States for references to the king, and the conclusions " against the form of the statute " and " against the peace " are still in use. (W. F. C.)


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Simple English

In common law, an indictment is a charge saying that a person committed a very serious crime. They used to be given out by grand juries (a special jury usually made up of 24 people that is used to see if a person should be charged}, but many places do not have grand juries anymore. Sealed indictments are kept secret until they are unsealed.



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