Indictment
Encyclopedia
An indictment in the common-law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...

, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence
Indictable offence
In many common law jurisdictions , an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury...

—an offence that requires an indictment.

In most common-law jurisdictions, an indictment was handed up by a grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...

, which returned a "true bill" if it found cause to make the charge, or "no bill" if it did not find cause. The right of one accused of a felony or serious crime to have the charges reviewed for probable cause by a grand jury before being tried by a petit jury, except for certain cases tried in courts-martial
Court-martial
A court-martial is a military court. A court-martial is empowered to determine the guilt of members of the armed forces subject to military law, and, if the defendant is found guilty, to decide upon punishment.Most militaries maintain a court-martial system to try cases in which a breach of...

, is secured by the Fifth Amendment to the Constitution of the United States, but this has been abolished in most parts of the world.

Brazil

In Brazil, an indictment (called denúncia) is issued by the public prosecutor, a member of the Public Ministry
Public Ministry (Brazil)
The Public Ministry is the Brazilian body of independent public prosecutors, working both at the federal and state level. It operates independently from the three branches of government, and was referred to by Constitutional scholar Michel Temer as the "Fourth Branch".There are three levels of...

, 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
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...

 or threatening
Threat
Threat of force in public international law is a situation between states described by British lawyer Ian Brownlie as:The 1969 Vienna convention on the Law of Treaties notes in its preamble that both the threat and the use of force are prohibited...

) 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 victims themselves (represented by a lawyer), in which case it is called queixa-crime.

India

The criminal law in India is derived from the colonial-era British system and is codified in the Criminal Procedure Code (CrPC)
Criminal Procedure Code, 1973 (India)
The Code of Criminal Procedure is the main legislation on procedure for administration of substantive criminal law in India. It was enacted in 1973 and came into force on 1 April, 1974...

. In India criminal offenses are divided into two broad categories. Cognizable offenses
Cognizable offence
A cognizable offence in the criminal justice system of India is one in which the police is empowered to register an FIR, investigate and arrest an accused involved in cognizable crime without a court warrant....

 and Non-cognizable offenses. The police is empowered to start investigating a cognizable offense. At that stage, the complaint is considered merely an accusation. However, in both cognizable and non-cognizable offenses, the trial starts only with the "Framing of Charges" which is similar to the concept of indictment. The trial court does not proceed with the trial if the evidence is insufficient to make out a charge.

Tunisia

Tunisia
Tunisia
Tunisia , officially the Tunisian RepublicThe long name of Tunisia in other languages used in the country is: , is the northernmost country in Africa. It is a Maghreb country and is bordered by Algeria to the west, Libya to the southeast, and the Mediterranean Sea to the north and east. Its area...

, a fomer French colony, is still following the feudal French judiciary system since independence in 1956, even though it is now conducted in Arabic
Arabic language
Arabic is a name applied to the descendants of the Classical Arabic language of the 6th century AD, used most prominently in the Quran, the Islamic Holy Book...

.

England and Wales

In England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...

 (except in private prosecution
Private prosecution
A private prosecution is a criminal proceeding initiated by an individual or private organisation instead of by a public prosecutor who represents the state...

s by individuals) an indictment is issued by the public prosecutor (in most cases this will be the Crown Prosecution Service
Crown Prosecution Service
The Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...

) on behalf of the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...

, i.e. the Monarch, who is the nominal plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...

 in all public prosecutions under English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

.

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 being 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).

All proceedings on indictment must be brought before the Crown Court
Crown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...

. 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
High Court judge
A High Court judge is a judge of the High Court of Justice, and represents the third highest level of judge in the courts of England and Wales. High Court judges are referred to as puisne judges...

, a Circuit judge or a recorder
Recorder (judge)
A Recorder is a judicial officer in England and Wales. It now refers to two quite different appointments. The ancient Recorderships of England and Wales now form part of a system of Honorary Recorderships which are filled by the most senior full-time circuit judges...

 (which of these it is depends on the offence).

As to the form of an indictment, see the Indictments Act 1915
Indictments Act 1915
The Indictments Act 1915 was an Act of the Parliament of the United Kingdom that made significant changes to the law relating to indictments. The law relating to indictments evolved during the seventeenth and eighteenth centuries and became lengthy, confusing and highly technical to the point...

 and the Indictment Rules 1971 made thereunder.

As to the prefering 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).

Scotland

In Scotland, all of these cases brought in the High Court of Justiciary
High Court of Justiciary
The High Court of Justiciary is the supreme criminal court of Scotland.The High Court is both a court of first instance and a court of appeal. As a court of first instance, the High Court sits mainly in Parliament House, or in the former Sheriff Court building, in Edinburgh, but also sits from time...

 are brought in the name of the Lord Advocate
Lord Advocate
Her Majesty's Advocate , known as the Lord Advocate , is the chief legal officer of the Scottish Government and the Crown in Scotland for both civil and criminal matters that fall within the devolved powers of the Scottish Parliament...

 and will be tried on Indictment. In the Sheriff Court where trials proceed using the Solemn procedure they will also be tried on indictment and are brought in the name of the Procurator Fiscal
Procurator Fiscal
A procurator fiscal is a public prosecutor in Scotland. They investigate all sudden and suspicious deaths in Scotland , conduct Fatal Accident Inquiries and handle criminal complaints against the police A procurator fiscal (pl. procurators fiscal) is a public prosecutor in Scotland. They...

.

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 Militia when in actual service in time of War or public danger".

In many, but not all, United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 jurisdictions that use grand juries, prosecutors often have a choice between seeking an indictment from a grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...

 and filing a charging document directly with the court. Such a document is usually called an information
Information (formal criminal charge)
Information is a formal criminal charge made without a grand jury indictment by a prosecutor in a document called an information.The term is used in Canada and various other common law jurisdictions, including a number of U.S...

, accusation, or complaint, to distinguish it from a grand-jury indictment. To protect the suspect's due-process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...

 rights in felony cases (where the suspect's interest in liberty is at stake), there is usually a preliminary hearing
Preliminary hearing
Within some criminal justice systems, a preliminary hearing is a proceeding, after a criminal complaint has been filed by the prosecutor, to determine whether there is enough evidence to require a trial...

, 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, he or she binds, or holds 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 where, when, and how the defendant allegedly committed the offense. Each offense usually is 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 an indictment, including one for a crime as serious as murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...

, consists of a single sheet of paper.

Indictable offenses are normally tried by jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...

, unless the accused waives the right to a jury trial. Although the Sixth Amendment
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...

 mandates the right to a jury trial in any criminal prosecution, the vast majority of criminal cases in the United States are resolved by the plea-bargaining
Plea bargain
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...

 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. 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.

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

  • Arraignment
    Arraignment
    Arraignment is a formal reading of a criminal complaint in the presence of the defendant to inform the defendant of the charges against him or her. In response to arraignment, the accused is expected to enter a plea...

  • Complaint
    Complaint
    In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons that the filing party or parties In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties In...

  • Preliminary hearing
    Preliminary hearing
    Within some criminal justice systems, a preliminary hearing is a proceeding, after a criminal complaint has been filed by the prosecutor, to determine whether there is enough evidence to require a trial...

  • Duplicity (law)
    Duplicity (law)
    Duplicity is a legal term used to describe the error committed when the charge on an indictment describes two different offences. An indictment may contain more than one count, but each count must allege only one offence, so that the defendant can know precisely what offences he is accused of...

The source of this article is wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.
 
x
OK