Information (formal criminal charge)

Last updated

An information is a formal criminal charge which begins a criminal proceeding in the courts. The information is one of the oldest common law pleadings (first appearing around the 13th century), and is nearly as old as the better-known indictment, with which it has always coexisted. [1] [2]

Contents

Although the information has been abolished in England and Wales and Northern Ireland, it is still used in Canada, the United States (at both the federal level and in some states) and various other common law jurisdictions. [3]

Canada

Criminal charges

In Canada, charges under the Criminal Code are either by summary process, or by indictment. Both types of charges begin with an information, except in the rare situation of a direct indictment by the Attorney General.

The form of an information is prescribed by the Criminal Code. [4] Informations are to be drafted using Form 2 for both indictable matters [5] and summary matters. [6]

An information must be sworn by the informant, who is normally a peace officer. The informant then must lay the information before a justice of the peace. The information must contain an allegation that an offence has been committed, within the territorial jurisdiction of the justice of the peace. [7] The justice of the peace then is required to review the information and determine if process should issue under the Criminal Code for the arrest of the individual. [8]

If the matter is a summary matter, the information is then laid before the court with jurisdiction to hear the charges, usually the Provincial Court, and the matter will proceed directly to trial.

In indictable matters, the information is laid before a judge of the Provincial Court for the purposes of a preliminary inquiry, which is a hearing to determine if the Crown prosecutor has demonstrated that there is evidence to support the charges in the information. If the preliminary inquiry judge rules that the Crown prosecutor has satisfied this standard, the Court commits the accused to stand trial. The Crown prosecutor then files an indictment, which is the formal charge to begin the trial, normally in the superior trial court. The indictment is based on the charges originally set out in the information. The Crown is entitled to add additional charges which were supported by the evidence led in the preliminary inquiry, even if those charges were not in the information. However, if the preliminary inquiry judge declined to commit the accused on a charge set out in the information, the Crown cannot include that charge in the indictment. [9] The matter then proceeds to trial on the indictment.

Information to obtain a search warrant

The term "information" is also used for other purposes in the Criminal Code, such as applications to obtain a search warrant. A peace officer who is seeking a search warrant must file a sworn information before a justice of the peace, outlining the reasons in support of a search warrant. The justice of the peace then reviews the information to obtain, and decides whether the information supports the issuance of a search warrant.

United Kingdom

England and Wales

A criminal information was a proceeding in the King's Bench Division of the High Court brought at the suit of the Crown without a previous indictment. [10]

Criminal informations other than those filed ex officio by the Attorney General were abolished by section 12 of the Administration of Justice (Miscellaneous Provisions) Act 1938. Any power to bring proceedings for an offence by criminal information in the High Court was abolished by section 6(6) of the Criminal Law Act 1967.

The last occasion on which there was an ex officio information by a law officer was in 1911. [11]

Northern Ireland

Any power to bring proceedings for an offence by criminal information in the High Court was abolished by section 6(6) of the Criminal Law Act (Northern Ireland) 1967.

United States

Because the Fifth Amendment to the United States Constitution expressly creates a constitutional right to be indicted by a grand jury, the information is used in federal criminal procedure only when a defendant voluntarily pleads guilty (often as part of a plea bargain) and waives the right to an indictment. [12]

However, the Fifth Amendment right to a grand jury indictment does not apply against the state governments because the grand jury provision has not been incorporated against the states by the Fourteenth Amendment. Thus, the information has always been the dominant charging document in the western states, where extremely dispersed population distribution during the American frontier era made it difficult to select and convene petit juries to hold trials. In that era, convening even larger grand juries just to indict criminals was seen as an unnecessary extravagance.

In general, district attorneys initiate criminal actions against suspects by filing complaints. In eastern states and in federal courts, the prosecutor seeks to obtain an indictment from a grand jury, or strikes a plea bargain with the defendant, as part of which the defendant waives his right to be indicted, and then files an information as part of the process of reducing the plea bargain to judgment.

In western states, the defendant is entitled to challenge the complaint at a preliminary hearing, during which the prosecution must establish to the satisfaction of a magistrate that probable cause exists to bind over the defendant until trial. If the magistrate finds probable cause, the district attorney files an information, which supersedes the complaint and becomes the operative pleading against the defendant through trial, verdict, and judgment. [13] The U.S. Supreme Court affirmed the constitutionality of this procedure in Hurtado v. California (1886). [14]

The grand jury is still available in the states where informations are used, but it is usually used only for issuing indictments for certain types of crimes or for certain types of anti-corruption investigations.

See also

Related Research Articles

A grand jury is a jury—a group of citizens—empowered by law to conduct legal proceedings, investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a person to testify. A grand jury is separate from the courts, which do not preside over its functioning.

An indictment is a formal accusation that a person has committed a crime. In jurisdictions that use the concept of felonies, the most serious criminal offense is a felony; jurisdictions that do not use that concept often use that of an indictable offence, an offence that requires an indictment.

<span class="mw-page-title-main">Indictable offence</span> Offence which can only be tried on an indictment after a preliminary hearing

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. A similar concept in the United States is known as a felony, which for federal crimes, also requires an indictment. In Scotland, which is a hybrid common law jurisdiction, the procurator fiscal will commence solemn proceedings for serious crimes to be prosecuted on indictment before a jury.

In common law jurisdictions, a preliminary hearing, preliminary examination, preliminary inquiry, evidentiary hearing or probable cause 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 such a hearing, the defendant may be assisted by a lawyer.

A plea bargain is an agreement in criminal law proceedings, whereby the prosecutor provides a concession to the defendant in exchange for a plea of guilt or nolo contendere. This may mean that the defendant will plead guilty to a less serious charge, or to one of the several charges, in return for the dismissal of other charges; or it may mean that the defendant will plead guilty to the original criminal charge in return for a more lenient sentence.

Perjury is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding.

<span class="mw-page-title-main">Summary offence</span> Crime tried without a jury

A summary offence or petty offence is a violation in some common law jurisdictions that can be proceeded against summarily, without the right to a jury trial and/or indictment.

<span class="mw-page-title-main">Jury</span> Group of people to render a verdict in a court

A jury is a sworn body of people (jurors) convened to hear evidence, make findings of fact, and render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment.

<span class="mw-page-title-main">Prosecutor</span> Legal profession

A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in civil law. The prosecution is the legal party responsible for presenting the case in a criminal trial against the defendant, an individual accused of breaking the law. Typically, the prosecutor represents the state or the government in the case brought against the accused person.

A hybrid offence, dual offence, Crown option offence, dual procedure offence, offence triable either way, or wobbler is one of the special class offences in the common law jurisdictions where the case may be prosecuted either summarily or on indictment. In the United States, an alternative misdemeanor/felony offense lists both county jail and state prison as possible punishment, for example, theft.

Nolle prosequi, abbreviated nol or nolle pros, is legal Latin meaning "to be unwilling to pursue". It is a type of prosecutorial discretion in common law, used for prosecutors' declarations that they are voluntarily ending a criminal case before trial or before a verdict is rendered; it is a kind of motion to dismiss and contrasts with an involuntary dismissal.

<span class="mw-page-title-main">Magistrates' court (England and Wales)</span> Lower court in England and Wales

In England and Wales, a magistrates' court is a lower court which hears matters relating to summary offences and some triable either-way matters. Some civil law issues are also decided here, notably family proceedings. In 2010, there were 320 magistrates' courts in England and Wales; by 2020, a decade later, 164 of those had closed. The jurisdiction of magistrates' courts and rules governing them are set out in the Magistrates' Courts Act 1980.

Summary jurisdiction, in the widest sense of the phrase, in English law includes the power asserted by courts of record to deal brevi manu with contempts of court without the intervention of a jury. Probably the power was originally exercisable only when the fact was notorious, i.e. done in presence of the court. But it has long been exercised as to extra curial contempts.

<span class="mw-page-title-main">Committal procedure</span> Replacement of earlier grand jury process except in US

In law, a committal procedure is the process by which a defendant is charged with a serious offence under the criminal justice systems of all common law jurisdictions except the United States. The committal procedure replaces the earlier grand jury process.

<span class="mw-page-title-main">Criminal law of Canada</span>

The criminal law of Canada is under the exclusive legislative jurisdiction of the Parliament of Canada. The power to enact criminal law is derived from section 91(27) of the Constitution Act, 1867. Most criminal laws have been codified in the Criminal Code, as well as the Controlled Drugs and Substances Act, Youth Criminal Justice Act and several other peripheral statutes.

A private prosecution is a criminal proceeding initiated by an individual private citizen or private organisation instead of by a public prosecutor who represents the state. Private prosecutions are allowed in many jurisdictions under common law, but have become less frequent in modern times as most prosecutions are now handled by professional public prosecutors instead of private individuals who retain barristers.

An examining magistrate is a judge in an inquisitorial system of law who carries out pre-trial investigations into allegations of crime and in some cases makes a recommendation for prosecution. Also known as an investigating magistrate, inquisitorial magistrate, or investigating judge, the exact role and standing of examining magistrates varies by jurisdiction. Common duties and powers of the examining magistrate include overseeing ongoing criminal investigations, issuing search warrants, authorizing wiretaps, making decisions on pretrial detention, interrogating the accused person, questioning witnesses, examining evidence, as well as compiling a dossier of evidence in preparation for trial.

A citizen's right to a trial by jury is a central feature of the United States Constitution. It is considered a fundamental principle of the American legal system.

In criminal law, the right to a speedy trial is a human right under which it is asserted that a government prosecutor may not delay the trial of a criminal suspect arbitrarily and indefinitely. Otherwise, the power to impose such delays would effectively allow prosecutors to send anyone to jail for an arbitrary length of time without trial, expressed as the maxim Justice delayed is justice denied.

<span class="mw-page-title-main">Grand juries in the United States</span> Groups of citizens empowered by United States federal or state law to conduct legal proceedings

Grand juries in the United States are groups of citizens empowered by United States federal or state law to conduct legal proceedings, chiefly investigating potential criminal conduct and determining whether criminal charges should be brought.

References

  1. ↑ Orfield, Lester Bernhardt (1947). Criminal Procedure from Arrest to Appeal. New York: New York University Press. pp. 194–197. Available via HeinOnline. Orfield cites Holdsworth as the source of this information.
  2. ↑ Holdsworth, W.S. (1923). "The History of the Criminal Information". The Canadian Bar Review. 1 (1): 300. Available via HeinOnline.
  3. ↑ Costagidi
  4. ↑ "Criminal Code, RSC 1985, c C-46, Form 2". Archived from the original on 2015-11-29. Retrieved 2015-11-04.
  5. ↑ Criminal Code, RSC 1985, c C-46, s 506.
  6. ↑ Criminal Code, RSC 1985, c C-46, s 788.
  7. ↑ Criminal Code, RSC 1985, c C-46, s 504.
  8. ↑ Criminal Code, RSC 1985, c C-46, s 507.
  9. ↑ R v Tapaquon, [1993] 4 SCR 535.
  10. ↑ Halsbury's Statutes, Fourth Edition, One of the reprints,[ which? ] Volume 12(1), page 360, notes to section 6 of the Criminal Law Act 1967
  11. ↑ The Seventh Report of the Criminal Law Revision Committee (Cmnd 2659), paragraph 63
  12. ↑ Protass, Harlan J. (2009-03-11). "Madoff's "Information": Why didn't the Ponzi schemer get indicted instead?". Slate.
  13. ↑ People v. Martinez , 22 Cal. 4th 750, 94 Cal. Rptr. 2d 381, 996 P.2d 32 (2000).
  14. ↑ Martinez, J. Michael (2014). The Greatest Criminal Cases: Changing the Course of American Law. Santa Barbara: ABC-CLIO. p. 7. ISBN   9781440828690 . Retrieved 31 March 2019.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.