Two Ways to Charge: By Information, Complaint, or Petition; or Indictment By a Grand Jury

Criminal cases begin their way through court in one of two ways, depending largely on local policies and the seriousness of a crime:

  • Misdemeanors. If a crime is a misdemeanor, a prosecutor often files an accusatory pleading directly in court. This pleading may be called a criminal complaint, an information, or a petition.
  • Felonies. If a crime is a felony, charges may be brought either in the form of an accusatory pleading (as with misdemeanors) or by an indictment handed down by a grand jury. About half the states (mostly eastern states) require prosecutors to use grand juries in felony cases. Other states allow prosecutors to decide which procedure to use. The Fifth Amendment to the U.S. Constitution requires the federal government to use grand juries in all felony cases.

The Accusatory Pleading: Information, Petition, Complaint

In most states, a prosecutor must present evidence in court before filing an accusatory pleading. The judge or magistrate determines whether the evidence is sufficient to bind the defendant over to trial -- whether probable cause exists to believe that a crime occured and the defendant comitted it.

Some states allow the prosecutor to file charges on only those offenses for which the judge or magistrate found probable cause. Other states allow prosecutors to file additional charges supported by evidence presented; others allow charges for all crimes related to the same facts shown at the hearing. In most states, if the prosecutor fails to obtain a "binding order," he is not precluded from trying again later, with new evidence before a different judge.

What's In the Accusatory Pleading?

Defendants generally learn very little about the case against them by reading the accusatory pleading. This initial charging document is usually little more than a formality. It doesn't divulge specifics about the prosecution's case, but simply identifies the defendant and the crime or crimes with which the defendant is charged. An intake prosecutor simply inserts this information into a preprinted form.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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