§ 8.2 Accusatory Instruments

LibraryCriminal Law in Oregon (OSBar) (2022 Ed.)

§ 8.2 ACCUSATORY INSTRUMENTS

§ 8.2-1 Constitutional and Statutory Requirement

The Oregon Constitution guarantees that "[i]n all criminal prosecutions, the accused shall have the right . . . to demand the nature and cause of the accusation against [the accused], and to have a copy thereof." Or Const, Art I, § 11. Accordingly, the filing of an accusatory instrument is the "formal method of initiating the criminal process and of identifying the crime charged." State v. House, 37 Or App 131, 133, 586 P2d 388 (1978). It is also "the pleading from which the court determines whether it has the jurisdictional authority to act." State v. Piskorowski, 138 Or App 497, 501, 909 P2d 897, rev den, 323 Or 136 (1996). See also ORS 131.005(6) (defining criminal action to mean "an action at law by means of which a person is accused of the commission of a violation, misdemeanor or felony").

By statute, accusatory instruments include grand jury indictments, informations, and complaints. ORS 131.005(1). See § 8.2-2(a) to § 8.2-2(c) (types of accusatory instruments). In accordance with Article I, section 11, of the Oregon Constitution, each accusatory instrument must contain "[a] statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended." ORS 132.550(7) (indictment); ORS 133.015(7) (information or complaint). Words used in the statute to define an offense need not be strictly followed in the accusatory instrument; other words conveying the same meaning may be used. ORS 132.540(4); ORS 133.007(3). Ordinarily, the body of the charge, rather than the caption, controls as to what offense is alleged and whether the instrument charges a felony, a misdemeanor, or a violation. See, e.g., State v. Trueax, 315 Or 396, 398-400, 845 P2d 1291 (1993) (the indictment captioned "sodomy in the second degree" charged sodomy in the third degree because the body of the indictment pleaded elements of sodomy in the third degree).

Accusatory instruments serve to commence a criminal action and, therefore, constitute the basis for issuing a warrant to secure the defendant's appearance before the court. ORS 131.005(2), (14) (defining bench warrant and warrant of arrest, respectively); ORS 133.110 (requiring a magistrate to issue an arrest warrant "[i]f an information or a complaint is filed with the magistrate, and the magistrate is satisfied that there is probable cause to believe that the person has committed the crime specified in the information or complaint"). Not all accusatory instruments, however, provide a basis for the prosecution to proceed. See § 8.2-2(b)(1) (complainant's information). In many cases, a defendant is charged with successive accusatory instruments. For example, a district attorney's information accusing the commission of a felony is withdrawn and replaced with a grand jury indictment.

The Oregon Constitution specifies that, for felony accusations, the accusatory instrument be in the form of a grand jury indictment or information:

(3) Except as provided in subsections (4) and (5) of this section, a person shall be charged in a circuit court with the commission of any crime punishable as a felony only on indictment by a grand jury.

(4) The district attorney may charge a person on an information filed in circuit court of a crime punishable as a felony if the person appears before the judge of the circuit court and knowingly waives indictment.

(5) The district attorney may charge a person on an information filed in circuit court if, after a preliminary hearing before a magistrate, the person has been held to answer upon a showing of probable cause that a crime punishable as a felony has been committed and that the person has committed it, or if the person knowingly waives preliminary hearing.

Or Const, Art VII (Amended), § 5.

Consequently, the severity of the offense alleged will determine the means by which the prosecution may proceed.

§ 8.2-2 Types of Accusatory Instruments and Required Contents

§ 8.2-2(a) Complaints

A complaint is a written accusation filed in court charging a person with the commission of an offense other than a felony. ORS 131.005(3). A complaint may thus initiate the prosecution for a misdemeanor or violation and serve as the accusatory instrument at trial. ORS 131.005(3).

The complaint must contain "substantially the following":

(1) The name of the court in which it is filed;

(2) The title of the action;

(3) A statement that accuses the defendant or defendants of the designated offense or offenses;

(4) A separate accusation or count addressed to each offense charged, if there be more than one;

(5) A statement in each count that the offense charged therein was committed in a designated county;

(6) A statement in each count that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time;

(7) A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended; and

(8) The verification by the complainant and the date of the signing of the complaint. An information or complaint charging a defendant with an offense, other than an offense punishable as a felony, shall be deemed verified by the complainant if it contains a form of certificate in which the complainant certifies, under the penalties described in ORS 133.992, that the complainant has sufficient grounds to believe, and does believe, that the defendant named in the information or complaint
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