Charging: How Criminal Charges Are Filed

How are criminal charges filed?

Criminal charges are filed through a written charging document. In federal court and in states such as Florida, Missouri and Oklahoma, the main documents are a complaint (a sworn written statement of the facts), an information (a charge made by a prosecuting attorney), and an indictment (a charge returned by a grand jury). Which document is used depends on the court system and the type of offense. Each must set out the essential facts of the offense charged. [1][9][13]

Whose rules does this page describe?

This page explains charging through examples from federal court, Florida, Missouri and Oklahoma. Criminal law is mostly state law, and each state and the federal system set their own charging procedures. The rules quoted here belong to the jurisdiction named alongside them and are not a survey of every state. Oklahoma's statute, for example, says public offenses must be prosecuted by indictment or information, subject to listed exceptions. [2]

Who decides what criminal charges are filed?

Depending on the document, charges come from a prosecuting attorney or from a grand jury, which is a group of citizens that decides whether to bring charges. Florida's rule makes the difference explicit: an indictment states that the grand jury of the county charges the defendant, and an information states that the prosecuting attorney makes the charge. [9]

In Florida, the prosecutor's signature carries a sworn statement. A felony information must be signed under oath stating good faith in bringing the prosecution and certifying that sworn testimony was received from the material witness or witnesses. A misdemeanor information must be signed under oath stating good faith. [3]

When a grand jury charges, the indictment carries the grand jury's signature. In Florida, an indictment must be signed by the foreperson or acting foreperson of the grand jury that returns it. Florida's rule also states that a grand jury may indict for any offense. [12][8]

In federal court, both an indictment and an information must be signed by an attorney for the government. A federal complaint, by contrast, is generally made under oath before a magistrate judge or, if none is reasonably available, a state or local judicial officer. [13][1]

What is a criminal complaint?

In federal court, a complaint is a written statement of the essential facts of the offense charged, sworn before a judicial officer. The federal rule generally requires the oath to be taken before a magistrate judge, with a state or local judicial officer as the fallback, and it notes a separate exception in another rule. [1]

A complaint is not always the document a case is tried on. In federal court, more serious offenses must go forward by indictment unless the defendant waives it, and an information is the alternative after a valid waiver. [13]

What is an information?

An information is a formal charge brought by a prosecuting attorney rather than a grand jury. Florida's rule requires an information to state that the appropriate prosecuting attorney makes the charge. [9]

Several states treat the information as a main way to start a prosecution. Missouri's statute says felonies and misdemeanors are prosecuted by indictment or information, with listed exceptions. Oklahoma's statute calls the indictment or information the state's first pleading. [15][4]

In federal court, an information can replace an indictment for more serious offenses only if the defendant waives indictment in open court after being advised of the nature of the charge and of the defendant's rights. [13]

What is an indictment, and when is one required?

An indictment is a formal charge returned by a grand jury. The Fifth Amendment provides that no person shall be held to answer for a capital or otherwise infamous crime without a grand jury presentment or indictment, except in stated military cases. [5]

The Federal Rules of Criminal Procedure turn that requirement into a practical test based on the possible punishment, with criminal contempt excluded. The rule sets the dividing line between offenses that require an indictment and those that do not. [13]

States set their own requirements. Florida's rule requires an indictment for any offense that may be punished by death, while most other Florida cases may proceed by indictment or information. [8]

Can the prosecution switch between an indictment and an information?

Missouri's statute limits switching while a case is pending. Whichever procedure is first started by filing an indictment or information is to be pursued to the exclusion of the other while the case remains pending and undetermined. [15]

Other systems approach the question differently. In federal court, the choice for more serious offenses turns on whether the defendant waives indictment. This page's sources do not describe how other states handle a change of charging document. [13]

What must a charging document contain?

Federal court and Florida both require a plain, concise and definite written statement of the essential facts of the offense charged. That shared standard is the core of a charging document in both systems. [13][9]

Each count, meaning each separately charged offense, must cite the law allegedly violated. The federal rule requires the official or customary citation of the statute, rule, regulation or other provision. Florida's rule requires each count to allege the essential facts and recite that citation. [13][10]

Florida adds several formal requirements. The document must state that the prosecution is brought in the name and by the authority of the State of Florida, and it must bear the date it is filed in each court where it is filed. [9]

Florida also requires identifying details. The accused's name must be stated if known, or a description identifying the person with reasonable certainty. The defendant's race, gender and date of birth must be included when known, though leaving them out does not invalidate an otherwise sufficient document. [11][10]

In Florida, each count must state the time and place of the offense as definitely as possible. The systems differ on cross-references between counts: the federal rule lets a count incorporate an allegation from another count, while Florida's rule says allegations in one count shall not be incorporated by reference in another. [11][13][12]

Can a defendant get a copy of the charging document?

Missouri's statute addresses this directly. When an indictment is found or an information is filed in a court of record, the clerk must, on the defendant's request, prepare and deliver a copy of it with all endorsements. Other court systems have their own procedures for providing the charging document, and this page's sources do not cover them. [6]

Can an information be changed after it is filed?

In federal court, the judge may allow an information to be amended before the verdict or finding, unless the amendment charges an additional or different offense or prejudices a substantial right of the defendant. Florida's rule allows an information to be amended before trial for formal defects, on the motion of the prosecuting attorney or the defendant. The two rules are worded differently, so the details depend on the court. [14][7]

What happens if the charging document cites the wrong law?

In federal court, a citation error or a missing citation is not, by itself, a ground to dismiss the indictment or information or to reverse a conviction. The exception is when the defendant was misled by the error and prejudiced as a result. Whether that exception applies is a question for the court in a particular case. [14]

Are minor Florida cases always charged by information or indictment?

Not always. Florida's rule says prosecution in circuit and county courts is by indictment or information. It also allows some county court cases involving municipal or county ordinances to proceed by affidavit or docket entries, and allows misdemeanors and ordinance violations to proceed by a notice to appear issued under a separate Florida rule. [8]

Does a charging document need a formal heading?

Federal court does not require a formal introduction or conclusion. In Florida, no formal caption is essential to the document's validity, though the rule says a caption must be added if someone objects that it is missing. Florida also provides that caption errors may be corrected by court order at any stage. [13][9]