We tend to think a criminal case begins when a police officer arrests a person. Although a person is arrested for a criminal offense, a formal charging document must be drafted and filed by the prosecutor if the charges are to be formally prosecuted.
There are two types of formal charging documents in Georgia, accusations and indictments. This blog article will discuss the differences between these charging documents, when these charging documents must be filed, the basic language required to be included, and the potential attacks on these documents.
In misdemeanor cases in Georgia, a prosecuting attorney may draft an accusation charging a defendant with criminal offenses. O.C.G.A. § 17-7-71. An accusation is sufficiently technical and correct if the offense stated in the terms and language of the statute. O.C.G.A. § 17-7-71(c). The prosecutor has the authority to amend the accusation prior to trial so long as the defendant or their lawyer is given notice.
Although a person’s federal constitutional right to a grand jury does not apply to the States (Hurtado v. California, 110 U.S. 516 (1884)), a person in Georgia has a statutory right to a grand jury indictment for most felonies. O.C.G.A. § 17-7-70. Ordinarily, a prosecutor may not proceed to trial without a grand jury’s “true bill” of the proposed indictment. A defendant may waive the right to a grand jury indictment in writing and proceed to trial on an accusation (for non-capital offenses) or may waive by entering a plea to the accusation.
Like an accusation, an indictment is sufficiently technical and correct if the offense is stated in the terms and language of the statute. O.C.G.A § 17-7-54. But, unlike accusations, an indictment may not be materially amended by removing or adding to the allegations or charges.
The language of an indictment or accusation must:
- Be “legally sufficient” to state a crime; and
- Put the defendant on “due process” notice of what he / she must defend against at trial
An accusation or indictment that fails to allege the essential elements of a crime is insufficient as a matter of law. If the accused can admit to all of the allegations in the accusation or indictment and still be innocent of a crime, then the language is legally insufficient. This is the legal test of a “general demurrer.” A general demurrer is a powerful tool in the defense lawyer’s arsenal.
Due process requires the accusation or indictment to adequately inform the nature of the crime being charged as to enable the defendant to prepare a defense and avoid surprises at trial. Failure to do so exposes the accusation or indictment to a “special demurrer.” A special demurrer attacks the accusation or indictment by asking not whether the charging document could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he / she must be prepared to meet. Broski v. State, 196 Ga. App. 116 (1990).
An accusation or indictment must be filed with the Clerk of Court before the expiration of the applicable statute of limitations for the crimes charged. Statutes of limitation run from the date of the alleged offense to the date the accusation or indictment is filed.
There are different periods of time for different types of offenses. For example, there is no statute of limitations for the offense of murder. Other felony crimes that are punishable by death or life in prison contain a seven (7) year statute of limitations (except forcible rape – 15 year statute of limitations; certain felony offenses where DNA evidence is used to establish identity of the accused – no statute of limitations; crimes against children committed on and after July 1, 2012 – no statute of limitations). Most felonies have a four (4) year statute of limitations. Misdemeanors have a two (2) year statute of limitations.
An applicable statute of limitations period may be suspended or tolled if:
- The accused is not usually and publicly a resident in Georgia
- The person committing the crime is unknown or the crime is unknown
- The accused is a government officer or employee and the crime charged is theft by conversion or public property while the person is such an officer or employee
- The accused is a guardian or trustee and the crime charged is theft by conversion of public property of the ward or beneficiary
O.C.G.A. § 17-3-2. It is important to note the prosecution is not constrained to prove the date alleged in the accusation or indictment, but may prove the offense occurred at any time within the statute of limitations. If this occurs, the defense may be entitled to a continuance due to surprise.
If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.