RE: Indictments, Informations, Arrest Procedure, and Pretrial Questioning
You asked for a summary of (1) the principal distinctions between the indictment, information, and complaint methods of charging people with offenses; (2) arrest and pretrial procedure; and (3) the prosecutor ' s authority to question a person before trial.
The principal distinction between the indictment, information, and complaint methods of charging people is the identity of the entity who makes the formal accusation. In the case of an indictment, it is the grand jury; in the case of an information, the prosecutor; and in the case of a complaint, most typically it is a law enforcement officer.
In Connecticut, crimes must be prosecuted by information or complaint, and the grand jury has no charging function. Complaints are used for individuals who are not being taken into custody. Issued together with a summons, they specify the offense charged and notify the accused of a date and time to appear in court. The statutes authorize law enforcement officers, in lieu of taking a person into custody, to issue a complaint and summons if the offense he allegedly committed is a misdemeanor or is punishable by no more than one year imprisonment, a $1,000 fine, or both. The court rules require felonies to be prosecuted by information, and allow misdemeanors, violations, and infractions to be prosecuted by information or complaint. Informations are formal charging documents signed by the prosecutor, usually at or just before the accused ' s first court appearance. Although the law allows misdemeanors and lesser offenses to be prosecuted by complaint, in practice prosecutors sign informations for virtually all offenses, with the exception of minor motor vehicle offenses for which the accused appears in court and pays a fine.
In Connecticut, arrest and pretrial procedure begins with the prosecutor applying for an arrest warrant in court, unless the conditions exist for the police to make a warrantless, speedy arrest. Once the prosecutor obtains a warrant, he gives it to the police to execute. Upon arresting the accused, the police book and fingerprint him at the police station. Typically the judge who issued the warrant will have set release conditions and bail amount on the back of it. If the judge neither set the amount nor specified that the accused should not be released, the police set the bail amount using their own guidelines. If the person posts bail or is released on a promise to appear, the police assign him a date for his first court appearance, no more than 14 days from the arrest date. If he does not make bail, he is kept in lock-up, and brought before the court on the first court day following his arrest.
At or before the accused ' s first court appearance, the prosecutor reviews the police file and determines whether to sign the information. If the prosecutor signs the information, the accused is brought into court for arraignment. There the judge makes a probable cause determination, if the accused was arrested without a warrant and has not been released from custody; reads him his constitutional rights and the charges against him; and reviews the bond set, if any. The accused may enter a plea at this time, but typically the court will issue a continuance to allow the accused to apply for a public defender or obtain private counsel. Furthermore, if the person is accused of a crime punishable by death or life imprisonment, the judge will transfer the case to a Part A court for a probable cause hearing. If the judge finds probable cause at the hearing, the accused will usually enter a plea at that time. Once an accused enters a not guilty plea, he will be asked if he wants a jury trial; the judge will set a date for a pretrial conference; and the clerk will place the case on the trial list of pending cases.
Prosecutors have no authority to require an accused or witness to answer questions in a prosecutor ' s office before trial. Any person may voluntarily respond to prosecutorial questioning, but once a person is in custody, or is formally charged with an offense, the prosecutor must channel all communication through the accused ' s counsel. The court rules authorize the court, upon a prosecutor ' s motion, to subpoena witnesses for deposition, but it must appear to the court that the witness will be unavailable at trial, or is an expert who examined the accused for a mental disease or defect and failed to file a written report. The statutes authorize prosecutors to issue subpoenas, but specify that this subpoena authority is for witnesses to be sworn before the court in criminal cases.
CHARGING METHODS
Indictment
An indictment is a written accusation that originates with a prosecutor, issued by a grand jury if it agrees the named party should be charged with the offense. A presentment is an accusation initiated by the grand jury itself, without a bill of indictment provided by the prosecutor. In Connecticut, state law offenses are not charged by means of indictments or presentments because the grand jury acts solely as an investigative body (see CGS � 54-45b et seq.)
Information
An information is a written accusation made by a prosecutor, without a grand jury, informing the defendant of the nature of the charge made against him and the act he allegedly committed. By law, crimes charged by the state on or after May 26, 1983 must be prosecuted by complaint or information (CGS � 54-46). The court rules require felonies to be prosecuted by information, and permit misdemeanors, violations, and infractions to be prosecuted by information or complaint. For jury cases, and in all other cases on written request of the defendant, the prosecuting authority must issue an information in place of the uniform summons and complaint (Conn. Super. Ct. R. 616). According to the Chief State ' s Attorney ' s and Public Defender ' s Offices, in virtually every case the prosecutor signs an information document to formally charge the defendant, regardless of whether the defendant appears before the court under a summons and complaint. In general, for minor motor vehicle misdemeanors, violations, and infractions for which the police issue a summons, an information form is not used if the accused pays the ticket on the first appearance.
The court rules require the information to be a plain and concise statement of the offense charged. For each count, it must cite the statute, rule, regulation or other provision of the law which the defendant is alleged to have violated. It also must contain: (1) the name of the court in which it is filed, (2) the title of the action, (3) the defendant ' s name, (4) a statement that the crime was committed in a particular judicial district or geographical area, and (5) a statement that the crime was committed on or about a particular date or time period (Conn. Super. Ct. R. 618).
Summons and Complaint
A summons and complaint is used for people who allegedly have committed an offense but are not being taken into custody. It informs them of the offense charged and the date to appear in court. CGS � 54-1h authorizes an arresting officer, in lieu of taking a person into custody, to issue a written complaint and summons and release him on his written promise to appear in court, if the offense for which he was arrested is a misdemeanor, or is punishable by no more than one year imprisonment, a $1,000 fine, or both.
In instances where a warrant application is before the court, the court rules authorize the court, even where probable cause is found, to issue a summons and complaint in lieu of the warrant, unless it is necessary to take the accused into custody for any of seven specified reasons, including (1) the offense is a felony, (2) there is a substantial likelihood that he will not appear in court at the specified time and place unless taken into custody, and (3) he is likely to cause injury to himself or others, or serious property damage. Failure to comply with this rule entitles the accused to be released upon a written promise to appear where none of the seven reasons are found to exist (Conn. Super. Ct. R. 595).
The rules require the summons and complaint to specify: (1) the accused ' s name; (2) a date and time for appearance within 14 days of its issuance; (3) the offense charged; (4) that if the accused does not appear at a specified time and place, an application may be made for an arrest arrant; and (5) that he may be represented by an attorney, and specifically, a public defender if he cannot afford an attorney and is charged with an offense punishable by incarceration (Conn. Super. Ct. R. 599).
ARREST AND PRETRIAL PROCEDURE
Arrest Pursuant to a Warrant
A person may be arrested with or without a warrant, depending on whether the conditions for a speedy arrest exist. If a warrant is required, the prosecutor applies for it in court. The court may issue the warrant if it determines that the prosecutor ' s affidavit accompanying the warrant application shows that there is probable cause to believe that the offense has been committed and the accused committed it. The warrant must be signed by the judicial authority and contain (1) the accused person ' s name, or if his name is unknown, a name or description by which he can be identified with reasonable certainty; (2) the conditions of release, if any; (3) a statement of the offense charged; and (4) a direction that the officer authorized to execute it arrest the accused and bring him before a judicial authority without undue delay (Conn. Super. Ct. R.s 593 and 594).
Conditions of Release Following Arrest
Once the person is arrested, the police book and fingerprint him at the police station. If he was arrested pursuant to a warrant, the judge may have set the bond on the back. CGS � 54-2a(b) requires a judge, when issuing a bench warrant for the arrest of a person accused of an offense punishable by death or life imprisonment, to set the conditions of release or specify that the accused is not entitled to post bail. When the person is accused of other offenses, the court or judge has the discretion to set the release conditions.
If the person was arrested without a warrant or the judge failed to set release conditions or specify that the person should not be released under bail, the police may issue a promise to appear or use their own bail guidelines to set the bond amount. If the arrested person is not released under a promise to appear or cannot post bail, the officer must immediately notify the bail commissioner, who interviews him and sets release conditions that assure the person ' s court appearance (CGS � 54-63d). Usually the bail commissioner ' s first encounter with the accused is at lock-up.
Setting First Court Appearance Date
If the person makes bond, or is given a promise to appear, the police must assign him a date for his first court appearance, but no more than 14 days from the arrest date, unless he is accused of a family violence crime, in which case he must be brought before the next session of the court. A defendant who is not released from custody must be brought before the court by the first court day following his arrest (Conn. Super. Ct. R.s 635 and 661).
Upon setting a court appearance date, the police send the accused ' s entire report to the clerk ' s office for the appropriate Geographical Area court. The clerk prepares the information sheet, and makes two files—one for the court, the other for the prosecutor. Once the prosecutor signs the information sheet, the official charging document, the person is considered to be charged by the court.
Probable Cause Hearing
Under CGS � 54-46a, a person accused of a crime punishable by death or life imprisonment may not be put to a plea or held to trial unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged was committed and the accused committed it. Unless the accused waives the preliminary hearing, or the court for good cause shown extends it, the preliminary hearing must be conducted within 60 days of the filing of the complaint or information. Typically the accused will be arraigned in court and the judge will review the bond amount set, if any, and then transfer the case to Part A of the Criminal Division for a probable cause hearing. If the judge finds probable cause at the hearing, the accused will usually enter a plea at that time. The judge will then set a date for a pretrial conference.
Arraignment
If the accused was arrested without a warrant and has not been released from custody, the judge presiding at arraignment makes a determination as to whether there is probable cause to believe that the accused committed the offense charged. If the judge does not find probable cause, the accused must be released (Conn. Super. Ct. R. 650).
Generally at arraignment sessions the judge advises the defendant of his constitutional rights, reads him the offenses with which he is charged, and determines whether to refer him to the public defender for an investigation of indigency. At the arraignment, the defendant may enter a plea of not guilty, guilty, or nolo contendere. If he pleads not guilty, he will be asked whether he desires a trial by the court or a jury (Conn. Super. Ct. R.s 643 and 645). Most defendants, however, do not enter a plea at arraignment, but instead obtain a continuance to apply for a public defender or obtain or consult with counsel.
Setting Pretrial Conference Date; Case Placed on Trial List
Upon entry of a not guilty plea, the court places the case on a trial list of pending cases maintained by the clerk, and assigns a date for a pretrial conference. (Conn. Super. Ct. R. 977; CGS � 54-1b)).
The court may hear motions to suppress evidence or challenge the legality of an arrest at a pretrial hearing. But according to Jack Cronan, Legislative Liaison for the Chief State ' s Attorney ' s Office, the court typically hears motions on the trial date, before the jury selection process begins.
QUESTIONING BY PROSECUTOR
With one exception for deposing a witness who may become unavailable, neither the statutes nor court rules authorize the prosecutor to require a person to appear for questioning outside the court, after charges have been filed. And without exception, neither the statutes nor court rules authorize the prosecutor to require a person to appear for questioning before charges have been filed.
According to both Deborah Sullivan and Jack Cronan, Legislative Liaisons respectively for the Chief Public Defender and the Chief State ' s Attorney ' s Office, the prosecutor has no authority to require an accused to respond to prosecutorial questioning before trial, except in the context of a court hearing. The accused may, however, volunteer to speak with the prosecutor.
The statutory provisions on subpoenas authorize their issuance only within the context of a criminal “case” and with judicial involvement. CGS � 51-286a authorizes state prosecutors to issue subpoenas for witnesses to be sworn before the court in criminal cases. CGS � 54-2a authorizes the court in criminal cases to issue subpoenas for witnesses.
The court rules allow the prosecutor to ask the court to subpoena for deposition a witness who may be unavailable at trial. Specifically, in any case involving an offense for which the punishment may be more than one year imprisonment, the court, upon any party ' s request, may issue a subpoena for the appearance of a person at a designated time and place to give his deposition if the testimony may be required at trial and it appears that such person: (1) will, because of physical or mental illness or infirmity, be unable to be present to testify at the trial or a hearing; (2) resides outside this state and his presence cannot be compelled; (3) will otherwise be unable to be present to testify at a trial or hearing; or (4) is an expert who has examined a defendant for a mental disease or defect and has failed to file the required written report (Conn. Super. Ct. R. 791). Notably, the rule that authorizes the prosecutor to file a motion to order a defendant to participate in a reasonably conducted procedure to obtain nontestimonial evidence specifically prohibit the defendant from being subjected to investigative interrogation (Conn. Super. Ct. R. 781).