103.1Types of Criminal Pleadings
Key Concepts
- The accusatory pleading refers to the indictment, information, or complaint by which the State begins a criminal prosecution.
- In misdemeanor cases, the pleading may consist of an arrest warrant, criminal summons, citation, magistrate's order, or statement of charges.
- In felony cases, the pleading must take the form of an indictment or information.
For templates with recommended language to use when charging specific criminal offenses, please see the related entry on Arrest Warrant and Indictment Forms.
Overview
“The term ‘pleadings’ has been used infrequently in criminal cases.” G.S. Ch. 15A, Art. 49 cmt. In general, the accusatory pleading refers to the indictment, information, or complaint by which the government begins a criminal prosecution. Black’s Law Dictionary, 1339 (10th ed. 2014). Pleading is thus distinguished from process, that is, a summons or writ requiring a person to come to court. Cf. G.S. Ch. 15A, Art. 17 cmt. In misdemeanor cases tried in the district court and on appeal for trial de novo in the superior court, the criminal pleading may consist of an arrest warrant, criminal summons, citation, magistrate’s order, or statement of charges. In felony cases which are initially tried in the superior court, the pleading must take the form of an indictment or information.
In general, a criminal pleading must contain the items enumerated in G.S. 15A-924(a), but omission of a particular item is not necessarily a fatal defect. These requirements are discussed more fully in the Introduction to Arrest Warrant and Indictment Forms, available here.
Misdemeanor Pleadings in District Court
For misdemeanor charges in the district court, the criminal process may operate as the pleading. Hence, the citation, criminal summons, arrest warrant, or magistrate’s order serves as the State’s pleading for a misdemeanor prosecuted in the district court, unless the prosecutor files a statement of charges, or there is objection to trial on a citation. G.S. 15A-922(a). Process also includes an order for arrest, which might be issued in conjunction with criminal charges. G.S. 15A-305. An order for arrest may not, however, serve as the State’s pleading. G.S. 15A-921.
1. Citation
A citation is a written accusation issued by a law enforcement officer. G.S. 15A-302. The principal difference between a citation and other forms of criminal process is that a citation is issued by a law enforcement officer instead of a judicial official. Compare G.S. 15A-302(a) (officer may issue citation); with G.S. 15A-303(f) (who may issue criminal summons); G.S. 15A-304(f) (arrest warrant); 15A-305(a) (order for arrest). An officer may issue a citation to anyone who the officer has probable cause to believe has committed a misdemeanor or infraction. G.S. 15A-302(b).
A citation must:
(1) Identify the crime charged, including the date, and where material, identify the property and persons involved;
(2) Contain the name and address of the person cited, or other identification if that cannot be ascertained;
(3) Identify the officer issuing the citation; and
(4) Cite the person to whom issued to appear in a designated court at a designated time and date.
G.S. 15A-302(c). A copy of the citation must be delivered to the person cited. Id. at (c).
Relaxed standards
Notwithstanding G.S. 15A-924, a citation is deemed a sufficient pleading so long as it complies with G.S. 15A-302(c). State v. Jones, 371 N.C. 548 (2018). For more information about the relaxed pleading standards for citations, see these blog posts:
(i) Shea Denning,"Citation for Open Container Violation that Ommitted Elements Was Sufficient to Confer Jurisdiction," N.C. Criminal Law Blog, Oct. 30, 2018;
(ii) Jeff Welty, "Court of Appeals Rules That a Citation Was Sufficient Even Though It Failed to Allege Multiple Elements of an Offense," N.C. Criminal Law Blog, Sept. 11, 2017; and
(iii) Jeff Welty, "Court of Appeals: Pleading Standards are Releaxed for Citations," N.C. Criminal Law Blog, April 25, 2016.
2. Criminal Summons
A criminal summons consists of a statement of the crime or infraction alleged and an order directing the person to appear and answer the charges. G.S. 15A-303(a). It is based upon a showing of probable cause supported by oath or affirmation. Id. A criminal summons must contain a statement of the crime or infraction charged, but no criminal summons is invalid because of any technicality of pleading if the statement is sufficient to identify the crime or infraction. Id. at (b). The summons must order the person to appear in a designated court at a designated time and date to answer the charges and advise him that he may be held in contempt for failure to appear. Id. at (d). A criminal summons may be issued by a judicial official. Id. at (f) (“any person authorized to issue warrants for arrest”); cf. G.S. 15A-304(f).
3. Warrant for Arrest
A warrant for arrest consists of a statement of the crime alleged and an order directing that the person be arrested and held to answer the charges. G.S. 15A-304(a). It is based upon a showing of probable cause supported by oath or affirmation. Id. A warrant for arrest may be issued when it appears to the judicial official that the person named should be taken into custody. Id. at (b)(1). The warrant must contain a statement of the crime charged, but no warrant for arrest is invalid because of any technicality of pleading if the statement is sufficient to identify the crime. Id. at (c); cf. G.S. 15-24.1 (warrant may be amended to show ownership of property). The order for arrest must direct that a law enforcement officer take the defendant into custody and bring him before a judicial official to answer the charges. G.S. 15A-304(e). A warrant for arrest may be issued by a judicial official. Id. at (f) (enumerating authorized judicial officials).
4. Magistrate’s Order
A magistrate’s order is used when a person has been arrested without a warrant. See G.S. 15A-511(c). When that happens, the magistrate must determine whether there is probable cause to believe that a crime has been committed and that the person arrested committed it. Id. at (c)(1). If the magistrate determines that there is probable cause, he must issue a magistrate’s order. Id. at (c)(3). The magistrate’s order must contain (1) a statement of the crime charged, and (2) a finding that the defendant has been arrested without a warrant and there is probable cause for his detention. Id. If an officer issues a citation for a misdemeanor and arrests the person, the magistrate may convert the citation into a magistrate’s order by signing the citation. See Jessica Smith, Criminal Proceedings before North Carolina Magistrates 6 (2014).
5. Statement of Charges
A statement of charges is a criminal pleading that charges a misdemeanor. G.S. 15A-922(b)(1). It must be signed by the prosecutor who files it. Id. It does not function as process, and so it should not be used to initiate a prosecution and compel the defendant to appear. Cf. id. at (c) (summons or warrant may be necessary to secure the attendance of the defendant).
A statement of charges may be used in the following circumstances:
(1) When a defendant objects to trial on a citation. G.S. 15A-922(c). Objection to trial on a citation, however, must be asserted in the court of original jurisdiction. State v. Jones, 371 N.C. 548, 556 (2018).
(2) When the prosecutor determines that new charges are justified. The prosecutor may file a statement of charges at any time prior to arraignment in the district court. It may charge the same offense or additional or different offenses. G.S. 15A-922(d).
(3) When a defendant objects to the sufficiency of a process as pleading, and the judge rules that the pleading is insufficient. G.S. 15A-922(e). A statement of charges filed pursuant to this authorization may not change the nature of the offense. Id. If the judge rules the pleading is insufficient, the judge’s order must allow the prosecutor at least three working days to file the statement of charges. Id. at (b)(3).
Upon motion a defendant is entitled to at least three working days after a statement of charges is filed, or the time the defendant is first notified of the statement of charges, whichever is later, unless the judge finds that the statement of charges makes no material change in the pleadings and no additional time is necessary. G.S. 15A-922(b)(2).
Felonies and Misdemeanors Initiated in Superior Court
The superior court has jurisdiction over all felonies, and over misdemeanors joined with felonies. The superior court also has original jurisdiction over misdemeanors initiated by presentment. See G.S. 7A-271. Jurisdiction over an offense gives the court jurisdiction over all lesser-included offenses of the crime charged. Therefore, when the defendant is indicted for a felony, the superior court can accept a plea of guilty to a lesser-included offense that is a misdemeanor, or it can enter judgment on a jury verdict for a lesser-included misdemeanor.
In superior court, a prosecution must be initiated by indictment or information. See G.S. 15A-923(a). A bill of particulars, described below, may be used to supplement, but does not replace, an indictment or information. A presentment, described below, is not a formal charging document but may lead to the initiation of charges.
1. Indictment
An indictment is a written accusation by a grand jury charging a person with the commission of one or more criminal offenses. G.S. 15A-641(a); cf. State v. Thomas, 236 N.C. 454, 457 (1952). A prosecution initiated in the superior court must be by indictment, unless indictment is waived, in which case the pleading must be an information. G.S. 15A-923(a). Misdemeanors may be charged by indictment: (1) when the charge is initiated by presentment, or (2) when the offense is joined with a charged felony. G.S. 7A-271(a)(2) (presentment) & (3) (joined with a felony).
An indictment must contain:
(1) The name of the superior court in which it is filed;
(2) The title of the action;
(3) Criminal charges pleaded as provided in Ch. 15A, Art. 49;
(4) The signature of the prosecutor, but its omission is not a fatal defect; and
(5) The signature of the foreman or acting foreman of the grand jury attesting the concurrence of 12 or more grand jurors in the finding of a true bill of indictment. G.S. 15A-644(a).
But an indictment is not invalid which fails to contain the attestation clause required by subsection (a)(5). State v. Hall, 131 N.C. App. 427, 429 (1998), aff’d per curiam, 350 N.C. 303 (1999).
2. Information
An information is a written accusation by a prosecutor, filed with a superior court, charging a person represented by counsel with the commission of one or more criminal offenses. G.S. 15A-641(b). A prosecution initiated in the superior court must be by indictment, unless indictment is waived, in which case the pleading must be an information. G.S. 15A-923(a). Indictment may not be waived in a capital case or in a case in which the defendant is not represented by counsel. G.S. 15A-642(b). Waiver of indictment must be: (1) in writing, (2) signed by the defendant, (3) signed by defense counsel, and (4) attached to or executed upon the bill of information. Id. at (c); cf. State v. Futrelle, 266 N.C. App. 207 (2019) (trial court lacked jurisdiction when purported waiver of indictment was not signed by defense counsel); State v. Nixon, 263 N.C. App. 676, 680 (2019) (trial court lacked jurisdiction when information contained no waiver of indictment).
An information must contain everything required of an indictment, except that the accusation is that of the prosecutor, and no attestation of the grand jury foreperson is required. G.S. 15A-644(b). The information must also contain or have attached the waiver of indictment. Id.
3. Presentment
A presentment is a written accusation by a grand jury, made on its own motion and filed with a superior court, charging a person with the commission of one or more criminal offenses. G.S. 15A-641(c). A presentment does not institute criminal proceedings. Id.; see also G.S. 15A-923(a) (“A presentment by the grand jury may not serve as the pleading in a criminal case.”). Rather, the district attorney is obligated to investigate the factual background of every presentment returned in his district and to submit bills of indictment when appropriate. G.S. 15A-641(c). A presentment must contain everything required of an indictment, except a presentment need not contain the signature of a prosecutor, and the attestation regards the concurrence of 12 or more grand jurors in the presentment rather than a true bill of indictment. G.S. 15A-644(c).
Presentment is the only way that a misdemeanor prosecution may be commenced in superior court if the misdemeanor is unrelated to a felony. G.S. 7A-271(a)(2). When the prosecution of a misdemeanor is initiated in the superior court as permitted by G.S. 7A-271, the prosecution must be upon information or indictment. G.S. 15A-922(g). A prosecutor may solicit a presentment from the grand jury by submitting a draft presentment. See G.S. 15A-628(a)(4) (grand jury investigation may be initiated upon request of prosecutor). But the prosecutor is obligated to investigate every presentment returned by the grand jury. G.S. 15A-641(c). Hence, a presentment and indictment submitted to the grand jury simultaneously are invalid absent any intervening investigation. State v. Baker, 263 N.C. App. 221, 226 (2018).
When is presentment used?
Presentments are somewhat rare in practice. While it is possible for the grand jury to act entirely on its own in issuing a presentment, the process more often begins with the prosecutor writing a “draft” or “proposed” presentment, which is submitted to the grand jury along with the testimony of a witness. So in effect, the prosecutor is asking the grand jury (through a draft presentment) to tell the prosecutor (through an issued presentment) to come back and ask the grand jury (though a proposed indictment) to institute a charge (through an issued indictment).
Why would the state seek a presentment, rather than submitting a normal indictment to the grand jury? Usually, this occurs because the state wishes to initiate a misdemeanor prosecution in superior court, rather than district court: “the State might use the presentment process when it expects a district court trial to be lengthy, involve several witnesses, etc., and if the defendant is convicted, an appeal for a trial de novo in superior court is highly likely. So one trial instead of two may ultimately save time and effort. Other reasons include cases that involve public figures or officials or cases that have received significant publicity.” Bob Farb, "Indicting for a Misdemeanor in Superior Court After a Grand Jury Presentment," N.C. Criminal Law Blog, Oct. 16, 2013.
4. Bill of Particulars
Definition and purpose. A bill of particulars is a written statement prepared by the prosecutor and filed with the court upon motion of the defendant that sets forth factual information pertaining to the charge and not recited in the pleading but necessary for the defendant adequately to prepare or conduct his defense. See G.S. 15A-925; State v. Stallings, 107 N.C. App. 241, 245 (1992). “The purpose of a bill of particulars is to put the defendant on notice of the specific charges and acts which are to be resolved at trial.” Stallings, 107 N.C. App. at 245.
Contents, filing, and service. Upon motion of the defendant, the court may order the State to file and serve a bill of particulars. G.S. 15A-925(a). The defendant must allege that he cannot adequately prepare or conduct his defense without the information requested. Id. at (b); State v. Moore, 335 N.C. 567, 588 (1994). If the court determines that any or all of the items of information requested are necessary to enable the defendant to prepare or conduct his defense, the court must order the state to file and serve a bill of particulars. G.S. 15A-925(c). The bill of particulars must be filed with the court and served upon the defendant. Id. at (d).
Evidence and Theories. The State is not required to recite “matters of evidence.” G.S. 15A-925(c); cf. State v. Alston, 307 N.C. 321 (1983) (“all events and circumstances surrounding the alleged homicide”); State v. Williams, 304 N.C. 394, 413 (1981) (paths the defendants traveled within the store during the robbery and position of the victim at all times). Nor is the State required in a bill of particulars to reveal its legal theory. State v. Garcia, 358 N.C. 382, 389 (2004) (legal theories are not “factual information” under G.S. 15A-925); State v. Hicks, 241 N.C. App. 345, 348 (2015) (same); but see State v. Whitfield, 310 N.C. 608, 611 (1984); State v. Isom, 52 N.C. App. 331, 334 (1981). Similarly, the State is not required to reveal aggravating sentencing factors in a bill of particulars. State v. Young, 312 N.C. 669, 676 (1985) (aggravating circumstances are not “factual information” under G.S. 15A-925); State v. Brown, 306 N.C. 151, 184 (1982) (same).
Not a Pleading. A bill of particulars may not supply an omission or cure a defect in a criminal pleading. G.S. 15A-925(e); State v. Garcia, 358 N.C. 382, 387, (2004); cf. State v. Parker, 119 N.C. App. 328, 336 (1995) (“not a part of the indictment, nor is it a substitute for or amendment to the indictment.”). Still, the state’s evidence, as to those matters within the scope of the motion for a bill of particulars, is limited to the items set out in the bill of particulars. G.S. 15A-925(e); cf. State v. Knight, 261 N.C. 17, 20 (1964); State v. Loudner, 77 N.C. App. 453, 454 (1985). The court may permit an amendment to a bill of particulars at any time before trial. G.S. 15A-925(e).
Particular offenses. The crime of conspiracy is particularly appropriate for the granting of a bill of particulars. State v. Haywood, 144 N.C. App. 223, 231 (2001). For an example of how to file a bill of particulars in a case when a child sexual assault victim is unsure of the date of the offense, see State v. Effler, 309 N.C. 742, 748 (1983).
