5.3 Criminal Justice Terminology I: Offenses, Charging Documents, and Custody

How to Study the Terminology

Outline section 2.4 Terminology lists nineteen terms. PSI tests them in two ways: straight definitions ("A written order of a court directing an officer to arrest a person is a ___") and applied scenarios ("The defendant has fled the state. He is a ___"). This section covers twelve terms about offenses, charging, and custody. Section 5.4 covers the rest.

Offense Terms

Capital Offense

A capital offense is one for which death may be imposed. Under ORC 2901.02(B), aggravated murder charged with one or more specifications of aggravating circumstances under ORC 2929.04, and any other offense for which death may be imposed, is a capital offense.

Why it matters for bail:

• The Ohio Constitution (Art. I, Sec. 9) makes all persons bailable except a person charged with a capital offense where the proof is evident or the presumption great (and certain dangerous felony defendants; see Section 8.1).
• A felony punishable by death or life imprisonment must be prosecuted by indictment (Crim.R. 7(A)).

Felony

A felony is a serious offense. Ohio classifies felonies as aggravated murder, murder, and felonies of the first through fifth degree (F1 to F5). An offense not specifically classified is a felony if imprisonment for more than one year may be imposed (ORC 2901.02(E)). Felonies are tried in the court of common pleas.

Misdemeanor

A misdemeanor is a less serious offense: first through fourth degree (M1 to M4), plus minor misdemeanors. An unclassified offense is a misdemeanor if imprisonment of not more than one year may be imposed (ORC 2901.02(F)). Maximum jail terms under ORC 2929.24(A) are:

A minor misdemeanor is an unclassified offense punishable only by a fine of not more than $150 (for offenses on or after January 1, 2004), community service, or a financial sanction other than a fine (ORC 2901.02(G)). Several bail-agent offenses are M1s, such as unlicensed bail activity on a first offense (ORC 3905.99(E)) and illegal apprehension (ORC 2927.27(C)).

Charging and Court-Order Terms

Indictment

An indictment is a formal written accusation of a crime returned by a grand jury. In Ohio the grand jury has nine members, and seven or more must concur (Crim.R. 6). An indictment is often called a "true bill." When the defendant waives indictment in writing for a non-capital, non-life felony, the prosecutor may instead file an information, a charging document the prosecutor files without a grand jury (Crim.R. 7(A)). In lower courts, cases usually begin with a complaint.

Warrant

A warrant is a written order of a court directing law enforcement to arrest a person (arrest warrant) or to search a place (search warrant).

• Crim.R. 4 governs arrest warrants issued on a complaint.
• When an accused fails to appear, the court may issue a warrant for arrest. ORC 2937.43 authorizes this for defendants released on their own recognizance, and courts use bench warrants, often called a capias, for defendants on any bail.
• For surrender, ORC 2937.40(A)(1)(b) lets the clerk, on the surety's written request, issue a warrant to the sheriff for the accused's arrest (Section 8.4).

Writ

A writ is a written order issued by a court commanding a person or official to do, or refrain from doing, a specified act. Examples:

• a writ of habeas corpus ("you have the body") orders a custodian to bring a detained person before the court so the legality of the detention can be examined (ORC 2725.01);
• a writ of execution enforces a money judgment, such as a forfeiture judgment "as in civil cases" (ORC 2937.36(C)).

People and Custody Terms

Defendant

The defendant is the person accused of the offense in a criminal case. The statutes also call this person "the accused." On a bail bond, the defendant is the principal.

Custody

Custody is the care and control of a person by lawful authority, such as the sheriff holding an arrestee. Surrender statutes speak of delivering the accused into "the custody of the sheriff" or into open court (ORC 2937.40(A)(1)). A person released on bail is out of physical custody but remains under the court's authority.

Incarceration

Incarceration is confinement in a jail, prison, or other correctional facility. The term shows up in licensing law: ORC 3905.841(B) bars prisoners incarcerated in any jail, prison, or other place of incarceration from the bail business.

Fugitive

A fugitive is a person who flees or hides to avoid arrest, prosecution, custody, or punishment. In bail, it usually means a defendant who has failed to appear and cannot be found. ORC 2927.27 controls who may apprehend such a person (Section 9.1). ORC 3905.932(I) permits a fee, under written agreement, for returning to custody someone who fled the jurisdiction or caused a forfeiture.

Extradition

Extradition is the formal legal process by which one state surrenders a person charged with or convicted of a crime to another state that demands them. Ohio has adopted the Uniform Criminal Extradition Act (ORC 2963.01 to 2963.27). It involves requisitions and warrants between governors and gives the person arrested on such a warrant the right to challenge the process. Extradition is a government-to-government process. It is separate from a surety's private right to arrest and surrender its principal.

The Key Bail Term: Recognizance

A recognizance is a written undertaking by one or more persons to forfeit the sum of money set by the court or magistrate if the accused is in default for appearance (ORC 2937.22(A)(3)).

• The statutory forms in ORC 2937.44 have the accused and sureties "jointly and severally acknowledge themselves to owe the state of Ohio" the stated sum, void if the accused appears and abides by the court's judgment.
• A surety bail bond is a recognizance with an insurer as surety.
• Release on own recognizance (ORC 2937.29) means the court releases the accused on the accused's own promise, with no surety, when it believes the accused will appear.