If charging instrument vague, you have solid defense in criminal case

This citation against Katt Timmons (as he is known on Facebook) appears entirely inadequate and unsustainable. (Photo Katt Timmons)
A policeman charged Katt Timmons, whose real name is in the citation above, with an ordinance charge under an apparently nonexisting ordinance. (Photo Katt Timmons)

The city’s criminal citation of a man accused of walking on the street while the sidewalk is available is an example of how police and officials high-handedly accuse people without sufficiently laying out the nature of their offenses.

By David Tulis / 92.7 NoogaRadio

Tennesseans and Americans have a right to know what laws apply to them and what conduct is forbidden or required. Vague are thrown out as unconstitutional because they don’t give adequate notice.

In two recent cases we can see how police fail to notify accused parties of their offenses. These parties are wise to challenge the charging instrument.

Katt Timmons is being charged under an unknown ordinance with, as the officer put it, walking on the  Street when the sidewalk is available.” The written document given Mr. Timmons identifies the charge by merely saying the word “citation” on the city’s uniform citation form and naming the ordinance. The officer supplies no narrative as to the facts constituting the offense.

A colleague’s efforts to find and read the ordinance failed. A woman at the city attorney’s office said an intern would find the ordinance and get back with us.

The citation to an apparently non-existent ordinance is a problem. More significant is the absence of any sort of narrative.

➤ Criminal charges against Jon Luman the free-spirited handyman in Red Bank, Tenn., have not once been put in writing and been presented to him. Mr. Lumen had a hearing before sessions court Judge Lila Statom and still had not been presented a written copy of the charging instrument. He says he does not know what the charges in what is apparently a “driving on a suspended driver license case.”

➤ In contrast to these to Tennessee cases is the state of Georgia’s case against Constance Giles. A deputy’s “reporting officer narrative” gives the factual basis of the charge against Mrs. Giles. Mrs. Giles this week engaged a law firm to defend her in the matter and also file suit against the deputy.

Attack the charging instrument

The general rule is that if you are criminally accused, your accuser must present a sworn statement that provides the facts against you in terms of the statute (or ordinance) you are alleged to have violated. He has to cite the law and state the facts to make it clear that your violation is real and that you deserve the criminal charge against you.

A complaint is “the initial pleading that starts a civil action and states the basis for the Court’s Jurisdiction, the basis for the plaintiffs claim, and the demand for relieved,” Black’s Law Dictionary, 8th edition, says.


Citation of the kind against Mr. Timmons is defined as follows: “Court-issued writ that commands a person to appear at a certain time and place to do something demanded in the Writ, or to show cause for not doing so. A police-issued order to appear before a judge on a given date to defend against a state of charge, such as a traffic violation.”

An earlier edition of Black’s gives detail. “A charge, preferred before a magistrate having jurisdiction, that a person named *** has committed a specified offense, with an officer to prove the fact, to the end that a prosecution may be instituted. It is a technical term, descriptive of proceedings before a magistrate.***  In some instances ‘complaint’ is interchangeable with ‘information’” (Black’s, 4th edition). In a civil case, a complaint “is a plain and concise statement of the facts constituting a cause of action without unnecessary repetition.”

A complaint is referred to in civil practice as “the first or initiatory pleading on the part of the plaintiff. *** its purpose is to give defendant information of all material facts on which plaintiff relies to support his demand.”

Your rights under constitution

Adequacy of charging instruments fulfills the duty of notice in the constitution. Your Tennessee bill of rights recognizes the right to receive adequate notice of a criminal charge. “Section 9. That in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and in prosecutions by indictment or presentment, a speedy public trial, by an impartial jury of the county in which the crime shall have been committed, and shall not be compelled to give evidence against himself.”

Section 14 says no person “shall be put to answer” any criminal charge but by

presentment, indictment or impeachment. Again, the focus is on the accuser delivering information to the accused, so that he can know the nature and cause of the claims against him. Without the claim, there cannot be means to prepare an “answer.”

Allege the essential facts’

Tennessee rules of criminal procedure highlight the importance of an articulate charging instrument. Rule 3 says it must be “in writing” and “under oath before a magistrate or a neutral and detached court clerk authorized by Rule 4 to make a probable cause determination.”

Most importantly, it must “allege the essential facts constituting the offense charged.” The advisory commission comments on Rule 3 is that “the one issuing an arrest warrant” must first have “in hand a detailed complaint reduced to writing.”

A case cited in Tennessee’s Rule 3 discussion, Whiteley v. Warden, 401 U.S. 560 (1971), makes clear that the charging instrument has to give enough information as to show the presence of probable cause under the federal 4th Amendment.

People accused by police have a first and perhaps best line of attack: The charging instrument and its adequacy.

The David Tulis show is 1 p.m. weekdays, live and lococentric.

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