Duhaime's Law Dictionary


Accused Definition:

A person to whom a formal information containing an allegation of a criminal offence has been delivered, or a person arrested for a criminal offence.

Related Terms: Accusation, Information, Defendant

A person who stands, formally, and as certified in some written document called an indictment or an information, charged with the commission of a crime.

An accused will not necessarily be arrested although for serious crimes, the process of arresting an accused is standard law enforcement procedure.

§493 of Canada's Criminal Code (2010):

"Accused includes ... a person to whom a peace officer has issued an appearance notice ... and a person arrested for a criminal offence."

In R v Aujla, Justice Anderson added:

"An accused could also be a person against whom an information is laid and a summons issued. In this regard, the words of Lamer J., speaking for the Supreme Court of Canada in Carter v. R. are appropriate: '[P]rior to the charge, the liberty of the individual will not be subject to restraint nor will he or she stand accused before the community of committing a crime.'"

In R v Kempel, Justice Boyd adopted these words:

"To accuse means, to charge with the crime or fault of, etc. This may be done by laying an information against a person .... The person so charged is said to be the person accused."

Similarly, these words of Justice Wright of the United States Court of Appeals in US v Mills:

"The Sixth Amendment speedy trial provision applies when a defendant is accused. That occurs with the filing of either a formal indictment or information or else the actual restraints imposed by arrest or holding to answer a criminal charge."

Or in Terry v Duckworth, these words of Justice Woods, also of the US Court of Appeals:

"A criminal defendant's right to a speedy trial is guaranteed by the Sixth Amendment which is applicable to state criminal proceedings through the Fourteenth Amendment. The right to a speedy trial arises when a person becomes an accused. A person becomes an accused when prosecution is initiated against him, either through a formal indictment or information or by the actual restraints imposed by arrest and holding to answer a criminal charge."

However, in the United States, the fact of answering to the call of a grand jury does not make a person an accused. In US v Felton, Justice Diamond of the United States District Court for Pennsylvania wrote:

"Hathorne was not accused for Sixth Amendment purposes when he was brought to the Allegheny County Jail from Tallahassee, Florida, for questioning before the Grand Jury.... [H]e did not become an accused until he was indicted, thus, there has been no delay which violated his Sixth Amendment right to a speedy trial."

Conversely, in State v Almeida, Justice Kobayashi of the Supreme Court of Hawaii wrote that a person may be an accused even though no indictment has as yet been delivered to him:

"The right to speedy trial arises only when a person becomes an accused. We have interpreted accused to mean the point at which either a formal indictment or information has been returned against a person or when he becomes subject to actual restraints on his liberty imposed by arrest, whichever first occurs."

In Re Ismail, the House of Lords struggled with the extradition pre-requisite of a person being an accused in the foreign jurisdiction. Justice Steyn:

"It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of accused persons. It is also common ground that it is not enough that he is in the traditional phrase wanted by the police to help them with their enquiries. Something more is required....

"In England a prosecution may also be commenced if a custody officer decides that there is sufficient evidence to charge an arrested person and then proceeds to charge him.... Despite the fact that the prosecuting authorities and the court are not involved at that stage, the charging of an arrested person marks the beginning of a prosecution and the suspect becomes an accused person."

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