The Constitutionality
Prosecution B
BY jason h. lamb1
Jason H. Lamb
Missouri Office of
Prosecution Services
A recent article in the Journal of
the Missouri Bar concluded that commencing prosecution by complaint in
Missouri is unconstitutional because the
Missouri Constitution requires that a
person can only be prosecuted by information or indictment.2 The conclusion
of that article confused two distinct
issues – the first being the substantive
vehicle of prosecution, and the second
being the procedural mechanism to commence prosecution and toll the statute of
limitations.
This article will discuss how the two
issues are separate and why the 2006
revision of the statute of limitations
does not infringe upon the rights of
defendants to a fair trial and notice of
the charges against them.
I. Introduction
Section 556.036.5 of the Revised
Statutes of Missouri (RSMo) states that
“[a] prosecution is commenced for a
misdemeanor or infraction when the information is filed and for a felony when
the complaint or indictment is filed.”3
This statute specifies when the statute of
limitations is tolled. In concert with the
statute, Missouri Rule of Criminal Procedure 22.01 provides the procedural
mechanism for commencing prosecution and states that “[f ]elony proceedings may be initiated by complaint or
by indictment.”
The Missouri Constitution states in
art. I, § 17:
That no person shall be pros336 / Journal of the Missouri Bar
ecuted criminally for felony or
misdemeanor otherwise than
by indictment or information,4
which shall be concurrent remedies, but this shall not be applied
to cases arising in the land or naval
forces or in the militia when in
actual service in time of war or
public danger, nor to prevent
arrests and preliminary examination in any criminal case.
Missouri law protects defendants in
Missouri from being brought to trial
without notice of the charges against
him or her. Missouri’s procedural rules,
statutes and constitution work together
to advance the interests of the state,
justice and the rights of defendants.
II. Commencing
Prosecution
In Missouri, there are three ways to
commence prosecution. First, in the
case of a misdemeanor or infraction,
prosecution may only be commenced
by the filing of an information.5 This is
the charging document that is signed
and filed by the prosecutor, and which
contains a probable cause statement
attached to it, usually signed by a law
enforcement officer.6
Second, in the case of felonies, a
prosecutor may convene a grand jury
and seek an indictment.7 This process is
most commonly used in metropolitan
or urban jurisdictions in Missouri.
y of Commencing
By Complaint
The final method of commencing
prosecution in Missouri is used in
the majority of felony prosecutions
in the state of Missouri – the filing
of a complaint.8 A complaint is a
charging document signed and filed
by the prosecutor, and which contains
a probable cause statement attached
to it, again usually signed by a law
enforcement officer.9 Upon the filing
of a complaint, an associate circuit
judge may issue an arrest warrant or
a summons.10 The defendant then
has the right to a preliminary hearing
(otherwise known as a preliminary
examination).11 “If the [associate circuit]
judge finds probable cause to believe
that a felony has been committed” and
probable cause to believe the defendant
is the one who committed the felony,
the judge may bind the defendant over
to the circuit division to answer to the
charges.12
The prosecutor then must file an
information in the circuit division.13
The Missouri Constitution14 ensures
that an indictment or information
must meet certain requirements of
notice of the charges pending against a
defendant.15
III. Tolling the Statute of
Limitations
Section 556.036 deals with time
limitations on prosecutions, more commonly known as the statute of limitations. Under this section, the statute of
limitations is tolled when a felony prosecution is commenced by complaint.16
Before 2006, § 556.036(5) read
as follows: “5. A prosecution is commenced either when an indictment is
found or an information filed.”
In 2006, the statute was amended
to read as follows: “5. A prosecution
is commenced for a misdemeanor or
infraction when the information is filed
and for a felony when the complaint or
indictment is filed.”
It was a change that gave prosecutors
the time and opportunity to obtain a
valid indictment or information, those
substantive vehicles of prosecution that
are constitutionally guaranteed to defendants before they are brought to trial.
IV. The Right to Notice and
Protection of the Defendant
There is no constitutional proviso
declaring that only an information or
indictment will toll the statute of limitations. In fact, the Missouri Constitution
is silent with respect to a statute of limitations. However, what the constitution
does provide in art. I, § 17 is the right
to be formally charged and apprised
of the charges with such specificity
as to allow the defendant to mount a
defense.17 When an indictment is filed,
“[t]he test for a sufficient indictment
is whether it contains all the essential
elements of the offense as set out in the
statute creating the offense and clearly
apprises the defendant of facts constituting the offense.”18 There is no doubt
that, under the Missouri Constitution, a
prosecutor must obtain a valid indict-
ment or information to fully and validly
prosecute someone, because an information or indictment is the constitutional
vehicle by which someone must be
brought to trial, with fair notice, but
it does not determine how the process
is commenced or when the statute of
limitations is tolled.
In 1937, the Supreme Court of
Missouri looked at the statute that laid
out the requirement for a preliminary
hearing to obtain an information.19 The
Court said that “[t]he purpose of the
statute is to safeguard the accused from
groundless and vindictive prosecution,
and to prevent an abuse of power by the
prosecuting attorney.”20
The clause in art. I, § 17 of the
Missouri Constitution that specifically
protects the right of a preliminary examination contemplates the necessity of
a distinct stage in the criminal process
that precedes the filing of an information. It is not until an indictment or
information is filed that a criminal case
is considered pending and that rights of
discovery attach.21
The statute of limitations is meant to
protect against “overly stale” charges.”22
The revision of § 556.036 in 2006 to
toll the statute of limitations by complaint reflected the legislature’s assessment of balancing the state’s interest in
prosecuting cases with the challenges
of processing evidence with limited
resources. However, even prior to the
change in the statute of limitations,
November-December 2010 / 337
commencement of prosecution by
complaint was already allowed under
Missouri Rule of Criminal Procedure
22.01 (which is clearly a procedural
matter). When it comes to matters
of procedure, the Supreme Court of
Missouri has the power to decide how
courts are to proceed, subject only
to the limit that the court may “not
change substantive rights, or...the
right of appeal.”23
Neither the legislature’s determination of how and when to toll the
statute of limitations, nor the court’s
decision to procedurally allow commencement of prosecution by complaint, interfere with the right of a
defendant to be tried by information
or indictment (which gives notice),
because the information or indictment
must still be obtained.
V. What is a Prosecution?
Both the Missouri Constitution
and § 556.036(5) on the statute of
limitations use the word “prosecuted”
or “prosecution.” The phrase “be
prosecuted” is used in the Missouri
Constitution, while the statute of
limitations uses the phrase “prosecution is commenced.”24 Black’s
Law Dictionary defines “prosecution” as “[a] criminal proceeding in
which an accused person is tried.”25
The Merriam-Webster’s Dictionary of Law defines “prosecution” as
“the institution and carrying on of a
criminal action involving the process
of seeking formal charges against a
person and pursuing those charges
to final judgment.”26 Definitions of
“prosecution” or “prosecute” are broad
enough to encompass all steps in the
process of bringing charges and trying a criminal defendant. However, a
logical interpretation of the Missouri
Constitution does not lead to the requirement that all activities that could
be classified as “prosecution” can occur
only after an indictment or information are obtained.
338 / Journal of the Missouri Bar
If, in fact, all facets of “prosecution”
can only occur under information or
indictment, then it could be argued
that all felony complaints are now invalid under the Missouri Constitution
and arguably were even before the legislative change to § 556.036 because
of Rule 22.01. That is an absurd result
that is not required to guarantee the
rights under art. I, § 17.
Establishing that commencement
of prosecution occurs only upon an
indictment or information would also
run afoul of established law that determines when other rights are triggered
during prosecution. If a complaint
cannot commence prosecution, then
the logical inference would be that
the defendant would not be entitled
to counsel upon arraignment on the
complaint or at any court appearances
prior to or including the preliminary
hearing because nothing before the
preliminary hearing would be considered a critical stage of prosecution.27
This, of course, flies contrary to the
existing precedent that interprets the
Sixth Amendment right to counsel
to attach at arraignment on a felony
complaint.28
VI. Substantive v.
Procedural
The previous article in this journal used a hypothetical situation of
a methamphetamine dealer, which
envisioned a three-year delay due to
a backlog of drug testing.29 Let us
apply the analysis of this article to a
more common scenario in which a
defendant is charged with a felony by
complaint, and then absconds, only
to be picked up on a failure to appear
warrant more than three years later.
The case has obviously never come to
preliminary hearing. When the defendant is brought to court again, the defense attorney objects on the grounds
that § 556.036, as amended, violates
the Missouri Constitution because
the defendant is being prosecuted by
something other than an indictment
or information.
This objection is invalid for one
simple reason. The statute of limitations and the Missouri Constitution
do not conflict on the issue of commencement of a prosecution. There
is a strong presumption that statutory law complies with the Missouri
Constitution.30 Doubts are resolved in
favor of the statute.31
The statute as amended does not
seek to substitute the requirements
under the Missouri Rules of Criminal
Procedure for an indictment or information with the lesser requirements
of a complaint.32 Nor does it allow
prosecutors to complete prosecution
without formally charging a defendant with a document that complies
with the constitution and case law
interpreting article I, section 17. The
substantive constitutional guarantees
of right to notice and protection from
vindictive or unwarranted prosecution are addressed by the requirement
of a specific vehicle of prosecution in
felony cases – indictment or information, both of which must pass a level
of muster beyond the mere filing of a
charging document by the prosecutor.
In contrast, the procedural mechanism for commencing prosecution is
set out in both Supreme Court Rule
and statute. Rule 22.01 and
§ 556.036 are limited to the procedural commencement of prosecution
and its application to the statute of
limitations. The two do not conflict.
In fact, they work in tandem to ensure
fair prosecutions and protect the
State’s interest in justice.
By tolling the statute of limitations,
the Missouri General Assembly has
simply prohibited defendants from
using a technicality to avoid prosecution.
VII. Conclusion
There is a substantive constitutional requirement of an information
or indictment to act as the vehicle
to validly complete the process of
prosecution. This requirement is not
contravened by § 556.036, which
provides the procedural mechanism to
commence prosecution. Particularly
when viewed in light of the presumption of a statute’s constitutionality,
Missouri prosecutors may commence
prosecution by complaint and the
statute of limitations is validly tolled
by such action under § 556.036. The
Missouri Constitution and the statute
do not conflict. As long as prosecutors bring formal charges by valid
indictments or informations, they will
not be in violation of the Missouri
Constitution and cases should not be
dismissed for exceeding the statute
of limitations if a complaint has first
been filed within the statutory time
allowed for prosecution.
Endnotes
1 Jason Lamb is the executive director of the
Missouri Office of Prosecution Services. He
served as the prosecuting attorney of Audrain
County from 2003-2009. He was a law clerk
for the Hon. Duane Benton of the Supreme
Court of Missouri from 1999-2000. He
received his juris doctorate from Tulane University School of Law in 1999. Jody Larison
contributed to the research and drafting of this
article. Ms. Larison is a third-year law student
at the University of Missouri School of Law.
Steve Sokoloff contributed to research and
development of this article. Mr. Sokoloff is the
prosecuting attorney of Dunklin County.
2 Dennis A. Golden, The Unconstitutionality
of Prosecutions by Complaint, 66 J. Mo. Bar 74
(2010).
3 Section 556.036(5), RSMo Supp. 2010.
4 See also § 545.010, RSMo 2000.
5 Section 556.036(5), RSMo Supp. 2010;
Rule 21.01; Rule 19.08.
6 Rule 21.04.
7 Rule 21.01.
8 Rules 22.01 & 22.02.
9 Rule 22.03.
10 Rules 22.04 & 22.06.
11 Section 544.250, RSMo 2000; Rule
22.08.
12 Rule 22.09(c).
13 Rule 23.
14 Mo. Const. art. I, § 17.
15 State v. Parkhurst, 845 S.W.2d 31, 35
(Mo. banc 1992).
16 Section 556.036(5), RSMo Supp. 2010.
17 State v. Logan, 941 S.W.2d 728, 731
(Mo. App. E.D. 1997) citing Parkhurst, 841
S.W.2d at 35.
18 Id. citing State v. O’Connell, 726 S.W.2d
742, 746 (Mo. banc 1987).
19 Section 544.250, RSMo 2000, previously
§ 3503, RSMo 1929; State v. McKinley, 111
S.W.2d 115, 117 (Mo. 1937).
20 McKinley at 117.
21 State ex rel. Woods v. Ratliff, 322 S.W.2d
864 (Mo. banc 1959).
22 State v. Corley, 251 S.W.3d 416,
419 (Mo. App. S.D. 2008).
23 Mo. Const. art. V, § 5.
24 Mo. Const. art. I, § 17; § 556.036,
RSMo Supp. 2010.
25 Black’s Law Dictionary 1341 (9th ed.
2009).
26 Merriam-Webster’s Dictionary of
Law (1996); available at http://dictionary.
lp.findlaw.com.
27 Morris v. State, 532 S.W.2d 455,
457 (Mo. banc 1976).
28 Id. at 457; State v. Dixon, 916 S.W.2d
834, 837 (Mo. App. W.D. 1995).
29 Dennis A. Golden, The Unconstitutionality of Prosecutions by Complaint, 66 J. Mo. Bar
74 (2010).
30 State v. Stokely, 842 S.W.2d 77, 79 (Mo.
banc 1992).
31 Id.
32 Rule 22.02.
November-December 2010 / 339