A look into the proposed Mississippi Rules of Criminal Procedure (first in a series of many)

I hope everyone had an enjoyable Easter holiday.  Last week, I mentioned that the next big thing in Mississippi criminal practice would be the adoption of the Mississippi Rules of Criminal Procedure.  The proposed MRCrP can be found here.  They are not final, but have been through the comment period, which indicates that the proposed MRCrP are likely to resemble the final product to a great degree.

That being said, I'm going to take a great deal of time to go through the proposed MRCrP here on the blog, pointing out the things I find interesting, pleasing, troublesome, etc.  Today is the first in what I anticipate will be a long line of posts.

I'm starting towards the beginning of the proposed MRCrP, with Rules 2.1.  Rule 2.1 goes a long way towards clarifying and standardizing criminal practice in Mississippi, and I believe that to be a laudable goal.  But it is here that we run into what may well be a persistent problem throughout the proposed MRCrP, and that is the difference between the Mississippi Supreme Court's inherent rule-making powers and the authority to pass legislation, which is reserved to the Legislature.

Rule 2.1 seeks to solidify the "complaint" and the "indictment" as the two documents that may begin a criminal prosecution.  As far as I know, there hasn't been an issue with calling the true bill issued by the grand jury by a name other than "indictment."  That does not hold true with what may soon be known uniformly as the complaint.  Different jurisdictions around Mississippi currently refer to the other charging instrument by different names, including "information," "warrant", "affidavit," and yes, "complaint."

The multitude of terms comes from our Constitution and the Mississippi Code of 1972.  Article 3, Section 27 of the Mississippi Constitution of 1890 forbids using an "information" to prosecute someone for an "indictable offense." In Mississippi, felonies are the indictable offenses.  (See State v. Sansome, 97 So. 753 (Miss. 1923).)  However, this right to have one's case presented to a grand jury is one that a criminal defendant can waive.  (See Berry v. State, 19 So. 3d 137 (Miss. Ct. App. 2009).)  In those instances, the prosecution currently proceeds by way of information.  Under the proposed MRCrP, it is unclear whether or not the term "information" would be used any longer to denote the charging instrument used when a defendant waives his rights under Article 3, Section 27.

The other source of terminology is Section 99-1-7 of the Mississippi Code.  Under that section, prosecutions are commenced by the issuance of a warrant, indictment or affidavit.

The source of these terms is more than just etymology.  Seeing as the proposed MRCrP 2.1 seeks to alter the terminology for criminal charging instruments already given in our Constitution and Code, the question must be asked as to whether the Court would be overstepping its bounds in enacting such a rule.  Personally, I hope this question can be resolved (in this instance, at least) in favor of the Court's power, as their proposed solution is one that would improve criminal practice in Mississippi.