Amending Indictments in Colorado: Rule 6.8, Colo. R. Crim. P
| Publication year | 1977 |
| Pages | 764 |
1977, May, Pg. 764. Amending Indictments in Colorado: Rule 6.8, Colo. R. Crim. P
The Colorado Supreme Court in 1974 amended the rules of criminal procedure in several substantial respects, including the enactment of rule 6.8, Colo. R. Crim. P. The rule sets forth the circumstances in which and the extent to which indictments in criminal proceedings may be amended:
(a) Matters of Form, Time, Place, Names. At any time before or during trial, the court may, upon application of the people and with notice to the defendant and opportunity for the defendant to be heard, order the amendment of an indictment with respect to defects, errors, or variances from the proof relating to matters of form, time, place, and names of persons when such amendment does not change the substance of the charge, and does not prejudice the defendant on the merits. Upon ordering an amendment, the court, for good cause, may grant a continuance to accord the defendant adequate opportunity to prepare his defense.
(b) Prohibition as to Substance. No indictment may be amended as to the substance of the offense charged. The Colorado courts have not yet rendered any interpretation of the rule and there are apparently no committee notes or transcripts from hearings which would provide insight as to the intent of the Colorado Supreme Court in establishing the particular limitations included within the rule, or give content to its various terms. However, an examination of the historical background and evolution of the concept of amending indictments in the various states which have dealt with the problem, and of the treatment in Colorado of similar provisions in another rule, provides some indication of the reasons the present rule was enacted, the structure of the rule, and the possible meaning of the terms utilized within that structure.
In the United States, the grand jury indictment has historically served both an appraisal function, based on the sixth amendment right to fair notice of criminal charges, and a protective function, based on the fifth amendment right against double jeopardy. A third aspect of the indictment process is the duty of the grand jury to shield a citizen from unfounded charges and to require him to
appear in court in defense, only if probable cause has been found by that independent body.(fn1) The grand jury emerged in this latter protective role in England in the 17th century as a result of the political prosecutions of the Stuart period.(fn2)
There was also early developing at common law in England a system of highly technical requirements for criminal pleadings, including indictments. One of the reasons for this system was that defendants were not allowed to be represented by counsel or to testify in their own behalf. Neither were they allowed to summon witnesses and place them upon the stand for the purpose of explaining or contradicting testimony for the prosecution, for it was deemed derogatory to the crown to permit the witnesses in its behalf to be contradicted. The injustice of these laws was so manifest that the trial judges, in order to mitigate the hardships of the law, invented and built up the artificial system for the protection of persons charged with crime, who otherwise would have been at the mercy of the prosecution.(fn3) The system was also occasioned by the severe penalties imposed for comparatively minor offenses and the courts' attempts to protect even guilty persons against such harshness.(fn4) Indeed, two centuries ago in England no less than 160 offenses were punishable by death.(fn5)
This system of technicalities, developed by the English courts to mitigate the unjust rules of procedure and the harshness of penalties, was adopted by the American colonies and incorporated into the common law of the states. An example of its later operation in Colorado is the court's decision just one year after statehood in Moynahan v. People.(fn6) The defendant was indicted for the murder of a Patrick Fitz Patrick, but it appeared at trial that the deceased's true name was Patrick Fitzpatrick. The deceased's last name was twice stated correctly in succeeding sections of the indictment. The court nevertheless dismissed the indictment, holding that the law required the surname to be accurately set forth in the first allegation and that the rest was surplusage.
In order to effectuate the protection against unfair trials and harsh penalties provided by such a system of technicalities, it was necessary to develop a concomitant rule that indictments could not be amended, even to cure technical defects. A prohibition on amendments of indictments thus also emerged in England and was likewise adopted in America.(fn7) The restriction was generally interpreted in the early cases to mean that the body of the indictment was not subject to amendment by the court, although in some cases amendments as to "formal matters" were ruled permissible under the grand jury's ritualistic consent to changes of that nature.(fn8) "Formal defects" included defects with respect to formal parts or requisites, such as endorsements, signatures, and conclusions.(fn9) However, even in jurisdictions permitting amendments as to "matters of form," amendments as to "matters of substance" were generally precluded.(fn10)
The occasion for the strict commonlaw rule against amendments began to disappear in America as harsh penalties for criminal offenses and unfair restrictions on admissible evidence were abolished, and soon the amendment of indictments came to be regulated by statute.(fn11) Since the federal constitutional right to grand jury indictment did not extend to the states through the fourteenth amendment,(fn12) the states were free to prescribe in their constitutional and statutory provisions whatever scope of amendment seemed appropriate. Nevertheless, the earlier statutes, and the majority which until recent years had received
the attention of the courts, were of the variety permitting amendment of "form" only. At least under initial court interpretations, these statutes merely codified the common-law right to amend with respect to formal matters.(fn13)
In recent years, however, there has been a "constant trend toward liberalizing, both by statute and decision, the amendability of indictments."(fn14) The purpose has been to make criminal proceedings less antiquated by eliminating technicalities, rejecting former more dilatory procedures and adopting a more modern system providing a speedier trial without impinging upon the constitutional rights of the accused.(fn15)
The statutes have displayed much variety, both in form and content. Some have conferred authority to amend any defect or variance as to particular matters, such as names of persons, place, and time. A number have included express provisions to the effect that no change should be made in the offense charged by the grand jury, or in its character, nature or degree. Several enactments have provided that an amendment can be authorized only where the substantial rights of the accused, or his defense on the merits, are not thereby prejudiced. Finally, many states, including Colorado, have utilized some combination of these criteria.(fn16)
While these statutes vary greatly in wording, for the most part they share one important attribute. In focusing on the above criteria the legislatures enacting the rules, and the courts interpreting them, have generally discarded the "form-substance" dichotomy, which has been a subject of criticism in recent years because of the lack of harmony in construing the line between form and substance and because of the disappearance of the need for its technical strictures.(fn17) The abandonment of the dichotomy has in some cases been accomplished by court interpretation of provisions focusing on other criteria but not specifically mentioning the dichotomy,(fn18) and in others by express statutory authorization of amendments as to "form or substance."(fn19) In either case, the result has been a broadening of the areas considered amendable by permitting amendment both as to "form" and "substance."(fn20)
Even in those jurisdictions with statutes retaining the restriction on amendments going to the substance of the indictment, the courts, consistent with the "trend toward liberalization," have shown "a liberal tendency in construing defects to be in form rather than substance,"(fn21) and in doing so have developed a number of new tests for determining what is form and what is substance. One test employs a standard similar to the test of double jeopardy, treating any amendment which could not put the accused in jeopardy of being twice charged with the same offense as one of form rather than substance, and thereby permissible.(fn22)
A second commonly utilized definition is that every fact which must be proved to make the act complained of a crime is a matter of substance, and all else, including the order or arrangement and the precise words, unless they alone will convey the proper meaning, is formal.(fn23) To state this test another way, any omission or misstatement which prevents an indictment or information from showing on its face that an offense has been committed or from showing what offense is intended to be charged, is a defect of substance.(fn24) Some courts have gone so far as merely to utilize the more recently developed alternative criteria in...
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