8.4.3 Challenging an Indictment

• Library: Criminal Procedure in Practice (ABA) (2018 Ed.)

8.4.3 Challenging an Indictment

As a general rule, indictments will not be scrutinized based on the evidence presented before the grand jury. Unlike trials, indictments may be based on hearsay²⁹ or even illegally obtained evidence.³⁰ Furthermore, there is no federal constitutional challenge to a prosecutor's failure to present exculpatory evidence to the grand jury.³¹

If the proof presented at trial to secure the defendant's conviction is different from the facts alleged in the indictment, the defendant may raise an objection based on a variance in the proof. Since a variance objection cannot be raised before trial, the defendant must make a timely motion during the trial and prove a prejudicial impact resulting from the variance.³²

An indictment may be challenged on its face in several ways but should be raised prior to trial.³³ A duplicity challenge exists if the indictment charges separate offenses in a single count.³⁴ A successful duplicity challenge will require the prosecution to elect which offense to charge in the duplicitous count.³⁵ A multiplicity challenge exists if a single offense is charged in several counts.³⁶ The remedy here is to have the government consolidate the multi-plicitous counts.³⁷

An indictment is sufficient if it contains all of the elements of the charged offense and enables the defendant to plead an acquittal or conviction as a defense to a subsequent prosecution for that same offense (thus invoking protection against double jeopardy).³⁸ The review is not technical.³⁹ Generally, an indictment that "tracks" the language of a statute is sufficient to notify the defendant of the nature of the crime, as long as the indictment fully and clearly sets forth all elements of the offense.⁴⁰

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