9.8 The Charge Upon Which the Accused Is Tried

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

9.8 THE CHARGE UPON WHICH THE ACCUSED IS TRIED

9.801 In General. Criminal charges are often verbose and complicated for two reasons. First, in attempting to be certain that nothing essential is left out of a charge, prosecutors often add surplusage—"When in doubt, include it." Second, if a charge is perfect, there will be no objection to it; if a charge is of doubtful validity, it will be appealed and, if affirmed, it then will become a model for future charges.

The Virginia Code and the Rules of the Supreme Court of Virginia encourage simplified criminal charges by providing for the so-called "short-form" indictments. Use of the short-form indictments in the Code and in the appendix to the rules has simplified the charging process and eliminated the need for confusing, overly technical surplusage. Because the Virginia Supreme Court has expressly adopted these short-form indictments, prosecutors

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should feel confident that use of these approved forms will insulate the indictment from attack.

Nevertheless, defense counsel must be certain that the new forms of charges give sufficient notice and protect the defendant against the possibility of being charged and convicted twice for the same offense. Clarification of the charge may be obtained by a motion for a bill of particulars.

9.802 Form and Content of the Indictment and the Information.

A. General Requirements. The charging document is no mere formality. The Commonwealth may not accuse a person of one crime and convict him or her by proving another unless the offense charged is a lesser-included offense. ⁴⁵² However, the defendant must not object to or appeal the conviction on the grounds that he or she was convicted for an offense not charged. Unless an indictment is amended to conform to the proof or the accused acquiesces in being found guilty of an offense other than the one charged, a trial court lacks the authority to find an accused guilty if the objection is properly preserved. ⁴⁵³

To meet the test of constitutional sufficiency, an indictment or information must clearly apprise the accused of the crime with which he or she is charged so that the accused can prepare the defense and protect against a later prosecution for the same offense. ⁴⁵⁴ Thus, if the accused is aware of the actual charge against him or her, and the indictment or information provides sufficient information upon which to prepare a defense, there has been no violation of his or her Sixth Amendment rights. ⁴⁵⁵ A...