VII. Claims of Duplicity and Multiplicity

• Library: The Rights of the Accused under the Sixth Amendment (ABA) (2016 Ed.)

VII. Claims of Duplicity and Multiplicity A. Duplicity

A duplicitous indictment "sets out separate and distinct crimes in a single count."⁸⁵ Courts can determine whether more than one offense is charged in a single count by assessing whether multiple punishments can be imposed for the single offense.⁸⁶ An indictment is not duplicitous if the charged crime may be committed by one of many alternative acts, and the indictment charges the crime by several or all of those acts.⁸⁷ The issue arises often in conspiracy prosecutions; the law is clear that a single count of a single conspiracy that alleges that the defendant agreed to commit one crime—or even several crimes— is not duplicitous.⁸⁸

A duplicitous indictment undermines several rights of a criminal defendant. It may not provide a defendant with sufficient notice of the charge against her,⁸⁹ or it may disguise a guilty verdict as a unanimous verdict, when jurors have not, in fact, found the defendant guilty of the same offense.⁹⁰ Also, if jurors have not found the defendant guilty of the same offense, the court cannot levy an appropriate sentence,⁹¹ and the guilty verdict may infringe upon the defendant's Fifth Amendment protection against double jeopardy.⁹²

A defendant who wishes to challenge the indictment as duplicitous typically must do so before trial.⁹³ By failing to object before trial, the defendant generally waives the claim⁹⁴ and "the case proceeds under the presumption that the court's instructions to the jury will clear up any ambiguity created by the . . . indictment."⁹⁵ Thus, a jury instruction would be the defendant's only remedy in the trial court. When the requested jury instruction fails to clear up the ambiguity and the court on appeal examines an indictment, the standard of review depends on whether at trial the defendant objected to the insufficient jury instruction.⁹⁶ If she failed to object to the jury instruction, the appellate court will overturn a conviction on the ambiguous indictment only if there was "plain error" in the trial court.⁹⁷

B. Multiplicity

A multiplicitous indictment charges a single offense in multiple counts.⁹⁸ Like duplicity, multiplicity violates a criminal defendant's Fifth Amendment protection against double jeopardy because a multiplicitous indictment could result in multiple punishments for a single offense.⁹⁹ Consequently, an indictment that is multiplicitous "may lead to multiple sentences for the same conduct and may suggest to the jury that the defendant committed more than one crime."¹⁰⁰

Multiplicity is not "fatal to the indictment."¹⁰¹ However, the defendant must generally object to an indictment as multiplicitous before trial, or she will have waived the objection.¹⁰² If the defendant waives the objection to the indictment, she nonetheless may later object to multiplicity of sentencing, if the sentences are not to be served concur-rently.¹⁰³ When she objects to the indictment, the defendant has the burden of proving that the indictment is multiplicitous.¹⁰⁴ To repair the multiplicitous indictment, the court may dismiss some counts of the indictment,¹⁰⁵ or the prosecutor can either elect to dismiss a charge¹⁰⁶or request a jury instruction to clarify the multiplicitous charge.¹⁰⁷ If the defendant is convicted, and the indictment is subsequently found to be multiplicitous, then the court on appeal will vacate those convictions that are multiplicitous.¹⁰⁸

--------

Notes:

^[85] . United States v. Lombardo, 582 Fed. App'x 601 (6th Cir. 2014). See Fed. R. Crim. P. 8(a) (requiring that there be a separate count for each offense). See generally State v. Samuels, 403 S.E.2d...