Speaking indictments are indictments that contain more facts and allegations than the law requires. These lengthy narratives permit the government to favorably influence the public perception of a case and impact the jury at trial. How can defense attorneys push back against speaking indictments?

Photo above: Special Counsel Jack Smith speaks during a press conference after Donald Trump is indictment on criminal charges by a federal grand jury in the 2020 election interference case in Washington, DC on Tuesday, August 1, 2023. | Credit: Bonnie Cash/UPI/Newscom

Challenging defects in an Indictment or Information is a great way to compel specificity and fair notice and to help defense counsel understand the prosecution’s theory. Raising the challenge as a pretrial motion helps to focus on issues relevant to defense counsel’s investigation as well as in the presentation of the case in negotiations, trial, and appeal.

An indictment must inform a defendant of the charge that he must defend. A jury instruction that digresses from the elements of the charged statute constructively amends the indictment. Such constructive amendment violates the Fifth Amendment’s grand jury clause. Defense counsel must scrutinize the jury instructions and object to any deviations.

Memorandum of National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers as Amici Curiae In Support of Defendant’s Motion to Dismiss the Indictment.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for a writ of certiorari.