Pleading Defects and Double Jeopardy

I recently taught a class of law students about criminal pleadings. We discussed proper pleadings and defective pleadings, and the State’s ability to bring new charges against a defendant after a case is dismissed due to a fatal defect in the pleading. It was an interesting conversation, and it prompted me to look into the matter a bit more. This post summarizes the law.

Defects discovered before jeopardy attaches. Obviously, if a defect is discovered before jeopardy attaches, there’s no double jeopardy problem with dismissing the case and re-charging the defendant.

Defects discovered after jeopardy attaches. Even after jeopardy has attached, when a criminal charge is dismissed due to a fatal defect in the charging document, double jeopardy does not prevent further prosecution of the defendant for the same conduct under a proper charging document. I sometimes explain this by saying that the defendant was never really in jeopardy the first time due to the defect, but various authorities put the point more precisely:

As a general rule, in order that jeopardy may attach, there must be a valid indictment, information, or complaint. Thus, where the indictment or information is so defective in form or substance that it will not support a conviction, it cannot form the basis of proceedings which will put the accused in jeopardy and bar another prosecution. Consequently, a plea of former jeopardy is insufficient where based on a former trial under a fatally defective indictment.

22 C.J.S. Criminal Law § 277 (updated 2015) (footnotes omitted). See also 44 Geo. L.J. Ann. Rev. Crim. Proc. 522 (2015) (stating that “[j]eopardy does not attach if the trial court lacks jurisdiction, regardless of the stage to which the trial has progressed,” and citing cases including Schlang v. Heard, 691 F.2d 796 (5th Cir. 1982) (rejecting a defendant’s double jeopardy claim because a fatally defective indictment “conferred no jurisdiction on the trial court, so no jeopardy attached at the second trial and the third trial was not barred”)).

Sometimes courts analyze this type of situation as requiring a mistrial rather than a dismissal, or as involving the functional equivalent of a mistrial. But viewing the matter through the mistrial lens yields the same result. A mistrial based on a fatal defect in the charging document is supported by manifest necessity, so double jeopardy does not bar further proceedings even if the mistrial is declared over the defendant’s objection:

Where a trial judge terminates a criminal proceeding after the jury has been impaneled and sworn and declares a mistrial . . . because of a defect in the indictment that is not curable by amendment, manifest necessity exists for the ruling and the defendant may be subject to another trial under a valid indictment without violating the prohibition against double jeopardy. . . . The same rule applies where a mid-trial dismissal of an information for failure to provide adequate notice of the crime charged is the functional equivalent of a declaration of a mistrial.

21 Am. Jur. 2d Criminal Law § 335 (updated 2015) (footnotes omitted).

The Supreme Court addressed this situation in Illinois v. Somerville, 410 U.S. 458 (1973). The defendant was indicted for theft. After the jury was empaneled and sworn, the prosecutor realized that the indictment was fatally defective because it failed to allege that the defendant intended to deprive the owner of the stolen property permanently. The prosecutor moved for a mistrial, and it was granted over the defendant’s objection. The state subsequently obtained a proper indictment and convicted the defendant. On appeal, the Court ruled that this did not violate double jeopardy, as the mistrial was supported by manifest necessity, as “a verdict of conviction could [have been] reached but would have to be reversed on appeal due to an obvious procedural error.” See also Lee v. United States, 432 U.S. 23 (1977) (the defendant was charged with stealing two billfolds from a blind concession stand operator; the original charging document, a criminal information, was defective in that it omitted any allegation that the theft was committed knowingly and with the intent to deprive the victim of his property; the defendant waited until after opening statements, then raised the defect; the trial judge dismissed the case; the prosecution charged the defendant again, in a proper indictment; the Court saw no double jeopardy problem, finding that the dismissal was “functionally indistinguishable from a declaration of mistrial” and was not based on any insufficiency of the evidence).

There are many other cases to the same effect. See, e.g., State v. Blakney, 156 N.C. App. 671 (2003) (finding a fatal defect in an indictment charging a drug offense but noting that “[t]he State . . . may elect to re-indict defendant” using a proper pleading); United States v. Akpi, 26 F.3d 24 (4th Cir. 1994) (defendant was charged with conspiracy to traffic in fraudulent credit cards, and was convicted; he appealed, arguing that the indictment was defective for failing to allege an effect on interstate commerce; he prevailed, and the case was remanded with the instruction that the district court “dismiss this count without prejudice to the government, which may reindict . . . if it so chooses”; the government did obtain a new indictment, and the defendant moved to dismiss based on double jeopardy; the trial court and the Fourth Circuit rejected this argument, with the latter explaining that the indictment error “in no way related to the sufficiency of the evidence but only to the manner in which [the defendant] was charged”); State v. Cook, 272 N.C. 728 (1968) (the State sought to charge the defendant with driving with a revoked license but omitted any allegation that the driving took place upon a street or highway; the court of appeals held “the warrant to be fatally defective” but noted that “this does not bar further prosecution on a valid warrant”); Robert L. Farb, North Carolina Prosecutors’ Trial Manual 42 (3d ed. 2012) (collecting cases).

Fatal variances. When a charge is dismissed due to a fatal variance between the proof and the pleading, double jeopardy does not prevent the State from charging the defendant in a new pleading with the crime that is consistent with the evidence. I sometimes explain this rule by saying that the defendant hasn’t yet been placed in jeopardy on the proper offense, i.e., the one supported by the evidence. Rather, he or she has only been placed in jeopardy for the necessarily distinct offense that was originally charged.

Again, the case law provides greater sophistication and detail. See, e.g., State v. Chamberlain, __ N.C. App. __, 753 S.E.2d 725 (2014) (stating that “[d]ouble jeopardy does not preclude a retrial when a charge is dismissed because there was a fatal variance between the proof and the allegations in the charge” and rejecting a double jeopardy argument by a defendant who was charged with injury to real property; the initial charge was dismissed in district court due to a “fatal variance” apparently involving the date of the offense and the defendant was subsequently charged with injury to the same property on a different date several months earlier than the date in the original pleading; the court of appeals explained that a dismissal due to a fatal variance is not based on insufficiency of the evidence); State v. Johnson, 9 N.C. App. 253 (1970) (the defendant was charged with breaking and entering a building occupied by Lloyd Montgomery located at 648 Swannanoa River Road; the evidence showed that the building was occupied by Elvira Montgomery and was located at 438 Swannanoa River Road; the case was dismissed based on the variance and the State re-charged the defendant in conformity with the evidence; the defendant argued that double jeopardy prohibited the new charge but the court of appeals disagreed, finding that “the two indictments charged different offenses”; “The prior prosecution, having been for a different offense, judgment of dismissal therein would not sustain a plea of former jeopardy when defendant was brought to trial upon a new bill of indictment charging him with felonious breaking and entering of premises at a different location.”).

Mistaken dismissals. If a charge is dismissed after jeopardy has attached because a judge determines that there was a fatal defect or a fatal variance, but in fact there was none, does double jeopardy prohibit further charges? There is some support nationally for the idea that the defendant is estopped from relying on double jeopardy, at least if the defendant requested the dismissal. See, for example, 22 C.J.S. Criminal Law § 284, citing Commonwealth v. Stallard, 35 S.W.2d 21 (Ky. 1931) (“Having procured the court to decide that the indictment was insufficient, [the defendant] could not . . . block all further progress of the case. . . . [T]he accused necessarily impliedly consented that if the demurrer were sustained . . . such further proceedings as were necessary or proper to be taken in the case might be had. Having so consented by implication in advance . . . he could not thereafter withdraw the consent . . . . It matters not whether the original indictment was good or bad. The defendant procured the ruling that it was bad and thereby waived any objection to being tried again under a second indictment.”).

However, North Carolina’s appellate courts have not endorsed this line of reasoning. Instead, they have ruled that where a dismissal is mistaken, i.e., where the original pleading was in fact adequate and the court did have jurisdiction, double jeopardy precludes retrial. See State v. Teeter, 165 N.C. App. 680 (2004) (ruling that double jeopardy barred further proceedings where a judge erroneously dismissed an arson indictment, based on the defendant’s motion, for what the judge wrongly concluded was a fatal variance, and collecting cases).

Acquittals. If a defendant is acquitted at trial but the pleading was fatally defective, may the State charge the defendant anew with a proper pleading, on the theory that the defendant has never truly been charged and that the court lacked jurisdiction during the first trial? Although that line of reasoning has some technical appeal, the answer is no as a matter of justice under Ball v. United States, 163 U.S. 662 (1896) (noting that the English rule is otherwise, but reasoning that it is unjust to allow an acquitted defendant to be prosecuted again because the original charging document was faulty, and endorsing the view that allowing a defect to enable a second prosecution would invite “the novel and unheard-of spectacle of a public officer, whose business it was to frame a correct bill, openly alleging his own inaccuracy or neglect as a reason for a second trial, when it is not pretended that the merits were not fairly in issue on the first”). See also Benton v. Maryland, 395 U.S. 784 (1969) (discussing and relying on Ball).