Right to be Informed of Accusation

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The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right … to be informed of the nature and cause of the accusation.…" The right was recognized in English law prior to adoption of the Constitution and exists today in every state, under state law and through judicial interpretation of the due process clause of the fourteenth amendment. The notice of accusation contemplated by the Sixth Amendment is the formal charge of crime to which the accused must respond by pleading guilty or not guilty; it does not include the notice issues that may arise in the investigative phase of a criminal proceeding.

The "notice clause" makes no reference to the institution that must produce the charge, the instrument through which notice must be given, or the precise function of the notice. But these details are supplied by other provisions of the Constitution, by history, and by judicial opinions. Where the accused is charged with an infamous federal crime, usually a felony, the Fifth Amendment requires that the accusation must be made by the indictment of a grand jury. For lesser federal crimes, an information drafted by a prosecutor or even a complaint will suffice. In the states, any of these processes may be used because indictment by grand jury is not required by the Fourteenth Amendment.

Over the years, the charging instrument has been assigned several roles by the courts. It provides the notice required by the Sixth Amendment, and it assists in enforcing the provisions of the Fifth Amendment dealing with the grand jury, double jeopardy, and due process. For example, indictments and informations must demonstrate that the offense charged is not the same as one for which the accused has already been placed in jeopardy. And indictments must reflect the decisions of the grand juries that returned them.

The unique function of the Sixth Amendment's notice clause—as distinct from the facilitative role it plays for the Fifth Amendment—is to require advice to the accused of the charge against him so that he may decide whether to concede his guilt or, if he does not, so that he may prepare to defend himself at trial. The notice must also contain enough detail to enable the court to determine whether the charge is sufficient in law to support a conviction. To perform these functions, the notice must state the basic facts regarding each element of the offense with "reasonable particularity of time, place and circumstances." Such notice is especially important in an adversary system that contemplates a trial as a climactic event. Without notice, defendants would find it difficult to proceed expeditiously, and frequent continuances might be necessary; trial judges would have no manageable criterion for determining the relevance of evidence or the instructions to be given to juries; and appellate courts would have inadequate standards for review.

Few cases have tested the limits of the notice clause, for both the federal government and the states now have statutes or rules of court that define what must appear in the charging instrument and these requirements usually reflect the constitutional standard. For example, Rule 7 of the federal rules of criminal procedure requires a "plain, concise and definite written statement of the essential facts constituting the offense charged." There are state decisions, however, that suggest how little might now be constitutionally required of the initial charge in a criminal case. In these cases, state laws authorized indictments that informed defendants only of the names or citations of the statutes they were accused of violating. In People v. Bogdanoff (1930) New York's high court upheld the constitutionality of such a "short form indictment." Although the New York statute involved in that case has not survived, the opinion called attention in dramatic fashion to changes that may have made the law of "notice" partially obsolete. The routine maintenance of trial records was said to provide a basis for determining whether a prior proceeding involved the same offense as the one charged in the indictment. And the availability of grand jury minutes made it possible to determine whether the offense charged at trial was the same as the one contemplated by the grand jury. The only interest of the accused remaining to be protected by the charging instrument itself, said the court, was an adequate opportunity to prepare for trial; that interest could be served by a bill of particulars, continuances, and other measures. In sum, the notice clause—stripped of its relation to the jeopardy and grand jury provisions—may be satisfied not only by a single charging document but also by a process of notice that enables the defendant to understand the charge and defend against it.

The logic of a flexible conception of notice, rooted less in form than in concern for the defendant's need to prepare for trial, led inevitably to the position that many defects in the indictment or information—which might have led to dismissal in an earlier, more formalistic period—were now regarded as merely technical. For example, the doctrine of "fatal variance" had prohibited any departure in the course of trial from the offense charged. Such variances are now held to be harmless error so long as the defendant has not been materially prejudiced in making his defense and, if an indictment is involved, the trial falls fairly within the scope of the grand jury's charge.

As the specificity demanded of indictments and informations declined, defendants lost one of the principal means for learning about the prosecution's case in advance of trial. Pleadings in criminal cases had been assimilated to an increasingly liberal law of civil procedure, but those changes had not been accompanied in criminal procedure by the pretrial discovery which had emerged to compensate for looser pleadings in civil cases. Beginning in the 1960s, however, pretrial disclosure of the prosecution's case has become more available to the defendant, some of it mandated by the due process clause. This expansion of the process of notice before and during trial has minimized the problems of law and policy which relatively spare charges might otherwise have presented under the notice clause of the Sixth Amendment.

Abraham S. Goldstein


Goldstein, Abraham S. 1960 The State and the Accused: Balance of Advantage in Criminal Procedure. Yale Law Journal 69:1149, 1172–1180.

Scott, Austin, Jr. 1982 Fairness in Accusation of Crime. Minnesota Law Review 41:509–546.

Wright, Charles Alan 1982 Federal Practice and Procedure, Criminal, 2nd ed. Vol. 1, Sections 125–126. St. Paul, Minn.: West Publishing Co.