Indictment Technicalities: Gone Today and Here Tomorrow

Singleton was supposed to make things simpler. As previously reported, in that case our Supreme Court attempted to eliminate some “obsolete technicalities” of the common law by abrogating the jurisdictional indictment rule, whereby a defective pleading deprives the trial court of jurisdiction. My colleague Danny Spiegel called it a sea change. The Court of Appeals decided two cases in September that illustrate continuing complexity in this area. In State v. Pierce, COA23-348 (N.C. Ct. App. Sept. 3, 2024), the court held the trial court did not lack jurisdiction to accept a pro se defendant’s waiver of indictment, despite a statutory prohibition on such uncounseled waiver. And in State v. Wilkins, COA23-839 (N.C. Ct. App. Sept. 17, 2024), the court found the trial court lacked jurisdiction due to a fatally defective indictment. This post considers those two cases. State v. Pierce Constitutional provisions entitling a criminal defendant to indictment were meant as a safeguard against abusive prosecution. See United States v. Calandra, 414 U.S. 338, 343 (1974). Hence, no person shall be put to answer any criminal charge but by indictment, presentment, or impeachment. N.C. Const. Art. I, § 22. Practically, indictment is the only way to charge a felony. See G.S. 15A-923(a) (presentment is not a pleading). “But any person, when represented by counsel, may, under such regulations as the General Assembly shall prescribe, waive indictment in noncapital cases.” N.C. Const. Art. I, § 22. The first sentence dates from the North Carolina Constitution of 1776; the second was added by [...]