An indictment defect is a boon for the defense and a disaster for the prosecution. Simply put an indictment is defective when it fails to allege an essential element of the crime. Because fatal defects are jurisdictional, they can be raised at any time—at trial, on appeal, or post-conviction—and can never be waived. A closely related problem is fatal variance. A fatal variance occurs when the evidence doesn’t match up with the allegations in the indictment. If a fatal variance occurs, the defendant gets a dismissal. A lot of these errors can be spotted with a careful look at the indictment up front. But what should you look for? Unfortunately this area is quite technical and there are a lot of issues that can trip you up. If you want a detailed analysis, check out my lengthy paper on the issue here. But if you’re looking for some quick tips, read on for my top five indictment errors. #5. Failing to properly allege a deadly weapon assault. For a deadly weapon assault, the indictment either has to allege that the weapon was a deadly weapon (e.g., “a handgun, a deadly weapon”) or must allege facts demonstrating its deadly character (e.g., “a 3 foot long steel pipe weighing 10 pounds”). State v. Palmer, 293 N.C. 633, 634-44 (1977). If the indictment fails to do this, it can’t support a conviction for a deadly weapon assault. #4. Failing to allege the buyer/recipient of a drug sale or delivery and/or getting the drug name [...]
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