So Your Indictment May Be Flawed: What Now?

A non-lawyer might be forgiven for being somewhat confused by the rules governing indictments.  The basics are summarized easily enough: a trial court’s jurisdiction depends on a facially valid indictment; an indictment is facially valid so long as it sufficiently alleges all the essential elements of the offense; and the essential elements consist of what the State must prove in order to obtain a conviction.  But these basics are so pocked with exceptions, so piled with caveats, that few cases are resolved by reference to them alone.  Our appellate courts have decided a few cases in the last several months which illustrate this complexity.  This post attempts to provide a brief recurrence to fundamental principles applicable to indictments and to throw a lifeline to prosecutors who discover a potential defect during a trial.  My colleagues have blogged pretty frequently about indictment issues, most recently Shea Denning addressing a recent opinion here. A valid indictment is essential to jurisdiction? Our appellate courts have said again and again that a valid indictment is essential to the trial court’s jurisdiction.  E.g., State v. Murrell, 370 N.C. 187, 193, 804 S.E.2d 504, 508 (2017); State v. Everrette, 256 N.C. App. 244, 248, 807 S.E.2d 168, 172 (2017).  That is a true statement, with a few important exceptions.  A criminal defendant has a state constitutional right to indictment – except in misdemeanor cases initiated in the district court division – but anyone represented by counsel may waive indictment in noncapital cases.  N.C. Const. Art. I, § [...]