A recent decision by the U.S. Court of Appeals for the Second Circuit provides guidance against a practice that has evolved into a significant advantage for the prosecution in many criminal cases: providing a copy of the indictment to the jury during deliberations. This guidance is particularly apt in white-collar cases, where the filing of lengthy “speaking indictments” has become commonplace. Such speaking indictments have been known to contain titillating detailshow John Edwards paid for his pricey haircuts, for example1as well as expansive factual background, forceful advocacy and ultimate conclusions, all of which may go well beyond the elements of the crimes charged.
For the government, issuing a detailed, apparently persuasive speaking indictment at the outset of the case may have significant public relations and tactical benefits. But such indictments also provide an unwarranted benefit to the government when the jury is provided with a copy during deliberations, thereby receiving only one side’s version of the contested facts in written form. The Second Circuit’s suggestion in United States v. Esso2 is that the better practice is to keep the indictment out of the jury room.
The Indictment
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