A Formulaic Recitation Will Not Do: Why the Federal Rules Demand More Detail in Criminal Pleading

Abstract

When a plaintiff files a civil lawsuit in federal court, her complaint must satisfy certain minimum standards. Specifically, under the prevailing understanding of Federal Rule of Civil Procedure 8(a), a complaint must plead sufficient factual matter to state a claim to relief that is plausible on its face, rather than mere conclusory statements. Given the significantly higher stakes involved in criminal cases, one might think that an even more robust requirement would exist in that context. But in fact a weaker pleading standard reigns. Under the governing interpretation of Federal Rule of Criminal Procedure 7(c), indictments that simply parrot the language of a statute are often sufficient.

As this Article shows, however, that pleading balance is misguided. The drafters of Rule 7(c) designed the Rule to be at least as stringent as Rule 8(a), as demonstrated by the text of Rules 7(c) and 8(a), the history of American pleading, the original Advisory Committee Note to Rule 7(c), and the drafting history of the Criminal Rules. And the drafters’ original design should govern today, notwithstanding the Supreme Court’s amplification of the civil pleading standard in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. All of that means that our current pleading regime should be rethought, that criminal defendants should receive more protections and information about the case against them than they presently do, and that policy arguments—which seem to favor a stronger criminal pleading standard—are all the more critical.

Keywords: Federal Rules, pleading requirements, FRCrP 7(c), FRCP 8(a), Fed. R. Crim. P. 7(c), Fed. R. Civ. P. 8(a), code pleading, common law, essential facts, indictment, pleading history, relationship between civil & criminal pleading, meaning of Rule 7(c), Resendiz-Ponce, civil pleading, fact pleading