The term “speaking indictment” refers to indictments that go beyond the Fed.R.Crim.P. 7(c)(1) requirement of a “plain, concise and definite written statement of the essential facts constituting the offense charged” — i.e., an indictment that does more than simply track the statutory charging language and state the who, what, when, where and the elements of the crime, the manner and means, and, for Section 371 conspiracies, overt acts.
Talk Is Cheap: The Misuse of 'Speaking' Indictments
In white collar fraud, public corruption and other high-profile cases, DOJ prosecutors sometimes go well beyond the“notice” principle and draft thick indictments laying out in conclusory language the regulatory schema surrounding the challenged conduct; public policy rationales for the laws and regulation said to be violated; alleged motives of defendants; and the government's inferences from alleged facts (“connecting the dots”) — all under section headings or captions advocating the government's view.
By
Ronald H. Levine
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