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- Champion Article
Constructive Amendment of an Indictment at Trial
An indictment must inform a defendant of the charge that he must defend. A jury instruction that digresses from the elements of the charged statute constructively amends the indictment. Such constructive amendment violates the Fifth Amendment’s grand jury clause. Defense counsel must scrutinize the jury instructions and object to any deviations.
United States v. Silver
Memorandum of National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers as Amici Curiae In Support of Defendant’s Motion to Dismiss the Indictment.
Argument: Public advocacy by the United States Attorney conflicts with the proper role of a federal prosecutor. Dismissal of the indictment, polling the grand jury, or conducting an evidentiary hearing are appropriate and lawful sanctions for inappropriate prosecutorial grandstanding. The word ‘alleged’ does not talismanically erase prejudice.