An indictment or an information must be valid in order to charge a defendant with a crime. If the indictment or the information is insufficient, that is, if it fails to contain certain requirements, the defendant may challenge the indictment or the information by filing a motion to dismiss or a motion to quash prior to trial.


Defects in an indictment or an information are generally characterized as defects of form or defects of substance. A defect of form does not require a reversal of a trial court's decision overruling a motion to dismiss the indictment or the information unless a defendant was prejudiced or harmed by the defect of form. A defect of substance requires a reversal of the trial court's decision overruling the motion to dismiss. A defect of form involves a failure to clearly state an offense. A defect of substance involves a failure to state the offense entirely.


An indictment or an information must state all the elements of an offense with which a defendant is charged. The indictment or the information usually follows the language that is used in a state statute for the offense. The indictment or the information does not need to use the exact words of the statute as long as the words that are used convey the same meaning as the statute. Failure to allege all the elements of the offense constitutes a defect in the indictment or the information.


Where a certain criminal intent is required for an offense, such as when the offense must be committed knowingly or intentionally, an indictment or an information must state the criminal intent. Failure to allege the criminal intent constitutes a defect in the indictment or the information.


Where a victim's lack of consent is an element of an offense, such as larceny or theft, an indictment or an information must state that the victim did not consent to the offense. Failure to allege the victim's lack of consent constitutes a defect in the indictment or the information.


Where an indictment or an information alleges that a defendant committed an act with the intent to commit another crime, such as the crime of felony murder where a murder is committed during the commission of another felony, the indictment or the information must allege both the commission of the act and the intent to commit the other crime.


An indictment or an information must clearly state all the elements of an offense. If the elements are ambiguous, the indictment or the information is defective. Although the indictment or the information does not need to state all the evidence against a defendant, it must give the defendant notice of the crimes with which he or she is being charged. The indictment or the information must allege facts that make the offense a crime. The indictment or the information is defective if it is so ambiguous that the facts in the indictment or the information do not constitute an offense.


An indictment or an information must allege the name of a victim or a complaining witness. If the name of the victim is not known, the victim must be described with reasonable accuracy. Failure to name the victim constitutes a defect in the indictment or the information. However, if intent to defraud is an element of the offense, the name of the intended victim is not required.


In crimes involving personal property, such as larceny, theft, and burglary, an indictment or an information must allege ownership of the property. The property must also be adequately described. In crimes involving real property, the location of the property must be adequately described.


Although an indictment or an information may charge a defendant with more than one offense, the indictment or the information may not charge the defendant with two or more offenses in the same count of the indictment or the information.


Copyright 2006 LexisNexis, a division of Reed Elsevier Inc.