Amdt6.4.7 Notice of Accusation

Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Sixth Amendment right to be “informed of the nature and cause of the accusation” guarantees criminal defendants “adequate notice of the charges against [them].” 1 To satisfy the Sixth Amendment requirement, the notice that the government provides must be specific enough to enable the defendant to prepare a defense and to protect himself or herself after judgment against a subsequent prosecution on the same charge.2 Thus, in the prosecution of a witness for the crime of refusing to answer the questions of a congressional subcommittee about a topic that the subcommittee was investigating, the government violated the Sixth Amendment right by failing to identify the topic of the investigation.3 Because criminal liability could attach only if the questions that the witness refused to answer related to the topic of the congressional investigation, the Court reasoned that the prosecution’s failure to identify the topic left the “chief issue undefined” and therefore violated the defendant’s right to know “the nature of the accusation against him.” 4

The Court has cautioned, however, that its limited precedents interpreting this constitutional provision “stand for nothing more than the general proposition” that the government must notify the defendant of the nature of the charges.5 The Court has not established “specific rule[s]” about how this notice requirement applies in practice.6 For example, it has not resolved whether a prosecutorial decision to switch theories of liability towards the end of trial vitiates otherwise adequate notice provided in the pleadings.7 Federal and state rules of criminal procedure contain more detailed notice requirements.8 The Sixth Amendment right to notice of accusation applies to the states via the Due Process Clause of the Fourteenth Amendment.9

Lopez v. Smith, 574 U.S. 1, 5–6 (2014). Principles of procedural due process also guarantee the accused’s right to notice of the charges. Id. at 4 (referring to the accused’s “ Sixth Amendment and due process right to notice” ); see Cole v. Arkansas, 333 U.S. 196, 201 (1948) ( “No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.” ). back
Bartell v. United States, 227 U.S. 427, 431 (1913) ( “It is elementary that an indictment, in order to be good under the Federal Constitution and laws, shall advise the accused of the nature and cause of the accusation against him, in order that he may meet the accusation and prepare for his trial, and that, after judgment, he may be able to plead the record and judgment in bar of further prosecution for the same offense.” ); Burton v. United States, 202 U.S. 344, 372 (1906); United States v. Simmons, 96 U.S. 360, 362 (1878); United States v. Cruikshank, 92 U.S. 542, 544, 558 (1876); cf. United States v. Van Duzee, 140 U.S. 169, 173 (reasoning that the Sixth Amendment does not require the government to proactively give a copy of the indictment to the accused, because the accused may always request a copy from the court at government expense and often “the defendant does not desire a copy, or pleads guilty to the indictment upon its being read to him; and in such cases there in no propriety in forcing a copy upon him and charging the government with the expense” ). back
Russell v. United State, 369 U.S. 749, 766 (1962). back
Id. at 767–68. back
Lopez, 574 U.S. at 5–6. back
Id. at 6. back
Id. back
See Fed. R. Crim. P. 7(c) (governing the “nature and contents” of charging documents in federal criminal cases); 5 Wayne R. LaFave et al., Criminal Procedure § 19.2(c) (4th ed. 2020) (discussing notice requirements imposed by Rule 7 and counterpart state provisions that are more robust than Sixth Amendment requirements). back
See Gannett Company, Inc. v. DePasquale, 443 U.S. 368, 379 (1979) ( “The Sixth Amendment, applicable to the States through the Fourteenth, surrounds a criminal trial with guarantees such as the rights to notice, confrontation, and compulsory process that have as their overriding purpose the protection of the accused from prosecutorial and judicial abuses.” ); Lopez, 574 U.S. at 5–6 (analyzing Sixth Amendment notice claim on collateral review of state court conviction). back