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Surplusage is language contained in a pleading that is unnecessary or irrelevant. For example, in an indictment, surplusage is the allegation of any fact or circumstances that is not a necessary element to the offense. Surplusage may be struck from the charging documents by motion and can be done so in order to remove immaterial or irrelevant allegations that may be prejudicial when the charge is read to the jury. Although a defendant may move to strike any surplusage in the indictment, the decision is up to the discretion of the court. Indeed, under the Federal Rules of Civil Procedure Rule 7(d), "a court may strike surplusage from the indictment or information." Still, such motions have been said to be rarely granted, as courts generally uphold a policy of "refrain[ing] from tampering with indictments." 

The Third Circuit has held that surplusage may only be removed from an indictment when it is both “irrelevant and prejudicial.” For example, where a state's laws for arson only require that a perpetrator causes a dwelling house, belonging to themself or another, to be burned or destroyed, an indictment including details of the identity of the victims is considered surplusage.  On the other hand, if evidence of the allegation is admissible and relevant to the charge, then regardless of how prejudicial the language is, it may not be stricken. For example, in a case where a defendant is indicted for tax fraud, their employment history at an accounting firm is not surplusage because it is relevant to showing that the defendant knew of certain tax violations. 

[Last updated in November of 2021 by the Wex Definitions Team]