What is a demurrer?

Indictments may seem like a procedural and unimportant document that only serves to progress the trial process to its next stage.  Many defense attorneys even view them as such.  Good defense attorneys, however, know that finding a defect in the indictment can be an opportunity to nullify the case entirely.  

Sometimes the Prosecutor can just fix the indictment and restart, and other times the defective indictment will make the prosecution null and void.  

The United States Supreme Court has consistently held that a Defendant is entitled to a “perfect indictment” under the Due Process clause.  There are two types of Demurrers: Special Demurrers and General Demurrers.  A General Demurrer is an attack on the legality of the indictment, while a Special Demurrer is an attack on the form of the indictment.

General Demurrers

General Demurrers are an attack on the legality of an indictment.  Therefore, if a General Demurrer is deemed valid, the indictment is considered “fatally flawed” and illegal, null, and void.  The test for whether an indictment is validly subject to a general indictment is whether the Defendant can admit to all of the allegations of the indictment, yet still be innocent.  For example, if an indictment for murder says that the Defendant purchased poison but doesn’t allege that somebody died as a result of the act, the Defendant could agree to everything alleged but still be innocent of murder.  If so, the indictment is fatally flawed.  Another way to raise this type of issue is through a “motion to arrest”, which is virtually identical to a General Demurrer.

Unlike most defenses, failure to timely raise a General Demurrer doesn’t waive the Demurrer.  This applies at a trial level as well as an appellate level.  An attorney’s failure to raise the issue at the trial level doesn’t preclude an analysis by the appeals court on the issue, as the indictment is deemed illegal.  Unlike a Special Demurrer, a General Demurrer can be raised at any time during the trial, even if jeopardy has already attached.  Additionally, a trial counsel’s failure to raise a General Demurrer to a challenged count in the indictment can constitute ineffective assistance of counsel, and such ineffective assistance warrants reversal of the conviction on the void count.

Special Demurrers

Unlike a General Demurrer, Special Demurrers are an attack on the form of an indictment.  Unlike a General Demurrer, the trial attorney must raise the issue within 10 days of arraignment, or it is considered waived.  A Special Demurrer is much more difficult to result in a reversal or remanding on appeal, because it is only subject to a “harmless error review” by the higher courts.  The higher courts will only rule in your favor on an issue of a Special Demurrer if you can clearly show prejudice by the trial court’s overruling of your Special Demurrer.

The test for a Special Demurrer’s validity is whether the flaws and gaps in the indictment preclude the Defendant from being able to prepare their defense intelligently.  Therefore, the indictment must state the essential elements of the charged offense and allege the underlying facts in enough detail to sufficiently apprise the Defendant of what they must be prepared to defend against at trial.

The number of ways that a Special Demurrer can be valid at a trial level is broad, but the number of ways that a Special Demurrer can result in reversal or remanding at an appellate level is very narrow.  Examples of valid issues for a Special Demurrer include saying something to the effect of… “the Defendant threw a rock at the victim sometime between January 1 and December 31”.  In this situation, if the Defendant wanted to use the defense of Alibi, they would have to be able to prove where they were for 365 different days.  Therefore, the Special Demurrer should be granted.  Special Demurrers are a great tool for a Defendant to drag out their case if they need to delay for any reason.  As shown in the case law below, the basis for a Special Demurrer can be as broad as not including the color of a gun.  

Once a Special Demurrer is analyzed by the court on an appellate level, it is much more difficult to get a favorable ruling on a Special Demurrer issue.  For example, even if the Prosecutor alleges you committed theft by receiving stolen property but alleges that you stole the property straight from the retail store, which should be theft by taking, the court has held that this isn’t prejudicial enough to warrant reversal because the Defendant still knew enough to be able to craft their defense.

Case Law

In Thomas v. State, the Defendant was charged and convicted of a number of charges, including five weapon-related charges.  Two of these charges were based solely on possession of the firearms.  For the possession counts, the Prosecutor alleged in the indictment that the Defendant “knowingly had in his possession a sawed-off shotgun having a barrel length of less than 18 inches and an overall length of less than 26 inches, separate and distinct from any other count in this indictment…”

The court said that “it is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished, but this recitation must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense with which they were charged”.  Because the “separate and distinct” language suggested the weapons were different from the others, which did include additional details such as the make and model of the firearm, the Defendant was viewed to not be given enough information to craft a defense- presumably to say that they were all the same firearms and not separate and distinct.  The court agreed, saying that the weapons must be described with greater particularity, including details such as their appearance, color, make, model, caliber, exact barrel measurement, serial number, and any other distinguishing characteristics.

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