When a plaintiff files a civil lawsuit in federal court, her complaint must satisfy certain minimum standards. Specifically, under the prevailing understanding of Federal Rule of Civil Procedure 8(a), a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face, rather than mere conclusory statements tracking the elements of a cause of action. Given the infinitely higher stakes involved in criminal cases, one might think that at least as robust a requirement would exist in that context. But, in fact, a weaker pleading standard reigns. Under the governing interpretation of Federal Rule of Criminal Procedure 7(c), indictments that simply parrot the language of a statute are often sufficient.
As this Article shows, however, that dichotomy between civil and criminal pleading standards is not justified. The drafters of Rule 7(c) intended the Rule to be at least as stringent as Rule 8(a), as demonstrated by the text of Rules 7(c) and 8(a), the history of pleading in the United States, the original Advisory Committee Note to Rule 7(c), and the drafting history of the Criminal Rules. And, the drafters’ original design should control how Rule 7(c) is interpreted today, notwithstanding the Supreme Court’s reinterpretation of Rule 8(a) in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. All of that means that our current pleading “balance” is really an erroneous imbalance that should be adjusted by those with the authority to do so, that criminal defendants should be entitled to much more information about their cases at the pleading stage and have a much stronger mechanism for challenging the case against them before trial than decisional law requires, and that debates over what the criminal pleading standard should be are being fought in the wrong posture.
Hintz, Charles Eric, "A Formulaic Recitation Will Not Do: Why, as a Matter of Law, Federal Rule of Criminal Procedure 7(c) Should Be Interpreted to Be at Least as Stringent as Federal Rule of Civil Procedure 8(a)" (2020). Faculty Scholarship at Penn Law. 2177.
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