United States: The Criminal Analogue To 12(b)(6): Judicial Power To Dismiss Indictments

Last Updated: July 21 2016

Courts routinely dismiss civil complaints for failure to state a claim but seldom dismiss criminal indictments under the analogous Criminal Rule 12 for failure to state an offense. This divergent application of materially identical procedural rules has dramatic consequences for criminal defendants. An effective mechanism to decide legal questions early in criminal proceedings is necessary to redress flawed legal theories that would be ripe for dismissal in the civil context. Encouraging courts to assert their power to dismiss indictments would, if successful, also help address the widespread, systemic problems in federal criminal law.

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Federal Rule of Criminal Procedure 12 contains a provision for dismissing indictments that is materially identical to the familiar Civil Rule 12(b)(6) and the standard for dismissing civil complaints. Despite the textual and structural similarity between Civil Rule 12 and its criminal analogue, federal courts are often far less willing to dismiss criminal indictments than they are willing to jettison civil complaints. Motions to dismiss under Civil Rule 12(b)(6) are routinely granted to keep legally unsound civil litigation from wasting everyone's time, but it is rarer for indictments to be dismissed for failure to state an offense under the materially identical Criminal Rule 12(b)(3)(B)(v). As a result, while the civil system has powerful procedural devices to terminate legally baseless claims (motions to dismiss and for summary judgment), it is often far more difficult to get a clean legal decision on the scope of criminal law before the jury has rendered its verdict. This is a serious problem that plays a starring role in federal prosecutors' seemingly never-ending efforts to expand the scope of vague federal criminal laws.

Courts should eliminate this anomalous difference by embracing the federal rules that authorize dismissing indictments for failure to state an offense with the same willingness they have shown in recent years to dismiss complaints under the federal civil rules. This is a particularly timely issue for companies in the United States and their employees given that the U.S. Department of Justice ("DOJ") recently underscored the prosecution of individuals as a major enforcement priority—an emphasis that DOJ expressed in the Deputy Attorney General's September 9, 2015 Memorandum ("Yates Memo").

The Federal Civil and Criminal Rules

The Criminal Rules for dismissing indictments largely mirror the Civil Rules for dismissing complaints, but many courts have been applied the two in very different ways.

Pleading and Indictment Standards. The Federal Rules contain parallel language regarding standards for civil pleadings and criminal indictments:

  • Civil: "A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief."1
  • Criminal: "The indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged."2

Dismissal of Complaints and Indictments. The Federal Rules likewise contain parallel language regarding dismissal of civil complaints and criminal indictments:

  • Civil: Complaints may be dismissed for "failure to state a claim upon which relief can be granted."3
  • Criminal: Indictments may be dismissed for "failure to state an offense."4

Supreme Court Construction. As most practitioners know, the U.S. Supreme Court issued two decisions in the past decade making clear that civil plaintiffs must do two things to survive a motion to dismiss.5 Plaintiffs must articulate a cognizable legal theory and make sufficient allegations on all material elements of their claims to, if proven, entitle them to recovery. Plaintiffs must also make factual allegations that tell a plausible story of liability under recognized legal standards. These dual requirements—of a sound legal theory and a plausible factual account—are not onerous in the run-of-the-mill case, where the law is clear and the allegations are straightforward. But they are crucial in keeping meritless, adventurous litigation from consuming judicial resources, costing defendants money, ruining the reputations of targeted individuals, and generally undermining public confidence in the criminal justice system.

The Supreme Court has not addressed the standards for dismissing indictments in several decades, but its leading pronouncement on that standard is fully consistent with applying the above-described civil requirements in the criminal context. There, the Court explained that indictments must "fairly inform[ ] a defendant of the charge against which he must defend" and "must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged."6 The broad explanation of what indictments must do is fully consistent with applying the Supreme Court's more-recent constructions of Civil Rule 12 in the criminal context, too. And given the serious liberty interests at stake in the criminal system, scrutiny of indictments should, if anything, be more exacting.

Divergent Application. Despite both the similarity in text and structure between the civil and criminal dismissal rules and the Supreme Court's recent guidance on the civil dismissal standard, some lower courts have embraced dismissal of civil complaints without showing similar willingness to dismiss criminal indictments. As noted, in civil proceedings, courts enforce meaningful pleading standards by requiring a plaintiff to advance both sound a legal theory and factually plausible allegations. In criminal proceedings, by contrast, courts are often reluctant to test whether the prosecution's central legal theory is sound or whether the prosecution's factual allegations are plausible. Instead, courts often sustain indictments without scrutinizing the indictment's sufficiency at all.7

This differential treatment has no basis in the federal rules or Supreme Court precedent, and future courts should reject it. Courts should, instead, apply the federal criminal rules in accordance with their text and in harmony with their civil counterparts, as the Supreme Court has construed them. There is no apparent reason why federal prosecutors cannot abide by the same 12(b)(6) pleading standards applied to civil plaintiffs.

A Remedy to Chaotic Criminal Law

Modern federal criminal law is frequently criticized for numerous problems, including: (i) its general overbreadth and vagueness; (ii) its tendency toward overcriminalization; and (iii) the excessive punishment it imposes. These are recurring themes in academic literature, and they featured prominently in Justice Kagan's recent dissent in Yates v. United States, where she described "the real issue" in the case as being "overcriminalization and excessive punishment in the U.S. Code."8 Practitioners of all ideological stripes have likewise recognized these problems, with the National Association of Criminal Defense Lawyers and the Heritage Foundation decrying it with equal urgency.9 The judiciary's assertion of its power to dismiss indictments under Criminal Rule 12(b)(3)(B)(v) would be a significant step toward righting these wrongs without making dramatic changes to the federal criminal system.

Clarifying the Law. The clearest victim of some courts' reluctance to dismiss flawed indictments is clarity in criminal law. Many, perhaps most, judicial decisions expounding on the meaning and limitations of civil statutes come in the context of motions to dismiss (based on a discrete set of assumed facts) or motions for summary judgment (based on a discrete set of undisputed facts). These contexts provide judges with a discrete set of facts and ask those judges to expound on what the law requires in that discrete factual context. Trial and appellate judges are thus able to focus entirely on devising and articulating the appropriate legal rule without trying to referee a host of factual and evidentiary disputes between the litigants. Narrowly focusing the law facilitates straightforward opinions setting clear legal parameters.

While there is no summary judgment mechanism in criminal cases, there are motions to dismiss—yet courts are often reluctant to use that procedural tool. Rather than dismiss legally flawed prosecutions at the outset on the pleadings, courts often preside over lengthy, complex trials without ever meaningfully engaging with the propriety of the prosecutors' legal theory. That puts courts in the position of attempting to articulate the boundaries of federal criminal law in post-trial decisions and appeals on the basis of weeks or months of trial record. That imposes a tremendous burden on judges by requiring them to parse through extensive evidence in order to establish a factual predicate for the legal rule the court will announce. Particularly given that sufficiency-of-the-evidence challenges face a far more daunting standard of review than the de novo standard applied to pleadings-based dismissals—i.e., "the reviewing court must view the evidence presented in the light most favorable to the government and draw all reasonable inferences in the government's favor"10—it is far easier for courts simply to uphold the jury's verdict without meaningfully addressing flaws in the prosecutors' legal theory, even if those same flaws would have led to a pleadings-based dismissal under the civil dismissal standard. The result is a paucity of judicial decisions setting clear limits on criminal law.

Leveling the Playing Field. When courts decline to give indictments the same serious scrutiny they give to civil complaints, it makes it difficult for a criminal defendant to meaningfully challenge the government's legal theory until the close of the government's case at trial. At that late stage, however, there are significant practical consequences that result from overturning the conviction. Overturning a conviction—or dismissing charges for insufficient evidence after the government rests—means that a district judge or appellate court must nullify a trial that has already consumed weeks or months of judicial effort, not to mention imposing substantial inconvenience on the jurors. In other words, as Judge Kozinski has noted, "all of the momentum of the process is to uphold the conviction."11 In recognition of these practical costs of post-trial reversals, courts have developed numerous avoidance doctrines (like "harmless error") that enable them to skirt thorny legal issues without vacating a potentially unlawful conviction. Such doctrines are not available in the motion to dismiss context.

When judges consider or review a motion to dismiss, by contrast, there has been no trial, and comparatively little effort has been expended. This posture frees courts to adopt the best legal rule without erasing the product of a lengthy trial that has consumed tremendous judicial resources. And if prosecutors know that their legal theory will be subjected to serious scrutiny at the outset, they may exercise greater care and caution in adopting theories in the first place.

Reducing Costs. One of the basic benefits of dismissing civil cases on the pleadings is the substantial savings in litigation costs. But those costs are even more acute in the criminal context. While the 12(b)(6) standard protects civil defendants (for whom money is at stake) from defending against legally flawed claims, declining to dismiss flawed indictments leaves criminal defendants (for whom life and liberty is at stake) to fight it out before a jury regardless of the soundness of the prosecutorial theory. Leaving challenges to prosecutors' legal theorizing for the end of every case—rather than permitting meaningful challenges via pretrial motions to dismiss indictments—gives federal prosecutors essentially unreviewable power to subject targeted individuals to full-blown criminal trials.

That is a tremendous power. Individuals who are indicted on incorrect legal theories are innocent people. Dragging those innocent people through a lengthy and traumatic criminal trial imposes significant legal expenses, incalculable emotional hardship, and severe reputational injury, in addition to making substantial demands on the judiciary. These expenditures are unwarranted and wasteful in cases where the government has legally overreached. The far better course is, as explained above, for courts to meaningfully engage with the prosecutors' legal theory at the beginning of the case in deciding whether to dismiss the indictment.

Increased Importance in Light of the Yates Memo

The need for a meaningful dismissal process under Criminal Rule 12(b)(3)(B)(v) is particularly acute in light of DOJ's 2015 Yates Memo, in which DOJ recently announced a heightened focus on prosecuting individuals for corporate wrongdoing. As the Memo explains, DOJ policy now requires that: (i) both "criminal and civil corporate investigations should focus on individuals from the inception of the investigation"; (ii) "absent extraordinary circumstances or approved departmental policy, the Department will not release culpable individuals from civil or criminal liability when resolving a matter with a corporation"; and (iii) "Department attorneys should not resolve matters with a corporation without a clear plan to resolve related individual cases, and should memorialize any declinations as to individuals in such cases."

DOJ's increased emphasis on prosecuting people—rather than just corporate entities—will put pressure on prosecutors to develop more adventurous theories of criminality that ensnare targeted individuals. That could lead, in turn, to more cases that present large targets for motions to dismiss. Encouraging courts to embrace their power to dismiss indictments would, if successful, provide a mechanism for ending such adventurous criminal litigation early, while providing the courts with a clean platform to dictate the contours of the criminal law.


In appropriate criminal cases, lawyers should consider filing pretrial motions to dismiss indictments, and courts should consider granting them under an application of the existing 12(b)(6) pleading standards. Implementing this basic reform requires nothing more than applying the existing Federal Rules of Criminal Procedure, and the benefits of doing so would be immense.


1. Fed. R. Civ. P. 8(a)(2).

2. Fed. R. Crim. P. 7(c)(1).

3. Fed. R. Civ. P. 12(b)(6).

4. Fed. R. Crim. P. 12(b)(3)(B)(v).

5. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

6. Hamling v. United States, 418 U.S. 87, 117-18 (1974).

7. See James Burnham, Why Don't Courts Dismiss Indictments? A Simple Suggestion For Making Criminal Law A Little Less Lawless, 18 Green Bag 2d 347, 356-57 (Summer 2015) (gathering examples).

8. Yates v. United States, 135 S. Ct. 1074, 1100 (2015) (Kagan, J. dissenting).

9. See Criminal Defense Issues, Overcriminalization, National Association of Criminal Defense Lawyers (criticizing overcriminalization and gathering anti-overcriminalization scholarship) (last visited June 22, 2016); Overcriminalization, The Heritage Foundation (same) (last visited June 29, 2016).

10. United States v. Gagliardi, 506 F.3d 140, 149 (2d Cir. 2007).

11. Panel on Evidence Disclosure in Criminal Cases, National Association of Criminal Defense Lawyers (Nov. 17, 2014) (written transcript at 42:54).

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