Constructive Amendments

A constructive amendment of a criminal indictment occurs when a defendant is convicted of a crime for which he was not indicted but the text of the indictment itself remains unaltered. Such a conviction violates the defendant’s Fifth Amendment right to be indicted by a grand jury, and a defendant who establishes a constructive amendment is entitled to an automatic reversal of his conviction. Despite the gravity of the injury caused by a constructive amendment and the correspondingly serious remedy, the doctrine in the circuit courts addressing constructive amendments is confused. The Supreme Court has spoken rarely about constructive amendment, the circuits disagree with each other about various aspects the error, and individual circuits have internally inconsistent approaches. Nor has that confusion received more than cursory treatment in the academic literature. This Article is the first to explore in detail the confusion surrounding the doctrine of constructive amendment. It identifies three different areas of confusion — each of which has caused a circuit split — and discusses how each may be resolved. In doing so, it reveals that the key to identifying when a constructive amendment has happened — a Fifth Amendment problem — is the concept of notice embodied in the Sixth Amendment. This exploration of constructive amendments has implications for other ongoing discussions in federal criminal procedure, including how to identify what are the elements of crimes and whether the Grand Jury clause serves a useful purpose.