When an indictment tells a story much larger than the conduct that will actually be tried
A three-hundred-page indictment arrives at the office. The client starts reading. He finds his name, the history of his company, his business partners, contracts, messages, meetings, trips, organizational charts, financial figures, and episodes spanning several years. Relationships he regarded as ordinary are presented in an entirely different light. He encounters adjectives he would never use to describe what happened. Yet after dozens of pages, a surprisingly difficult question remains: what, exactly, am I being accused of?
The question sounds elementary. In criminal procedure, it is decisive.
Earlier this year, I wrote on this blog about anonymous reports, unexpected visits by public authorities, and requests for documents — the stage at which information reaches law enforcement and may give rise to an investigation. The “indictment” I am discussing here belongs to a later and very different moment: it is the pleading through which prosecutors formally bring a criminal accusation against a person before a court.
From that point forward, the accused may be prosecuted, evidence may be produced, a trial may take place and, ultimately, a conviction may follow.
It would seem reasonable, then, that the first quality of an indictment should be clarity about what is actually being alleged.
An accusation must describe an act
Brazilian criminal procedure is remarkably economical on this point. Article 41 of the Code of Criminal Procedure requires the prosecution to set out the criminal act and all relevant circumstances, identify the accused, classify the offense and, where appropriate, list its witnesses. A manifestly defective indictment must be rejected.
The crucial words are these: the criminal act.
A criminal case does not begin with a theory about the defendant’s character, a conclusion about his personality or a general assessment of a business environment. It begins by attributing an event to a person.
That requires us to be precise about what we mean by an “act” or a “fact.”
Consider a murder charge.
Saying that one person “killed another” sounds factual. To a significant extent, however, it merely repeats the verb used by the criminal statute.
An allegation against which a person can meaningfully defend himself requires more: on a given date and at a given place, the defendant allegedly pointed a firearm at the victim and fired twice, one bullet striking a particular part of the body and causing injuries that led to death.
Now there are propositions that can be proved or disproved.
Was the defendant there? Did he possess the weapon? Did he fire it? Does the forensic evidence support that trajectory? Were the injuries caused in the manner alleged? Are there witnesses, recordings or physical traces?
The same problem arises, less obviously, in corporate criminal cases.
To say that someone “destroyed native vegetation” does not necessarily describe the conduct with sufficient precision. Which trees? In which area? When were they cut down? Who carried out the work? Did the defendant personally do it, order it or authorize it? Which evidence attributes that decision to that particular person?
“Destroying native vegetation” already contains an important legal characterization of events that must first be described.
In financial crimes, the distance between conclusion and conduct can be greater still.
“He acted to conceal and disguise the illicit origin of funds” comes very close to the statutory language of money laundering.
How much money? On what date? From which account? To which account? What transaction allegedly gave the funds an appearance of legitimacy? What did that defendant actually do? Sign an instruction? Order a transfer? Set up a company? Lend his name? Was he aware of the alleged criminal origin of the funds? What evidence supports that conclusion?
There is an important procedural difference between saying that someone committed a crime and describing the events that, according to the prosecution, constitute that crime.
Evidence is produced about the latter.
And it is against the latter that a person can defend himself.
No one can defend himself against “factual context”
Complex cases require context.
It would be unrealistic to expect an indictment involving dozens of people, companies, contracts and financial transactions to dispense with an explanation of how those elements relate to one another. Context can be essential to making an allegation intelligible.
The problem begins when the relationship is reversed: instead of context explaining the alleged act, the act disappears inside the context.
The expression “factual context” has become particularly convenient in expansive indictments.
Under that heading one may find the history of a company, its ownership structure, professional and personal relationships among suspects, earlier transactions, messages, conduct by third parties, internal disputes, press reports, reputational information and events that predate the alleged offense by years.
Each item may have some relevance.
But they do not magically add up to an allegation.
A person cannot be tried merely for existing within a “context.” Nor for occupying a particular place on an organizational chart, attending certain meetings or maintaining relationships with other people who were also investigated.
Those facts may become evidentially relevant when connected to specific alleged conduct. Without that connection, they primarily create an overall impression of the case.
And overall impressions are particularly dangerous in criminal proceedings.
One can finish reading an indictment convinced that something was deeply wrong in a given environment and still be unable to say what a particular defendant actually did.
Context does not replace an allegation.
This is precisely where questions of a defective or insufficient charge arise.
An indictment may run for hundreds of pages, contain dozens of exhibits and provide a detailed account of everything surrounding the alleged offenses. It must still offer an intelligible answer to the defendant’s question: what do they say I did?
Length and precision are different things.
An accusation can also tell a story
There has been another transformation worth noticing.
In major investigations, indictments increasingly incorporate narrative devices that are not strictly necessary to formulate a criminal charge.
There are titles. Chapters. Characters are introduced. Chronologies are carefully arranged. The rise and fall of groups is described. Evaluative language appears. Particular episodes are selected because they neatly encapsulate what prosecutors believe occurred.
None of this is inherently improper.
Prosecutors should write clearly too. A well-organized complex accusation is preferable to an unintelligible one.
The question arises when narrative technique no longer merely explains the alleged facts but begins to create an autonomous story about people and events.
Anyone who has spent enough time working on high-profile investigations learns to recognize certain passages immediately. They are paragraphs capable of surviving perfectly well outside the case file.
Sometimes they do.
In July, I wrote about selective leaks in major investigations and about defendants learning about developments in their own cases through the press. The issue there arose during the investigative stage: information from a criminal investigation reaches the public before the defense has a meaningful opportunity to know or answer it.
With a formal indictment, the phenomenon is different.
The document is official. As a rule, it is public. And it organizes thousands of previously scattered pieces of information into a single coherent narrative.
The consequence is predictable. A three-hundred-page indictment will be summarized. A handful of sentences will be quoted. Certain adjectives will survive the summary. A provisional conclusion offered by the prosecuting party at the very beginning of the case may appear in a headline with far greater certainty than the state of the evidence would justify.
A subtle shift then takes place.
A pleading whose procedural function is to state what the prosecution intends to prove begins to circulate outside the proceedings as an account of what actually happened.
No allegation of improper coordination between prosecutors and the media is necessary to identify the problem.
The point is more objective.
An indictment has a procedural function.
Prosecutors may have duties of transparency, institutional communication and accountability to the public. The charging instrument is not the vehicle designed to fulfill those functions.
It is not an annual report. It is not a press release. It is not the official history of what happened for public consumption.
Its task in a criminal case is to formulate an accusation with enough precision for the court to know what conduct is being submitted for adjudication and, above all, for the accused to know what conduct he must defend against.
The fact that proceedings are public does not change that function.
What the first story does inside the courtroom
Narrative does not cease to matter once we return to the courtroom.
The indictment is ordinarily the first complete and organized account of the case that the judge receives. The defense response comes later.
That does not make a judge biased. Judicial impartiality should not be confused with the unrealistic expectation that decision-makers are immune to the way information is initially presented.
Cognitive psychology has studied these phenomena for decades. In the classic article Inside the Judicial Mind, Chris Guthrie, Jeffrey J. Rachlinski and Andrew J. Wistrich tested federal magistrate judges for several cognitive effects and found that anchoring, framing and other cognitive mechanisms influenced judicial decision-making. Experience and professional training do not remove the basic fact that judges remain human decision-makers.
Other experiments have found anchoring effects even when legal professionals knew that the numerical reference presented to them was arbitrary. None of this allows us to conclude, of course, that the narrative of an indictment will determine how a Brazilian judge decides a case. Such a leap would go too far. The more modest point is enough: professional experience does not make anyone immune to the initial framing of a problem.
That gives criminal procedure another reason to distinguish allegation from narrative.
If the first account of the case devotes dozens of pages to describing a “sophisticated,” “clandestine” or “carefully designed” structure, it may not be enough for the defense simply to locate the conduct attributed to its client on page 247 and answer three lines.
But neither should the preceding 246 pages automatically become part of what the defendant is required to disprove.
That is the dilemma.
The defense response need not answer everything the indictment chose to tell
Dr. Mariana Beatriz has already discussed on this blog the importance of the initial defense response in Brazilian criminal proceedings. At that stage, the defense may raise preliminary issues, submit documents, identify evidence, name witnesses and present everything relevant to the defense.
With narratively expansive indictments, however, one of the first tasks comes before rebuttal itself:
to determine what actually requires rebuttal.
The defense must identify the concrete acts attributed to the client and distinguish them from inferences, evaluations and the contextual framework chosen by the prosecution.
That distinction has practical consequences.
If a passage merely describes how a company generally operates, the defense must decide whether there is any procedural reason to contest it.
If another states that the defendant “commanded” a particular group, the real question is which concrete acts are said to support that conclusion.
If the indictment labels a transaction “fraudulent,” debating the adjective achieves little. One must identify which elements of the transaction are alleged to have been false, simulated or unlawful, and what role was attributed to the defendant.
If fifty pages describe the conduct of third parties and three paragraphs attempt to connect that conduct to the client, it is that connection that the prosecution must prove.
In some cases, the defense should ask the court itself to make clear the limits of the charge it has allowed to proceed.
Not to obtain a summary of the indictment, but to determine what will actually be the object of evidence and judgment.
That distinction also guides defense evidence.
I have repeatedly emphasized the importance of structuring criminal defense with the aim of resolving the case at trial level, rather than merely accumulating legal issues in the hope that an appellate court will correct the case years later. The initial defense response is one of the moments in which that work begins: identifying the alleged act tells us what evidence must be produced to confirm it, disprove it or strip it of the criminal significance claimed by the prosecution.
A defense that does not know precisely what has been alleged will rarely know precisely what it needs to prove.
The defense does not have to accept the entire story
This may be the most important practical point.
When an indictment runs to three hundred pages, there is a natural temptation to assume that a “complete” defense must answer all three hundred.
Not necessarily.
The prosecution chose how to present its case. That choice does not, by itself, define the scope of the criminal proceedings.
The defense must of course understand the entire narrative. Ignoring it would be naïve. The judge has read it. The press may have reproduced it. It may influence how witnesses, companies, clients and even other public agencies understand the events.
Public repercussions are not simply noise outside the proceeding. They may have economic, reputational and even procedural consequences.
But acknowledging the existence of that narrative does not mean accepting everything contained in it as part of the criminal charge.
Defense work requires classification.
What is the alleged act?
Which circumstances are necessary to understand it?
What evidence does the prosecution rely upon?
Which statements are inferences drawn from that evidence?
Which are legal conclusions?
Which are adjectives?
And which episodes were included in the story even though they do not constitute conduct attributed to the defendant?
Answering those questions organizes the case.
It also avoids a common mistake: spending energy defending a client’s personality, a company’s reputation or the abstract morality of relationships that are not part of the charge, while failing to address properly the conduct that actually matters.
Criminal proceedings should not put biographies on trial.
They try acts.
A criminal accusation may involve extraordinarily complex events. It may require an explanation of years of business relationships, financial flows, corporate structures and the conduct of many people. None of that removes the most basic requirement of a criminal charge: somewhere inside that story, the prosecution must say with sufficient precision what this person allegedly did.
No one can defend himself against an organizational chart. No one can defend himself against an adjective. Nor against a general atmosphere of suspicion.
A criminal defense is mounted against alleged facts.
Perhaps that is why, when faced with a three-hundred-page indictment, the first question remains the most important:
what, exactly, am I being accused of?
