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A Call for Harmonization Between the Rules of Criminal and Civil Procedure

By Niles S. Illich, Ph.D.

Niles Illich is a criminal-appellate attorney at Scott H. Palmer, P.C. in Dallas. He practices in the Fifth, Seventh, Ninth, and Tenth circuits; federal district courts in Texas and Maryland; and all of the state-appellate courts in Texas. Illich has filed more than 100 briefs and has participated in almost 50 oral arguments. He has represented high-profile clients—including clients charged with slavery under 18 U.S.C. § 1589—but also people convicted of routine criminal acts. Illich earned his J.D. from the University of Houston Law Center in 2009. After graduating from law school, he clerked for Hon. Evelyn V. Keyes on the First Court of Appeals in Houston, where he received a foundational education in legal writing. Illich also holds a Ph.D. in 19th-century German history. The Federal Rules of Civil Procedure date from 1938, and the Rules of Criminal Procedure followed in the Sumners Courts Act of June 29, 1940.1 In the nearly 80 years that these rules have governed civil and criminal litigation, they have been revised numerous times. But the revisions have not emphasized harmony between the rules. This lack of harmony has resulted in important disparities between the rules. Public policy and justice encourage consideration of importing some of the procedural defenses in the civil rules into the criminal rules. This column considers two such defensive tools: challenges to the pleadings and no-evidence summary judgment.

Pleadings

Rules 7 through 15 govern civil pleadings. But Rule 8, the “General Rules of Pleading,” requires that all pleadings contain “(2) a short and plain statement of the claim showing that the pleader is entitled to relief.”2 Additionally, Rule 12(b)(6) provides a defense for a “failure to state a claim upon which relief can be granted.”3

Litigation under Rule 12(b)(6) has become a convention of civil litigation.4 Statistics suggest that between 15 and 17 percent of cases asserting a claim as direct as a breach of contract—and where the plaintiff is represented by counsel—are dismissed under Rule 12(b)(6).5 The use of Rule 12(b)(6) results in careful and detailed pleadings.

The U.S. Supreme Court has explained that civil pleadings must “contain enough information to state a claim to relief that is plausible on its face.”6 Thus, a complaint must allege enough facts to move the claim “across the line from conceivable to plausible.”7 Determining whether the plausibility standard has been met is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”8

But in criminal cases the pleadings do not face the same scrutiny. Under Rule 7, an indictment or information “must be a plain, concise, and definite written statement of the essential facts constituting the offense … the indictment or information must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.”

The criminal rules do not have an equivalent to Rule 12(b)(6) but do permit for the filing of a bill of particulars.9 But a bill of particulars falls well short of a motion under Rule 12(b)(6). First, a district court should not grant a bill of particulars if “the information sought is provided in the indictment or in some acceptable alternate form,”10 such as discovery. Further, specific information—information that might be essential to a defense—such as information about the formation of an alleged conspiracy, is not appropriate for a bill of particulars.11

Instead, a bill of particulars should be issued only where necessary: 1) to inform the accused of the charges against him with sufficient precision to enable him to prepare his defense and avoid surprise, and 2) to enable him to plead his acquittal or conviction in bar of any further prosecution for the same offense.12 A district court also has strong discretion as to whether to issue a bill of particulars—as opposed to a motion under Rule 12(b)(6) where the district court must dismiss if the pleading standards are not met.13

The practical effect is for there to be only a few motions for bills of particulars and fewer granted.

These limitations on criminal pleadings result in pleadings that would never be sufficient under the civil rules. A recent pleading from the Northern District of Texas for a kidnapping charge—a charge that carries a potential life sentence—reads:

On or about (SPECIFIC DATE),14 in the Northern District of Texas, the defendant (REDACTED), aided and abetted by others known and unknown to the Grand Jury, did unlawfully and willfully seize, confine, inveigle, kidnap, abduct, and carry away and hold Adult Victim 1 (“AV1”) for ransom and reward and some purpose or benefit, and did use a means, facility, and instrumentality of interstate and foreign commerce to-wit: a vehicle, specifically, a (VEHICLE), bearing VIN (REDACTED),

This is contrasted with a recent Third Circuit opinion in which the dissenting judge explained why he believed that the civil pleadings were inadequate:

[Plaintiff] also relies on the fact that one his co-employees opted to retire instead of complying with company policy. That another employee disapproved of L’Oréal’s business practice, however, does not automatically render [Plaintiff’s] beliefs objectively reasonable. [Plaintiff] finally maintains that his belief of wrongdoing was reasonable because L’Oréal’s own scientists admitted their inventions were not patentable. This assertion, however, is merely a bald allegation unsupported by well-pleaded facts. [Plaintiff] neither identified the inventors who expressed such reservations nor singled out any allegedly questionable inventions. The District Court did not err in ruling that such conclusory allegations do not state a plausible claim.15

This analysis, plus the Supreme Court’s direction in Twombly and Iqbal that the pleadings must contain enough information to cross the line “from conceivable to plausible,” would immolate the criminal pleading on the kidnapping charge.

Certainly, there is an argument that the Civil Rules should be reformed to reign in motions under Rule 12(b)(6), but presumably few civil litigators would support moving close to the standard that is allowed in criminal cases. And it is, of course, true that criminal cases must be presented to a grand jury and there is no similar threshold for civil cases. But the grand jury provides only a limited check and certainly does little to help a defendant prepare for trial. Thus, both civil and criminal litigants would benefit from a harmonization of the rules of procedure as they concern pleadings.

Beyond the Pleadings

A consideration of harmonization between the rule should extend beyond the pleadings, however, and include matters such as discovery and summary judgment. Summary judgment in a criminal case may seem discordant, but there is no practical reason that a criminal defendant should not be able to assert a no-evidence motion for summary judgment.

It is well known that more than 95 percent of federal criminal cases are resolved through entries of guilty pleas (sometimes just called pleas or plea-bargaining). This occurs in significant part because there is a structural incentive to enter a plea of guilty and to accept responsibility.16 But this percentage could be reduced by allowing defendants to file a motion similar to a motion for no-evidence summary judgment. Although unconventional, there is no policy reason to prohibit such a procedural tool. No policy could override the position that a criminal defendant should not enter a plea and admit guilt if the government cannot meet the low standard for a no-evidence summary judgment.

Under the existing rules, a criminal defendant can only put the government to the burden of establishing the merits of its case through trial. Thus, a criminal defendant must choose to either enter a guilty plea without requiring the government to test its evidence or go to trial and lose credit for accepting responsibility.17 Accordingly, the structure of the federal criminal justice system would be improved if a criminal defendant had access to a procedural tool similar to a motion for no-evidence summary judgment.

Conclusion

The Constitution—by design—places barriers between an arrest and a conviction. There are few such constitutional barriers for civil cases. Accordingly, the civil rules have developed a series of procedural requirements that provide a defendant with powerful tools to avoid an adverse judgment. These procedural tools have been refined for more than 80 years and should be considered for inclusion in the Federal Rules of Criminal Procedure. 

Endnotes

118 U.S.C § 3771. 2Fed. R. Civ. P. 8(a)(1)-(3). 3Fed. R. Civ. P. 11(b)(6). 4Victor Marrero, Mission to Dismiss: A Dismissal of Rule 12(b)(6) and the Retirement of Twombly/Iqbal, 40 Cardozo L. Rev. 2, 3 (2018) (discussing abuse of Rule 12(b) motions in context of federal-civil litigation). 5Patricia Hatamyar Moore, An Updated Quantitative Study of Iqbal’s Impact on 12(b)(6) Motions, 46 U. Rich. L. Rev. 603, 656 (2012). 6Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 7Id. 8Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 9Fed. R. Crim. P. 7(f). 10United States v. Lonzo, 793 F. Supp. 57, 60 (N.D.N.Y. 1992). 11United States v. Lundstrom, 880 F.3d 423, 439 (8th Cir. 2018) 12See United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988). 13Of course, a district court has the discretion to require a civil litigant to replead. 14The Tenth Circuit has explained, “[w]e think the ‘on or about’ language contained in the indictment is consistent with this view of the evidence. But even if the date allegation contained in the indictment is incorrect, it will not bar conviction. Where time is not an essential element of the offense, it is sufficient to charge facts which show that the offense was committed within the statutory period of limitation and in such a case, even though there be a defect in the allegation as to time, it is one of form only.” Butler v. United States, 197 F.2d 561, 562 (10th Cir. 1952) (considering indictment which charged possession of an unregistered still with intent to manufacture liquor during Apr. 24 to Aug. 13, 1951); United States v. Arge, 418 F.2d 721, 724 (10th Cir. 1969); Weatherby v. United States, 150 F.2d 465, 467 (10th Cir. 1945); 1 C. Wright, Fed. Prac. & Proc. § 125 (1982 2d ed.).” United States v. Young, 862 F.2d 815, 818-19 (10th Cir. 1988) 15Trzaska v. L’Oreal USA, Inc., 865 F.3d 155, 167 (3d Cir. 2017). (Internal citations removed.) 16The so-called acceptance of responsibility in the Sentencing Guidelines. 17Of course, under Rule 16(a), the government must produce discovery and “muster” its evidence, but that evidence is not tested before the court.