CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, November 3, 2004

Courts Disagree Post-Blakely On Whether Aggravating Factors Should Be Included In Indictments

The latest issue of the BNA Criminal Law Reporter addresses how courts continue to struggle with their post-Blakely interpretation of the Sixth Amendment right to a jury trial. Several recent decisions "have come to different conclusions as to whether aggravating factors in noncapital sentences should be included in indictments. The U.S. District Court for the Eastern District of Pennsylvania, reasoning that indictments may allege only elements of offenses, held Oct. 8 that indictments cannot include allegations that are relevant only to sentencing. On the other hand, the U.S. District Court for the District of Nebraska Oct. 19 held that aggravating factors are elements of a separate, enhanced crime and, therefore, must be included in the indictment. Meanwhile, in the state courts, the Arizona Court of Appeals Oct. 14 held that trial courts must allow prosecutors to add allegations of aggravating factors to indictments and requests for jury trials. (United States v. Jardine, E.D. Pa., No. 04-219, 10/8/04, United States v. Benitez-Hernandez, D. Neb., No. 8:04CR317, 10/19/04, and State v. Conn (Tinnell), Ariz. Ct. App., No. 1 CA-SA 04-0180, 10/15/04).

Mark Godsey

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