The Fall and Rise of Duplicitous Indictments
By Matthew Brummond
In a recent transcript, the State indicted the defendant for Kidnapping Person A, or Person B, or Person C. The defense lawyer knew this had to be wrong. And he knew how the error prejudiced his client. He couldn’t know which victim to defend against, jurors might not agree on the same victim yet convict, and the general verdict might conceal acquitted conduct. But the lawyer lacked the legalese to say what the error actually was.
With good reason.
DUPLICITY, noun: “The technical fault, in pleading, of uniting … two or more offenses in the same count of an indictment.”1 The Supreme Court of Appeals hasn’t had to reverse a duplicitous indictment in over fifty years.2 It seems prosecutorial errors go in and out of style, and this indictment was decidedly retro.
For the above defendant, one duplicitous count may have been preferable to three very provable charges. But if only one conviction is possible, the harm can be real. Imagine if the State had charged brandishing instead of kidnapping.3 Unless cured, jurors might disagree over whom the defendant threatened, yet still convict.
Also consider a statute like first-degree sexual assault, which can be accomplished in three distinct ways.4 A person is guilty when:
- Such person subjects another person to sexual contact without their consent, and the lack of consent results from forcible compulsion; or
- Such person subjects another person to sexual contact who is physically helpless; or
- Such person, being fourteen years old or more, subjects another person to sexual contact who is younger than twelve years old.
If a prosecutor simply copy/pasted the statute—which would suffice for most crimes—the indictment would fail to notify the defendant which of the three the State intended to prove. If it intends to present multiple theories, then it should at least plead them in separate counts to avoid the unanimity issue (with an understanding only one conviction can stand).
As that last example might suggest, duplicity is easily cured. The State could file a bill of particulars, opt in advance for a specific theory, or constructively amend the indictment by narrowing its scope (e.g., replacing “or” with “and” in the jury instructions). But it still must be cured. And knowing the term of art makes it easier to find the—admittedly archaic—body of case law condemning such indictments.
1Black's Law Dictionary, p. 394, 2nd ed. (West Publishing, 1910).
2State ex rel. Turner v. McClure, 153 W. Va. 855, 173 S.E.2d 167 (1970). The court said it reversed for duplicity in State v. Fairchild, 171 W. Va. 137, 156, 298 S.E.2d 110, 130 (1982), but that indictment was actually multiplicitous. It charged the same offense in multiple counts, allowing for additional sentences.
3See Sy. Pt. 5, State v. Goins, , 231 W. Va. 617, 748 S.E.2d 813 (2013) (unit of prosecution is each act of brandishing, not the number of victims).
4Cf. State v. Brendan W., ___ W. Va. ___, 931 S.E.2d 797 (2026).