"Jurisdictional" Indictments, Informations and Complaints: An Unnecessary Doctrine

In the majority of jurisdictions in the United States, including the federal courts and Maine, a sufficient indictment, information or complaint is deemed an absolute prerequisite to a valid conviction. This right to a sufficient charging instrument is not subject to waiver and may be asserted at any time, even though not raised before or during trial or on direct appeal from a conviction. This characteristic of nonwaivability, probably unique among the rights belonging to a criminal defendant, has led some courts, including the Maine Supreme Judicial Court, to characterize the requirement of a sufficient indictment as "jurisdictional." When an insufficient indictment is viewed as a jurisdictional defect, an otherwise valid conviction may be barred without judicial inquiry into questions of waiver, prejudice to the defendant, or compliance with the underlying purposes of the charging instrument. The question that this article discusses is whether the failure of a charging instrument to state an offense should be considered a "jurisdictional" defect, cognizable at any time and capable of depriving a court of the power to try or sentence a defendant. Stated conversely, does the insufficiency of a charging instrument involve constitutional rights so fundamental that they can never be deemed waived, even when they are not asserted until years after trial on post-conviction collateral attack?