In other states, the prosecutor files a criminal complaint directly against the defendant. The relevant law determines which option the prosecutor must use. Although, in many places, the prosecutor can choose whether to file a complaint or go before a grand jury to pursue an indictment. In order to get an indictment, a prosecutor must present evidence to a grand jury—a panel of citizens selected for duty just like a petit or trial jury. Grand jury proceedings are secret and a one-sided affair, with only the prosecutor presenting evidence.
The grand jury reviews the evidence to determine whether it's likely that the accused committed the crime a probable cause standard. If a majority or the required number of grand jurors agree probable cause exists, it votes to indict. If it decides the evidence doesn't support the charges, no indictment results and no charges are filed at that time. Learn more about the process in What Is a Grand Jury?
Sometimes people confuse an indictment with a conviction. While both are serious, they are very different. An indictment from a grand jury happens at the beginning of a case and signals that the defendant is facing criminal charges.
To indict, the grand jury must find it likely that the defendant committed the crime. A conviction, on the other hand, occurs near the end of a criminal case and results from a defendant pleading guilty, accepting a plea deal , or being found guilty by a petit jury. In order for a petit jury to find someone guilty, they must decide unanimously that the defendant committed the crime beyond a reasonable doubt , a much higher standard of evidence than the probable cause standard that a grand jury uses to accuse someone.
An indictment contains notice of the criminal charges against an individual. After a grand jury indicts someone, it returns the indictment to the court and the criminal case begins. Neither the accused party nor his attorneys can attend and offer and arguments, and there is no judge. In most state cases, the case commences by an information.
In this situation, the prosecutor pursues charges via a complaint at a preliminary hearing, which is very different from the grand jury process. During the preliminary hearing, the prosecutor presents a list of charges and evidence; however, unlike with a grand jury indictment, the defendant and his attorney are in attendance and can challenge the charges, i. After hearing arguments from the prosecution and the defense, the judge will determine whether there is probable cause to charge the accused.
If the judge decides that there is probable cause, the prosecution will file charges and the case will proceed to trial. Yes and no. Prosecutors often favor indictment because the grand jury process serves as a test trial, providing them an opportunity to see how a jury would decide in a real trial. The defense, on the other hand, usually favors prosecution by information because this gives them the opportunity to challenge and potentially avoid the charges altogether.
In either case though, both charging instruments — indictment and information — mean that a neutral third party the grand jury or judge has determined that there is enough fact-based evidence for criminal charges. An indictment legally is not evidence. This means that jurors are not permitted to rely on the indictment to conclude that a defendant is guilty. Nevertheless, it is common for lay persons to be swayed by the allegations in an indictment. Some federal judges have a practice of allowing the jury to read the indictment during deliberations, on the theory that this will help the jury understand the charges.
The judge will still instruct the jury that the indictment is not evidence and may not be considered in arriving at a verdict. While most jurors are good at following instructions, there may be reasons in certain cases to object to the indictment being reviewed by the jury.
On the other hand, in some cases it will be advantageous to have the jury review the indictment. An experienced defense attorney should evaluate this question carefully in order to provide you with the best strategy and advice based on the facts of your case.
The most obvious and most common challenge to an indictment is showing the allegations are not true at a trial.
But what about challenging an indictment before trial? There are a number of different challenges that can be made to an indictment before a case gets to trial. Such challenges will be very fact-intensive based on the individual circumstances of each case. Here are some examples that an indictment can be challenged for:. While a successful challenge to an indictment is a rare occurrence, a skilled federal criminal defense attorney will often assert challenges to an indictment for other reasons as well.
For example, the prosecutors may be ordered to provide more evidence, or to provide the evidence earlier than they otherwise would be required. A federal criminal indictment is a serious matter, because it means that the criminal investigation has progressed to a point where the prosecutor now believes that he or she has enough evidence to convict.
Moreover, for some clients, an indictment itself—even though it is only an accusation—can entail serious consequences such as the loss of employment, harm to reputation, and frozen assets. This is in addition to the anxiety and stress of being charged with a federal crime.
When we represent clients early on in the criminal process, such as during the investigation phase , our goal is almost always to avoid an indictment. However, where a client is indicted, it is important to respond intelligently and effectively in order to put the client in the best position of achieving a successful outcome. If you have been indicted, you should speak to an attorney right away if you do not have one.
And if you do have an attorney, you should discuss the indictment thoroughly with him or her to understand the allegations and consider what challenges can be made. What is a federal indictment? What are the parts to a federal indictment? How do prosecutors obtain federal indictments? Can the indictment be amended to charge different or new crimes? What information must a federal indictment contain? What is a speaking indictment? Why do I need to be aware of it? What is the difference between a federal indictment, a criminal complaint, and a criminal information?
How can a federal indictment be used in court?
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