You might have heard the word “indictment.”What’s even worse, you may even be about to find out what an indictment is from up close. And if you don’t know what it is precisely, then the term may sound terrifying for you.
A term coming from criminal law, an indictment may sound like a death sentence for you. You might be thinking that all the hope is gone and that the decision of the grand jury will have a devastating impact on your life.
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It may. But it may not as well.
Being indicted doesn’t mean that one will get imprisoned. There still is something that the defendant could do to challenge an indictment and even avoid any charges.
If you are unfortunate enough to face indictment or if you are already indicted, then this material will certainly be useful for you. Let’s begin with the basics.
What is an indictment?
An indictment is a formal accusation that an individual committed an offense. In the United States, indictments are typically obtained for felony charges, i.e. offenses that are punishable by death or by imprisonment of more than 1 year.
Indictments are usually used in the federal court system, but they can also be used in the state system.
The alternative to indictment is a complaint, which is usually filed against misdemeanors – offenses punishable by imprisonment of 1 year or less. Both are accusations against an individual, but there are crucial differences between them.
An indictment is the product of a sworn testimony from witnesses, due to which it has more weigh in court. On the other hand, a complaint is an affidavit signed by the prosecutor.
In the case of a complaint, the individual generally must be arrested as a result of a probable cause. Unlike a complaint, an indictment against a person can be obtained before any arrest.
What is probable cause, by the way?
Coming from the Fourth Amendment of the U.S. Constitution, the concept of “probable cause”in criminal law requires that police have adequate reason to arrest someone, seize their property, or conduct a search.
In other words, there must be a “probable cause” for a court to issue a warrant for someone’s arrest or property search. Likewise, police must also have a probable cause to search or seize property without a warrant.
Indictment vs criminal complaint vs criminal information
An indictment is just one way of bringing criminal charges on the defendants. Other ways of bringing criminal charges include the criminal information and the criminal complaint.
Like an indictment, a criminal information formally accuses the defendant of a crime. However, criminal information doesn’t require a grand jury proceeding. Thus, prosecutors use criminal information to conserve resources.
The Fifth Amendment doesn’t specify a right to indictment by grand jury for federal misdemeanors, so prosecutors use criminal information instead of indictment in these cases. In federal felony cases, the defendant may choose to waive his right to indictment and be instead charged by criminal information.
A criminal complaint is mostly used when the prosecutors need an arrest quickly. For example, this may happen if a crime is about to occur or has just occurred, thus requiring immediate actions.
Having no time to go through the grand jury process, prosecutors file a criminal complaint along with an affidavit signed by an agent familiar with the case. After reviewing the complaint and the affidavit, a judge or a magistrate judge issues an arrest warrant if probable cause is found.
Once an arrest is made on a criminal complaint, it is required by the federal law for the defendant to be charged by an indictment or a criminal information within 30 days.
How are indictments obtained?
To obtain an indictment, the prosecutor must present the case to a grand jury.
A grand jury is a group of local citizens empowered by law to conduct legal proceedings. A grand jury consists of 16 – 23 individuals who are sworn in every 18 months.
A grand jury is considered an arm of the prosecution and mostly hears only from them. Indictments are thereby rather easy to obtain for the prosecution.
A grand jury helps the prosecutor decide whether or not to bring criminal charges against an individual. The prosecutor explains the law to the jurors so they can make an adequate verdict.
Former Judge at the New York Court of Appeals Solomon Watcher once commented that the prosecutor can get a grand jury to “indict a ham sandwich.” This is close to the truth since prosecutors don’t tend to call for grand juries until they are confident in their case.
There are two other reasons for this as well. Firstly, the grand jury proceedings are closed to the public, and the defendant isn’t allowed to present evidence or challenge the evidence of the prosecution. Secondly, the “probable cause” only requires having minimal sufficient evidence to reasonably conclude that the offense has been committed by the defendant.
The jurors have the authority to interrogate the witnesses and view any kind of evidence connected with the offense. A grand jury also has the right to subpoena witnesses and documents at its own discretion.
To allow the jurors as much flexibility as possible and to encourage the witnesses to speak freely, grand jury hearings’ procedures are generally not very strict, unlike jury trials. In addition, this is done to protect the suspect in case the jury decides not to issue an indictment.
The decision of a grand jury isn’t final in the case. Prosecutors can use grand jury proceedings as test runs before trials. The prosecution usually takes the grand jury’s decision very seriously, but the decision may be ignored if the prosecutor disagrees with it.
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What does the grand jury do?
The function of the grand jury is to determine whether or not there is probable cause for criminal charges. The prosecution can present witnesses to support its position. Unlike jury trials, grand juries are convened in secrecy and mostly don’t involve defense attorneys or judges.
The suspect may also be allowed to testify at a grand jury. However, he or she isn’t allowed to bring in any witnesses. And neither the suspect nor their attorney is allowed to question the witnesses of the prosecutor.
The suspected individual may also waive their right to a grand jury in case the prosecutor is offering a plea bargain. However, accepting the plea bargain amounts to agreeing that the prosecutor has enough evidence to move the case to court.
After the grand jury reviews the case, the jurors will determine whether or not there is enough probable cause to forward the case to court.If the majority of the jurors (and at least 12 of them)find that there is probable cause, then the indictment is approved.
When the indictment is approved, the grand jury returns a “true bill,” which the prosecutor may then bring to court.The approved indictment lists all the charges against the individual and how, when, and where the offense has been committed.
If the grand jury deems that the prosecutor has insufficient evidence to move the case forward in court, then they return a “no bill.” And without a probable cause, the prosecutor generally won’t be able to forward the case to court, unless more evidence is discovered.
It should be noted that if the indictment is approved, it only means that there is enough probable cause for criminal charges. Approval doesn’t mean that the suspected individual has been found guilty.
What happens after an indictment is obtained?
After successfully obtaining an indictment, the prosecutor brings the case to court. The suspected individual is arraigned, i.e. informed by the judge of the charges against him or her. The defendant can then choose to proceed with a jury trial or make a plea bargain with the prosecution.
How can an indictment be used in court?
Legally, an indictment is not evidence, and the jurors aren’t allowed to conclude on its basis that the defendant is guilty.However, non-professionals may be swayed by the allegations of an indictment.
In court, some federal judges allow the jury the read the indictment to help them better understand the charges. The jury is still instructed that an indictment is not evidence, and it may not be considered when making a verdict.
Jurors mostly follow the instructions, but in some cases, the indictment may need to be objected by the defense. However, it is sometimes advantageous that the jury reviews the indictment.
Evaluating this question is up to the defense attorney who should provide the defendant with the best strategy based on the facts of the case.
What information must an indictment contain?
The Sixth Amendment guarantees the right of the defendant to be informed of nature and cause for the accusation. The indictment thereby must have sufficient information to inform the accused about both the “nature” and “cause” of the charges.
The Federal Rules of Criminal Procedure also have regulations governing indictments. Rule 7 demands that the indictment is “a plain, concise, and definite written statement of the essential facts constituting the offense charged.” The same rule also determines that the indictment must give the official or customary citation of a law that the accused is alleged to have violated.
Can an indictment be amended (changed)?
Technically, an indictment cannot be amended to charge new crimes once it had been returned. This would violate the defendant’s rights defined by the Fifth Amendment of the U.S. Constitution. But since prosecutors do often alter the charged offenses or add new crimes, there is a way to complement the original indictment.
This is accomplished by filing a “superseding” indictment. It is viewed by a grand jury just as any other indictment. A superseding indictment can include different charges, add new charges to the old ones, or add new suspects. And once the grand jury returns a superseding indictment, it replaces (supersedes) the original indictment.
Speaking indictment: what is it?
Indictments are referred to as “speaking” if they contain more facts and allegations than required by law. Prosecutors themselves select how much information they include in an indictment. In fact, because the indictment is the prosecutor’s version of the case, the jury may get prejudiced.This is the main disadvantage of speaking indictments for the defense, and defense lawyers will need to develop a strategy to counter such an indictment.
However, speaking indictments can be advantageous for the defense as well. It may allow the defense lawyers to see how the prosecution views the case and act accordingly.
Can an indictment be challenged before trial?
Indictments can be challenged after approval and before trial. The most common challenge to an indictment is that the charges are untrue.
Regardless of the nature of the challenge, it will be more or less fact-intensive, depending on the circumstances of the case.To give you some perspective, here are some examples when an indictment can be challenged:
- The defendant isn’t provided with sufficient detail on the basis and nature of the charges.
- The prosecution fails to set forth an actual violation of the law.
- The prosecution fails to plead all the elements of the crime.
- The case is brought in an improper venue.
- The prosecution does a prosecutorial misconduct at a grand jury proceeding.
Indictments are very rarely challenged successfully. Nonetheless, it is up to the defense lawyer to spot such misconducts and challenge the indictment.
What you should do if you are indicted or may get indicted
An indictment is a very serious matter since prosecutors address it when they believe that they have enough evidence for a conviction. Moreover, although indictment is only an accusation, the defendants may lose their job, get their assets frozen, etc. Not to mention the stress from being charged with a crime.
In the early stages of the criminal process, an experienced attorney would be aimed at avoiding an indictment. If the accused is already indicted, an attorney would seek to put his client into the best position and to achieve the best outcome.
Whether you are already indicted or are waiting for the decision of the grand jury, you should find an attorney as soon as possible. Get the best one you can since their experience could really benefit you.
But don’t forget that the success of your defense will depend on the case. Even the best attorney in the world may be unable to turn the situation in your favor.So try to be realistic and closely discuss the situation with your attorney.
Robert Gomez was born and raised in the Bronx, New York. He currently lives in Northern California with “the wifey,” “the kids,” “the dog,” and “that cat,” 🙁 He is also a former journalist who has interviewed murderers on death row. Felonyfriendlyjobs.org was born to help ex-felons get a second chance in life.