What is an Indictment: A Guide on Everything to Know and Expect

Unless you went to law school, you’ve probably learned everything you know about the criminal law process from police procedural shows like the rest of us. You see the suspect get arrested and Mirandized before it cuts to the court room scene complete with dramatic lawyer monologues. In real life, the process of trying someone for a crime is very different.

One of the first steps in the process (in some situations) is an indictment of the person for the crime. Read on to learn everything you need to know about indictments.

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What Is an Indictment?

An indictment doesn’t mean the accused has been found guilty of a crime. An indictment is a formal accusation, that based on the available evidence, there existed a probable cause to charge the accused with a crime.

But what does probable cause mean? This comes down to the standards of evidence. In order for someone to be convicted of a crime, the state must convince a jury beyond a reasonable doubt that the accused committed a crime; essentially a greater than 99% chance that they committed the crime. Think of the old adage – you’re innocent until proven guilty.

Probable cause, on the other hand, is a much lower standard of evidence. It just means that based on the available evidence it’s reasonable to assume a crime occurred and that the accused committed that crime. To indict, the state must just show that there is a greater than 50% chance that the accused committed the crime.

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It’s not a high bar and is by no means a slam dunk for conviction during the trial.

The Indictment Process

As with most of our legal system, the indictment process (or its existence) varies greatly from state-to-state and in each jurisdiction. Below is a general outline of the indictment process, but be sure to consult with a lawyer to understand the particulars for your circumstances.

When is There an Indictment?

The most important thing to know about indictments is that they’re not required for every single crime.

In federal courts, the right to a grand jury is built into the Bill of Rights – the Fifth Amendment. If someone is charged with a serious federal crime (requiring more than one year of jail time) also known as an “infamous crime,” then a grand jury must review the evidence to determine if probable cause exists.

The accused can waive their right to a grand jury after which a formal written statement of the crime, called an “informational” is submitted by the prosecutor.

States aren’t required to indict every person they believe has violated the law. That said, 23 states have passed laws that require an indictment to charge someone with a serious crime or felony. Twenty-five other states have made indictments optional. For example, in Arizona, prosecutors can file a direct complaint or convene a grand jury for indictment.

In the states where indictments are optional, if that route is not pursued, then a preliminary hearing will be scheduled in which a judge will hear the evidence and decide whether probable cause exists to order a trial. If the evidence doesn’t meet the probable cause standard, the judge will dismiss the case.

To make things more confusing, an indictment can come at different parts of the trial process depending on the jurisdiction. Some jurisdictions pursue an indictment prior to placing someone under arrest; others place someone under arrest, and then send the case out for indictment.

Who Decides Whether to Indict?

In most states and jurisdictions, grand juries oversee indictments. Grand juries operate differently based on the state or jurisdiction. Let’s look at how they operate within federal courts.

Within each jurisdiction grand jurors are selected at random to ensure equal representation of the jurisdiction. The presiding judge will select 23 “qualified” individuals to serve on the grand jury from those summoned along with alternates. There is generally a list of exemptions – for example, in many districts, attorneys are exempt from serving. Additionally, if someone can demonstrate why it would be a hardship to serve, just as with normal jury duty, they can be dismissed. This can lead to a skewed representation of the demographic of the district.

The grand jury’s term lasts for 18 months but can be extended to 24 months by the judge. Sixteen of the 23 grand jurors need to be present in order for a case to be heard. Over the course of their term, the grand jurors will hear many cases. Typically, grand jurors will meet every other week to review cases. The frequency of these meetings will vary based on the size of the district and criminal volume. In some districts, grand jurors meet several times a week.

For states and other jurisdictions, the selection process can vary, and the number of jurors varies anywhere from 5 to 23. Similarly, the terms can vary. Some are as short as four months.

How is Evidence Presented in an Indictment?

In general, during an indictment proceeding, the government attorney presents the evidence and the list of witnesses. Typically, the defense does not present any evidence or argument at this stage.

In federal court, witnesses cannot have an attorney present in the room with them during questioning by the grand jury, but they may step out of the room to confer with their counsel before answering a question. Witnesses also have the right to plead the Fifth.

The accused cannot be compelled to testify against themselves. In federal court, they may request or be asked to appear voluntarily. If they do appear before the grand jury to answer questions, they are required to sign a formal document waiving their right not to testify.

During the questioning process, the government attorney will ask questions first, then the foreman and then each juror will have an opportunity to ask questions.

The Indictment Vote

The grand jury will deliberate in private after the evidence is presented. The minimum number of votes for indictment varies by jurisdiction. In federal cases, 12 of the minimum 16 grand jurors required to be present need to vote for indictment. If the minimum number of votes is met, a written statement of the charges – the indictment – is handed down.

If the minimum number of votes is not met, then a “no bill” or “not a true bill” will be issued with the decision not to indict. In that case, the accused will be released from jail or bond (if applicable).

Criticism for the Grand Jury System

The grand jury and indictment process evolved from a system in place in England and in the colonies to check the power of the government over its citizens. The founding fathers enshrined it in the Constitution to ensure the government couldn’t bring charges of serious crimes against citizens without the oversight of the public.

The role and powers of the grand jury have evolved greatly since the Bill of Rights was penned.

Today, many are critical of the grand jury system and believe it has been diluted down to little more than a formality in which grand juries rubberstamp any cases the prosecutor chooses to bring before them. There are similar critiques on the power of the prosecutor in instructing jurors as well as in the relationship that may develop over the term of their service.

Sources:
https://www.uscourts.gov/sites/default/files/grand-handbook.pdf
https://www.uscourts.gov/sites/default/files/federal_rules_of_criminal_procedure_-_december_2020_0.pdf
https://repository.law.indiana.edu/cgi/viewcontent.cgi?article=1719&context=ilj
https://web.archive.org/web/20060508012110/http://www.udayton.edu/~grandjur/recent/lawrev.htm

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Comments 9

  1. Noel Flanagan says:

    Is it ok to have Indictment date and charges not corresponding to when the offence took place ?

  2. kesha morris says:

    when you are indicted on a crime do you have to make another bail.

  3. Sherry says:

    If a convicted felon gets arrested for having a fire arm is that mandatory time

  4. Heather Ritter says:

    How many individuals can be named on an indictment? I’ve heard it’s a max of 99.

  5. clay willis says:

    lets say “bud” was arrested on a state jail felony, 10 days later bonded out. not one court hearing. 33 months later, bud gets a call from the bond company stating he has court coming up. Bud goes to court and is informed he has been indicted on a 3rd degree felony offense. offense date is same date as the state jail felony.

  6. Doug says:

    On a stay of imposition for felony domestic charges, how hard is an expungement?

  7. Timothy Walker says:

    How can a person get a fta when they didn’t know they were supposed to be in court but later was charged with a capias and a domestic assault charge also over something there x spouse said he or she did over a year ago and learn that a jury says that there’s enough evidence for a jury to decide if the defendant is guilty or not? Thanks n advance.

  8. April Holder says:

    Can the grand jury indict someone with out knowing their name

  9. Marcus says:

    If a grand jury didn’t indict…can they come back and indict …with same evidence they had the first time they didn’t indict

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