What Is an Indictment?

You've probably heard the word "indictment" mentioned on TV crime dramas and the nightly news. You know the indictment process is bad, but what does it mean? An indictment is a formal accusation in a criminal case against someone suspected of committing a serious criminal offense. It's filed after the conclusion of a grand jury investigation, and formal charges follow.

The article below explores the legal process for indictments and answers the following questions:

• What is an indictment, and does it differ from a criminal complaint?
• What is the criminal law burden of proof for getting an indictment?
• Do federal court indictments differ from those in state courts?

Federal Indictments, Grand Juries, and the Fifth Amendment

The Fifth Amendment to the U.S. Constitution requires the federal government to seek an indictment or presentment from a grand jury to prosecute someone for a felony case or "otherwise infamous" crime.

A presentment is an accusation of crime initiated by grand jury members on their own without a bill of indictment. Since an indictment comes after grand jury proceedings but typically before an arrest, it may be "sealed" for as long as needed. This prevents the defendant (accused person) or other suspects from fleeing, destroying evidence, or evading the criminal justice system.

The indictment must contain the following information:

• A plain, concise, and definite written statement of the essential facts on the charged offense, signed by the prosecuting government attorney
• The accused person's identity or description
• The statute, rule, or regulation violated

The Fifth Amendment rule does not extend to state criminal charges. A state prosecutor can bring felony charges under state law without getting a grand jury indictment. But, many states follow a similar procedure for prosecuting serious felonies (and even some misdemeanors).

What Kinds of Crimes Get a Grand Jury?

Prosecution by indictment only applies to felony offenses punishable by death or imprisonment for more than one year. A grand jury indictment is the product of sworn witness testimony or physical evidence analyzed by a jury of local citizens. 

Grand juries convene secretly and don't involve judges or criminal defense lawyers. If a grand jury does find probable cause, the prosecutor will file criminal charges. A grand jury indictment doesn't mean someone is guilty of a crime. The defendant still has the right to argue their case at trial. In district court, the prosecution must prove their case beyond a reasonable doubt — a much higher standard than probable cause, for a guilty verdict.

What About Other Crimes?

Per the Federal Rules of Criminal Procedure, Rule 7, misdemeanors don't need indictment. For suspects charged with lesser crimes (such as misdemeanor charges or lower-level felonies), the process usually begins with the prosecutor filing a criminal complaint (a brief written statement of facts about the offense charged). An arrest and arraignment often follow this, but only when there is probable cause for the charges.

Some courts use preliminary hearings instead of grand juries to determine probable cause for lower-level felony charges. Here, the prosecutor may call witnesses (e.g., law enforcement) or present evidence, such as a failed field sobriety test after a driving under the influence arrest (DUI). A judge decides whether there is enough evidence for the case to go to trial.

Waiving Indictment

Defendants may choose to waive their right to a grand jury. But, doing so amounts to an agreement that the prosecution has enough evidence to take the case to trial.

Some defendants may waive prosecution by indictment if offered an attractive plea bargain. You should not waive your constitutional rights without weighing all options and seeking legal advice from an experienced criminal defense lawyer.

What It Takes To Get a Federal Indictment

Former New York Appellate Judge Solomon Wachtler famously said that a prosecutor can get a grand jury to "indict a ham sandwich." This is because prosecutors generally only call for grand juries when they're confident in the strength of their cases.

While in many ways a formality, grand juries give a preview of what to expect at trial. Defense attorneys are not allowed but may wait outside the grand jury room and field witness questions during breaks. While a grand jury is in session, only the following people are present:

• Attorneys for the government
• The witnesses
• Interpreters when needed
• A court reporter

The 16-23 member grand jury does not have to decide unanimously. At least 16 members must be present, and 12 or more must concur to get a federal indictment. So, if a simple majority decides that the case and evidence have merit, it will return a "true bill" and go to trial. Since the grand jury determines whether there is probable cause and not guilt, the standard of proof is much lower than for criminal trials.

To determine probable cause, grand jury members must decide through the evidence and facts presented whether "a federal crime has probably been committed by the person accused," according to the Handbook for Federal Grand Jurors.

Indictments at the State Level

Since states are not required to use a grand jury to get felony indictments, those who do are free to follow their own rules. State grand juries function like federal grand juries but vary by the number of jurors and type of majority (simple majority, two-thirds, etc.) required. Find examples of state grand jury laws listed below:

• California — The required number of jurors is 23 in counties with a population exceeding 4 million, 11 in a county with 20,000 or less, and 19 in all other counties; a supermajority is required for an indictment (eight of 11, 12 of 19, or 14 of 23).
• Texas — The required number of jurors is 12 for all counties, with a quorum of nine needed to proceed; nine must vote for a true bill to get an indictment.
• Illinois — The required number of jurors is 16 for all counties, with a quorum of 12 needed to proceed; nine must vote for a true bill to get an indictment.
• New York — The required number of jurors is 16, with a concurrence of 12 needed to return an indictment.

Get Legal Help if You Have Questions About an Indictment

Consult an expert attorney if you believe you're a suspect or a person of interest in a crime. You will get tailored legal advice based on the circumstances of your case, including:

• Your right to remain silent
• How to prepare and respond to a grand jury subpoena
• How to invoke your right against self-incrimination
• What evidence to challenge before trial (e.g., probable cause for an arrest warrant)

Your case is not over, even if a grand jury returns an indictment. See FindLaw's state-by-state directory of criminal defense attorneys to find one near you.