What is an Indictment?

You've probably heard the word "indictment" mentioned on your favorite TV crime drama or the nightly news, typically in the context of someone being charged with a serious crime. You know it's not a good thing for the person being indicted, but what exactly does it mean? Simply stated, an indictment is a formal accusation against someone who is suspected of committing a serious crime, filed after the conclusion of a grand jury investigation.

So how does an indictment differ from a criminal complaint filed by a prosecutor? What is the burden of proof for obtaining an indictment? And do federal indictments differ from those in state courts? We'll explore the answers to those questions (and more) below.

Federal Indictments, Grand Juries, and the Fifth Amendment

The Fifth Amendment to the U.S. Constitution requires the federal government to seek an indictment from a grand jury in order to prosecute someone for a felony or "otherwise infamous" crime. Since an indictment comes after a grand jury but typically before an arrest, it may be "sealed" for however much time is needed to prevent the defendant or other suspects from fleeing, destroying evidence, or otherwise evading justice.

The grand jury requirement is not extended to the states, but many states follow a similar procedure for the prosecution of serious felonies (and some misdemeanors).

Grand Jury Basics

When suspects are charged with lesser crimes (such as misdemeanors or lower-level felonies), the process generally begins with the prosecutor filing a criminal complaint, often following an arrest and only when there is probable cause for the charges. Some courts use preliminary hearings instead of grand juries to determine probable cause for more serious criminal charges, where judges decide whether there is enough evidence for the case to go to trial.

In contrast, a grand jury indictment is the product of sworn witness testimony and/or physical evidence, analyzed by a grand jury made up of local citizens. The grand jury's role is to determine whether there is in fact probable cause (not guilt) for criminal charges, which generally carries much more weight than a simple criminal complaint. Grand juries are convened in secrecy and usually don't involve judges or defense lawyers.

Defendants may choose to waive their right to a grand jury if the prosecutor is offering an attractive plea bargain, but doing so amounts to an agreement with the prosecution that it has enough evidence to take the case to trial.

What it Takes to Get a Federal Indictment

Former New York Court of Appeals Judge Solomon Wachtler once famously remarked that a prosecutor can get a grand jury to "indict a ham sandwich," which isn't too far from the truth. But this has more to do with the fact that prosecutors generally don't call for grand juries until they're confident in the strength of their case. While in many ways a formality, grand juries provide an opportunity for the defendant to challenge evidence and also provide a preview of what to expect at trial. Defense attorneys are not allowed in the courtroom, but may wait outside and field clients' questions during breaks.

So what does it really take to get a federal indictment? To begin with, the 16-23 member grand jury does not have to decide unanimously. So if a simple majority decides that the case and evidence presented have merit, then it will return a "true bill" and go to trial. Since the grand jury is determining 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 determine 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 obtain felony indictments, those that do are free to follow their own rules. State grand juries function in a similar manner to federal grand juries, but tend to vary by the number of jurors and type of majority (simple majority, two-thirds, etc.) required. Examples of state grand jury laws are listed below:

  • California -- 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; "supermajority" is required for an indictment (eight of 11, 12 of 19, or 14 of 23); standard of proof used for determining probable cause is "preponderance of the evidence."
  • Texas -- Required number of jurors is 12 for all counties, with a quorum of nine needed to proceed; nine jurors must vote for a "true bill" in order to get an indictment.
  • Illinois -- Required number of jurors is 16 for all counties, with a quorum of 12 needed to proceed; nine jurors must vote for a "true bill" in order to get an indictment.

Have You Been Indicted? Get Legal Help Now

If you've been indicted or have reason to believe that you're a suspect or a "person of interest" in connection with a crime, you will most certainly want to work with an attorney. Check out FindLaw's state-by-state directory of criminal defense attorneys to find one near you.

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