Criminal Law

What Are Criminal Indictments?

By Micah Schwartzbach

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Criminal indictments are the formal papers that are filed with the courts to charge persons with committing crimes. Those accused of are called "defendants" at trial. Think of them as starting points in that they're how criminal prosecutions often begin. This is especially true when persons are accused of committing federal crimes. There are times, however, when indictments aren't used in federal courts, and times when they're used in state courts, too.

When They're Used

Under the Fifth Amendment to the US Constitution, a criminal prosecution in a federal court must begin by indictment unless:

  • The crime you're charged with is a misdemeanor, petty offense or criminal contempt
  • You waive or give up the right to prosecution by indictment

A misdemeanor is any crime that's punishable by one year in prison or less, the payment of a fine, or both. For example, if you work at a federally insured bank and steal less than $1,000, you may be charged with misdemeanor theft. A federal petty offense is a misdemeanor that's punishable by no more than six months in jail, a fine of up to $5,000, or both. Getting a speeding ticket in a national park is a good example. Criminal contempt is when you disrupt a legal proceeding or disrespect the court in some serious way.

Waiver is when you give up your right to being indicted. You may want to do this to avoid being held in jail while waiting for the government to get an indictment. Waiver is often used by a defendant when he makes a plea bargain, or when he knows for certain that he's going to go to trial to defend himself.

Under the Fourteenth Amendment, the states aren't required to use indictments to start criminal prosecutions. Nonetheless, some states use the indictment process all or some of the time (usually for felonies), while other states don't use them at all. If your state doesn't use indictments, your criminal case will likely begin when the prosecution files a "criminal complaint" against you.

Grand Juries

Whether the case is in federal or state court, an indictment is handed down by a grand jury. This is a panel of citizens who are called by the government to decide if formal criminal charges should be filed against persons accused of crimes. Federal grand juries are made up of 23 individuals and they "sit" or serve for 18 months. State grand juries are usually smaller, typically 15 individuals, and they may serve for 6 to 18 months.

During that time, a grand jury may listen to and look at the evidence in dozens of cases. It's their job to figure out if there's probable cause to believe that an accused committed the crime charged. "Probable cause" simply means that it's more likely than not that you did commit the crime.

In both the state and federal systems, grand jury proceedings are secret. Generally, they can't discuss a case with anyone but each other. Usually, neither you nor your attorney is present. The prosecutor gives the jurors a "bill," which is a list of the charges against you, and shows them the evidence against you. The government normally brings in witnesses to testify against you. Once the jurors start deliberating the case, no one can be in the room except for them.

If a majority of the jurors (12 in a federal grand jury; in state grand juries the number depends on how many jurors there are) think there's probable cause, they'll return a "true bill." This means that they believe there's enough evidence that you committed the crime charged. If this happens, you've been "indicted." If you've been arrested already, the trial process then begins. If you haven't been arrested, a warrant will be issued for your arrest. If the grand jury doesn't think there's probable cause, they'll return a "no bill." Here, you'll be released from custody if you've been arrested already. If you haven't been arrested, the government may continue its investigation of you and try to get an indictment later.

Indictment Specifics

An indictment must contain several things, such as:

  • The signatures of the prosecutor who brought the case to the grand jury and the foreperson of the grand jury
  • A short, plain and clear statement of the important facts of the case that show that the crime was committed
  • The elements of the crime charged and a statement of the facts and circumstances that explain how you committed each element of that specific crime. This requirement is perhaps the most important because an indictment needs to be specific enough so that: (1) You know what crime you need to defend against, and; (2) You can avoid being prosecuted later for the same crime after you've been convicted or acquitted
  • The name the of statute, rule, regulation or other law that you're charged with violating, as well as where it may be found in the law books (called it's "citation")

Errors in an indictment may make it invalid, and if you're convicted, you may be able to get the conviction reversed or thrown out. For instance, you may be able to claim that an indictment is invalid because it doesn't contain:

  • Specific facts showing that you committed the crime charged. For example, an indictment charging a defendant with "contempt of Congress" for refusing to answer questions during an inquiry is likely invalid if doesn't specify the questions he refused to answer
  • All the elements of an offense. For example, an indictment under a federal law that deals with crimes committed by Native Americans on Native American lands is likely invalid if it doesn't state that the defendant is, in fact, a Native American

These are just two examples of how errors may make an indictment invalid. If you've been indicted, you need to read the indictment carefully, and if you have any questions, you should talk to your attorney immediately.

Questions for Your Attorney

  • I just got a subpoena ordering me to testify as a witness in front of a grand jury. Do I have to go? Should I be concerned about anything?
  • If a grand jury doesn't indict me, how long does the prosecution have to try again? I mean, can she try to get an indictment two years from now?
  • I've been selected to sit on a grand jury, but I can't afford to be away from work for long periods of time. Is there any way I can get out of grand jury service?
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