Criminal Law

What Are Criminal Indictments?

By Micah Schwartzbach, Attorney
An indictment comes from a grand jury—it’s a way to prosecute someone. But what sets it apart from typical criminal proceedings?

A grand jury indictment is a way to file criminal charges against someone. Here’s an example.

In one sense, an indictment is a form of protection for someone suspected of a crime: That person is entitled to not be prosecuted until a grand jury has determined there is enough evidence to support criminal prosecution. In another sense, though, an indictment offers the prosecution an opportunity to initiate serious criminal proceedings without a judge or defense attorney getting in the way.

The Fifth Amendment to the U.S. Constitution seems to guarantee a grand jury indictment for anyone accused of a felony:

But despite appearances, the Constitution doesn’t actually require that states use grand jury indictments in felony cases. The guarantee of an indictment in a felony prosecution is one of the few rights that hasn’t been extended to the states.

Indictment or Information?

Though the Constitution doesn’t require them to, some states require indictments for prosecution of some or all felony cases. In a state that doesn’t require an indictment for the felony case at hand, the government normally prosecutes through an “information.” Prosecutors list the charges in an information and file the document with the court.

In California, for example, the prosecution can:

  • file a written complaint accusing the defendant of a felony
  • proceed to a preliminary hearing, at which the judge decides whether there’s probable cause to believe the defendant committed the crime in question, and
  • file an information if the judge determines probable cause exits.

In the federal system, the government has to use an indictment in a felony prosecution unless the defendant waives the right to an indictment. (That could happen if the defendant has already agreed to a plea deal with the prosecution.)

The Grand Jury

Grand jurors typically come from the same pool of people as petit (regular) juries. These citizens get together and determine whether there is enough evidence to merit a trial. The grand jurors listen to testimony, evaluate tangible evidence, and have the power to subpoena both. If they decide there’s enough evidence, they issue what’s called a “true bill.”

Grand juries were traditionally made up of 23 members, with a majority having to vote in favor of prosecution for an indictment to issue. The modern trend is for grand juries to be smaller, and for a supermajority vote (two-thirds or more of the jurors) to be required for an indictment.

Secret Proceedings

Unlike typical criminal hearings and trials, grand jury proceedings are closed from the public. They’re also different from your typical proceeding in that the accused (“target”) doesn’t have a right to be present. The grand jury hears only from the prosecutor and witnesses. In most states, the target doesn’t have a right to testify in front of the grand jury. A few states do, however, provide the target with a right to appear.

Grand juries not only hear from just one side—they may normally also consider evidence that would be inadmissible at trial. The exclusionary rule—which keeps inadmissible evidence like a statement resulting from a Miranda violation or an object found through an illegal search—normally doesn’t apply. Nor does the hearsay rule typically block certain kinds of testimony that would be inadmissible in a trial.

Indictment a Given?

As you might have guessed given the system described above, grand juries vote to indict far more often than not. In fact, some in the legal profession joke that a decent prosecutor could convince a grand jury to indict a ham sandwich.

On the other hand, a prosecutor will occasionally go to a grand jury unconvinced that criminal charges are appropriate. In a high-profile case, for example, a district attorney might decide to present evidence to a grand jury and let the jury be the one to determine whether charges are appropriate. And, very rarely, the government will decide not to prosecute after a grand jury has voted to indict, the case against JonBenet Ramsey’s parents being an example.

Taking the Fifth

Witnesses subpoenaed to testify by a grand jury can sometimes invoke the privilege against self-incrimination on the grounds that their potential testimony would incriminate them. (In most jurisdictions, the witness must actually take the stand and assert the right to silence.)

Prosecutors can typically overcome this privilege—and force witnesses in this position to testify—through a grant of immunity from prosecution.

Questions for Your Attorney

  • Is the law on grand juries and indictments different in my jurisdiction than in others?
  • What kind of errors either in an indictment or the grand jury process will allow me to have the case dismissed or my conviction overturned?
  • Under what circumstances can a prosecutor file an information or go back to a grand jury after a grand jury has declined to indict?
  • When do prosecutors have to present to a grand jury evidence that’s favorable to the target?
  • What kinds of immunity are there? Which one does the prosecution have to offer in order to force a witness to testify?
  • Does a witness appearing before a grand jury have a right to a lawyer, whether hired or appointed? Does the witness have a right to have a lawyer present in the grand jury room? How often can a witness consult with a lawyer—regardless of whether the lawyer is in the room—while testifying?
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