A grand jury indictment (in-DITE-ment) is one way to file criminal charges against someone and can be used to promote the "interests" of justice in a few ways.
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 enough evidence exists to support a 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.
When Is an Indictment Filed?
Though the Constitution doesn’t require them to, some states require indictments for the prosecution of some or all felony cases. In the federal system, the government must 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.) Here’s an example of a federal indictment.
In a state that doesn’t require an indictment for the felony case at hand, the government normally prosecutes through an “information” or complaint. Prosecutors list the charges in the information or complaint 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 exists.
Grand Jury Role in the Indictment
A grand jury issues an indictment. Grand jurors typically come from the same pool of people as petit (trial) juries. A petit or trial jury decides questions of guilt and renders a verdict, whereas the grand jurors get together and determine whether enough evidence exists to merit a trial in the first place. The grand jurors listen to testimony, evaluate tangible evidence, and have the power to subpoena both. If they decide enough evidence exists to support the charges, 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.
Indictments vs. Informations (or Complaints)
When filing a complaint or information, the prosecutor must typically go before a judge in a public hearing to show that probable cause exists to keep the case going. The defendant and defense have a right to be present and participate in the hearing. This public hearing presents a great opportunity for the defense to see some of the prosecution's cards, that is what evidence and proof they have. This is not the case with a grand jury investigation.
Unlike typical criminal hearings and trials, grand jury proceedings are closed to the public. They’re also different from your typical proceeding in that the suspect (“target”) doesn’t have a right to be present or even told they are a target. 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 out 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.
Do Most Grand Juries Indict?
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. Letting the grand jury decide can divert public scrutiny away from the prosecutor.
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.
Getting Help
If you have questions regarding a grand jury investigation or indictment, talk to a criminal defense lawyer. Subpoenaed witnesses may also want to consult with an attorney to learn more about their rights at grand jury proceedings. An experienced attorney can help explain and protect your rights.