Federal criminal prosecutions follow strict procedural maps. Before one thing can happen, other things must have happened first. An obvious example is that before someone can be sentenced for committing a crime, he or she first has to be convicted of that crime. There are many other landmarks in the prosecution of federal crimes that must be met. One of the most important of them is the indictment. What happens pre-indictment and what happens post-indictment are very different. However, before the difference can be adequately explained, you need to understand exactly what an indictment is.
The Grand Jury Indictment
You have undoubtedly heard before that someone has been indicted on a federal criminal charge. The media often relays this information in a way that makes it sound as if the person indicted is guilty of committing a crime. That is not accurate. All that an indictment really means is that a grand jury has decided that there is probable cause to charge someone with committing a crime. Let’s unpack that last statement.
A grand jury is a group of ordinary citizens tasked with investigating suspected criminal activity to determine whether or not someone suspected of a crime should be brought to trial. If a federal prosecutor believes that someone has committed a felony that is potentially punishable by more than one year in prison, the prosecutor must get the permission of the grand jury to continue the case further. This acts as a check against overzealous prosecutors bringing baseless charges against innocent people.
The grand jury then investigates the suspected criminal activity by hearing from witnesses and reviewing any physical evidence. For the case to continue beyond that stage, the grand jury must find that there is probable cause to charge the suspect with a crime. “Probable cause” is a legal term of art the meaning of which has been debated since the founding of the United States. For purposes of this article, the exact definition is not necessary. Assume that it means that it is reasonable to charge the suspect with a crime.
When the grand jury decides that there is probable cause, the formal document that is issued is called an “indictment.” An indictment is just the official charging document. That is quite a bit different than someone being found guilty of the crime beyond a reasonable doubt, which everyone knows is the standard necessary to convict a person of a federal crime.
In explaining what an indictment is, you have already learned a great deal about what happens in the pre-indictment stage of a federal criminal prosecution. The prosecutor asks a grand jury to investigate and determine whether or not a suspect should be charged with a crime. However, there are some other important things that you should know about this stage of criminal prosecutions:
- The suspect does not have to be told that he or she is being investigated by a grand jury. The suspect might be told and the suspect might be called before the grand jury to testify. Neither is strictly required.
- Grand juries can operate in complete secrecy. A criminal trial is a matter of public record. During a grand jury investigation, witnesses can be ordered to tell no one about the mere fact that the grand jury exists.
- If someone, including a suspect, is called to testify before a grand jury, he or she cannot have an attorney present in the grand jury room. The witness must answer the questions of the prosecutor without the benefit of having legal counsel present. However, the witness can have an attorney present in the building and may ask to leave the grand jury room to consult with that attorney before answering any particular question.
If you have ever seen a legal drama on television, you are probably much more familiar with the post-indictment phase of a federal criminal prosecution. At this stage, someone has been formally charged with a crime. That person has to be notified of the charges. He or she has a right to have an attorney present when speaking to prosecutors or investigators. The person charged does not have to ask to leave the room to consult with an attorney. The accused has the right to know what evidence the government has against him or her. Most importantly, the indicted person has the right to submit the ultimate matter of his guilt or innocence to a jury of his or her peers who must find that the person is guilty beyond a reasonable doubt of the crime before the accused can be considered convicted of the crime or punished for it.
10 Most Important Things to Know
If you have been indicted by a grand jury, you certainly will have many questions. Here are the most important things to know if you are indicted:
#1 What Indicted Means
It means that a grand jury has been convened, which usually consists of 23 juror citizens. They have met in private and a prosecutor has presented evidence that he or she felt establishes probable cause that you have committed a certain crime or crimes. The grand jury then takes a majority vote on whether to indict or not.
#2 Appearing in Court
If you are indicted and the grand jury finds probable cause that you committed a crime, you will be called before a judge to plead guilty or not guilty. If you plead not guilty, the process will begin to put you on trial.
#3 Two Ways To Be Indicted
You may be arrested for a felony and as the case is going through the process, it is presented to the grand jury. Then you will have notice that the case has been presented to the grand jury. You will then have the right to present evidence to establish your innocence.
The other way you may be indicted is without an arrest. The grand jury will convene in secret and will return a sealed indictment. This means that you did not know that you were being investigated. Once the sealed indictment is returned, it is then unsealed and the arrest warrant is issued. You are arrested at that point.
#4 Grand Jury Meetings Are Secret
The courts take the secrecy of grand jury meetings very seriously and work hard to keep them private. Contempt charges can be filed against members of a jury who leak or publish any information discussed in the grand jury discussions. Grand jury meetings often take place under high security and jurors may even be sequestered. The press is not allowed to get information on cases that are being discussed by a grand jury.
#5 How Grand Jurors Are Selected
Grand jury members are chosen without a formal screening process and come from the regular juror pool. These are known as ‘standing’ jurors. This means that they can serve a long term of several months where they intermittently hear several cases. Unlike regular trial jurors, grand jurors are not closely vetted in most cases or handpicked for an exact case.
For example, in the Michael Brown case, the grand jury was convened several months before the incident occurred in Furgeson MO. The grand jury had already met 25 times on other cases before they met on that case.
#6 No Judge
The grand jury proceeding is run by a prosecutor, not by a judge. He or she is responsible for instructing the jury on legal matters.
Grand juries are not sequestered as they deliberate, and the proceedings are closed to the public and to the defense.
#7 Probable Cause Is the Standard
The grand jury listens to the facts of the case as presented by the prosecutor and a majority must decide if there is ‘probable cause’ to indict you for the charge or charges. This means: Is there enough evidence for a person to conclude that you probably, but not definitely, committed the crime?
The jury then returns a ‘true bill’ or ‘no true bill.’ The latter means that all charges have been dismissed.
#8 Grand Juries Not Always Required
At the federal level, a grand jury indictment is required under the 5th Amendment, but this only applies to federal cases.
Grand jury procedures at the state level vary depending upon the state. Most states do have a grand jury provision, but fewer than half the US states require it. In New York and Missouri, for example, grand jury procedures are not required. The decision to have one or not is at the discretion of the prosecutor on the case.
#9 Grand Juries Often Indict
In most cases, the grand jury will do what the prosecutor advises, which is to indict. The reason for this is that ‘probable cause’ is a quite low bar.
The statistics bear this out: According to Bureau of Justice Statistics data, it was found that grand juries did not return an indictment in just 11 of 162,000 cases that US attorneys prosecuted in 2010.
#10 Grand Juries Often Do Not Indict Police Officers
Although grand juries often do indict, they often do NOT indict police officers. For example, in a review of 81 police shootings in Dallas from 2008-12, only one police officer was indicted.
Some experts believe that grand juries often believe the testimony of police officers, who most people generally are taught to respect. Another reason is in regular cases, the prosecutor works with police officers to collect evidence against the suspect. In this type of case, the police officer is the suspect, so the prosecutor may have less incentive to indict the police officer. After all, indicting a police officer could theoretically jeopardize his or her relationship with that police department.
Grand Jury General FAQ
By now you should have a better of understanding of the process but in case you still have questions, please consult our FAQ.
What does a grand jury do?
In the US federal system and in all but two US states, grand juries bring charges against those who are thought to have committed crimes. They are usually used to bring charges for felonies, which are serious crimes that usually carry a year or more in prison. When a grand jury is used to bring criminal charges, the charges are written in a charging document called an indictment.
How does a grand jury work?
If the prosecutor on a case wants the grand jury to bring charges against someone, the prosecutor then requests time with the grand jury to present the evidence. The prosecutor presents this evidence with the idea to persuade them that the person has committed certain crimes. The evidence may be testimony from witnesses, video recordings, documents, tape recordings, scientific evidence, photographs etc.
How does the grand jury make its decision?
The grand jurors carefully listen to all evidence and decide if there is probable cause to think that the person has committed the crimes the prosecutor thinks they have committed. After they listen to all evidence, the jurors will vote upon the charges or the indictment. The proposed indictment has been drafted by the prosecutor and presented to the jurors. If the grand jurors decide that there is probable cause to think that the person committed the crimes, then they vote to ‘return’ the indictment. This means that they vote to charge the person with the crime or crimes.
Voting to return charges also is known as ‘returning a true bill. If they do so, the indictment is valid and it starts a criminal case against the person who is named as a defendant. A majority must vote for the indictment to return a true bill.
However, if a majority do not think that the evidence has created probable cause, they will not return the indictment. When the majority does this, this is known as ‘returning a no bill’ or ‘returning a bill of ignoramus.’ In this case, there indictment is invalid and no criminal charges are brought.
What is required for the grand jury to indict someone?
All that is required is a majority find that probable cause exists that the person committed a crime. That is, the grand jury majority must believe that there is enough evidence to proceed to trial. This is a low standard, and is much more lax than in a criminal trial, where the standard is beyond a reasonable doubt.
What are the types of grand juries?
There is what is called a regular grand jury, which usually decides whether or not to bring criminal charges on a regular, individual.
The other type is a special grand jury, which is called to investigate if organized crime is happening in the community. This type of grand jury might investigate organized drug activity in a city. If the special grand jury decides that organized crime is occurring, the grand jury may charge those responsible for the organized crime and may issue a report.
If I am called to testify before a grand jury, may my lawyer be there?
No, he or she cannot be there with you in the grand jury room. However, they can be outside in the hallway and can advise you on answers to the jury’s questions. You simply have to ask the grand jury to be excused to confer with your attorney before answering a question.
How many people are on a grand jury?
A grand jury usually has from 12-23 people.
How is the grand jury selected?
Grand jurors are selected from the same group as regular trial jurors. If you receive notice for jury service, you could be called to serve on a grand jury or on a regular jury.
Grand jurors are excused only for cause, which means if they think they cannot be fair and impartial. Grand jurors may serve from one month up to a year or so. They generally will convene for a few days per week.
You generally can try to claim an exemption from jury duty if you are more than 70 years old, if you must care for a child younger than 18, are a student in high school or are enrolled in college and will miss classes.
What does a grand jury do on a typical day?
Grand juries listen to cases from various prosecutors all day and there could be all types of criminal cases. Most of the cases are felonies. The grand jury will sit in a lecture room in the same building as where the prosecutor works. There is not any judge there; there are only court officers and grand jury clerks.
Prosecutors come into the room, present their evidence (witnesses, documents, photos, video, audio).
An indictment is an important landmark in the prosecution of federal crimes. Anyone who is accused of a crime either before or after an indictment should consult with an attorney for specifics about the difference between the two stages and what that means for the accused’s particular case. The attorney can help determine how to protect the individual’s rights in both of these stages of prosecution.