Indictments in U.S. Criminal Cases: Definition, Process, and...

Introduction

An indictment is a formal written accusation returned by a grand jury and filed in court, stating that a named person committed a specific crime. In the federal system, felonies are usually charged by indictment. In the states, practices vary: some use grand juries, others use a prosecutor’s “information” after a judge finds probable cause at a preliminary hearing.

This guide explains how indictments work, what they must include, who decides to issue them, and what happens next—plus real examples from federal and state cases.

What You’ll Learn

• What an indictment is and what must be in it
• How grand juries work, including secrecy, votes, and “true bill” vs “no bill”
• Federal vs state charging paths (indictment vs information and preliminary hearing)
• What happens after indictment: arrest or summons, arraignment, bail, and timelines
• Defense tools: motions, bill of particulars, and common challenges
• Real-world examples, including a federal drug case, a state fraud case, Watergate, and O.J. Simpson
• Practical steps to take if you or your organization are charged or subpoenaed

Core Concepts

What an Indictment Must Contain

In federal court, an indictment must provide a plain, concise, and definite written statement of the essential facts of each offense charged (Fed. R. Crim. P. 7(c)(1)). In practice, that means:

• The defendant’s name and identifying details if known
• The statute(s) allegedly violated
• The date range and location (venue) of the offense
• Each offense in a separate count, tracking the legal elements
• Forfeiture allegations when applicable (Rule 7(c)(2))
• The prosecutor’s signature

Why this matters: a well-pleaded indictment gives the accused fair notice of the charges. If it fails to state an offense, is too vague, or mixes multiple crimes in one count (duplicity), the defense can seek dismissal or ask for a bill of particulars (Rule 7(f)) to clarify the details.

Related terms:

• True bill: an indictment returned by the grand jury
• No bill: a vote not to indict
• Superseding indictment: a later indictment replacing an earlier one, often adding details or charges
• Sealed indictment: kept non-public until arrest or other trigger, often to avoid tipping off a suspect

Filing an indictment before the statute of limitations expires stops the limitations clock; sealing can preserve timeliness when there’s good cause.

How the Grand Jury Works

A federal grand jury is a group of citizens who hear evidence presented by prosecutors to decide whether there is probable cause to charge. Key points:

• Size and voting: 16–23 jurors; at least 12 must vote to indict (Fed. R. Crim. P. 6)
• Standard: probable cause (a reasonable basis) that a crime was committed and the accused committed it
• Secrecy: proceedings are confidential (Rule 6(e)) to protect ongoing investigations, encourage witness candor, and avoid unfair public accusations
• Attendance: prosecutors, witnesses, interpreters, and a court reporter can be present; judges and defense counsel are not in the room
• Evidence rules: hearsay can be used; the grand jury’s role is screening, not deciding guilt
• Witnesses: targets and subjects may testify if invited; in federal court, witnesses can consult a lawyer outside the room
• Returns: indictments are presented in open court by the grand jury foreperson

Important constitutional note: the Fifth Amendment grand jury requirement applies to federal felonies. It does not bind the states, which set their own charging procedures.

Federal vs State Charging Paths

• Federal system:
  • Felonies are generally charged by indictment unless the defendant waives indictment and consents to proceed by information (Fed. R. Crim. P. 7(b))
  • Misdemeanors are often charged by information
• State systems:
  • Some states rely heavily on grand juries (e.g., New York for most felonies)
  • Others primarily use informations after a preliminary hearing (e.g., California)
  • Many allow either path, depending on the case

Preliminary hearing basics (often used when charging by information):

• Held before a judge in open court
• The government must show probable cause
• The defense can cross-examine witnesses and challenge evidence
• If the judge finds probable cause, the case is “bound over” for trial; if not, the charge can be dismissed (often without prejudice)

Both paths serve the same function: screening for probable cause. The grand jury does so in secret; the preliminary hearing does so in a public, adversarial setting.

What Happens After Indictment

Once an indictment is filed, several steps follow:

• Arrest or summons: If the indictment was sealed, it is typically unsealed after arrest. Some defendants self-surrender.
• Initial appearance: The court advises the defendant of the charges and rights, appoints counsel if needed, and addresses release conditions.
• Arraignment: The indictment is read or summarized, the defendant enters a plea, and deadlines are set.
• Bail and release: Under the Bail Reform Act (18 U.S.C. § 3142), the court weighs flight risk and danger to the community. Release can be on conditions, or detention may be ordered.
• Discovery: The government discloses materials under Rule 16 and constitutional rules (including Brady). Protective orders may limit dissemination.
• Motions: Common filings include motions to dismiss defective counts (Rule 12(b)), motions to suppress evidence, requests for a bill of particulars (Rule 7(f)), severance (Rule 14), and change of venue (Rule 21).
• Timelines: The Speedy Trial Act generally requires indictment or information within 30 days of arrest and trial within 70 days of the later of indictment or first appearance, subject to exclusions (18 U.S.C. § 3161).

Plea discussions can occur at any stage. The government may seek a superseding indictment to add charges or defendants as the investigation develops.

Key Examples or Case Studies

• Federal drug trafficking

  • Scenario: A federal grand jury returns an indictment charging a defendant with trafficking controlled substances across state lines and conspiring with others.
  • What the indictment does: Lists statutes (e.g., 21 U.S.C. § 841, § 846), dates, locations, and overt acts (if required).
  • Result: The court issues a warrant or summons, the defendant is arraigned, and the case proceeds with bail, discovery, motions, and potential plea talks.

• State corporate fraud and embezzlement

  • Scenario: In a state that uses grand juries, a business executive is indicted for embezzlement and theft.
  • What the indictment does: States the essential facts and each charge in separate counts (e.g., theft by taking, fraud), providing the basis for the prosecutor to bring the case to trial.

• United States v. Nixon (Watergate context)

  • Context: A federal grand jury indicted several Nixon administration officials in connection with the Watergate break-in and cover-up.
  • Why it matters: The Supreme Court required President Nixon to comply with a subpoena for tape recordings, which supported the prosecution of the indicted officials. The case shows how grand jury indictments and subpoena power can drive major public corruption cases.

• People v. O.J. Simpson (California)

  • Context: This murder case proceeded after a preliminary hearing rather than a grand jury indictment, reflecting California’s common practice.
  • Why it matters: States can reach serious felony trials without a grand jury. The judge, not a grand jury, determined probable cause at the hearing.

Practical Applications

• If you’re charged or expect charges

  • Get experienced criminal counsel early; do not discuss facts with agents or anyone outside your legal team
  • Plan for the initial appearance and bail: line up references, employment proof, and a release plan
  • Preserve documents and devices; do not delete messages or alter records
  • Limit public statements and social media posts; let counsel handle press questions
  • Track deadlines: motions to dismiss and other objections must often be filed before trial

• Defense strategy checklist for attorneys

  • Analyze each count against statutory elements; spot duplicity, multiplicity, and vagueness
  • Consider a Rule 7(f) bill of particulars to pin down dates, places, and conduct
  • Review Speedy Trial Act timelines and exclusions; raise violations promptly
  • Evaluate suppression issues (searches, statements, identification procedures)
  • Consider motions to sever defendants or counts, or to change venue
  • Examine grand jury irregularities when there is actual prejudice (rare but possible)
  • Prepare for forfeiture allegations and related litigation early

• For businesses receiving grand jury subpoenas

  • Issue a litigation hold to preserve documents and ESI
  • Coordinate with counsel on scope, deadlines, and privilege reviews
  • Manage employee interviews and consider separate counsel when interests diverge
  • Keep board and insurers informed as appropriate

• Common terms to know

  • True bill: grand jury votes to indict
  • No bill: grand jury declines to indict
  • Target letter: notice that you are a focus of a grand jury investigation
  • Superseding indictment: updated indictment filed later
  • Complaint: an initial charging document used to start a case before indictment or information

Summary Checklist

• An indictment is a formal charge returned by a grand jury and filed in court
• Federal felonies are typically charged by indictment unless waived; states vary
• Grand juries sit in secret, hear prosecutors’ evidence, and vote on probable cause
• Indictments must state essential facts, elements, statutes, and venue for each count
• “True bill” means indicted; “no bill” means no indictment
• Preliminary hearings offer an open-court alternative path to test probable cause
• After indictment: arrest/summons, initial appearance, arraignment, bail decision, discovery, motions
• Defense tools include motions to dismiss defective counts and a bill of particulars
• The Speedy Trial Act sets charging and trial timelines, with exclusions
• Real-world examples: federal drug and state fraud cases, Watergate indictments, O.J. Simpson’s preliminary hearing path

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