What is an indictment?

An indictment is a formal accusation against an individual suspected of committing a crime. Indictments are generally only obtained for felony charges. An indictment is used as an alternative to a complaint in a trial court. A complaint is also an accusation against an individual, but the individual generally must have been arrested as a result of probable cause against him before the complaint can be entered.

However, an indictment against an individual can be obtained before any arrest is made. Further, while a complaint is an affidavit signed by the prosecutor, an indictment is the product of sworn testimony, sometimes by several witnesses, and therefore holds more weight in court. Indictments are used most in the federal court system, but can be used in the state court system as well.

How Indictments are Obtained

To obtain an indictment against a suspected criminal, the prosecutor must present her case to a grand jury. A grand jury is a jury made of a group of 16-23 local citizens who are sworn in as a jury about every 18 months. A grand jury differs from a trial jury, as the grand jury is required to sit for a much longer period of time than a trial jury is required.

There is no judge involved in a grand jury proceeding, and unlike a trial jury, which hears equally from all parties in a criminal case, the grand jury is considered to be an arm of the prosecution, and generally hears only from the prosecution. For this reason, indictments are fairly easy for the prosecution to obtain.

What Does the Grand Jury Do?

The grand jury reviews the prosecutor’s evidence against the individual and determines if the prosecutor has enough probable cause to charge the suspected individual of the crime. The prosecutor can present witnesses to support her position, and the grand jury is generally allowed to question them directly during the proceedings. The suspected individual may also testify at the grand jury hearing, but is not allowed to bring in his own witnesses, nor may the individual or his attorney question any of the prosecutor’s witnesses.

Once the grand jury reviews the prosecutor's case against the individual, they will determine whether or not the prosecutor has enough probable cause to move the case forward in court. Generally, at least 12 grand jurors must vote to approve the indictment for the indictment to move forward. Even if the indictment is approved, this only means that the prosecution has enough evidence to bring the case to court – it does not mean the suspected individual has been found guilty.

If the indictment is approved, the grand jury will return a true bill, and the prosecutor will bring the indictment to court. The indictment will list all charges against the individual, and set out a short statement which includes a description of the evidence against the individual, and how, when, and where the individual was believed to have committed the crime. If the grand jury does not believe that the prosecutor has enough evidence to move forward to trial, they will return a no bill and the prosecution will generally not be able to prosecute the case in court unless more evidence surfaces.

After an Indictment is Obtained

If the prosecution successfully obtains an indictment against a suspected individual, she then brings the case to court, and the individual is arraigned. An arraignment is a hearing before the judge that informs the defendant of the charges against him. The defendant then has a choice to make a plea bargain with the prosecution, or to move forward with a jury trial.