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What is an Indictment?

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The handing down of an indictment marks the prosecution’s formal charge of a suspect in the commission of a crime.

The Fifth Amendment of the United States Constitution says that an individual can’t be charged with an infamous or capital crime other than by indictment by a grand jury or presentment. Presentment involves the formal presentation of details to a court, such as by a sworn jury’s delivery of information regarding an alleged offense or other legal matter.

The United States Supreme Court has previously ruled that the Fifth Amendment doesn’t apply to courts of the states. For that reason, use of a grand jury is considered optional for the states’ governments.

If you’re facing a criminal indictment, you need an experienced criminal defense lawyer to preserve your freedom. You’ll want a knowledgeable criminal defense attorney to carefully review the indictment: if it does not accurately describe the elements of an alleged crime, it may be deemed invalid.

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Prosecutors’ Role in an Indictment

Prosecutors usually review all circumstances involved in the case, including the police report and the suspect’s prior criminal record before making the decision to proceed (and what the charges the accused will face).

A prosecutor may file charges for any crimes for which the accused has been arrested. He or she may file more or less severe charges than the police charges and/or decide against filing charges at all.

Start of a Criminal Prosecution

An indictment often marks the start of a criminal prosecution. Formal documents used to charge a suspect of a crime constitute an indictment. Both federal courts and many states rely on them.

The Fifth Amendment of the U.S. Constitution requires the use of indictments in the federal court. Notably, however, indictments aren’t filed in federal cases that involve criminal contempt, misdemeanors, or petty offenses.
Criminal defendants may waive their right to prosecution by indictment.

Although a large percentage of state governments file indictments begin a criminal prosecution, the Fourteenth Amendment says they aren’t required to do so. Specific states may elect to use an indictment only in felony cases.

Prosecutors in those states use criminal complaints to initiate criminal prosecutions.

Grand Juries Hand Down Criminal Indictments

A federal or state jury is comprised of citizens appointed to a term of service. The jurors of the grand jury make the final decision about whether there’s probable cause (prima facie) to bring formal criminal charges against an accused.

A grand jury is composed of 16 -23 members. Grand juries are required to sit for longer periods than “regular” (petit) juries. Twelve jurors are required to find the evidence against the accused is sufficient to bring charges.

Prosecutors of the federal court may also form special grand juries to investigate organized crime.

If the prosecutor successfully shows probable cause that a crime in question was committed, members of the grand jury are authorized to hand down the formal indictment. Probable cause supports the conclusion that the defendant probably committed the offense.

Important ways the grand jury is different from the regular jury

The grand jury usually hears from only one side–it may consider evidence that is often inadmissible at trial. The exclusionary rule (that usually keeps ‘inadmissible evidence,’ e.g. evidence found through illegal search or Miranda violations) doesn’t apply in most grand jury scenarios. The hearsay rule (that typically blocks specific types of testimony that’s considered inadmissible at trial) doesn’t apply, either.

Generally speaking, the accused and his or her legal counsel aren’t present when the prosecutor makes a presentation to the grand jury. After the prosecutor presents witnesses and the available evidence, members of the grand jury deliberate in secret.

It’s important to engage a criminal defense attorney in such situations as soon as possible. For instance, a criminal defense attorney may request that the accused directly answer questions of the grand jury.

Grand jury witnesses can ‘take the Fifth’

An indictment is frequently the product of witnesses’ sworn testimonies.

A witnesses subpoenaed to provide testimony to the grand jury may invoke his or her right against self-incrimination under the Fifth Amendment (on grounds that his or her testimony is likely to incriminate him or her).

In many jurisdictions, the grand jury witness is required to take the stand to take the Fifth (assert his or her right to silence).

A prosecutor may overcome the witness’s privilege and force him or her to testify by granting him or her immunity from prosecution.

If a majority of the grand jury determines that probable cause is found in a case, the jury hands down a true bill.

True Bill or No Bill

Once the grand jury hands down a true bill in the case:

  • The defendant is indicted on criminal charges.
  • He or she must appear before a judge to plead either guilty or not guilty.
  • If the defendant pleads not guilty, a trial is scheduled.
  • In a majority of cases, the grand jury finds probable cause. Once the grand jury is assembled, it’s statistically more likely to return a true bill.
  • If he or she hasn’t already been arrested, the warrant for his or her arrest is expected.

If the defendant is in custody when a no bill is handed down, he or she is released from temporary custody.

  • A “no bill” doesn’t necessarily mean the state or federal government will decide to end its investigation in the defendant’s alleged involvement in a crime.

Two Ways to be Indicted

First way: The defendant may be arrested on felony charges. As the case evolves, it may be presented to the grand jury.
The defendant receives notice that the case will be presented to the grand jury. At that point, he or she has the legal right to offer evidence on his or her behalf to the jurors.

Alternatively, the grand jury may meet without notifying the defendant. Members of the grand jury may return a sealed indictment. A warrant is issued for the defendant’s arrest when the documents are unsealed.

Second way: The defendant may be indicted without an arrest. The grand jury assembles in secret. It returns a sealed indictment.

The indicted individual might not know that he or she is under investigation or realize that the prospective case was under consideration by the grand jury. When the jury returns a sealed indictment, it is unsealed. An arrest warrant for the defendant is issued and he or she is arrested.

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After a Felony Indictment is Passed

After the charges are read (and if grand jurors recommend the defendant going to trial), action must be taken on the accused’s behalf.

He or she knows the charges and has enough information to take to an experienced criminal defense attorney to prepare a defense.

The accused’s family members now know what the accused is facing.

In many instances, the handing down of felony indictment charges is a shock. This is often a stressful time for everyone involved.

Indictment vs. Typical Criminal Proceedings

An indictment may be viewed as additional protection for the individual suspected of committing a crime. In other words, the accused can’t be prosecuted until the grand jury determines there’s probable cause to support a criminal prosecution.

However, an indictment provides the means for the prosecutor to initiate a serious criminal proceeding without a defense lawyer or judge involved in the process.

After an Indictment is Handed Down

Once the indictment is handed down against a specific accused by the prosecutor, he or she brings the case to court.
The accused is then arraigned. An arraignment is a type of hearing before a judge that informs the accused of the specific charges against him or her.

At that point, the defendant may wish to enter into plea negotiations with the prosecutor or the proceed to a jury trial.

Questions about Indictments? Contact an Experienced Criminal Defense Lawyer in Houston TX

Learning that you’re under investigation by a grand jury or indicted on criminal charges is extremely stressful.
You need a knowledgeable criminal defense lawyer to navigate the complex Texas criminal justice system.

An experienced criminal defense lawyer will review the case and search of errors–either in the grand jury or indictment process. He will do everything possible to have your case dismissed or your conviction overturned.

Contact the Law Office of Brett A. Podolsky in Houston at 713-227-0087 to schedule an initial case evaluation and strategy session now.

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