Indictment

Issued by a Grand Jury, an indictment is a formal written charge of a crime, informing the accused individual of the charge against him. In most cases, the issuance of an indictment marks the beginning of the trial process. The indictment contains a brief statement of where and when the crime took place, as well as how the accused allegedly committed the crime. To explore this concept, consider the following indictment definition.

Definition of Indictment

Noun

  1. A charge, accusation, or serious criticism
  2. A formal accusation issued by a grand jury, initiating a criminal case

Origin

1275-1325   Middle English enditement

History of the Grand Jury Indictment

The grand jury indictment process was first instituted in 12th century England when King Henry II instituted changes requiring witnesses to appear before a court to accuse a person of a crime before he could be tried for the crime. In the United States, the Fifth Amendment to the Constitution states, in part, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” The purpose of this requirement is to protect individuals from baseless prosecution by the government.

In modern times, not all states use grand juries, the prosecutors being given a choice to file a document directly charging an individual with a crime. This document is referred to as an “accusation,” “complaint,” or “information,” in order to differentiate it from a grand jury indictment. In the absence of a grand jury indictment, the accused person’s right to due process is protected by the requirement of a preliminary hearing at which a judge decides whether there is enough evidence or probable cause to arrest and charge him with the crime.

The Indictment Process

A grand jury, composed of 16 to 23 members as specified by the laws of each jurisdiction, investigates an accusation brought to them by the prosecutor. The investigation involves reviewing evidence and hearing witness testimony. All of the grand jury’s proceedings take place in a closed room with no judge, and are kept secret in order to encourage open and honest testimony without fear of reprisal. The grand jury may subpoena witnesses and records during the course of its investigation.

After all evidence has been examined and witnesses heard, the jury meets in private to decide whether there is “probable cause” to issue an indictment. Unlike the unanimous jury vote required to convict a defendant of a crime, a grand jury indictment process requires only a supermajority vote of two-thirds or three-fourths. In the event the grand jury decides not to indict the accused, the prosecutor still has the option of taking the matter to a trial judge in an attempt to prove there is enough evidence to charge the accused and take the matter to trial.

Secret Proceedings and Sealed Indictments

All grand jury proceedings are required by law to be kept secret. The investigation takes place in a closed room, led by a prosecutor with no judge. The person accused of a crime has no right to present his case, and in most cases is not advised the hearing is taking place. It is against the law for any witness or member of the jury to disclose any portion of the grand jury proceedings, including their own testimony.

While a court reporter transcribes the grand jury proceedings, the resulting record is sealed until such time as the court un-seals it. In many cases, a secret indictment made by the grand jury, formally charging the accused of a crime, is kept sealed until the accused has been arrested, notified of the charges, or released from jail pending trial. A secret indictment is also referred to as a “sealed indictment,” or a “silent indictment.”

There are two primary reasons for such secrecy: (1) to encourage witnesses to testify and provide evidence openly without fear of retaliation, and (2) to reduce the risk of the accused taking flight or attempting to influence the jurors. In addition, keeping grand jury investigations secret helps ensure an accused person who is ultimately cleared of criminal charges is not subject to public censure or scorn.

Federal Indictment

A federal indictment is a document formally charging an individual with a criminal act in the U.S. federal court system. In much the same manner as a state grand jury, a complaint is brought before a federal grand jury by the federal prosecutor, referred to as the U.S. Attorney. The federal grand jury reviews evidence and hears testimony, then decides whether there is enough evidence to charge the accused and send the case to trial.

The document specifying charges in a federal indictment is called a “true bill” or “bill of indictment.” This document is prepared by the foreperson of the grand jury and delivered to the judge who then issues a warrant for the defendant’s arrest. In the event the grand jury decides there is not enough evidence to indict the accused, it returns a document called a “no bill,” and the federal charges are dismissed.

Federal Indictment List

Because a grand jury is generally called to serve for a period of 3-4 months, it hears a number of cases during its tenure. At the end of a federal grand jury term, the U.S. Attorney for each district may announce the resulting indictments. This federal indictment list may be published and made available at the federal courthouse for that district, and perhaps online. Federal indictment records are a matter of public record and can be reviewed by anyone, though many indictments remain sealed until the defendant has been arrested, or until the court orders them unsealed.

Grand Jury Investigation vs. Preliminary Hearing

The grand jury system is an integral part of the criminal justice system in the United States. The grand jury does not work to determine whether an accused individual is guilty, but whether there is enough probable cause to hold a trial. All states have provisions for instating grand juries, but many do not use them, opting to hold preliminary court hearings instead.

Like a grand jury investigation, the goal of a preliminary hearing is to determine whether enough evidence exists to indict the accused. Unlike the grand jury, however, preliminary hearings are generally open to the public, and involve attorneys, a judge, and other aspects of adversarial court proceedings. Another difference is that, while a grand jury hears matters brought by the prosecutor, a defendant must request a preliminary hearing. A judge may deny such a request, ordering the matter to be investigated by the grand jury.

Grand Jury Indictments in Action

The role of the grand jury originated in 17th century England, where jurors assumed the roles of both investigator of criminal acts and protector of citizens against groundless criminal charges. Settlers brought this system of justice with them to the Americas, where the first grand jury session was held in 1625 Virginia.

John Peter Zenger

The 1734 accusation of seditious libel leveled against journalist and publisher John Peter Zenger attempted to prosecute the man for printing criticisms of the governor of New York. Although evidence against Zenger was strong, three separate grand juries refused to issue an indictment, reinforcing the idea that citizens could take action against unpopular laws.

As the American Revolution gained momentum, grand juries hindered attempts to enforce British taxes and import laws, refusing to indict individuals against whom substantial evidence existed. This impressed upon the colonists the need for grand jury proceedings, leading to an uproar when the concept was left out of the U.S. Constitution. The Fifth Amendment came quickly, in December 1791, specifically defining the requirement for grand juries.

Upholding Secrecy of the Grand Jury Indictment

The courts take the issue of grand jury secrecy seriously, taking steps to protect the privacy of jury proceedings, and leveling charges of contempt at individuals leaking or publishing information. Grand jury meeting places often feature high security, jurors are sometimes sequestered, and the press is barred from obtaining information on popular cases. For example, when accusations of child molestation were leveled against pop super star Michael Jackson, the grand jurors were moved from their usual hearing room in the main courthouse to a location kept secret, leaving members of the press high and dry.

During the grand jury investigation into corruption during former Providence Rhode Island mayor Vincent Cianci’s administration, television reporter James Taricani refused to reveal who leaked a video tape used in the investigation. The judge fined Taricani $1,000 each day to a total of $75,000 before prosecutors asked the judge to increase the daily amount. During the Florida grand jury investigation of Justin Barber, who was accused of killing his wife, the judge threatened criminal penalties against a news organization if it published information it had received from leaked grand jury transcripts.

Related Legal Terms and Issues

  • Contempt – A deliberate act of disobedience, or disregard for public authority, such as a court.
  • Flight – The act of running away or hiding to avoid criminal prosecution.
  • Jurisdiction – The geographical area over which a court or law enforcement agency has legal authority.
  • Probable Cause – Facts and circumstances leading to the belief that an accused person has committed a crime. Probable cause does not arise from a suspicion or a “hunch,” but from observable facts and circumstances.
  • Reprisal – An act of retaliation or revenge.

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