What Is an Indictment? | Explore Law Firms and Legal Advice

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An indictment is a document that notifies the defendant of the charges against them.

It is the beginning of the formal criminal process, says Daniel Richman, a former federal prosecutor and now the Paul J. Kellner Professor of Law at Columbia Law School.

Under the Sixth Amendment of the Constitution, those accused of a crime must “be informed of the nature and cause of the accusation,” while the Fifth Amendment prohibits federal law enforcement officials from beginning prosecution of defendants accused of “a capital or otherwise infamous crime.”

A grand jury must decide if a defendant should face prosecution for those serious crimes. Therefore, a grand jury indictment is part of how constitutional protections are met within the American justice system.

While an indictment begins the process, the majority of criminal cases never go to trial. Most end with a defendant admitting guilt.

But when it comes to making that guilty plea, says Marlo Cadeddu, a federal criminal defense lawyer, “I would never, ever, ever, advise a client on the basis of the indictment alone.”

That’s because Cadeddu, who specializes in defending complex criminal matters such as white-collar litigation, first reviews the evidence to learn if the prosecutor will have enough evidence to win at trial.

Indictment vs. Conviction: An Essential Difference

To convict a defendant, a trial jury must conclude “beyond a reasonable doubt” that the defendant committed the crime.

But grand jurors are only required to find “probable cause” that the defendant committed a crime, a much lower standard.

So the prosecutor presents evidence to the grand jury, and the defendant is not allowed to tell their side of the story. Instead, the adversarial process is left for trial, says Alice Ristroph, dean’s research scholar and professor of law at Brooklyn Law School. 

What Is in the Indictment Document? 

An indictment should be a “plain, concise and definite written statement of the essential facts constituting the offense charged,” according to the Federal Rules of Criminal Procedure, which are the rules that U.S. District Courts must follow during criminal litigation.

An indictment must contain enough factual information that the accused can defend themselves, but “as long as there’s the bare bones of a violation of a statute and the identification of the statute, that’s the basic indictment,” Ristroph says.

An indictment doesn’t need to include everything the prosecutor knows about the crime. “It might not have nearly as much information as was discussed at the grand jury,” Ristroph says.

A prosecutor can choose to lay out precise details of the case. They do so when they want to make it “very clear to defendants that they have the goods on them,” Richman says, “and to spell out to the general audience that the prosecutor is focused on this and has a level of proof that will make observers feel secure that the prosecutor has a good case.”

But these longer indictments (often referred to as “speaking indictments”) are uncommon, he says. And a longer, more detailed indictment should not be interpreted to mean the prosecutor has a stronger – or weaker – case.

When an Indictment Is Needed

An indictment isn’t required for all criminal cases. In federal court, a prosecutor must get an indictment for felony charges and crimes with a prison sentence of at least one year. But indictments aren’t necessary for misdemeanor cases (with punishment of less than one year) or contempt of court.

States vary when they require an indictment, but a felony charge is usually the baseline for state prosecutions as well. 

The Role of the Grand Jury: A Meaningful (if One-Sided) Review of the Evidence

Given the one-sided nature of the proceedings, grand juries are likely to do what the prosecution asks of them – indict someone. Some have argued that grand juries are prosecutors’ rubber stamps who will approve even meritless indictments. But former prosecutor Richman says that these claims show “a lack of familiarity with how indictments can be obtained.”

When critiques allege grand juries are weak, they aren’t considering the strength of the prosecutor’s case, Richman says. Grand jury proceedings’ lower standard means that a prosecutor doesn’t need to present the full range of evidence they have against a defendant, but a prosecutor has usually completed most of their investigation before going to the grand jury. Prosecutors decide when they’re ready, and they can drop a case when they need to.

Ristroph agrees. “In general, the prosecutor is not going to a grand jury unless they have the evidence to indict, or prevail at trial.”

And if prosecutors count on a grand jury to sign off on a weak case, they are failing at their jobs, Richman says.

What People Don’t Understand about Federal Indictments

There’s a common misconception that a federal indictment constitutes the defendant’s entire universe of liability. But that’s not true because of the federal sentencing guidelines, Cadeddu says.

Once a defendant is convicted of a crime, the judge must determine the defendant’s sentence based on all of their “relevant conduct.”

Relevant conduct includes all actions relating to the crime that the defendant performed, before, during and after their offense, and acts the defendant commanded or encouraged other people to do on their behalf. And it all comes in to determine one’s punishment, even if none of that was proven at the trial.

Further, if the defendant’s crime was a part of a joint criminal enterprise, then they are liable for all of the other defendants’ related and foreseeable criminal acts.

So, Cadeddu explains with a hypothetical, a defendant indicted and convicted on a single count of $10,000 fraud could still be sentenced on the basis of millions in losses.

When Cadeddu informs clients that they could be punished for every loss they’ve caused and everything they aided and abetted, “that freaks them out because there’s no limit.”

It turns out that, just as an indictment is only the beginning of the criminal process, it is also only the starting point for a criminal’s accountability.

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