What Is the Difference Between an Indictment and a Charge?

An indictment is an early step in the process of charging someone for a crime. It does not mean the person is guilty, simply that the prosecutor thinks they are. To more clearly understand what an indictment is, it is necessary to also understand what a grand jury is and how the criminal process charge works.

 

What Is a Grand Jury?

A grand jury is 16 to 23 impartial citizens that are selected to independently review criminal incident. Grand juries meet in private to investigate and conclude if formal charges should be filed against a person. If they believe that a criminal prosecution should ensue, an indictment is then issued.

For an indictment to be issued, a prosecutor must convince at least 12 members of a grand jury that formal charges are warranted. It should be noted that during this review, the accused and their counsel are not generally present. Grand jury members are not required to examine anything other than what the prosecutor presents to them. Instead, members conduct their own investigations using their own methods without outside interference or court supervision.

Grand juries should be viewed entirely separate from any governmental agency.

 

Indictment vs. Charges:

An indictment and a charge are both steps used to move a criminal case toward a trial. The main difference is grand juries file indictments and prosecutors file charges.

During a grand jury’s investigation, a prosecutor must persuade members of the jury that a crime has been committed before they can agree that formal charges should be filed. Once a person has been officially charged with a crime, it is at that point that a public trial may then be held.

While an accused person can be present during a grand jury’s meeting, most take place in a private setting with only the prosecutor, members of the grand jury, any witnesses the prosecution wants to present to the grand jury, and official personnel needed for record keeping and security. In contrast, a person who has been formally charged must be present in court during the trial along with defense counsel, a prosecutor, a judge, witnesses, a jury of peers, a stenographer, and others needed to ensure a fair trial in most cases.

Generally speaking, an indictment, also known as a “true bill” may be viewed as a formal accusation undergoing an official investigation before moving forward with charges. An indictment may or may not result in court charges. A charge, on the other hand, means that grand jury members have decided formal prosecution should take place.

 

Who Can Be Indicted?

With few exceptions, anyone can be indicted by a grand jury. Though not all states require an indictment for a person to be charged with a crime. Of those that do, indictments are reserved for felonies.

The Fifth Amendment to the United States Constitution states that crimes punishable by death or long imprisonment require an indictment before a charge is filed. The United States Supreme Court, however, has interpreted that clause to be applicable only to federal crimes and that states do not have to adhere unless they choose to.

Laws concerning indictments apply exclusively to civilians in the United States. Members of the armed forces can be tried by court martial without an indictment and without being tried by a jury of their peers.

 

Federal Indictments

While most states don’t require an indictment before charging a person of a crime, federal crimes may be handled differently.

For federal indictments, an Assistant United States Attorney (AUSA) will review the merits of a case and question federal investigators to determine whether charges should be filed. When evidence is lacking and further investigation cannot help the AUSA make an informed decision, a grand jury may be relied upon. Federal indictments only pertain to felony level crimes, federal misdemeanors do not require an indictment before charges can be filed.

 

How to Find Out If a Person Has Been Indicted

Grand jury proceedings are shielded from the public. Individual members are not allowed to share any information with anyone who is not on a grand jury. Attorneys, witnesses, and all others are also asked to leave the room as jurors are deliberating in order to protect the privacy of the grand jury’s deliberations.

Proceedings can take anywhere from a month to a year and operate mostly in secrecy. Often, it is only after an indictment has been made that the accused knows they have been indicted and are facing criminal charges.

If an indictment has been issued, the accused usually finds out upon being arrested after court charges have been filed and a warrant issued. Others seeking information about a true bill can find out by:

  • Contacting the appropriate court office to ask if a true bill has been returned
  • Contacting the appropriate court office to inquire about future grand jury meetings
  • Contacting the appropriate court office to inquire about upcoming court dates
  • Make a written request to be notified about future court dates (only a defendant may do so)

 

Can an Indictment Be Sealed?

Everything that happens during a grand jury’s proceedings are kept in secrecy. An actual indictment, however, may or may not be sealed or kept away from the public. Often, when an indictment is sealed, it is done so for a predetermined time. Reasons why an indictment may be sealed include:

  • To keep the accused from fleeing before an arrest can be made
  • To attempt to keep any of the accused’s co-conspirators from knowing they may be charged
  • To keep any possible co-conspirators from fleeing before they can be charged and arrested

If an indictment has been sealed, no information hinting as to its existence will be shared with the accused, attorneys, or the general public.

 

Does Indictment Mean Jail Time?

An indictment does not mean a person is going to jail. It simply means that the prosecution may proceed with filing criminal charges. At that point, a court trial will be scheduled to begin and the process of trying the case before a judge and jury will commence. With or without an indictment, a person is always innocent until proven guilty in a court of law.

 

Can an Indictment Be Dismissed?

An indictment can be dismissed, but it is very rare that a prosecutor will do so after a grand jury has issued one. Typically, indicted parties must still appear in court to face the criminal charges before the charges are dismissed.

More common are grand jury dismissals, which can take place at any point in the proceedings before an indictment is issued. When a grand jury enters a dismissal instead of indictment, this is called a “no-bill.” Grand jury dismissals can happen for any number of reasons, including:

  • Insufficient evidence
  • Prosecutorial or police misconduct
  • The case not being strong enough for the grand jury to believe it can be won
  • A defendant’s willingness to cooperate on another criminal case

 

More Information on Indictment

Understanding the indictment process can help a person better understand how the criminal justice system operates, in general. Our article archives may be able to help answer any further questions about this process, as well as clarify some of the legal terms commonly encountered when exploring this topic.

Anyone who believes they may be indicted for a crime or who has already been indicted, should contact a qualified attorney right away. While a court-appointed attorney will be provided to those who cannot afford counsel, this only happens after a person has been formally charged with a crime. We offer a state-by-state list of low-cost legal service providers on our site who may be able to answer questions and provide guidance before an indictment happens.

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