What Is An Indictment? (2024)

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Updated: May 3, 2023, 3:01am

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An indictment occurs when someone is formally accused of committing a crime after a grand jury has determined there is probable cause for a prosecutor to move forward with pursuing criminal charges.

When a prosecutor decides to move forward with pursuing criminal charges against a person, there are two paths to choose from:

• A prosecutor could seek an indictment
• A prosecutor could file a criminal complaint directly with the court.

An indictment typically carries more weight because it means a grand jury has assessed the evidence and determined there are reasonable grounds to move forward with criminal proceedings.

Prosecutors are required to seek an indictment for certain kinds of criminal offenses. The exact process for when an indictment is required and how a prosecutor can indict someone varies depending on which state laws or federal laws apply.

A prosecutor must get an indictment before pursuing certain kinds of criminal charges on the federal level. The Fifth Amendment of the U.S. Constitution specifies that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”

While the Fifth Amendment does carve out some limited exceptions, this means anyone accused of a federal felony or other serious federal offense must be indicted before a criminal case can move forward against them.

States are not bound by this Fifth Amendment requirement, but many states do follow a similar process for requiring an indictment before a person is forced to face serious criminal charges.

In order to indict someone, a prosecutor must present evidence to a grand jury and convince the grand jury there is probable cause a crime was committed (evidence enough to think that a crime occurred and the accused is the person who committed it) so a criminal case should move forward. There is usually no judge in grand jury proceedings and the rules of evidence are more relaxed compared with a criminal trial.

On the federal level, grand juries have between 16 and 23 members. The prosecutor presents evidence to the grand jury and outlines the case against the person they hope to indict. The grand jury reviews the information presented and votes as to whether to indict.

The individual who could potentially be indicted is typically not present at the grand jury hearing and so does not present evidence at that time. The prosecutor can call witnesses and present supporting facts to the grand jury to try to convince them to indict. The proceedings are usually secret and the proceedings are sealed so the defendant doesn’t know who testified or what they said during the grand jury proceedings.

If the prosecutor has convinced the grand jury there is probable cause to move forward, the jury will vote to indict. The decision does not need to be unanimous for the prosecutor to move forward as long as a majority, supermajority, or minimum number of grand jurors agree there is probable cause (the specific requirements depend on state or federal rules).

Prosecutors might pursue an indictment because they are required to do so in order to pursue a certain kind of criminal charge. For example, as mentioned above, the Constitution requires a prosecutor to obtain an indictment when charging someone with certain serious federal crimes.

Prosecutors may also pursue indictments in politically charged cases. The fact that the grand jury makes the decision about whether to indict can theoretically shield the prosecutor from criticism. However, this is not always effective, both because grand juries have reputations for almost always indicting potential defendants and because sometimes there is public outcry about the secrecy inherent in grand jury proceedings.

Prosecutors may also prefer to pursue indictment because grand jury proceedings are secret. This enables them to control what information is released about a case, and it can also protect the reputation of a potential defendant because there is no public proceedings until after a grand jury chooses to indict.

When a grand jury indicts someone, that does not mean they are guilty of the crime(s) they have been indicted for. Instead, it means there is probable cause for the prosecutor to proceed with formal criminal charges.

The prosecutor still needs to prove the defendant is guilty beyond a reasonable doubt in a criminal trial in order for the defendant to be found guilty. The defendant will also have a chance to present a defense during a criminal trial, unlike during typical grand jury proceedings.

If you are indicted, this means a grand jury has determined there is probable cause for a prosecutor to move forward with pressing criminal charges against you.

You will be notified of the charges and could face arrest and prosecution. You need to decide how to respond, which could include trying to negotiate a plea agreement to avoid a trial or building a defense to try to avoid a guilty verdict.

You should speak with an experienced criminal defense attorney if you are indicted to help you navigate your involvement with the criminal justice system.