What is a federal indictment?

An indictment is a formal accusation against one or more defendants, charging them with one or more crimes. In the federal criminal system, the indictment is the principal method by which a prosecutor initiates criminal proceedings. For certain types of crimes, and under certain  conditions, the prosecutor may, instead of an indictment, rely on a “criminal information” or a “criminal complaint” to formally file the case. 

How do prosecutors obtain federal indictments?

By law, a federal indictment can only be brought (or in technical terms “returned”) by a grand jury, which is a body of 16 to 23 citizens chosen from the community. The grand jury hears evidence and testimony from witnesses presented by the prosecution. It has the power to ask questions, and subpoena witnesses and documents on its own. Once the grand jury hears the evidence, it votes to indict or to not indict, based on whether there is “probable cause” to believe the defendant is guilty.

A minimum of 16 grand jurors must be present to vote (a quorum), and at least 12 must vote in favor of an indictment before charges can be brought. If the grand jury votes to indict, it will return a “true bill,” signed by the foreperson of the grand jury. This is why in all federal indictments, there is a stamped or typed statement at the end of each document with the words: “a true bill.”

You may have heard the expression that prosecutors can “indict a ham sandwich.” This reflects the facts that: (1) grand jury proceedings are secret and closed to the public. The defense has no opportunity to present evidence at a grand jury proceeding, challenge the prosecution's evidence, or present its side of the story. (2) The “probable cause” standard is one of the lowest standards in criminal law, defined as requiring only sufficient evidence to lead a reasonable person to believe that a crime has been committed and that the defendant is guilty. This stands in stark contrast to “beyond a reasonable doubt,” which is necessary to convict a defendant at trial.

Can the indictment be amended (changed) to charge different or new crimes?

Technically speaking, an indictment cannot be “amended” once it has been returned by the grand jury, because that would violate the defendant's Fifth Amendment right to be indicted by a grand jury.  However, it is also true that prosecutors do frequently alter the crimes charged, or even add new charges, during the course of a criminal proceeding.

Prosecutors accomplish this by filing what is called a “superseding” indictment. A superseding indictment is just like any other indictment, and it must be obtained the same way as the original indictment—through a grand jury. The superseding indictment can include different charges, new charges, or add new defendants. Once the grand jury returns a superseding indictment, the superseding indictment replaces (supersedes) the original indictment.

What information must a federal indictment contain?

The Sixth Amendment guarantees the accused a right to be “informed of the nature and cause of the accusation.” Therefore, the indictment must have enough information to inform the defendant of both the “nature” and the “cause” of the crime charged.

The Federal Rules of Criminal Procedure are another source of law governing indictments. According to the Rules, the indictment must be a “plain, concise, and definite written statement of the essential facts constituting the offense charged.” Furthermore, the indictment must allege facts that, if true, constitute a federal crime. For example, if an indictment alleged that John stole merchandise from a department store, and if stealing from a department store is only a state, but not federal, crime, then the indictment in this case would be invalid because it did not allege a federal crime.

Finally, case law developed from court decisions also shape what must be in an indictment.  The most significant law in this category come from a series of cases beginning with the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Under Apprendi and its progeny, any factor other than a prior conviction, which has the effect of increasing a statutory maximum sentence or setting a mandatory minimum sentence, must be pleaded in the indictment.

What is the difference between a federal indictment, a criminal complaint, and a criminal information?

An indictment is only one way for federal prosecutors to bring criminal charges. Other ways for prosecutors to bring criminal charges include using the “criminal information” and the “criminal complaint.”

A criminal information is similar to an indictment in that it serves as the document formally accusing the defendant of committing one or more crimes. The main difference between the two is that a criminal information does not require a grand jury proceeding. This allows federal prosecutors to conserve resources. In federal misdemeanor cases, there is no Fifth Amendment right to indictment by grand jury, and prosecutors therefore prefer to use criminal information instead of indictment. In federal felony cases, the defendant may choose to waive or “give up” his Fifth Amendment right to indictment by a grand jury, and be charged by criminal information instead.  This happens most frequently where the defendant and the prosecutor have reached an agreement as to a guilty plea to a particular offense before an indictment was returned, or where the final plea is to an offense different than that originally charged in an indictment.

A criminal complaint, by contrast, is frequently used when prosecutors need to make an arrest quickly. This may happen, for example, when federal agents learn that a crime is about to occur, or has just occurred, and must act immediately.  In this situation, prosecutors do not have the time to go through the grand jury process.  Instead, prosecutors file a written document called a criminal complaint, together with an affidavit signed by an agent familiar with the case.  A judge or magistrate judge will review the complaint and affidavit, and issue an arrest warrant if he or she finds probable cause. Once an arrest is made on a criminal complaint, federal law requires that the defendant must be charged by an indictment (or by a criminal information, if it's a misdemeanor case or the defendant agrees to waive indictment) within 30 days.

How can a federal indictment be used in court?

An indictment legally is not evidence. This means that jurors are not permitted to rely on the indictment to conclude that a defendant is guilty. Nevertheless, it is common for lay persons to be swayed by the allegations in an indictment. Some federal judges have a practice of allowing the jury to read the indictment during deliberations, on the theory that this will help the jury understand the charges. The judge will still instruct the jury that the indictment is not evidence and may not be considered in arriving at a verdict. While most jurors are good at following instructions, there may be reasons in certain cases to object to the indictment being reviewed by the jury.  On the other hand, in some cases it will be advantageous to have the jury review the indictment.  

Can a federal indictment be challenged?

Yes. The most obvious and most common challenge to an indictment is showing the allegations are not true at a trial. But what about challenging an indictment before trial?

There are a number of different challenges that can be made to an indictment before a case gets to trial.  Such challenges will be very fact-intensive based on the individual circumstances of each case.  Here are some examples that an indictment can be challenged for:

• failing to provide sufficient detail to a defendant as to the basis and nature of the charges against him;
• failing to set forth an actual violation of law;
• failing to plead all of the elements of a crime;
• alleging a crime outside the statute of limitations;
• bringing a criminal case in an improper venue;
• the prosecutor's failure to accurately advise the grand jury on the applicable law during the grand jury phase of a case, or other prosecutorial misconduct.

While a successful challenge to an indictment is a rare occurrence, an experienced attorney will often assert challenges to an indictment for other reasons as well. For example, the prosecutors may be ordered to provide more evidence, or to provide the evidence earlier than they otherwise would be required.

Conclusion

A federal criminal indictment is a serious matter, because it means that the criminal investigation has progressed to a point where the prosecutor now believes that he or she has enough evidence to convict. Moreover, for some clients, an indictment itself—even though it is only an accusation—can entail serious consequences such as the loss of employment, harm to reputation, freezing assets and civil forfeiture cases. This is in addition to the significant stress and pressure of being charged with a federal crime and how that can affect one's liberty and family.

When we represent clients early on in the criminal process, such as during the investigation or grand jury phase, the goal is almost always to avoid an indictment. However, where a client is indicted, it is important to respond intelligently and effectively in order to put the client in the best position of achieving a successful outcome.

If you have been contacted by an agent about a pending grand jury case or charges, you should speak to an attorney right away if you do not have one. At that point you can review the indictment thoroughly with your attorney, understand the allegations, obtain the discovery and consider what challenges can be made. You should be very careful about contacting any co-defendants or witnesses and refrain from doing so without guidance from counsel.