A criminal indictment is one of the beginning phases of a criminal felony case that requires a grand jury. During indictment, the grand jury will determine whether there is enough evidence against the defendant to proceed with trial. The jury will review the proposed charge, physical evidence, and witness testimony that is presented by the prosecutor. All capital crimes and death penalty cases must be brought by indictment.

The main goal of a criminal indictment is not to determine whether the defendant is guilty or not as this is reserved for actual trial. Rather, the jury is trying to determine the probability that a crime was committed, and whether the defendant should be tried. If the jury concludes that there is a high likelihood that the defendant might be guilty, then the indictment will lead to trial. 

What is the Difference Between an Indictment and Preliminary Hearing?

If the prosecutor decides to file a felony complaint against the defendant rather than presenting the case to a grand jury, then the defendant has the right to a preliminary hearing to hear all the evidence against him or her.
At the preliminary hearing, the prosecutor must prove that the state has enough evidence against the defendant to go further in the case. If the case instead goes to a grand jury indictment, no preliminary hearing is needed. 

A criminal indictment requires that the prosecutor bring the case before a grand jury and present evidence of the crime that you allegedly committed and asking the grand jurors to bring criminal charges against you. All capital crimes and death penalty cases must be brought by indictment.

When is a Grand Jury Necessary?

Grand jury trials are not necessary in all criminal cases. They are usually only reserved for very serious federal crimes involving felony charges. The 5th Amendment to the U.S. Constitution requires all charges involving capital punishment and “infamous crimes” be filed through a grand jury indictment.  

The grand jury usually consists of 12 to 23 persons selected by the judge. They become necessary when evidence needs to be reviewed in order to begin the trial. The Grand Jury may need to sit for several months or even a year. 

What Happens at a Grand Jury Hearing?

The prosecutor presents evidence and witnesses to the Grand Jury in an attempt to establish there is probable cause that the accused committed the crime charged. The Grand Jury may request further evidence or witnesses from the prosecuting attorney, may subpoena evidence or witnesses, and may question each witness who testifies. 

The accused has no right to be present or testify to the grand jury and there isn’t any cross-examination. If the Grand Jury finds that probable cause exists, they issue an indictment and the case proceeds toward trial. But if they do not find probable cause, then no indictment is issued and the charges are dismissed.

Is There a Grand Jury Hearing for All Criminal Cases?

No. Most jurisdictions hold a Grand Jury hearing only when a felony is charged. Many jurisdictions hold a preliminary hearing instead of having the Grand Jury hearing to determine whether probable cause exists and to determine whether the accused should stand trial, thus making the Grand Jury's role in criminal cases relatively minor.

Is the Defense Lawyer Present During a Grand Jury Indictment?

No. Typically, the judge, defendant, and criminal defense lawyer are not present during state or federal grand jury hearings. This includes the indictment process. Instead, the prosecutor will present the evidence to the grand jury during the indictment. The jury will deliberate, and a majority vote is all that is required to send the case to trial.

On the other hand, the defendant may still choose to work with a lawyer to assist them with issues that may arise during the trial. 

What do the Terms “Direct Indictment” and “Sealed Indictment” Mean?

“Direct Indictment” is when the felony case goes straight to trial, often before a criminal complaint was even filed against the defendant. No inquiry is completed, and the preliminary hearings are bypassed. Direct indictments are considered to be legal as there is no legal requirement that a criminal trial begin by filing a complaint. The method of direct indictment is a very powerful legal mechanism reserved only in special cases.

“Sealed Indictment” means that the indictment is not made public and is kept secret. The documentation resulting from the indictment is kept “under seal”, meaning that the public cannot access the records from the indictment. 

An indictment may be sealed for several reasons, like to protect the identity of the victim or key witnesses involved in the case. However, a sealed indictment may become public later on after trial, when the seal is “lifted”.

Do I Need a Lawyer for Assistance with a Criminal Indictment?

The assistance of a lawyer during any grand jury trial is nearly indispensable. In fact, their own lawyer may represent even witnesses in a grand jury trial, in the event that they become accused of criminal charges.  If you have any issues involving a criminal indictment, a criminal lawyer can help defend your case.