Justice and Due Process

What Exactly is an Indictment?

Former President Trump was recently indicted on thirty-four charges. So you may be wondering, what is an indictment?

An indictment is one way of initiating criminal charges. After police investigate a crime, a prosecutor reviews the evidence and decides what charges to bring before a grand jury. 

A grand jury is composed of randomly-selected community members, similar to a regular jury. The prosecutor presents evidence to the grand jurors who then decide if there is enough evidence to charge the accused with a crime. If so, the jury indicts the accused and criminal proceedings begin. 

Superficially, grand jury proceedings resemble a trial: evidence is presented, a judge presides, jurors make a decision. But there are some key differences:

  1.       In a criminal trial, the jury’s decision must be unanimous. If they can’t come to a unanimous decision, there is a mistrial and a new trial has to be held. By contrast, a grand jury’s decision doesn’t have to be unanimous (just how many have to agree varies by jurisdiction)
  2. Grand jury proceedings are one-sided: only the prosecutor presents evidence. Usually, the accused has no right to be present or even be informed that charges are pending against him.
  3. Grand jurors can subpoena witnesses. In a criminal trial, jurors cannot do this and only get to hear the evidence the prosecution and defense decide to bring. 
  4. Criminal trials are a matter of public record and are sometimes even broadcast to the public. After a trial concludes, jurors are allowed to discuss what happened during jury proceedings. Conversely, grand jury proceedings are secret and grand jurors aren’t supposed to discuss them. 
  5. Rules of evidence tightly control what a jury gets to see and hear during a criminal trial. Grand jury proceedings are more relaxed and evidence can be presented which would be inadmissible at trial. 
  6.   The burden of proof is lower for indictment. At trial the defendant has to be proved guilty beyond a reasonable doubt. The standard is lower in grand jury proceedings with some states requiring only a showing of probable cause and other states requiring evidence which, if unexplained, would justify conviction. 
  7. Juries in criminal trials decide only one case. Grand jurors are usually called for a period of months and meet repeatedly to hear evidence in multiple cases. The prosecutor is able to develop rapport with grand jurors by virtue of ongoing contact which may make them predisposed to side with the prosecutor and indict. For this reason, attorneys sometimes quip that a grand jury will indict a ham sandwich. 

Being indicted is serious: accusations become public, the defendant must obtain counsel, and a person may be arrested or subject to pretrial release conditions. But an indictment is not a conviction, and indicted people remain legally presumed innocent. Indictment is merely a way of demonstrating that there is enough evidence to begin criminal proceedings.