What Does It Mean to Be Indicted?

Criminal laws can be confusing to everyone, not just to those accused of crimes. To get a clear overview of what indictment means, one must grasp the difference between a criminal charge and a civil charge. There are two methods a person can be charged with a crime: a criminal complaint brought by a prosecutor and a grand jury indictment.

The types of charges that can be brought against a person through the courts can be viewed as falling into one of two universes: civil charges and criminal charges. Criminal charges are those that seek to punish a person for illegal acts they have committed. This includes actions that they are alleged to have taken that are prohibited by law, but there are also crimes of omission.

When someone is mandated by law to do something, failure to act may be a criminal offense. For example, a medical worker has a duty to report suspected child abuse and failure to take this action can result in criminal charges. Criminal charges are always brought by a government prosecutor or district attorney.

A civil charge is one that is brought by a private individual or a government agency other than law enforcement against another individual or a business entity. A civil dispute can be bitter and ugly – think of contested divorces or fraud charges – but a verdict against a defendant in a civil suit cannot send them to jail or incur other criminal penalties.

Before an individual can be charged with a crime, someone generally must review the evidence to decide whether there is enough evidence to merit charges. This is important because even if a person is not ultimately convicted, the mere fact of being charged with a criminal offense may haunt them throughout their lives. A job application or housing application may ask whether the person has ever been charged with a crime, and it carries a stigma, even if they are not convicted.

There are two ways to make a determination to charge someone. The most common procedure is for the prosecutor or district attorney themselves to make this decision. If they determine that there is sufficient evidence to establish probable cause that the person was responsible for a criminal act, they can file a criminal complaint. The plaintiff in the action (the party bringing the charge) is often referred to as The People, as in The People vs. O.J. Simpson.

Alternatively, the prosecutor can take the case to the grand jury. There are mandated federal grand juries and optional state-level grand juries.

When a person is accused of violating a serious federal crime, the federal prosecutor must seek an indictment from a grand jury in order to prosecute someone. The Fifth Amendment to the Constitution requires this for every federal felony and also for otherwise infamous crimes. This mandate is not extended to lower crimes, and prosecutors simply file federal misdemeanor charges themselves.

States are not mentioned in the Fifth Amendment, but many states follow a similar procedure for the prosecution of serious crimes. State rules vary as to how many grand jurors are seated and the percentage that must agree in order to enter an indictment. And some states use an easier, alternative procedure where the person to be charged is called to a preliminary hearing where a judge determines probable cause.

Federal grand juries are made up of between 16 and 23 members selected from the community, and their names are not released to the public. The hearing is conducted in secret with no judge present, and the defendant is not represented by an attorney. In fact, defendants are usually not present, and prosecutor's witnesses are not subject to cross-examination. Rather, the prosecutor offers their evidence, and the jurors themselves can ask questions. Almost any type of evidence is permitted, even evidence that would be excluded at trial.

If a grand jury determines that there is probable cause to charge the person criminally, it issues a "true bill," usually called an indictment. Note that a unanimous vote is not required, only a simple majority. If the jury decides that there is not sufficient evidence to indict, they issue a "no bill." The standard of proof is much lower for an indictment than for a conviction at trial, since the grand jury is determining only whether there is probable cause to charge someone with committing a crime.

Since states are not mandated by law to use a grand jury, even for felony charges, those states that opt to do so can determine their own grand jury rules and procedures. In most states, grand juries function very much like federal grand juries. However, issues like how many grand jurors are seated and how many votes are required for an indictment vary among states.

For example, in California the number of grand jurors depends on the population of the county. Counties having more than 4 million inhabitants must seat 23 jurors, those with 20,000 or fewer inhabitants must seat 11, and the large middle swath must seat 19. An indictment is said to require a preponderance of the evidence and requires eight votes of 11 jurors, 12 votes of 19 grand jurors, and 14 votes of 23 jurors.

In contrast, Texas mandates 12 grand jurors for every county, and nine of the 12 are needed to vote for a true bill indictment. In Illinois, there must be 16 grand jurors per county, with 12 required to indict at a jury trial. In most states, even if a grand jury does not return an indictment, prosecutors can still file a criminal complaint if they believe that the evidence warrants it.