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WHAT HAPPENS AFTER A FEDERAL CRIMINAL INDICTMENT?
In the federal system, an indictment is the first step in the process of a felony criminal prosecution.
WHAT HAPPENS AFTER A FEDERAL CRIMINAL INDICTMENT?
A federal criminal indictment is one of the most challenging situations for anyone to endure. There is a difference between indicted vs. convicted: An indictment is not a conviction, although statistics show that federal prosecutors are highly successful in convicting the vast majority of people indicted. 2019 data from the Pew Research Center showed that federal prosecutors’ conviction rate is over 99.5%.
The consequences of a criminal conviction are severe. They include criminal monetary penalties, loss of liberty, and irreparable reputational harm. An indictment is a serious matter. It means that, after a criminal investigation, prosecutors believe they have enough evidence to convict.
Therefore, people under federal indictment must understand the difference between being indicted vs. charged and the process that follows after an indictment. The criminal process can take a year or more to get from indictment to a final resolution.
Legally, there is a difference between being indicted vs. being charged. The difference lies in the process leading to the criminal charges and who filed them. Prosecutors typically file charges, and not all charges result in a formal indictment. But only a grand jury can formally indict, and all indictments contain charges.
So, does indicted mean charged? Yes, indicted means formally charged by a grand jury with a felony.
Keep reading ahead for a more detailed discussion on the definition of indictment, the difference between being indicted vs. charged, the indictment process, and what happens after an indictment.
Pro-Tip: People under federal indictment must consult experienced criminal defense counsel regarding their case. Navigating through the judicial process that follows an indictment requires help from a legal team with knowledge, tenacity, and compassion.
How Does A Criminal Case Begin?
Criminal prosecutions begin with the filing of a criminal complaint or a grand jury indictment. The process from indictment to a trial or other resolution can last a year or more.
Click here for a related article on how a criminal case begins: HOW A CRIMINAL CASE BEGINS (10 THINGS TO KNOW).
What is a Criminal Complaint?
A criminal complaint is a document prosecutors prepare together with the law enforcement agents investigating a criminal case, such as the FBI, IRS, and Secret Service. Prosecutors present the criminal complaint to a federal Magistrate Judge who determines if there is probable cause to believe that the accused committed a federal crime.
The government cannot convict someone solely based upon a criminal complaint. The criminal complaint is just a placeholder, allowing the government to begin a criminal case when it does not yet have a grand jury indictment.
Once prosecutors file a criminal complaint and notify the defendant of it, the government has 30 days to present the case to a grand jury for an indictment to enable the case to move forward.
The criminal complaint contains a statement of the essential facts of the offense prosecutors want to charge supported by a law enforcement agent’s statement under oath. The purpose of the criminal complaint is to establish probable cause and allow a federal court to issue an arrest warrant. Criminal complaints are most helpful when time is of the essence to make an arrest, and a grand jury process will take much longer. The criminal complaint facilitates getting an arrest warrant from a court, but it is not a substitute for a grand jury indictment or an information.
In the United States, the prosecution of a felony cannot proceed based on a criminal complaint alone. Under the 5th Amendment of the United States Constitution, a felony prosecution must begin with an indictment. A felony (or an “indictable offense” in some jurisdictions) is the most severe criminal offense a prosecutor can charge, and the Constitution requires a grand jury indictment.
Again, the limited purpose of the criminal complaint is to facilitate getting an arrest warrant based on probable cause from a court.
The only time prosecutors would not have to take their case to the grand jury is if the defendant agrees to waive indictment and proceed by criminal information alone. In those instances, prosecutors file an information outlining probable cause with the US District Court. But a criminal complaint alone is never sufficient.
What Is An Information?
An information is a formal charging document that describes the criminal charges against the accused and the factual basis for those charges. Unlike an indictment, an information does not require a grand jury vote. Instead, a Magistrate Judge examines the information to decide whether there is probable cause that a crime occurred.
What Is A Grand Jury Indictment?
A federal indictment (also known as “presentment” or “true bill” or grand jury indictment) is a formal accusation that a person has committed a federal crime. The indictment is the most commonly used criminal charging document.
To obtain an indictment, prosecutors must present factual evidence to a grand jury in a secret proceeding where they call witnesses and present evidence obtained with grand jury subpoenas. For this reason, indictments are often called “grand jury indictments.”
Since the grand jury is a secret process, most people under criminal investigation know nothing about the grand jury proceedings leading to their indictment.
The grand jury consists of 16 to 23 randomly selected jurors investigating crimes and deciding whether to file formal charges. At least 16 of the 23 members of the grand jury must be present to conduct business, and at least 12 jurors must vote to indict. At that point, the grand jury issues an indictment describing the criminal charges against the accused and the factual basis for those charges.
An indictment follows once the grand jury has considered the evidence and decided sufficient cause for the prosecution to proceed exists.
Click here for additional information regarding Grand Jury Subpoenas, published on our Prison Professors Blog.
Indicted Vs. Charged, What is the Difference
Most people use the terms “indicted” and “charged” interchangeably because they both involve criminal charges against someone. But in reality, they are not legally the same.
The difference lies in the process leading to the criminal charges and who filed them. Prosecutors typically file charges, and not all charges result in a formal indictment. But only a grand jury can formally indict, and all indictments contain charges.
So, does indicted mean charged? Yes, indicted means formally charged by a grand jury with a felony.
The next step following the grand jury indictment is the defendant’s arrest.
*Pro-Tip: Although people can bond out after being indicted in the federal system, it is important to note that being indicted means people go to jail in the first instance.
Specifically, after obtaining an indictment, prosecutors obtain an arrest warrant. The arrest warrant names the person prosecutors want to arrest and specifies a place and time for the arrest. It also lists the crimes alleged against the target of the arrest warrant.
For prosecutors, taking a defendant into custody as soon as possible after the indictment is vital to prevent possible leaks of information. Some defendants will try to hide from the police once they learn a warrant is out for their arrest.
In certain white-collar and other cases, prosecutors may offer a defendant who has already retained counsel before the indictment the opportunity to turn themselves over to the police voluntarily for processing, thus avoiding the need for law enforcement to bring them into custody.
A person accused will typically have an initial appearance before a federal Magistrate Judge within 24-72 hours after the arrest. Although often used
During the initial appearance, the Magistrate Judge will review the defendant’s rights, including Miranda rights.
Miranda rights advise people criminally accused of their Fifth Amendment right against self-incrimination, as well as other rights. At the initial appearance, the court will inform the defendant of the following rights:
- to remain silent;
- to be represented by counsel (or appointment of a public defender);
- to know all charges against them;
- to a preliminary hearing; and
- to seek pretrial release.
These are the fundamental rights that kick in at the time of a person’s post-indictment arrest.
The Magistrate Judge also makes an initial determination on whether to set release conditions, including bail bonds, or whether to detain the accused. If the court detains the defendant, they have the right to a detention hearing.
A critical issue courts resolve during the initial appearance is whether the defendant will need public representation, has secured a private attorney, or represents himself in the case. This matters because the defendant will need an attorney at the arraignment hearing, the next step in the process.
The defendant also has the right to arraignment after arrest. At an arraignment, a Magistrate Judge officially informs the defendant of the charges. The defendant also enters a plea of guilty or not guilty.
Under the Federal Speedy Trial Act, the defendant has the right to trial within 70 days from their arraignment. Therefore, if necessary, the court will set a trial date at this time. The arraignment is the judicial proceeding that officially starts the trial process.
Often, the initial appearance and arraignment take place at the same time, soon after an arrest.
Federal criminal procedures provide for a preliminary hearing within ten days of arrest on a Complaint. During this hearing, prosecutors offer evidence to establish probable cause to a Magistrate Judge. If the court finds sufficient probable cause, the case will continue with further proceedings by a grand jury. A preliminary hearing is not necessary if the grand jury returns an indictment against the accused before the arrest.
The March Towards a Criminal Trial
Once prosecutors file an indictment in federal court, the case must proceed to trial within 70 days. (By agreement of both sides, this time frame is routinely extended.)
As the case marches towards a trial, prosecutors must provide the defendant and his counsel with all the documents and other evidence they intend to use at trial. Following discovery and pretrial motion practice, the court will schedule a trial. At the trial, the government bears the burden to prove the defendant guilty beyond a reasonable doubt, the highest standard under the law. In addition, 12 jurors have to agree unanimously on a verdict.
The Option to Plead Guilty
Anywhere along the process, prosecutors may offer the defendant a plea deal, and the defendant may decide to plead guilty to the charges. Taking a guilty plea versus going to trial is a difficult decision to have to make.
However, statistics from The Hill and other sources show that over 90% of federal criminal defendants end up taking a guilty plea.
After negotiations between prosecutors and defense counsel – a process referred to as plea bargaining – both sides may reach an agreement as to the sentence or possible sentence range for a criminal defendant. In federal cases, that agreement is conditional, subject to the approval of a federal judge. The defendant usually has charges reduced and expects to receive a lighter sentence in exchange for pleading guilty.
Trial juries are unpredictable and criminal trials can be very taxing ordeals. Entering a guilty plea avoids the uncertainty of a trial. Pleading guilty, especially in high profile matters, keeps unwanted media attention to a minimum.
Going to trial is expensive and taxing, and there is also the trial penalty to consider, as discussed in detail here (The Trial Penalty).
*Pro-Tip: The trial penalty refers to the higher sentence typically imposed on a criminal defendant convicted after a jury trial, as compared to the sentence prosecutors offered during pretrial plea bargaining.
It is important to remember that a guilty plea is a full-blown criminal conviction with all the attendant consequences to a person’s professional and personal lives, not to mention the loss of freedom.
Click here for a discussion about pleading guilty or going to trial, published on our Prison Professors blog: Guilty Plea or Trial?
5 KEY TAKEAWAYS
- Indictment is Not Conviction. A federal indictment is not a criminal conviction. Rather, it represents the beginning of a formal process that can consume a year or more of a person’s life. The indictment is only the first step in a federal criminal prosecution, and getting from there to a final resolution of a criminal charge takes time, resilience, and focused effort. To convict, prosecutors have to obtain a unanimous verdict from 12 jurors after a trial.
- Prosecutors Alone Cannot Indict. The fact that the US Constitution requires a grand jury to indict a fellow citizen is a reminder of the severity of the matter. The grand jury indictment requirement is there to act as a safeguard against overzealous prosecutors.
- Prosecutors Control the Grand Jury Process. The somber truth is that it does not take much for prosecutors to overcome the grand jury indictment requirement. Prosecutors alone control the grand jury process, and neither the accused nor defense counsel participate in the process. Prosecutors present all of the evidence and instruct the grand jury on the law and the process. Not surprisingly, prosecutors rarely lose at the grand jury. Hence the common refrain is that “prosecutors can indict a ham sandwich.”
- To Charge More Quickly, Prosecutors Use Other Tools. Prosecutors can file a criminal complaint or an information much more quickly than getting an indictment from a grand jury. When prosecutors need to move quickly in making an arrest, they can file a criminal complaint or information and go to the grand jury after the defendant is under arrest. The defendant can then choose to waive the grand jury requirement and proceed by information instead of an indictment. However, a felony case cannot go forward based on a criminal complaint alone, as this violates a person’s 5th Amendment rights.
- After Indictment, Federal Conviction Rate is Over 95%. Can you beat an indictment? The reality is that prosecutors have significant resources and many advantages in the criminal justice process. As a result, it is hard to beat a federal indictment. The numbers do not lie. The relevant statistics show that federal prosecutors are highly successful in convicting the vast majority of people indicted. In fact, about 97% of federal criminal defendants end up taking a guilty plea.
Being indicted is a terrifying experience for most people. The consequences of an indictment and possible criminal conviction are severe, as many federal crimes can result in lengthy prison sentences. Other penalties include fines, assessments, forfeiture, restitution, and irreparable reputational harm.
At Prison Professors, we know how daunting it is to deal with a federal indictment since our team members have been through the criminal justice process.
We wholeheartedly believe that understanding the process after indictment is one of the best ways to come to terms with an indictment and the ensuing journey through the criminal justice system.
An indictment is the beginning, not the end of the process. All people indicted can take steps to mitigate the personal and professional fallout and obtain better outcomes.
The team at Prison Professors regularly helps clients create a strategy for sentencing mitigation, looking for the best steps to convince the judge to be lenient and sentence clients to probation or in the lower range of the sentencing guidelines.
Prison Professors, an Earning Freedom company, works alongside (not in place of) civil and criminal defense counsel to help clients proactively navigate through investigations and prosecutions. Our team also helps clients prepare mitigation and compliance strategies.
If you have any questions or are uncertain about any of the issues discussed in this post, schedule a call with our risk mitigation team to receive additional guidance.
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