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Grand Jury Indictment Lawyers |
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Criminal Law
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A complaint is a formal list of criminal charges that the prosecuting attorney may file the before making the arrest or afterwards. An "information" is the formal, written accusation that the prosecutor files, which includes the list of charges. Misdemeanor cases and some felony cases can proceed by the issuance the complaint or information by the prosecutor. However, in some jurisdictions and in federal cases, grand jury indictments may be required in felony cases. If the defendant wasn’t already arrested at the scene of the crime, he or she is either arrested or issued a summons or notice to appear in municipal or Superior Court once the complaint or information is filed.
The Fifth Amendment to the U.S. Constitution requires that charges for all capital and "infamous" crimes be brought by an indictment returned by a grand jury. The amendment has been interpreted to require that an indictment be used to charge federal felonies, unless a defendant waives his or her right to be indicted by a grand jury. The Supreme Court has held that this part of the Fifth Amendment is not binding on the states, so they can use grand juries or not, as they wish. As a result, each state has its own set of grand jury procedures. Some follow federal practices, but others make use of the indictment optional, and allow the prosecutor to file a complaint or information to formally charge the defendant with the crime.
Where the grand jury system is used, a panel of ordinary citizens is selected to secretly investigate criminal activity generally and issue an indictment called a "grand jury original" that initiates the criminal justice process. No judge, defendant or criminal defense attorney is present in state grand jury hearings. The number of jurors on the panel depends on the state in which the grand jury is being used, and a foreman is elected to take the lead in the investigation and prepare the indictment. After a grand jury indictment, law enforcement goes about to apprehend and arrest the defendant named in the indictment, which starts the criminal justice process.
Federal grand juries are similar to state grand juries in many ways. For example, the federal grand jury meets in secret and no judge, defendant or criminal defense attorney is present. The U.S. Attorney (federal prosecutor) presents the case to the 16- to 23-person panel that is selected from the community, and a simple majority is all that is required for a federal grand jury indictment, which is prepared by the foreman and delivered to the Federal Magistrate (judge). After a grand jury indictment, a warrant is subsequently issued for the defendant’s arrest, which starts the federal criminal process.
Both federal and state grand juries can be and are used by prosecutors to investigate cases where no one has been arrested as well as cases where someone has already been arrested. Both federal and state grand juries can also issue subpoenas and compel persons to testify and submit documents to them. While there are many similarities between federal and state grand juries, there are also many crucial differences. Check with a criminal defense attorney in your area for more information on these differences and how they can affect your case.
If you are subpoenaed to appear as a grand jury witness or to produce documents to a grand jury, particularly for a federal grand jury investigation, you should seriously consider seeking competent legal representation. There are many occasions where a person who was issued a subpoena to appear as a witness or to produce documentation ends up becoming a "target" or "subject" of an investigation, then indicted by the same grand jury the person thought he or she was simply assisting.
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A grand jury is composed of a group of citizens who have been selected from voter registration, driver’s licenses and tax lists. Federal grand juries consist of 16 to 23 people, while the number of jurors in state grand juries varies significantly from state to state. The grand jury considers evidence presented by the county prosecutor, or U.S. Attorney for federal cases, and determines if there is sufficient evidence to formally charge defendants and require them to respond to the charge(s).
Neither the accused nor their attorneys are present and are generally not even allowed in a grand jury proceeding. A criminal defense attorney is also not allowed to provide assistance or representation for the accused in a grand jury indictment. Attorneys are also not allowed to accompany witnesses in a grand jury proceeding. However, a witness may ask permission to leave the room to consult with his or her attorney outside the grand jury room before returning to answer questions.
What actually happens is that witnesses normally testify regarding the crime, and they also may be required to provide documentation, and the evidence is presented by the prosecution to the grand jury. After considering the evidence and witness testimonies, if a majority of the jurors vote to indict the defendant, the defendant must face further criminal proceedings.
The return of an indictment is called a "true bill." If a majority finds the evidence to be insufficient to indict, the grand jury enters a "no bill" and the charge(s) are dismissed. In state criminal cases, the jury may decide to charge defendants with a less serious offense, to be downgraded or remanded to the municipal court.
Because witnesses have not been indicted, they have no constitutional right to counsel, since the Sixth Constitutional Amendment right to counsel only applied after someone has been indicted. If a witness cannot afford an attorney, he or she can ask the court that supervises the grand jury to provide them with appointed counsel; in many districts, courts do this, as a matter of general fairness. They may appoint a private criminal defense attorney or, if the district has a Federal Public Defender’s Office, they will appoint a public defender. The witness, however, has to know to ask the court for the attorney, since prosecutors are not likely to be particularly sympathetic to such requests.
If a defendant waives his or her right to be indicted by a grand jury, or if the case simply does not warrant one, the prosecutor can charge the defendant by filing a "complaint" or an "information." A complaint is similar to an indictment in the fact that it is a pleading that accuses the defendants of committing crimes, just as an indictment is. The difference between an indictment and a complaint is that a grand jury must approve an indictment, while a prosecutor can issue a complaint without the assistance of a grand jury.
Federal grand juries are of two types—regular and special. Regular grand juries sit for a basic term of 18 months, but that term can be extended up to another 6 months, which means their total possible term is 24 months. Special grand juries (created in 1970 specifically to investigate organized crime) sit for 18 months, but their term can be extended for up to another 18 months; a court can extend a special grand jury's term for 6 months, and can enter up to three such extensions, totaling 18 months, bringing the total term to 36 months. The term for state grand juries varies widely, but average around a year.
No, an indictment is not a finding of guilt. It is simply the formal written accusation of a crime presented to a court for prosecution against the accused person. Once the grand jury files the indictment, called the "grand jury original," with the trial court, the accused is apprehended and arrested if he or she was not already arrested at the scene of the crime. If the defendant has already been arrested, he or she continues to be detained and must face further criminal proceedings. The next step after the grand jury indictment is the initial hearing where the prosecutor decides if there is enough evidence to file formal charges with the trial courts.
If you have been arrested after a grand jury indictment has determined that you must face further criminal proceedings, it is definitely in your best interest to hire a criminal law lawyer. The sooner you hire your criminal defense lawyer, the better, so you can start formulating your defense. Contact a LawInfo Lead Counsel qualified criminal defense lawyer today. Even if you are only subpoenaed to be a witness or to produce documents, you should hire a lawyer or you may end up being the target or subject of a grand jury investigation, and subsequently indicted by the same grand jury for which you thought you were simply being called as a witness.
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