What is an Indictment?

The recent cases of Eric Gardner and Michael Brown have brought a lot of argument and controversy to our country. And while everybody takes their own side, one thing that makes these cases different than some others is the lack of any criminal indictment. It seems many people don’t even understand what an indictment is, and what its role is in the criminal justice system. In Maryland, there are two ways a felony can be charged in the circuit court. 1) By criminal information; or 2) by grand jury indictment. How a felony is charged in Circuit Court is at the discretion of the prosecutor’s office. Each way of charging a felony has its own benefits and drawbacks.

Felony Charge by Information

A criminal information is simply written charges written by the prosecutor. It is largely up to the prosecutor’s own discretion in deciding whether to bring charges or not. The criminal infraction is then filed with the Clerk of the Court, and then served on the accused.

But the prosecutor doesn’t get complete discretion. The Fifth Amendment to our constitution says that nobody can answer for a crime “unless on a presentment or indictment of a grand jury.” That means that some formal process must occur before someone can stand trial for a felony.

If felony criminal charges are brought by a criminal information, there will usually be a probable cause hearing before a judge, called in Maryland a Preliminary Hearing. This is not a hearing to determine guilt or innocence, and many of the facts and evidence may not even be presented. It’s simply a hearing to determine if there is “probable cause” that a felony was committed (compare that low standard to the very high “beyond a reasonable doubt” standard used at trial).

Felony Charge by Indictment

But some states (and our federal system) use an indictment process. Instead of a hearing in front of a judge, a grand jury hears the charges. The grand jury’s goal is, again, not to determine guilt or innocence, but to determine if there is enough evidence that some crime has been committed in order to have a trial later on.

During a grand jury proceeding, only the prosecutor gets to speak and question witnesses. The accused’s attorney and the accused are generally not allowed to be present. It is a very one-sided process, because it’s supposed to be–the law generally favors trials, and wants to make it easy for the prosecutor to demonstrate to the grand jury that a trial is needed. The trial is where an accused will get most of his or her constitutional and procedural protections, and where all the evidence will be brought out.

Perhaps the juries in these recent cases thought the evidence was so clear cut that a trial was not needed. That may be right or wrong. But don’t assume that the decisions were made after presentation of both sides and all evidence. That’s simply not the purpose of a grand jury or probable cause hearing.

Contact an Attorney for Help

Have you been charged with a crime? The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience protecting the constitutional rights of criminal defendants at all stages. If you or someone you know was charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.