An indictment is a legal document criminally charging a person named as the defendant with committing a crime. The indictment does not prove the defendant’s guilt but is often referred to as “merely a ticket to the courtroom.” The indictment is issued after a prosecutor presents witness testimony and other evidence to a secret grand jury. If a majority of the grand jury members agree that the evidence constitutes “probable cause” that the suspect committed a particular crime, then they vote to indict that suspect. If the grand jury is not persuaded, then they vote “no true bill.”
The grand jury process has been shrouded in mystery for centuries. That is partly by design and partly the result of prosecutors exploiting the system.
What’s the Difference Between a Grand Jury and a Trial Jury?
To distinguish the two types of juries, a trial jury is also called a petit jury, meaning a smaller jury than the grand jury. A trial jury is a panel of community members who sit and listen to the evidence in a criminal or civil trial.
In all felony and most misdemeanor cases, a trial jury is composed of 12 members (and a few alternates in case someone needs to be replaced). At the end of the case, the jury is instructed on the law by the trial judge and then goes to a room where they confer and render a decision whether the defendant is guilty beyond a reasonable doubt.
Trial juries’ verdicts must be unanimous in Florida.
A grand jury is also a panel of community members who sit and listen to evidence, but it hears only one side of the evidence, the prosecutor’s side. There are between 15 and 21 grand jury members (18 minimum for a statewide grand jury). When they are finished listening to the one-sided evidence, the grand jurors vote on whether they believe the evidence is sufficient to find “probable cause,” that is, that the defendant probably committed the crime. Only a majority of the grand jurors need to agree.
If the majority of the grand jurors vote to indict the suspect, then they issue an indictment, called a “true bill” or a “bill of indictment.” The indictment authorizes the issuance of an arrest warrant, and the named defendant is brought to court and arraigned. The arraignment is the defendant’s opportunity to be formally notified of the precise charges against them and to obtain a copy of the indictment, and to enter a plea of not guilty.
Why Are Grand Juries Used?
Not every criminal defendant is charged with an indictment. Many misdemeanors and felonies in Florida are prosecuted with the only charging document being what is called “criminal information.” An “information” is a formal statement signed under oath by government attorneys stating the specific criminal offense the defendant is accused of committing and which law was violated.
The Fifth Amendment of the United States Constitution and Article I, §15 of the Florida State Constitution demand that no person may be tried for a capital offense unless indicted by a grand jury. The U.S. Constitution extends the grand jury requirement to all “infamous crimes,” meaning the federal government must use an indictment in every felony prosecution, not just capital offenses.
What’s a Capital Offense?
A capital offense is any crime for which the penalty is either life in prison or death. In Florida, the list of capital crimes includes the following:
- capital drug trafficking,
- armed kidnapping
- the kidnapping of a child younger than 13 and committing a sex act,
- capital sexual battery by an adult against a child 12 years old or younger,
- aggravated sexual battery, sexual battery with a deadly weapon, sexual battery likely to cause serious personal injury, etc.
- and some other felony crimes when there are death or sexual components to the felony charge
Grand Jury Indictments are Intended to Protect the Innocent
Secret grand juries meeting to consider the sufficiency of the evidence before charging a defendant with a crime was a process intended to protect the innocent. The benefit of secret proceedings was the avoidance of publicly accusing someone of an awful crime without their fellow citizens first reviewing the evidence to ensure there were grounds to bring that person to trial. If the grand jury found the evidence fell short of the “probable cause” standard of proof, then no indictment would be issued. And theoretically, no one outside of the grand jury would ever know that the person had been suspected or investigated.
By that same theory, society would have confidence that no person would be brought to trial on a heinous criminal charge unless the evidence was first screened by a secret grand jury. The grand jury’s indictment of a person was thought to mean there was enough evidence for a reasonable person to believe the defendant was guilty.
Serious Flaws with the Grand Jury Indictment Process
A grand jury’s mission is to determine whether there is “enough” evidence for a reasonable person to conclude that the crime was committed and that the defendant is guilty of the crime. In American law, a finding of “probable cause” entitles the prosecution to bring the defendant to trial. At the trial, the defendant is entitled to the assistance of a lawyer, the right to remain silent, the presumption of innocence, to confront and cross-examine the witnesses against them, to testify in their own defense, to subpoena witnesses to testify, etc.
Because the defendant has these extensive rights at trial, the law does not require that the defendant even be notified that the grand jury is considering an indictment against them. The suspect has no right to address the grand jury, no right to present exculpatory evidence, no right to listen to or to cross-examine the witnesses, and no right to have their lawyer participate.
The result is often that prosecutors who want an indictment against a suspect can cherry-pick evidence, present a witness whose testimony points only to guilt, and can steer the grand jury to the conclusion that prosecutors desire. Grand juries rarely assert their own demands for different evidence against the resistance of prosecutors.
Experienced Criminal Defense Lawyers and Indictment Strategy
Only after years of experience in courtrooms does a criminal defense lawyer learn how to protect a client from a sitting grand jury and how to attack a grand jury indictment successfully.
No grand jury target or any witness with reasonable exposure to prosecution has any obligation to testify before a grand jury. A confident, aggressive defense lawyer counsels witnesses to invoke their right not to testify in appropriate circumstances. Occasionally, the client is granted immunity (even if unwanted) and then must testify, but only without the risk of any criminal liability.
In other cases, the facts of the case may be so favorable to a suspect that counsel will insist forcefully that prosecutors present particular exculpatory evidence to the grand jury. A prosecutor’s failure to present what is obviously strong exculpatory evidence can later undercut the legitimacy of any indictment.
Every skilled criminal defense lawyer is ready to attack an indictment, whether based on a grand jury being improperly constituted, by exposing the prosecutor’s misleading evidence or tactics, or by discovering technical flaws in the document itself.
Trust experienced criminal defense lawyers — Contact Stechschulte Nell, Attorneys at Law today; 813-280-1244