Introduction

Charging by Grand Jury Indictment

Introduction

In a serious federal case the formal accusation reaches the defendant in a recognizable order. A grand jury returns an indictment, which is its written accusation charging a person with a crime, and the defendant is then arraigned, meaning brought before the trial court to hear the charge and enter a plea.¹ Rule 12(a) of the Federal Rules of Criminal Procedure supplies the vocabulary for these documents and events by listing the pleadings in a criminal proceeding: the indictment, the information, and the pleas of not guilty, guilty, and nolo contendere (no contest).² An information is a charge drawn up by the prosecutor and never submitted to a grand jury, so the two charging pleadings come from the government's side and the three pleas are the defendant's possible answers.³ For serious crimes the choice between the two charging pleadings is a constitutional matter, because the Fifth Amendment provides that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury," as the Supreme Court restated the clause in Branzburg v. Hayes.⁴ A federal prosecutor therefore cannot proceed on a felony charge on the government's say-so alone. A grand jury must affirm the decision to charge, or the defendant must waive the right to be proceeded against only by indictment.⁵

The body behind the indictment has two historical jobs, and the rules in this chapter read as protections for them. In its investigative role the grand jury acts as a sword: it summons witnesses and gathers evidence to learn whether a crime has occurred and who committed it, and it may begin an inquiry on mere suspicion, without naming a suspect or an offense.⁶ In its screening role it acts as a shield, hearing the prosecutor's evidence and deciding whether a charge is warranted before anyone must stand trial.⁷ The shielding role explains why the clause exists. By the end of the seventeenth century English grand juries had come to be valued as protection against arbitrary prosecution by the Crown, and colonial grand juries had refused in several celebrated cases to indict opponents of the Crown, so the framers wrote that protection into the Constitution.⁸ Both jobs depend on the grand jury being a body of ordinary citizens placed between the prosecutor and the accused, so that a prosecution begins only after someone other than the prosecutor has found probable cause. That dependence explains why the rules regulate who may sit on the grand jury, who may be in the room, what may be disclosed, and how its decision reaches the court. Secrecy, for instance, lets witnesses speak freely and jurors decide without public pressure, and it keeps a prospective defendant from fleeing or tampering with witnesses.⁹

This chapter is centered on the Federal Rules of Criminal Procedure, so what follows describes federal prosecutions, and state practice can differ. The Fifth Amendment's grand jury clause has not been applied to the states: in Hurtado v. California the Supreme Court held that due process does not require indictment by a grand jury before a state prosecutes for murder.¹¹ States have gone their own ways since, with some requiring indictment for all felonies, some leaving the choice to the prosecutor, and a few requiring it only for capital offenses.¹² Within the federal system, the first question comes first: which offenses must be charged by indictment at all, and when may a defendant give up that protection?