Pleadings and Indictment Requirement

Pleadings and Indictment Requirement

Before asking which offenses require an indictment, a student needs the list of documents that Rule 12(a) calls pleadings. The pleadings in a criminal proceeding are the indictment, the information, and the pleas of not guilty, guilty, and nolo contendere.¹ The first two are the government's charging documents, one issued by a grand jury and the other drawn up by the prosecutor without one, and the three pleas are the answers a defendant may give to whichever document is filed.² A plea counts as a pleading because a criminal case is framed by an accusation and an answer, and the court looks to both when it asks what is in dispute. A plea of not guilty leaves the charge contested and sends it toward trial. A plea of guilty or of nolo contendere, which means no contest, removes the need for a trial on that charge once the court accepts it.

The list is short, and what it omits is worth noticing. A complaint is a sworn statement by an officer or another person that someone committed an offense and the essential facts of it, and it supports an arrest warrant, but it is not among the pleadings Rule 12(a) names.³ In United States v. Lopez, federal agents charged the defendant by complaint, and a federal grand jury then indicted him on one count, so the indictment is the pleading that framed the prosecution that followed.⁴ The two documents differ in who has found probable cause, meaning a reasonable basis for believing the person committed the crime. A complaint rests on the accuser's sworn word, and a judicial officer must independently find probable cause before a warrant issues. An indictment that is fair on its face and returned by a properly constituted grand jury conclusively determines probable cause and requires an arrest warrant without further inquiry.⁵ The indictment therefore does work a complaint cannot do, because it puts a group of citizens' finding in place of the finding a single official would otherwise make.

The ordinary sequence for a serious charge appears in Loving v. Virginia, which is used here only for its procedure. A grand jury in Caroline County issued an indictment at the October Term of 1958, and on January 6, 1959, the Lovings pleaded guilty and were sentenced to one year in jail, a sentence the trial judge suspended.⁶ Accusation by indictment, answer by plea, and judgment on the plea are the pleadings doing their work in sequence. The constitutional attack on the marriage statute came later and falls outside this chapter.

Which of the two charging pleadings the government must use depends on how serious the offense is. The Fifth Amendment does not give every accused person a grand jury. Its clause protects a person held to answer for a capital or otherwise infamous crime, and it excepts cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger.⁸ Federal practice treats a felony as an infamous crime, so a federal prosecutor cannot go forward on a felony charge unless a grand jury indicts or the defendant waives the right to be proceeded against only by indictment.⁹ Placing the line at serious crimes weighs cost against stakes. Grand jury review adds time and machinery to every case it touches, and for a minor offense the harm of an unfounded accusation is too small to justify that delay. For a crime carrying death or long imprisonment, an independent body of citizens deciding that a charge is warranted before the accused must stand trial is a check worth the delay.

Rule 7 of the Federal Rules of Criminal Procedure carries the clause into everyday federal practice, and together the amendment and the rule define the federal defendant's right to a grand jury accusation.¹⁰ The rule gauges seriousness by the punishment an offense carries, a measure that can be read from the statute without a case-by-case judgment about how grave the offense is, and the Felony Threshold discussion below states the exact cutoff. Rule 7 does not extend the right beyond what the Fifth Amendment guarantees.¹¹ The amendment authorizes charging on a presentment or an indictment, and a presentment historically was a charge the grand jury issued on its own initiative, often from the jurors' own knowledge.¹² Rule 7 speaks only of indictment, because federal prosecutors came to claim a veto over whether a grand jury's accusation becomes a prosecution, and the rule recognized that authority. For a federal indictment to be valid, the grand jury must approve it and the government's attorney must sign it.¹³

The state-court counterpart differs because the grand jury clause has not been incorporated, which means the Supreme Court has not applied it to the states through the Fourteenth Amendment's Due Process Clause. In Hurtado v. California the Court held that due process does not require a grand jury indictment before a state prosecutes for murder. It reasoned that the Fifth Amendment lists the grand jury separately from its own due process clause, so due process cannot be read to include the grand jury, and the Fourteenth Amendment's identical phrase carries the same limited meaning.¹⁴ In Maxwell v. Dow the Court had placed the right to be proceeded against only by indictment alongside the right to a twelve-person jury, as matters each state could alter by its own law.¹⁵ The Court later moved nearly every other criminal-procedure guarantee of the Bill of Rights into due process, yet it has kept Hurtado, and the grand jury clause remains one of the few provisions that does not apply to the states.¹⁶ State systems therefore vary. Many states have dropped grand juries in favor of the information, some let the prosecutor choose, and others require indictment only for serious offenses, while the federal system, the District of Columbia, and eighteen states give an accused felon the right to insist on a grand jury charge.¹⁷ A state that does use a grand jury or a preliminary hearing must still conduct it consistently with equal protection, so an indictment returned by a grand jury selected on racial grounds can be challenged.¹⁸

The error to avoid is carrying the federal answer into a state prosecution, because the grand jury clause does not bind the states.¹⁹ Whether a state must charge by indictment depends on that state's own constitution and statutes, while a federal felony is the setting where indictment or waiver is required as a matter of federal law. With both sides in view, the remaining questions are where exactly the felony line falls and how a defendant may give up the indictment, and the next two sections take them in that order.

Felony Threshold

The preceding discussion left open exactly where the line falls between offenses that require a grand jury and offenses that do not. Rule 7(a)(1) draws it with a measure that can be read straight from the statute. An offense, other than criminal contempt, must be prosecuted by an indictment if it is punishable by death or by imprisonment for more than one year.²² Either trigger is enough by itself, and the word punishable points to what the statute authorizes, not to the sentence a particular defendant is expected to receive. Criminal contempt is the one offense carved out by the rule's opening words, so the threshold is not applied to it, and this chapter does not take up how that offense is charged.

The boundary sits exactly at one year, and Rule 7(a)(2) states the other side of it: an offense punishable by imprisonment for one year or less may be prosecuted in accordance with Rule 58(b)(1), the track for misdemeanors, which carries no indictment requirement.²³ The two phrases are mirror images, "more than one year" and "one year or less," so every federal offense lands on exactly one side. A maximum of twelve months puts the offense on the no-indictment side, while a maximum of one year and one day puts it on the indictment side. An older version of Rule 7(a), which the Supreme Court quoted in Branzburg v. Hayes, drew the same line in language that also mentioned hard labor, and it allowed any lesser offense to be prosecuted by indictment or by information.²⁴ The rule therefore sets a floor. A prosecutor may seek an indictment on a minor offense, but only the more serious offenses make one mandatory.

The one-year line is the Rules' translation of a constitutional word. The Fifth Amendment protects a person from being held to answer for a capital or otherwise "infamous" crime without a grand jury, but that word does not announce where the boundary lies.²⁵ Courts supplied the content by looking at the punishment: confinement at hard labor, incarceration in a penitentiary, and imprisonment for more than a year have each been held to be infamous punishments, and Rule 7(a) codified those holdings.²⁶ Defining infamy by punishment also gives the parties something that a definition by conduct could not. If the answer turned on how grave a court judged the crime to be, the parties would have to litigate that question before they knew which charging document the case required. A statute's authorized maximum is fixed and public, so everyone can read the required instrument off the statute on the day of charging. The lower tier exists because grand jury review adds delay and machinery that a minor charge does not justify.

The classification carries real consequences. In the indictment jurisdictions, which include the federal system, a defendant who was entitled to a grand jury charge but was prosecuted on an information, and who objected in time, wins automatic reversal of any conviction, because the error is not treated as harmless.²⁷ A prosecutor who misreads the maximum penalty therefore risks the whole case, which is a strong reason for the threshold to be mechanical.

That last fact is the usual trap on an exam. A stem may tell you that the defendant faced only a short sentence, or that the government never intended to seek prison time, and invite you to conclude that no indictment was required. The authorized maximum, not the sentence expected or imposed, decides the question, because the rule asks what the offense is punishable by.

A timely indictment has a second effect beyond authorizing the prosecution: it generally ends the need for a preliminary hearing. Rule 5(c) requires that hearing within 14 days after the initial appearance for a defendant in custody and within 21 days for one who is not, but no hearing is required if a grand jury indicts before the deadline.²⁸ The reason follows from what the hearing is for. A preliminary hearing protects the interest in not being tried without sufficient cause, and an indictment returned by a proper grand jury already supplies the probable cause finding that the hearing would test, so the indictment supersedes the hearing.²⁹ The hearing was originally required to guarantee prompt review in parts of the country where grand juries met only occasionally. Prosecutors today often avoid it by presenting the case to the grand jury before the deadline arrives, after which the defendant cannot demand a hearing to screen the charges or gain discovery.³⁰

Because the indictment requirement exists for the defendant's benefit, the next question is whether and how a defendant may give it up.

Waiving Indictment

The felony threshold tells the government when it needs a grand jury, and Rule 7(b) answers the follow-up question of whether the accused may do without one. An offense punishable by imprisonment for more than one year may be prosecuted by information if the defendant, in open court and after being advised of the nature of the charge and of the defendant's rights, waives prosecution by indictment.³² An information is a charging document that the prosecutor signs and files directly, with no grand jury finding behind it, and once the waiver is accepted it replaces the indictment as the formal statement of the charges.³³ The rule matters only on the indictment side of the one-year line, because an offense at or below that line never required a grand jury and so leaves nothing to waive. The logic of waiver follows from whom the requirement protects. The grand jury safeguard exists for the accused, who may not be made to answer for a serious crime until citizens have reviewed the accusation, and a person may ordinarily surrender a protection that exists for that person's own benefit.³⁴

Because waiver gives up a constitutional safeguard, Rule 7(b) attaches two formalities to it. The first is that the waiver take place in open court, which puts the choice before a judge and on the record instead of leaving it to papers passed between lawyers. The second is that the defendant be advised beforehand of the nature of the charge and of the defendant's rights, so that the person knows both what is being surrendered and what the prosecution will allege once it proceeds on the information.³⁵ Together the two requirements turn the waiver into a knowing choice that a reviewing court can later verify from the record. Courts have been flexible about where the waiver form is signed, and one executed outside the courtroom has been upheld when it was actually filed in open court.³⁶ Even then the court must have informed the defendant of the charge and of the right before accepting it, because the rule conditions the waiver on that advice.

The same defendant fails to waive validly if one fact changes.

The defendant's wishes were identical in both scenarios, and the difference lies entirely in the formalities. Preference alone does not substitute for a waiver made in open court after advice, because the rule treats the court's involvement as the means of ensuring that the surrender is voluntary and informed.³⁷

A defendant may have several reasons to give up a protection that adds another hurdle for the prosecution, even a low one. Waiver is often a term of a plea agreement, since a defendant who intends to plead guilty gains little from grand jury review and may trade the formality for something else in the bargain. A defendant who expects the grand jury to find probable cause anyway may also prefer to avoid the publicity and the ominous sound of being indicted.³⁸ A third reason is strategic: if the prosecutor presents the case to a grand jury, its investigation might uncover more evidence and support a more serious charge than the one now contemplated, and the defendant may waive to keep the case confined to the present charge.³⁹ Waiver also matters only where indictment is mandatory. In states that let the prosecutor choose between an indictment and an information, most felonies are charged by information and no waiver is needed.⁴⁰

That third reason shows the asymmetry in the rule. Only the defendant can waive indictment, but the prosecutor is not bound to accept the waiver and may still take the case to a grand jury.⁴¹ The reason lies in the grand jury's second function. Besides screening charges the prosecutor has already developed, a grand jury investigates, summoning witnesses and compelling documents to learn whether and whom to charge.⁴² The defendant holds the right to be proceeded against only by indictment, and that right is all the defendant can give up. If a waiver also bound the government, a defendant who suspected that more evidence existed could shut off the investigation simply by waiving, and the safeguard meant to protect the accused would become a tool for limiting what the prosecutor may look into. The prosecutor therefore keeps the choice of investigative tool, and a waiver that the prosecutor declines to accept leaves the case on the grand jury track.

The usual error on an exam has two forms. One is to treat a defendant's wish to avoid indictment as self-executing, when the rule demands a waiver made in open court after advice about the charge and the rights. The other is to assume that an accepted-looking waiver forces the government to proceed by information, when the prosecutor may decline it and indict anyway. A stem that mentions only a signed form, or only the defendant's stated preference, should send you to the open-court and advice requirements before you conclude that the information is valid.