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What Does it Mean? Pre vs Post Grand Jury Indictment

June 26, 2020 Federal Criminal Attorneys

The status of a federal criminal case can vary dramatically depending on the stage the case is in. For example, the rights of a defendant can be directly impacted depending on if they have been indicted by a grand jury or if the grand jury has not yet taken place. Before you can appreciate these differences, you first must understand what a federal indictment is.

A Grand Jury Indictment

If you watch the news, you have likely heard of a person being indicted by a grand jury. This is the process that federal prosecutors use to bring formal criminal charges against an individual. While an indictment might give you the impression that a person is guilty, it is only the first stage in the criminal process. Instead, an indictment is a grand jury’s decision that there is enough evidence to proceed with a criminal case.

A grand jury is a large group of citizens. Much like a jury at a criminal trial, these people are selected to serve as a part of the justice system. Grand juries differ from other juries, however. These juries are larger, and often stay formed for months at a time. A grand jury is not tasked with determining the guilt or innocence of the defendant. Instead, it is their job to review the evidence in the light most favorable to government to determine if charges are warranted. If, after hearing the prosecution’s evidence, the grand jury feels there is no grounds for a criminal conviction, the case will be dismissed. The grand jury is an important counterweight to overzealous prosecutors.

The grand jury hears evidence much like at a normal trial. However, only the prosecutor has the ability to put on this evidence. In fact, the defendant might not even be aware that the grand jury is considering a case against them at the time. This means the defendant is not entitled to an attorney to speak on their behalf or put on evidence.

If the grand jury determines there is probable cause to proceed with a case, their decision is known as an indictment. After an indictment is issued, the judge will typically execute an arrest warrant to bring the accused before the court to answer the charges. In some cases where the defendant is aware of the grand jury, the prosecution might arrange a time for that person to turn themselves in to federal authority.

Pre-Indictment Stage

While the accused in a federal case has some rights during the pre-indictment phase, those rights are limited. The prosecution does not have to tell the defendant that the grand jury is taking place, but they could also request the defendant appear and testify.

A defendant does not have the right to attend the grand jury, as they are held in secret. In fact, witnesses are not permitted to discuss their testimony or any aspect of the grand jury outside the hearing. Even informing the defendant a grand jury is taking place is illegal.

Anyone, from a witness to the defendant, may not have an attorney in the courtroom while testifying. The witness might be granted the opportunity to meet with the attorney outside the courtroom during breaks, however.

Post-Indictment Stage

Once the grand jury hands down an indictment, the defendant has been formally charged with a crime. They can be arrested once a warrant is issued, and are often held in custody pending trial. Additional rights kick in at this time, too. A defendant has the right to a copy of their warrant, and they are provided with notice of the charges they now face. Because they have been indicted, defendants have the right to legal counsel at every point in the case moving forward.

The secrecy of the grand jury does not extend to the post-indictment stage. Before trial, the defendant is entitled to see the evidence the government intends to use against them. If the prosecutor can establish beyond a reasonable doubt that the defendant is guilty, they will face substantial legal consequences.



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