Define: Indictment

An indictment is a written, formal accusation charging a person with a crime. It is presented by a Grand Jury which is a group of 15-23 citizens who reviews evidence of the crime and determines whether there is enough evidence for a trial. The indictment originates with a prosecutor. If the grand jury decides to indict they will return a “true bill.” If they do not indict they return a “no-bill.” The prosecutor can then decide whether to file charges against the suspect or not.

An indictment can either be sealed or direct. A direct indictment will send a case directly to trial. A sealed indictment ensured the indictment will not be publicized until the defendant is named and has been arrested or notified by the police. After the indictment is issued an arrest warrant allows the police to find and detain the named defendant. The defendant is then arrested or surrenders to the police and posts bail (though the severity of the charges may not allow for bail).

After the indictment and arrest, the first court date is set. This date is called the arraignment. At the arraignment, the defendant will be charged with a crime and can enter their plea. If they plead not guilty the court will set a trial date.

In English law, an indictment is a formal document that sets out the particulars necessary to initiate a criminal jury trial. An indictable criminal offence is one that merits a jury trial.

In the common law legal system, an indictment is a formal accusation of having committed a criminal offence. In those jurisdictions that retain the concept of a felony, the serious criminal offence would be a felony; those jurisdictions that have abolished the concept of a felony often substitute instead the concept of an indictable offence, i.e., an offence that requires an indictment.

Traditionally, an indictment was handed up by a grand jury, which returned a “true bill” if it found cause to make the charge or a “no bill” if it did not find cause. Most common-law jurisdictions (except for much of the United States) have abolished grand juries.

Australia

In Australia, an indictment is issued by a government official (the Attorney-General, the Director of Public Prosecutions, or one of their subordinates). A magistrate then holds a committal hearing, which decides whether the evidence is serious enough to commit the person to trial.

Brazil

In Brazil, an indictment is called denúncia and is issued by the public prosecutor, a member of the Public Ministry. In cases of less serious offences, the indictment may be filed by a private party and is called a queixa.

England And Wales

In England and Wales (except in private prosecutions by individuals), an indictment is issued by the public prosecutor (in most cases, this will be the Crown Prosecution Service) on behalf of the Crown, i.e., the monarch, presently Queen Elizabeth II, who is nominally the plaintiff in all public prosecutions under English law. This is why a public prosecution of a man called Mr. Smith would be referred to as “R v. Smith” (short for “Regina against Smith,”  Regina being Latin for Queen).

United States

In many (though not all) U.S. jurisdictions retaining the grand jury, prosecutors often have a choice between seeking an indictment from a grand jury or filing a charging document directly with the court. Such a document is usually called information, an accusation, or a complaint  to distinguish it from a grand jury indictment. To protect the suspect’s due process rights in felony cases (where the suspect’s interest in liberty is at stake), there is usually a preliminary hearing where a judge determines if there is probable cause that the charged crime was committed by the suspect in custody. If the judge finds such probable cause, he or she will bind or hold over the suspect for trial.

The substance of an indictment or other charging instrument is usually the same, regardless of the jurisdiction: it consists of a short and plain statement of the time, place, and manner in which the defendant is alleged to have committed the offence. Each offence is usually set out in a separate count. Some indictments for complex crimes, particularly those involving conspiracy or numerous counts, can run to hundreds of pages, but many indictments, even for crimes as serious as murder, consist of a single sheet of paper.

Indictable offences are normally tried by jury, unless the accused waives the right to a jury trial. In common law systems, the accused is not normally entitled to a jury trial if the offence charged does not require an indictment; the main exception here is again the U.S., where the Sixth Amendment mandates the right of having a jury trial for any criminal offence punishable by imprisonment for more than six months. Notwithstanding the existence of the right to jury trial, the vast majority of criminal cases in the U.S. are resolved by the plea bargaining process.

Sealed Indictment

An indictment can be sealed so that it stays non-public until it is unsealed. This can be done for a number of reasons. It may be unsealed, for example, once the named person is arrested or has been notified by police.

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 10th April, 2024.