11. Charging Instruments, Indictment, Grand Juries

No one wants to face a criminal charge. Yet the decisions we make can bring consequences we carry for years. In my case, those decisions led to a federal prosecution and 26 years in prison. I could not change the past, but I should have begun learning earlier so I could have made better decisions.

Anyone facing the criminal justice system may work toward better outcomes if they start by taking the time to develop a basic understanding of how the process works.

That understanding can help a person participate more effectively in conversations with counsel. Before making decisions that could influence the rest of your life, you should understand what the government alleges, how the case may proceed, and what options you have. Those conversations can help you develop a comprehensive mitigation strategy.

In the federal system, three principal documents serve as charging instruments:

1. A criminal complaint.
2. A criminal information.
3. A criminal indictment.

These documents identify the crimes the government alleges a person committed. A charging instrument may contain one count or several counts. Each count presents a separate accusation, which may involve a different criminal statute or another alleged violation of the same statute. For example, separate transactions in an alleged fraud scheme may support separate counts. A charge is an accusation of wrongdoing, or a criminal act.

The government does not have to prove guilt beyond a reasonable doubt to bring charges. That standard applies to a conviction at trial. Probable cause requires a reasonable basis to believe that a crime occurred and that the accused person committed it.

The charging instrument prosecutors use depends on the alleged offense, the circumstances of the investigation, and the defendant’s rights.

Criminal Complaint

A criminal complaint states the essential facts of an alleged offense under oath. It often comes with an affidavit from a federal agent describing the evidence and the person’s alleged involvement. A judge reviews the complaint and supporting material to determine whether probable cause supports an arrest warrant or summons.

Prosecutors may begin with a complaint when they need to act quickly, before presenting the case to a grand jury. For example, authorities may believe they need to make an immediate arrest to prevent someone from fleeing or continuing alleged criminal activity. A complaint provides a way to seek that arrest without first obtaining an indictment.

In a federal felony case, a complaint ordinarily serves as an initial step. To proceed to trial, prosecutors generally must obtain an indictment or proceed by information after the defendant properly waives indictment. Receiving a complaint therefore does not mean that the government has completed the charging process.

Criminal Information

A criminal information contains formal charges filed by a prosecutor without a grand jury’s approval. Prosecutors may use an information for a federal misdemeanor. The defendant must waive the right to indictment in open court after receiving an explanation of the charge and that right.

An information often appears when the prosecution and defense have negotiated a plea agreement. If the defendant agrees to waive indictment, the parties can move toward a plea without presenting those charges to a grand jury. This approach can help resolve a case more efficiently, including when an agreement calls for a different charge from the one originally filed.

The word “information” does not mean the charge is minor or that the sentence will be light.

Criminal Indictment

A criminal indictment contains charges approved by a grand jury, a group of 16 to 23 citizens who review evidence presented by federal prosecutors. The grand jury decides whether probable cause supports the proposed charges. At least 12 members must agree to return an indictment. The grand jury does not decide whether the defendant is guilty.

For most federal felonies, prosecutors pursue an indictment by grand jury unless the defendant waives that right. Prosecutors may present a case directly to a grand jury or seek an indictment after beginning the case with a complaint. A complaint does not have to come first.

These documents do not form a three-step sequence that every case follows. A case might begin with a complaint and later proceed under an indictment. Another might begin with an indictment, while a negotiated case might proceed by information. Knowing which document you received can help you understand your current stage and prepare questions for your attorney.

Connect Understanding to a Mitigation Strategy

I encourage people to learn about these procedures because each decision can affect the options available later. A comprehensive mitigation strategy requires understanding the allegations, evaluating the evidence with counsel, and considering how decisions today may influence a plea negotiation, sentencing, and life after the case.

For some people, that strategy may include discussing an early resolution with counsel and agreeing to proceed by information. Waiving indictment can eliminate the need for a grand jury to approve those charges. An early plea agreement may also save the government time and resources. Department of Justice policy recognizes the timing of a plea and the resources saved through an early resolution as factors prosecutors may consider. Those considerations may help counsel negotiate more favorable terms in an appropriate case, but the waiver itself does not guarantee a concession or a lighter sentence.

If you face charges, begin with the document itself.

• Which charging instrument did you receive?
• What conduct does each count allege?
• What decisions come next, and what do you need to understand before making them?

The more you understand about the journey ahead, the more effectively you can engineer your comprehensive mitigation strategy.