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Understanding the Basics of Grand Jury Indictments

A grand jury indictment is the formal charging instrument used by the U.S. Department of Justice to bring federal criminal charges against a defendant. Before federal prosecutors can bring an indictment, they must present their case to a grand jury. 

If the grand jury finds that there is probable cause to believe that the defendant committed the crimes in question, it will issue a “true bill.” This allows federal prosecutors to indict a defendant. 

Thus, if you have been federally indicted, it means that the prosecution has already conducted its investigation and presented its case to a grand jury. Practically speaking, this puts you well behind the prosecution in terms of preparation. 

What Is a Grand Jury?

When most people think of a jury, they envision a group of people hearing a case and deciding the ultimate outcome. In a criminal case, this means determining if the defendant was guilty or not guilty. However, this type of jury is called a “petit” or “trial jury”; a grand jury is very different. 

A grand jury is a group of citizens convened by the federal government to determine if probable cause exists to believe that a person committed a federal crime. During a grand jury proceeding, the U.S. Attorney presents its case to the grand jury; there is no judge present, and the target of the investigation is not present. In fact, grand jury proceedings are secret, meaning that the target of the federal investigation often has no idea they are under investigation. Thus, the prosecutor is the only party who controls what the grand jury hears. 

Federal prosecutors present evidence and live testimony in a grand jury proceeding by issuing grand jury subpoenas. A grand jury subpoena is not issued by the grand jury but by the federal prosecutor assigned to the case. 

A party in receipt of a grand jury subpoena is legally compelled to either produce the documents outlined in the subpoena, appear in person, or both. If they fail to do so, they can be held in contempt of court. Further, anyone called to testify at a grand jury proceeding is not allowed to have an attorney present, although they can (and should) consult with an attorney beforehand. 

Under the United States Constitution, all federal felony charges must proceed with a grand jury indictment. However, there is no grand jury requirement for misdemeanor offenses.

Available Options Following a Grand Jury Indictment

From the moment you learn of a grand jury indictment, every step you take can have a major impact on how the case ends. It is important to think through every action. Typically, following an indictment, you have three options. 

Seeking Dismissal of the Indictment

The dismissal of an indictment is the preferred method for anyone facing federal criminal charges, as it means the end of the case. However, the dismissal of a grand jury indictment is quite rare. Technically speaking, there are many ways to get an indictment dismissed, including:

In reality, federal prosecutors are aware of these possible pitfalls and take care to avoid them. While dismissals of a grand jury indictment are rare, they are not unheard of. Perhaps the best chance of securing a dismissal of an indictment involves seeking the suppression of evidence through a pretrial motion to suppress. 

When federal law enforcement agents investigate a crime, they must do so within the bounds of the law. This requires them to respect the constitutional rights of those they are investigating. For example, typically, law enforcement cannot conduct a search of a person or their home or business without a warrant. If they do, any evidence seized as a result of that search is not admissible at trial. 

However, there are many exceptions to the warrant requirement, allowing warrantless searches. For example, vehicle searches are held to a lower standard than searches of a home. 

Additionally, if there is probable cause to believe evidence may be located in a certain place, law enforcement can conduct a search if there are exigent circumstances suggesting that, if they waited to apply for a warrant, the evidence might be destroyed or another crime may be committed.  

Search and seizure law is exceptionally complex, and those who believe they have a viable motion to suppress evidence should consult with an experienced federal criminal defense attorney to discuss their case. 

Entering a Guilty Plea

The vast majority of federal criminal cases end in a guilty plea. Guilty pleas can either be “open” or “negotiated.” In an open guilty plea, you plead guilty to some or all of the offenses without any agreement from the prosecution. The judge will then schedule a sentencing hearing, at which your attorney and the federal prosecutor assigned to the case will suggest an appropriate sentence. The judge is not bound by either parties’ recommendations. However, a judge’s discretion is limited by the federal sentencing guidelines. 

In a negotiated guilty plea, you plead guilty to certain offenses with an agreement from the prosecution to recommend an agreed-upon sentence. While a federal judge does not have to accept a plea, it is common practice for the judge not to interfere with the parties’ negotiations. 

Of course, seeking a negotiated plea gives all the negotiating power to the prosecution. In essence, it screams, “I’m guilty; let’s work this out.” This isn’t necessarily the “wrong” approach in every situation, but doing so can have lasting repercussions on how federal prosecutors handle the case. 

Taking the Case to Trial

The final option is to scrap negotiations and fight the case at trial, letting a jury decide whether the government can prove every element of the offense against you beyond a reasonable doubt. While this may seem like the riskiest approach, it also conveys a sense of confidence. 

Thus, an experienced federal criminal defense attorney may recommend an approach that involves planning to take the case to trial to gauge the prosecution’s response. In many cases, a defendant’s confidence in their case will cause the prosecution to reconsider its case. This may result in a more favorable offer being conveyed. 

Even if a negotiated plea is not an option, taking a case to trial does not mean that you will be found guilty. You are presumed innocent and cannot be convicted unless and until every member of the jury finds that you were guilty beyond a reasonable doubt. 

As federal criminal defense attorney Dr. Nick Oberheiden explains,

Federal criminal cases resemble a game of chess in that they are very strategic. A single reckless move early on in the proceedings can essentially dictate how the case moves through the process and may even foreclose options that would otherwise be available. To be sure, it’s tempting for those facing federal charges to reach out to prosecutors to get a sense of the case or ask them about working out a deal; however, doing so changes the power dynamic. When someone contacts a prosecutor asking for a deal, the prosecutor’s already strong belief that they are guilty is strengthened. This eliminates any incentive a prosecutor has to offer that person a favorable deal. Thus, absent exceptional circumstances, anyone facing federal criminal charges should not engage in negotiations with federal prosecutors without first contacting an attorney to discuss their case.

Prosecutors working for the federal government have risen to the top of their field for a reason and generally know what they are doing.  Anyone facing federal criminal charges should be sure to think carefully about how they handle the situation, as a guilty verdict can result in life-changing consequences.

Oberheiden P.C. © 2023 National Law Review, Volume XI, Number 273

About this Author

Nick Oberheiden Criminal Defense Attorney Oberheiden PC
Federal Criminal Defense Attorney

Dr. Nick Oberheiden focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation. He has defended clients in PPP Loan Fraud cases and COVID-19 investigations. Nick also directs internal corporate investigations and he leads defense teams in whistleblower actions, corporate defense cases, as well as cases involving national security and elected officials.

Clients from more than 45 U.S. states have hired Nick to seek effective protection against government...