By John Lovell

The Fifth Amendment of the United States Constitution requires that a felony may only be prosecuted after an indictment is returned by a grand jury. An indictment is a formal document charging a crime. When I prosecuted in the Northern District of Georgia, a busy district, four grand juries were working at any given time. One for each week of the month. The only week where there would not be a grand jury sitting was a week that included a fifth Tuesday of the month. So, AUSAs had ample access to a grand jury. But, while the frequency of a grand jury changes from district to district and county to county, the right to be indicted (and the process by which indictment happens) remains the same across the board. Everyone accused of a felony must first be indicted by a grand jury.

The “Ham Sandwich”

It has been argued that the right to be indicted by a grand jury is not a meaningful right (the famous quote is that “A grand jury can indict a ham sandwich”). The likelihood of not being indicted when a prosecutor wants an indictment is extraordinarily low for several reasons. The most critical is that the potential defendant is typically not invited to participate which means that the defendant usually does not testify and may not challenge witnesses called by the prosecutor. The process is almost entirely one-sided. Also, the prosecutor must only establish “probable cause” that a crime was committed, a very low standard where the accused is a non-participant.

The Rare Case of the “No Bill”

In over a quarter of a century of practicing before grand juries and representing clients indicted by grand juries, I have rarely seen a grand jury refuse to indict (a “No Bill”). One such occasion was where the prosecutor faced a politically-charged case and presented the case in a manner that exposed the weaknesses of the case. It is wise for a prosecutor to present a case, warts and all, as most would prefer a case “No-Billed” by a grand jury than a “Not Guilty” verdict by a trial jury! Also, grand jurors ask many of the same questions trial jurors ask which may expose weaknesses in the case and cause a prosecutor to reconsider prosecuting the case. Of course, questions may also show the prosecutor what evidence to bolster prior to going to trial.

Indictment vs Information

In closing, like so many rights, the right to be indicted may be waived and a person may proceed, almost always to plead guilty, on an information. An information is used when a person is aware of charges and an agreement is reached to enter a voluntary plea after plea negotiations have been conducted by an attorney. In order to use an information, a judge must ensure that the defendant has been advised of the right to be indicted and waives that right.

If you have been arrested for suspicion of a felony in Georgia, or if you have been indicted by a Georgia grand jury for a felony charge, then you are facing a very serious situation. Call Scott Smith and his team of attorneys to talk (free of charge) about all your options on the case. 404-581-0999