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The Right to be Indicted

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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

Overcharged

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The Prosecution Overcharged My Case!

            I have seen the prosecution overcharge cases on multiple occasions.  The prosecutor’s office will, at times, define your alleged conduct as something much worse than it is.  A misdemeanor will be elevated to a felony, for example, or a felony will be charged as one carrying much more punishment than it should.  That doesn’t sound like truth and justice, does it?

There can be several reasons for a case to be overcharged.  Until defense lawyers get involved, the prosecutors (who are human beings) hear only one side of the story.  The police or the complaining witnesses unload with their side and the prosecutor doesn’t hear a word to the contrary.  And, unfortunately, defense lawyers may not be involved until the case has already been accused or indicted.  (There are exceptions…especially when the lawyer is hired early in the process and there is some form of evidence to support an opposing position).  So, acting only on the word or evidence given by the complainant, the prosecutor files the accusation or indicts the case.  It is extremely important for the lawyer to be thorough when talking to the client and finding out, in detail, what the facts of the case are.

Another reason that cases might be overcharged is that the prosecution is already thinking ahead to plea bargaining.  One prosecutor explicitly told me that he added the biggest charge in the indictment in hopes that he would work a plea to the lesser charges without too much hassle.

Sad?  I think so.  I am convinced that the anxiety people experience leading up to the disposition of the case is twice as bad as whatever punishment may be inflicted.  So many of my clients have suffered long, sleepless nights, loss of their jobs, broken relationships, substance abuse, and many other side effects of being charged with a crime (please note that I did not say convicted of a crime).  That is yet another reason to go early in the process to talk with a lawyer who believes in the presumption of innocence and who treats each client like a unique, special human being.  We take on the burden of your case for you.  We provide you with honest feedback that can give you peace about the situation and, hopefully, enable you to think about everything else going on in your life.  I like to think that my clients are able to dump the burden of the pending case on me and put their time and energy towards their kids, their jobs, their significant other, their hobbies, and everything else going on in their lives.

In my next blog, I will discuss some ways to combat overcharging by the State.

Always feel free to call us with any questions about your case.  You will get to speak with an attorney free of charge.  (404) 581-0999.