When the news breaks that someone has been “indicted for a crime,” a lot of people automatically assume that the defendant is definitely going to jail – but that’s far from the truth. Most people don’t really understand what an indictment means.
In New York, a felony-level criminal charge cannot proceed to trial unless there’s been an indictment, or a set of formal charges handed down by what is known as a grand jury. Is an indictment, then, the first step on the road to conviction? It can be. But there are a lot of steps in between.
Indictments and ham sandwiches
There’s a famous saying among attorneys about how a prosecutor could get a grand jury to “indict a ham sandwich.” It resonates because it’s largely true – because the grand jury process is largely one-sided.
The grand jury’s only role is to see if they agree with the prosecutor that there’s enough “probable cause” to go forward with a trial – and they don’t even have to agree unanimously. Since the defendant can’t testify in a grand jury without running the risk that everything they say could later be used against them, most do not. Witnesses who testify are all chosen at the prosecutor’s discretion.
After what basically amounts to a curated presentation of the evidence by the prosecution, is it any wonder that the grand jury usually agrees with the charges?
If you’re facing a potential indictment for a white-collar crime or another serious offense, make sure that you understand that an indictment is just part of the process for formally charging you with a crime – not the same as a conviction. And the ease with which the prosecution makes their case to the grand jury may not be replicated at trial.