Breakdown of the Federal Indictment Process

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A federal indictment is an official document in which an individual is formally charged with a crime. A case has been presented to a Grand Jury, which has determined that a trial should take place. If they do, then formal accusations are brought forward. It how the prosecution starts their proceedings, in other words. That said, sometimes, a case can also start through a criminal complaint or criminal information.

The Elements of the Federal Indictment

A federal indictment is an official document. The exact layout of the document varies and depends on the jurisdiction. However, there are a number of things that are always found on the indictment, such as the:

  • District court that is overseeing the state
  • Case’s caption, which shows which parties are involved in the case, and what the “counts” (charges) are.
  • Case number, which usually shows when it was filed and where
  • Narrative, generally presented in paragraphs with numbers, which provides a description of the crimes that the defendant is charged with. Background information may also be provided.

How a Federal Indictment Is Obtained

Federal indictments can only be returned by a state’s grand jury, which is made up of between 16 and 23 ordinary members of the community. The grand jury listens to testimony and evidence and can ask questions and review evidence. They then determine whether there is probably cause to indict a defendant or not.

In order for the grand jury to be quorum, 16 members must be present. An indictment must receive 12 votes in favor before a “true bill” can be created. A federal indictment is always stamped with “a true bill”. A lot of people are against the concept of grand juries because the standard of probable cause is incredibly low, and the proceedings are done in secret. Hence, it is very easy for the prosecution to get the indictment they want.

An indictment is set in stone. This means that no changes can be made after the Grand Jury has passed it. This is protected under the Fifth Amendment. That said, during criminal proceedings, charges are often changed or added. This is done through a so-called “superseding” indictment, which has to come through a Grand Jury as well. This indictment will replace the original one.

Information Contained on the Indictment

According to the Sixth Amendment, it is the individuals’ right to know what they are accused of. Hence, the indictment must include both the nature and the cause of the crime. Additionally, indictments must follow the Federal Rules of Criminal Procedure, which highlights the facts surrounding the offense. Specifically, these facts must indicate why the crime is a federal offense. Lastly, the indictment must plead any factors that could increase a statutory minimum sentence, which was decided by the Supreme Court following Apprendi v. New Jersey, 530 U.S. 466 (2000).

Using Federal Indictments in a Court of Law

Legally, an indictment is not classed as a form of evidence. This means that the text and information contained within it cannot be used by the jury to determine whether or not someone is guilty. This is because the indictment only indicates probable cause and does not go beyond reasonable doubt. That said, it is possible for a judge to allow the indictment to be read by the jury during their deliberations. Because of the rules on how an indictment must be written, which is in a plain, easy to understand language, judges argue that it can help the members of the jury to better understand what is happening. However, the judge will instruct the jury not to use the indictment in order to reach a decision. Whether or not it is a good thing to allow the jury to read an indictment depends on a case to case basis. This is why defense attorneys always evaluate this question and will then take action to ensure the indictment is read or that it is suppressed.

Challenging Federal Indictment

Technically, it is possible to challenge an indictment. The best way to do this, however, is to prove that the allegations are false at trial. In some cases, it is possible to challenge the indictment before that. That being said, it is hard to do this and the focus must be on hard facts on the circumstances surrounding each individual case. Some things that can be used to challenge an indictment include:

  • – Showing that the defendants were not provided with sufficient detail in the indictment to understand the nature and basis of the charges brought against them
  • – Showing that the indictment does not show any violation of law
  • – Showing that the indictment does not plead each of the legal elements of a crime
  • – Showing that the alleged crime took place outside the statute of limitations
  • – Showing that the criminal case was brought to an improper venue
  • – Showing that the prosecutor did not properly advise the jury on the laws that pertain to the case, which is classed as prosecutorial misconduct.

It is very rare for defense lawyers to be successful in challenging an indictment. That said, they can regularly have other reasons to assert a challenge as well. For instance, they may order the prosecution to supply more evidence, or to do so sooner than they had anticipated. Doing so can cause significant problems with determining probable cause and may see a case dismissed.

Receiving a federal indictment is incredibly serious, because it means that a prosecutor believes they have sufficient evidence to secure a conviction. It also means that a Grand Jury agrees that there is probable cause. While an indictment is an accusation and not proof of guilty, it can have significant other consequences, including frozen assets, harm to reputation, and loss of employment. Naturally, the psychological impact of facing a federal crime is also hard to deal with.

Good defense lawyers will do all they can to avoid an indictment in the first place. Unfortunately, due to the prosecution only having to demonstrate probable cause, it is quite rare for the defense to be successful at this. As a result, it is common for them to focus more on building a defense at trial instead.


  • Rule 7. The Indictment and the Information. (n.d.). Retrieved from
  • Guide to Criminal Prosecutions in the United States. (n.d.). Retrieved from
  • U.S. Constitution, Fifth Amendment. (n.d.). Retrieved from
  • U.S. Constitution, Sixth Amendment. (n.d.). Retrieved from
  • Federal Rules of Criminal Procedures. (n.d.). Retrieved from
  • Apprendi v. New Jersey, 530 U.S. 466 (2000) (1999, October Term). Retrieved from
Geoffrey Nathan, Esq.

About Geoffrey Nathan, Esq.

Geoffrey G Nathan is a top federal crimes lawyer and Chief Editor of He is a licensed attorney in the Commonwealth of Massachusetts since 1988, admitted to practice in both Federal and State courts. His cases have been featured in The New York Times, Boston Herald, Wall Street Journal, Foxnews and CourtTV. Massachusetts Board of Bar Overseers Number #552110. If you have questions about your federal case he can help, call today at 877.472.5775.