Question: Prior indictments and guilty pleas obtained by special prosecutor Robert Mueller’s team, to date, have focused on President Donald Trump’s campaign personnel, including ex-campaign chief Paul J. Manafort, his aide Richard Gates and former national security adviser Michael Flynn. What are federal criminal indictments?

Answer: What does it mean to be indicted? “Indicted” is a scary word. Whenever anyone flips on the news and hears that someone has been indicted by a grand jury, it sounds like serious business.

Issued by a grand jury, an indictment is a formal written charge of a crime, informing the accused individual of the charge against him.


History of the grand jury indictment

The grand jury indictment process was first instituted in 12th-century England when King Henry II instituted changes requiring witnesses to appear before a court to accuse a person of a crime before he could be tried for the crime.

The Fifth Amendment to the U.S. Constitution seems to guarantee a grand jury indictment for anyone accused of a felony: “No person shall be held to answer for a capital, or otherwise infamous, crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger ...”

Despite appearances, the Constitution does not actually require that states use grand jury indictments in felony cases. The guarantee of an indictment in a felony prosecution is one of the few rights that has not been extended to the states. Not all states use grand juries.

In the federal system, the government has to use an indictment in a felony prosecution unless the defendant waives his right to an indictment. That could happen if the defendant has already agreed to a plea deal with the prosecution.


The indictment process

A grand jury composed of 16 to 23 members investigates an accusation brought to them by the prosecutor. The investigation involves reviewing evidence and hearing witness testimony. All of the grand jury’s proceedings take place in a closed room with no judge and are kept secret to encourage open and honest testimony without fear of reprisal. The grand jury may subpoena witnesses and records during the course of its investigation.

After all evidence has been examined and witnesses heard, the jury meets in private to decide whether there is “probable cause” to issue an indictment.

Unlike the unanimous jury vote required to convict a defendant of a crime, a grand jury indictment process requires only a super majority vote of two-thirds or three-fourths.


Indictment not a given

Given the indictment process described above, grand juries vote to indict far more often than not. In fact, some in the legal profession joke that a decent prosecutor could convince a grand jury “to indict a ham sandwich.”

On the other hand, a prosecutor will occasionally go to a grand jury unconvinced that criminal charges are appropriate. And, very rarely, the government will decide not to prosecute after a grand jury has voted to indict — e.g., the case against Jon Benet Ramsey’s parents. To date, no one has been indicted for that young child’s murder.



Grand juries in Pennsylvania

In Pennsylvania, an investigating grand jury is an investigative and prosecutorial tool that can be utilized by a county district attorney or the state attorney general. Upon application, an investigative grand jury can be impaneled to hear and observe testimony and evidence to determine whether there is some evidence to support the filing of criminal charges. If the investigative grand jury believes the evidence presented by the prosecution warrants the filing of criminal charges, an investigative grand jury presentment will be issued.



A Pennsylvania statute authorizes the attorney general to investigate organized crime, public corruption or both under circumstances in which more than one county is involved in the investigation. Jurisdiction also includes cases in which a county district attorney, due to a conflict of interest, asks the state attorney general’s office to take over the investigation.

Many cases involve multi-jurisdictional issues, such as drug-trafficking cases in which illegal substances are brought in from out of state and distributed over county lines.



A presentment is a document that outlines the factual basis upon which specific charges are recommended to be filed against specific individuals. If the grand jury chooses to issue a presentment, the attorney general’s office and state police will prepare criminal complaints and begin the process of making arrests if they believe charges are warranted.

Reportedly, a state grand jury is investigating corruption in Beaver County and local governments.


Keeping secret the grand jury indictment

 The courts take the issue of grand jury secrecy seriously, taking steps to protect the privacy of jury proceedings and leveling charges of contempt at individuals leaking or publishing information. Grand jury meeting places often feature high security, jurors are sometimes sequestered, and the press is barred from obtaining information on popular cases. For example, when accusations of child molestation were leveled against Michael Jackson, the grand jurors were moved from their usual hearing room in the main courthouse to a location kept secret, leaving members of the press high and dry.


At the end of the day

The term “indictment” refers to a procedure in the legal process, a procedure that does not, in fact, indicate a person's guilt or innocence. Rather, the factual findings made by a grand jury are accusations.


To ask a legal question, email or send mail to Ask Attorney Bernie, c/o Beaver County Times, 400 Fair Ave., Beaver, PA 15009.