Q: Two related issues: first, some people are indicted and there is a grand jury. Some have criminal charges directly against them, so none of this goes before a grand jury. What is the difference?
A: You are correct that an indictment is the result of a grand jury proceeding. This is a written accusation that a person has committed a crime, which is then filed in court. An accusation, on the other hand, arises when the prosecutor’s office directly files a criminal case, charging the person with a criminal offense.
The indictment sets out the basic information that describes the charges against the person. Where an action is filed by the prosecutor instead, there will be a “Criminal Complaint” or “Information” which constitutes the charging document and notifies the individual of the criminal offense or offenses he or she she is presumed to have committed.
The main difference between the two: the first is a set of charges brought by a grand jury to which the prosecutor first presents testimony and evidence outside the public arena. The other, criminal charges, are brought directly by the prosecutor.
Q: My second question: Why is a grand jury being convened when the prosecutor can simply file a criminal complaint?
A: There can be a number of reasons a prosecutor chooses to pursue a grand jury indictment, instead of filing the criminal charges directly. These include: (1) The case may have weaknesses, and the prosecutor wants the opportunity to “test” the case before a grand jury; and/or (2) the matter may involve allegations of misconduct by a public office holder; and/or (3) the witnesses themselves are incarcerated in a state prison; and/or (4) the offense involves a serious crime; and/or (5) there is a strong public interest in the matter. Research indicates that the grand jury is used more often for federal felony charges than for state criminal charges.
Ultimately, the grand jury provides a forum where the prosecutor can subpoena people to testify under oath and provide records. This, in itself, can be a compelling reason to proceed to the grand jury rather than just press charges.
Ron Sokol has been a practicing lawyer for over 35 years and has also served as a pro tem judge, mediator and arbitrator on several occasions. It is important to keep in mind that this column presents a summary of the law and should not be treated or taken as legal advice, much less a substitute for genuine consultation with a qualified professional.