how does a us attorney decide to file an indictment

If the Grand Jury determines that there is reasonable cause to believe a crime was committed and the person charged committed it, they vote an indictment. The US Attorney’s Office prepares the document and presents it to the court. Federal Law Enforcement: From the FBI to the US Attorney & Their Respective Roles The Federal Districts

Full Answer

When do you have to file a federal indictment?

Once an arrest is made on a criminal complaint, federal law requires that the defendant must be charged by an indictment (or by a criminal information, if it’s a misdemeanor case or the defendant agrees to waive indictment) within 30 days. How can a federal indictment be used in court? An indictment legally is not evidence.

Why do prosecutors prefer to use criminal information instead of indictment?

In federal misdemeanor cases, there is no Fifth Amendment right to indictment by grand jury, and prosecutors therefore prefer to use criminal information instead of indictment.

How do Prosecutors obtain federal indictments?

How do prosecutors obtain federal indictments? By law, a federal indictment can only be brought (or in technical terms “returned”) by a grand jury, which is a body of 16 to 23 citizens chosen from the community. The grand jury hears evidence and testimony from witnesses presented by the prosecution.

What do you need to know about an indictment?

Therefore, the indictment must have enough information to inform the defendant of both the “nature” and the “cause” of the crime charged. The Federal Rules of Criminal Procedure are another source of law governing indictments.

What happens when a person is indicted?

What is the purpose of an indictment?

What is the name of the attorney that represents the defendant in a criminal case?

Why do we need a grand jury?

Where are federal cases tried?

How many members are on a grand jury?

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Who hands down the indictment?

The prosecutor will be a strong advocate for convincing them to hand down an Indictment but the weight of the evidence presented should influence the members of the jury to meet the requirements for their decision to hand down an Indictment or not.

Who decides the indictment in a capital case?

A body of people (often 23) who are chosen to sit permanently for at least a month and who decide whether indictments should be issued. If the grand jury decides that the evidence is strong enough to hold a suspect for trial, it returns a bill of indictment (a true bill) charging the suspect with a specific crime.

Who decides what cases to prosecute?

It is typically the public prosecutor who, on the basis of the results of the investigation, determines whether to file a complaint and for which offense to bring charges.

How long do they have to indict you in Mississippi?

The criminal statute of limitations requires prosecutors to file criminal charges against a suspect within two years for misdemeanors and within five years for certain felonies, but there is no time limit in Mississippi for charges of murder, kidnapping, rape, burglary, robbery, larceny, and several other serious ...

Is indicted the same as charged?

The difference between being indicted and charged relies on who files the charges. “Being charged” with a crime means the prosecutor filed charges. An indictment means the grand jury filed charges against the defendant.

What is an example of an indictment?

Let's say a woman named Annie is a suspect for the crime of murder. Before she can be arrested, there is an investigation and gathering of evidence by the police. Once the police and prosecutors believe they have sufficient evidence against Annie, they present this evidence to a grand jury.

What factors may the prosecutor consider when deciding what charges to file?

How Los Angeles Prosecutors Decide to File Charges in a Criminal...The Evidence. ... The Credibility of Witnesses and Victims. ... The Circumstances Surrounding the Accusations or Arrest. ... The Possibility of a Plea Bargain. ... Current Political Pressures.

Why do prosecutors sometimes choose not to prosecute criminal cases?

Prosecutors are supposed to both enforce the law and "do justice." Doing justice means that a prosecutor occasionally decides not to prosecute a case (or files less severe charges) because the interests of justice require it, even if the facts of the case might support a conviction.

What is one reason prosecutors may decide to dismiss cases?

After charges are filed, prosecutors and sometimes courts may dismiss such charges for some of the same reasons that charges are dropped before being filed. Evidence may be poor, witnesses may be unavailable or illegal tactics may have been used to gather evidence or make arrests.

How do you know if you have a secret indictment?

Federal courthouses will also have copies of indictment records, usually in the clerk's office, and records can be checked by the party of suspect names. In some cases, the judge may rule that the indictment is to remain sealed and secure until the summons is issued, or the suspect is arrested.

What happens after indictment in Mississippi?

If an indictment is returned by the Grand Jury, then the Circuit Court has jurisdiction over the matter and the first appearance in Circuit Court will be the arraignment where the defendant (accused) will enter a plea of not guilty and be assigned a trial date.

How long after indictment is trial Mississippi?

Rule 15.1 is largely derived from former Rules 8.01 and 8.02 of the Uniform Rules of Circuit and County Court. Section (a) requires that, whenever possible, arraignment be held within thirty (30) days after service of the indictment.

Who files an indictment quizlet?

"INDICTMENT". An "indictment" is the written statement of a grand jury accusing a person therein named of some act or omission which, by law, is declared to be an offense. 21.011.

How long do they have to indict you in NY?

The Prosecutor has six months to indict a Defendant for a felony charge. if the Grand Jury indicts the defendant, then the felony case is on the trial track. Time lines and procedural guidelines must be followed by the court.

What makes a capital crime?

Capital offense is defined as an offense that is punishable by the death penalty. It is not necessary that the punishment imposed was the death penalty, but if the permissible punishment prescribed by the legislature for the offense is the death penalty, then the offense is considered a capital offense.

What is necessary for an indictment to occur quizlet?

indictment. change of having committed a crime (usually felony) based on the judgement of a grand jury. information. charge of having committed a crime (usually misdemeanor) based on the judgement of a judge. arraignment.

Two Ways to Charge: By Information, Complaint, or Petition; or ...

Criminal cases begin their way through court in one of two ways, depending largely on local policies and the seriousness of a crime: Misdemeanors.

Handbook for Federal Grand Jurors - United States Courts

Prepared for the use of grand jurors serving in the United States district courts under the supervision of the Judicial Conference of the United States.

Charging documents: Your Constitutional right to being precisely ... - Avvo

Being precisely informed of what charges the State is bringing against you is your Constitutional right. In a criminal prosecution, you start with a presumption in your favor that you are innocent until and unless proven guilty.

Charging Documents: When a Criminal Case Begins | Nolo

A charging document is a pleading that initiates criminal charges against a defendant. It—not arrest—signifies the commencement of a criminal case.

Procedure for DOJ Grand Jury Indictments - The National Law Review

A grand jury indictment is the formal charging instrument used by the U.S. Department of Justice to bring federal criminal charges against a defendant. Before federal prosecutors can bring an indictme

Rule 6. The Grand Jury | Federal Rules of Criminal Procedure | US Law ...

(a) Summoning a Grand Jury. (1) In General. When the public interest so requires, the court must order that one or more grand juries be summoned. A grand jury must have 16 to 23 members, and the court must order that enough legally qualified persons be summoned to meet this requirement.

What is an indictment written?

The indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government. It need not contain a formal introduction or conclusion.

When did the Judicial Conference recommend that a defendant waive indictment and plead guilty to an information filed?

The Judicial Conference of Senior Circuit Judges, in September 1941 , recommended that “existing law or established procedure be so changed, that a defendant may waive indictment and plead guilty to an information filed by a United States attorney in all cases except capital felonies.” Report of the Judicial Conference of Senior Circuit Judges (1941) 13. In September 1942 the Judicial Conference recommended that provision be made “for waiver of indictment and jury trial, so that persons accused of crime may not be held in jail needlessly pending trial.” Id. (1942) 8.

What is the new Rule 32.2?

The rule is amended to reflect new Rule 32.2, which now governs criminal forfeiture procedures.

What is the purpose of the amendment to Rule 7(c)(2)?

The amendment to rule 7 (c) (2) is intended to clarify its meaning . Subdivision (c) (2) was added in 1972, and, as noted in the Advisory Committee Note thereto, was “intended to provide procedural implementation of the recently enacted criminal forfeiture provision of the Organized Crime Control Act of 1970, Title IX, §1963, and the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II, §408 (a) (2).” These provisions reestablished a limited common law criminal forfeiture, necessitating the addition of subdivision (c) (2) and corresponding changes in rules 31 and 32, for at common law the defendant in a criminal forfeiture proceeding was entitled to notice, trial, and a special jury finding on the factual issues surrounding the declaration of forfeiture which followed his criminal conviction.

How long does it take to get a bill of particulars?

The court may direct the government to file a bill of particulars. The defendant may move for a bill of particulars before or within 14 days after arraignment or at a later time if the court permits. The government may amend a bill of particulars subject to such conditions as justice requires.

Why did the first sentence eliminate the requirement of a showing of cause?

The amendment to the first sentence eliminating the requirement of a showing of cause is designed to encourage a more liberal attitude by the courts toward bills of particulars without taking away the discretion which courts must have in dealing with such motions in individual cases. For an illustration of wise use of this discretion see the opinion by Justice Whittaker written when he was a district judge in United States v. Smith, 16 F.R.D. 372 (W.D.Mo. 1954).

Why was Rule 7 amended?

The language of Rule 7 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic.

What is required before dismissing an indictment?

Criminal Division approval is required before dismissing, in whole or in part, an indictment, information, or complaint if prior approval was required before seeking an indictment or filing an information or complaint.

Who consults with the person having primary responsibility before conducting grand jury proceedings, seeking indictment, or filing an information?

If primary prosecutorial responsibility for a matter has been assumed by the Criminal Division or higher authority, the United States Attorney shall consult with the persons having primary responsibility before conducting grand jury proceedings, seeking indictment, or filing an information.

How long does it take to file a notice of appeal?

A Notice of Appeal form is available to Department attorneys. The government has 60 days to file a notice of appeal from an adverse § 2255 habeas or in rem forfeiture decision.

What is the alternative to federal prosecution?

Armed Forces Enlistment as an Alternative to Federal Prosecution

What is the responsibility of the Organized Crime and Gang Section of the Criminal Division?

The Organized Crime and Gang Section of the Criminal Division has the responsibility for ensuring that Organized Crime Strike Force Unit (OCSFU) cases are properly indicted and prosecuted. OCFSUs shall submit case initiation reports and prosecution memoranda and proposed indictments for approval and report significant developments to the Organized Crime and Gang Section. The Section must review and process all matters in organized crime cases that require the approval of the Assistant Attorney General of the Criminal Division or higher official, including immunities and electronic surveillance authorizations, as well as witness protection requests, plea dispositions, and appeals. Each OCFSU shall promptly advise the Section of all significant developments in a case, including the filing of indictments, significant pleadings, convictions, dismissals, acquittals, and impositions of sentences. The OCFSUs shall submit to the Section final copies of indictments as filed, daily reports on significant case developments, updated statistical data, and such other information as Section procedures require.

What is the Criminal Division?

The Criminal Division is interested in obtaining the benefit of any suggestions by United States Attorney or their Assistants for changes in federal statutory law, or rules, affecting criminal prosecutions. Accordingly, United States Attorneys and Assistant United States Attorneys are encouraged to develop such proposals and to forward them for initial consideration to the Office of Policy and Legislation. The suggestions for changes in rules and legislation may also be submitted concurrently to the Legislation and Public Policy Subcommittee of the Attorney General's Advisory Committee of United States Attorneys. Suggested legislative changes should be submitted concurrently to the Office of Legislative Affairs.

What are the policies of the Department of Justice?

Department of Justice and Criminal Division policies impose limitations on the authority of the United States Attorney to decline prosecution, to prosecute, and to take certain actions relating to the prosecution of criminal cases. These policy limitations are discussed throughout the Justice Manual, with a centralized listing contained in 9-2.400.

Who decides whether to indict someone?

Who Decides Whether to Indict? In all but two states, a grand jury is who decides whether the state has enough evidence to charge someone with a crime. A grand jury is a body of people called by the prosecutor who looks at all available evidence in a case.

What Is an Indictment?

An indictment is a formal accusation, based upon available evidence, that a person has committed a serious crime. If there’s enough evidence to prove that a person committed a crime, then they’re indicted.

Do I Have to Stay in Jail After Indictment?

It depends. There’s no hard and fast rule that covers whether or not someone must remain in jail after being indicted. This decision is made early in the trial process at a bond hearing.

What happens when you watch a police procedural show?

If you’ve ever watched any kind of police procedural show, you’ve probably learned everything you know about the criminal law procedural process from it. You see the suspect get arrested, Mirandized, and they’re in court soon after . But in reality, the process of trying someone for a crime is very different. One of the first things that happens in ...

What is probable cause in criminal cases?

Probable cause falls below the preponderance of the evidence standard, which is a greater than 50% chance that someone did something.

What is probable cause?

Probable cause falls below the preponderance of the evidence standard, which is a greater than 50% chance that someone did something. Probable cause really just means based on the evidence that’s available, it’s reasonable for you to be charged with a crime. It’s not a high bar and is by no means a slam dunk for conviction.

How are grand juries selected?

Grand juries are selected in a couple of different ways, depending on the jurisdiction. Some jurisdictions’ grand juries are selected through invitation, meaning you have to know someone to sit on a grand jury.

What happens if a grand jury returns an indictment against a suspect?

If a magistrate has issued a search warrant for a suspect or if a grand jury has returned an indictment against a suspect, federal agents will arrest the suspect and place him or her in custody pending court proceedings.

What is the purpose of a federal investigation?

If a crime is brought to the attention of federal authorities, whether by a victim of the crime or a witness to it (e.g., a bank robbery), a federal law enforcement agency will undertake an investigation to determine whether a federal offense was committed and, if so, who committed it. Two points should be kept in mind:

How does the guilt phase work?

The guilt phase generally begins with the prosecutor’s opening statement. The defense has the option of making its own opening statement immediately afterwards or reserving its opening statement for the beginning of its case-in-chief. The prosecutor then presents the government’s proof through physical evidence and witnesses. The defense is entitled to cross-examine any witnesses questioned by the government. Once the government has completed its case, the defense may move the court to acquit the defendant, on the ground that there is legally insufficient evidence to convict. If the court denies the defense motion, the defense may present its own case, and the prosecutor may cross-examine any witnesses presented by the defense. Following the defense case, the prosecutor may present evidence to rebut the defendant’s case. Once the prosecutor concludes its rebuttal case, the defense again can move for an acquittal. If the court denies that motion, the parties present their closing arguments: first the prosecutor, then the defense, and finally the prosecutor again (the government goes first and last because it has the burden of proof). Following closing arguments, the judge will instruct the jury on the relevant law for it to apply. Afterwards, the jury will retire to decide the case. When the jury has reached its decision, the jury will return to the courtroom and announce its verdict. If there is no jury, the judge will deliberate and return a verdict.

How soon after arrest can you make an initial appearance?

This initial appearance generally will occur as soon as practicable following arrest and must occur before 72 hours have passed. At the initial appearance, the court will inform the arrestee of the charges and advise him or her of the rights to counsel and to remain silent.

Which federal agency is responsible for investigating terrorism cases?

For example, the Secret Service is responsible for investigating counterfeiting of currency, and the FBI is the lead federal agency for terrorism cases. This assignment of functions helps different agencies develop expertise, but it also means that federal law enforcement agencies are not like local police forces—they do not each handle whatever federal crime comes their way.

Who has the right to be present at sentencing?

The offender has the right to be present for sentencing, as does a victim. Both persons may make a statement before the court imposes sentence. The lawyer for the government and the offender also will address the court regarding the sentence. If a victim is represented by an attorney, the victim’s counsel also can address the court at sentencing.

Who does a grand jury work with?

Whenever a grand jury is involved in an investigation, the agents will work closely with an attorney from the U.S. government, either from the local U.S. Attorney’s Office or the U.S. Department of Justice, before making an arrest in order to determine whether a crime was committed and, if so, who is responsible.

What are the factors that a prosecutor can consider when deciding whether to charge an individual?

They can consider factors such as the strength of the evidence, the individual’s criminal history, the extent of harm or loss allegedly sustained, witness cooperation, resources needed, and weigh it against the interests of justice. Prosecutors have an ethical obligation ...

What is the decision to prosecute?

The decision to prosecute also hinge s on the particular office’s policies and objectives. The same chain of events could lead to the filing of criminal charges in one jurisdiction, but a decision not to prosecute in another. While office policies and objectives may lead to more decisions to charge than not to charge at the outset, an experienced criminal defense attorney knows that prosecutors will respond to potential weaknesses in cases at later stages in the case, possibly leading to dismissals or increased bargaining power.

Who makes the final decision as to whether to formally charge an individual or not?

It is the prosecutor that makes the final decision as to whether to formally charge an individual or not, not the police department or other law enforcement agency. In most state criminal cases, police arrest individuals and bring the case to the District Attorney’s Office.

Do police need probable cause?

The police only need probable cause to make an arrest, but the District Attorney’s Office must be able to prove each and every element of each crime charged beyond a reasonable doubt for a conviction. In federal systems, the investigative work prior to an arrest is usually more substantial.

Can a criminal defense attorney charge more than not?

While office policies and objectives may lead to more decisions to charge than not to charge at the outset, an experienced criminal defense attorney knows that prosecutors will respond to potential weaknesses in cases at later stages in the case, possibly leading to dismissals or increased bargaining power.

How Prosecutors Decide to File Charges

When you are arrested or accused of a crime, criminal charges are not automatically filed. There is a human element involved: the prosecutor. A prosecutor’s job is to bring criminal charges on behalf of the government, be that a city, county, state, or the federal government.

Reviewing the Circumstances of the Arrest or Accusations

Once your situation comes to the prosecutor’s attention, they will review the circumstances. The prosecutor will closely examine your alleged conduct, the environment in which it occurred, and any other mitigating or aggravating factors.

Analyzing the Amount and Strength of the Evidence

In addition to reviewing the circumstances that led to your arrest or an investigation into whether you committed a crime, a prosecutor will take a hard look at the evidence available and how strong it is. In order for a judge or jury to find you guilty, prosecutors are required to prove you committed a crime beyond a reasonable doubt.

Determining the Credibility of the Alleged Victim

Many criminal charges heavily rely on the alleged victim’s testimony. This is often true in sexual assault cases. For a prosecutor to meet their burden of proving you committed the crime beyond a reasonable doubt, they may need the alleged victim to testify in court.

Contact a Criminal Defense Lawyer for Help

After an arrest, you should contact an attorney at The Law Offices of Ned Barnett. Prosecutors consider several factors when deciding to bring misdemeanor charges or seek a grand jury indictment for a felony. There is often room for your criminal defense lawyer to argue that charges should not be filed or that charges should be reduced.

How do prosecutors obtain federal indictments?

By law, a federal indictment can only be brought (or in technical terms “returned”) by a grand jury , which is a body of 16 to 23 citizens chosen from the community. The grand jury hears evidence and testimony from witnesses presented by the prosecution. It has the power to ask questions, and subpoena witnesses and documents on its own. Once the grand jury hears the evidence, it votes to indict or to not indict, based on whether there is “probable cause” to believe the defendant is guilty.

What is a federal indictment?

An indictment is a formal accusation against one or more defendants, charging them with one or more crimes. In the federal criminal system, the indictment is the principal method by which a prosecutor initiates criminal proceedings. For certain types of crimes, and under certain conditions, the prosecutor may, instead of an indictment, rely on a “criminal information” or a “criminal complaint” to formally begin the case. Later in this article, we will briefly explain the differences between each of these legal documents (also called pleadings).

What is a speaking indictment? Why do I need to be aware of it?

A “speaking” indictment is a colloquial term used by criminal law practitioners to refer to a lengthy and detailed indictment that includes more facts and allegations than is required by law. Prosecutors have discretion in selecting how much information to include in an indictment. Sometimes, defense attorneys can make a motion to strike surplusage where the “speaking” indictment contains unnecessarily prejudicial allegations.

What is the difference between a federal indictment, a criminal complaint, and a criminal information?

As mentioned earlier, an indictment is only one way for federal prosecutors to bring criminal charges. Other ways for prosecutors to bring criminal charges include using the “criminal information” and the “criminal complaint.”

Can a federal indictment be challenged?

Yes. The most obvious and most common challenge to an indictment is showing the allegations are not true at a trial. But what about challenging an indictment before trial?

How many grand jurors are needed to indict a person?

A minimum of 16 grand jurors must be present to vote (a quorum), and at least 12 must vote in favor of an indictment before charges can be brought.

What is the case number of a criminal case?

To the right of the parties’ names, there is usually a case number. In our example the case number is 1:13cr305, which tells us that this indictment was filed in 2013 (1:13), was a criminal case (cr), and was the 305th criminal case (305) filed that year in the Alexandria federal court.

What happens when a person is indicted?

When a person is indicted, they are given formal notice that it is believed that they committed a crime.

What is the purpose of an indictment?

The indictment contains the basic information that informs the person of the charges against them. For potential felony charges, a prosecutor will present the evidence to an impartial group of citizens called a grand jury.

What is the name of the attorney that represents the defendant in a criminal case?

The defendant’s attorney is referred to as the defense attorney . The defendant's attorney assists the defendant in understanding the law and the facts of the case, and represents the defendant just as the prosecutor will represent the Government.

Why do we need a grand jury?

The grand jury is a constitutional requirement for certain types of crimes (meaning it is written in the United States Constitution) so that a group of citizens who do not know the defendant can make an unbiased decision about the evidence before voting to charge an individual with a crime.

Where are federal cases tried?

The location where the trial is held is called the venue, and federal cases are tried in a United States District Court . There are 94 district courts in the United States including the District of Columbia and territories. Many states have more than one district court so the venue will depend on where you live in the state. Within each district, there may be several courthouse locations. Click here to see if you can find the one closest to your neighborhood.

How many members are on a grand jury?

Grand juries are made up of approximately 16-23 members. Their proceedings can only be attended by specific persons. For example, witnesses who are compelled to testify before the grand jury are not allowed to have an attorney present. At least twelve jurors must concur in order to issue an indictment.

001 - Introduction

010 - Investigations

020 - Declining Prosecution

021 - Armed Forces Enlistment as An Alternative to Federal Prosecution

022 - Pretrial Diversion as An Alternative to Federal Prosecution

030 - Authorizing Prosecution

• The United States Attorney is authorized to initiate prosecution by filing a complaint, requesting an indictment from the grand jury, and when permitted by law, by filing an information in any case which, in his or her judgment, warrants such action, other than those instances enumerated in JM 9-2.120. In arriving at a decision, the United States A...

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031 - Dual and Successive Prosecution Policy

032 - Notification to The Criminal Division of Certain Prosecutions of Attorneys

040 - Dismissal of Complaints

041 - Cancellation of Unexecuted Arrest Warrants