Federal Arrest, Indictment and Arraignment
What is an Indictment?
An indictment is a formal accusation against you that charges you with a criminal offense. An alternative to an indictment is a criminal complaint, generally used on misdemeanors or other lower-level felonies. Some courts use preliminary hearings rather than grand juries to determine probable cause. Under the Fifth Amendment of the U.S. Constitution, the federal government is required to seek an indictment for any criminal offense that is a felony, or otherwise considered “infamous.” The indictment comes after a grand jury hearing, but prior to an actual arrest.
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Most states, including Pennsylvania, follow a similar procedure where serious felonies are concerned. In the federal criminal system, an indictment is the primary method criminal proceedings are initiated. Either of these formally begins a criminal case. To obtain an indictment, a grand jury is assembled, and the facts of the case are presented to the grand jury. Physical evidence and sworn witness testimony used to seek an indictment.
Grand juries seek to determine whether there is probable cause for criminal charges, yet in truth, there is a facetious saying among attorneys that a grand jury will “indict a ham sandwich.” In other words, those on a grand jury often believe that the fact they are there at all means there must be sufficient evidence for an indictment. Grand juries are often convened in secrecy, with no involvement of defense lawyers or judges, so all the jury members hear are the prosecution’s side.
A federal grand jury has from 16-23 members, and an indictment only requires a simple majority vote. If the majority of the grand jury believes the case has merit, a “true bill” is returned, and the case goes to trial. Remember, the grand jury is only saying there is probable cause for the case to proceed, not that the defendant is guilty.
In the state of Pennsylvania, the grand jury is comprised of 23 people. Grand juries can have as many as 15 alternates, but no fewer than seven. Fifteen members are considered a quorum. State grand juries function in a similar fashion to federal grand juries.
Under the Sixth Amendment, you are guaranteed the “right to be informed of the nature and cause of the accusation” against you. This means if you are indicted, the indictment must have sufficient information to inform you of the nature of the crime you are being charged with, alleging facts that, if true, constitute an offense charged.
Is an Indictment Evidence of Guilt?
Legally speaking, an indictment is not evidence, meaning that jurors in a trial may not view the defendant as guilty simply because he or she was indicted. Unfortunately, while an indictment is not evidence of guilt, jurors, as laymen, tend to be swayed by indictment allegations. Federal indictments can be challenged, although it is not common.
Of course, a defense attorney can challenge the indictment allegations at trial, but there are certain challenges that can be made prior to trial. A defense attorney could challenge an indictment because it failed to provide sufficient details to the defendant regarding the nature of the charges, failed to set forth an actual violation of the law, alleged a crime outside the statute of limitations, failed to plead all the elements of a crime, or brought the case in an improper venue.
What is a Speaking Indictment?
When much more detailed information regarding an alleged crime is included in an indictment—more than is required under the law—the document is known as a “speaking indictment.” Speaking indictments are often used in cases that are particularly complex or high-profile, as a method of providing more context to the grand jury. Speaking indictments include almost painstaking detail, describing the alleged criminal offense.
While federal and state prosecutors have fairly wide latitude in the determination of the level of information included in an indictment, defense attorneys may, on occasion, present a motion that asks that the “surplus” information be stricken. Defense attorneys can actually benefit in some ways from a speaking indictment in the sense that it can provide a roadmap of sorts detailing how the prosecution intends to proceed with the case.
When an individual is arrested, a series of events follows. The police are required to follow specific legal procedures during and after the actual arrest from the time you are taken into custody. It is important that whether the arrest is a Pennsylvania arrest or a federal arrest that you be properly Mirandized and that all other laws and rules are properly followed.
Your Miranda rights give you the right to remain silent and refuse to answer questions. The reason you should stay silent until you have spoken to an attorney is that anything you say can be taken out of context and used against you during the trial. You always have the right to have an attorney present when you are being questioned, and if you cannot afford an attorney one will be appointed to you.
The police may “frisk” you by patting down your outer clothing prior to your arrest; after you are officially under arrest, a full-blown search of your person is likely to ensure you have no weapons, contraband, or other evidence of a crime. If your car is seized, it will likely be searched as well. Any money or personal property on your person will be taken and inventoried, and you will be “booked.”
During booking your photograph will be taken, you will be fingerprinted, and you will be required to divulge your address and birthdate. Depending on the crime you are being arrested for, you could be asked to provide a handwriting sample, or participate in a line-up. Under the law, you may not be detained beyond a reasonable length of time without being booked.
This period is generally several hours, or, possibly, overnight. If you are detained without being booked beyond a reasonable length of time, your attorney may obtain a writ of habeas corpus from a judge that instructs the police to bring you before the court to determine whether you are being held lawfully. Following your arrest and booking, a prosecutor will determine whether charges should be filed against you, and this determination must be made within 48-72 hours.
Next Comes the Arraignment
If you have been indicted, or simply arrested without an indictment, you will have an arraignment—your first appearance before a judge. Depending on your specific charges and whether they are federal or state, you may not be required to appear at your arraignment so long as your attorney prepares a waiver (Failing to appear without a waiver can result in a bench warrant for your arrest). In the state of Pennsylvania, if you are being charged with a misdemeanor, you will be informed of the charges against you, along with potential penalties should you be convicted.
You will be informed of your right to an attorney, your right to a trial, and you will enter a plea. You can plead guilty, not guilty, or nolo contendere. “Nolo contendere” means you are not admitting guilt, but neither are you pleading not guilty. A plea of nolo contendere is essentially saying you are not contesting the charges. If you plead not guilty, a trial date will be scheduled, and your bail will be set.
If you plead guilty, the judge may either sentence you immediately or set a date in the future for sentencing. If your criminal offense is a felony in the state of Pennsylvania, you will not enter a plea, rather there will be an additional step, known as a preliminary hearing, during which you will enter your plea. A federal indictment proceeds much the same as a state indictment.
A preliminary hearing is often thought of as the trial before the trial, although there is no decision of guilt or innocence at a preliminary hearing, only whether there is sufficient evidence to warrant a trial. The judge uses the legal standard of “probable cause,” during the preliminary hearing, determining whether there is enough evidence to convince a jury that 1) a criminal offense occurred, and 2) that the defendant charged in the case committed the alleged crime. Defense attorneys will face an uphill battle to “win” a preliminary hearing and get the charges dropped, but it does happen.
At the preliminary hearing, the judge will listen to arguments by the defense attorney and prosecutor. The prosecutor could call witnesses and introduce physical evidence, while the defense attorney can cross-examine witnesses and question the evidence presented. Prior to the time a preliminary hearing is held, the case could potentially be resolved via a plea bargain. A defendant who does not accept a plea deal prior to the preliminary hearing may not receive such a favorable plea following the preliminary hearing unless the hearing goes very well for the defense. Whether you believe you are about to be indicted or you have already been arrested, it is extremely important to have an experienced criminal defense attorney by your side if you are being criminally charged.
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You want a team of experienced, passionate federal crimes lawyer that are ready to fight for you. Contact the Ciccarelli legal team today at (610) 692-8700. We serve federal criminal clients throughout Pennsylvania and are convenient to our clients with office locations in Philadelphia, West Chester, Lancaster, Springfield, Malvern, Plymouth Meeting, Lancaster, and Radnor and also available for phone and video meetings. You can have our lawyers provide an honest and thorough evaluation of your case when you call (610) 692-8700 or complete an online contact form to schedule a free, confidential consultation.