Indicted vs Charged – What is the Difference?

The difference between being charged and indicted depends on who finds probable cause that you committed a crime. When you are charged, that means the district attorney found probable cause to prosecute you. When you are indicted, that means a grand jury found probable cause to prosecute you.

Both an indictment and a charge lead to a similar result, in that criminal charges are filed against you and a criminal case begins. Charges are more common than indictments, which are usually reserved for high-profile state felonies and federal cases (where the prosecutors are called United States attorneys instead of district attorneys).

1. What is an indictment and grand jury proceedings?

An indictment means that a grand jury, as opposed to a prosecutor, has filed criminal charges against you.¹

Note that an indictment is merely a criminal charge that must be proven against you, beyond a reasonable doubt.² An indictment is not a conviction, nor can it be used as evidence that you committed the crime charged.³

Grand juries v. trial (“petit”) juries

Most states define a “grand jury” as a legal process whereby a jury of citizens from your community convenes to evaluate whether there is enough evidence on the merit to indict you of a criminal offense. Note that indictment proceedings are very different from ordinary criminal jury trials.

For example, unlike most stages of a criminal case, a grand jury proceeding is not presided over by a judge. Rather, the prosecutor takes the lead role in running the jury and tries to make the case that you should be charged with a crime.

Further, unlike criminal court proceedings, a grand jury is closed to the public. Verdicts do not have to be unanimous. Plus you as the suspect are also distanced from the proceeding and are not notified that it is taking place.

True bills v. no bills

If, after weighing the evidence presented by the prosecutor, the jurors believe that there is sufficient evidence that you committed a crime, it issues an indictment against you. A jury’s decision to issue an indictment is sometimes referred to as a “true bill.” A jury returns a “no bill” if it determines that there is insufficient evidence to indict you.

Once a grand jury issues an indictment, an arrest warrant is issued (if you are not already in custody), and a criminal case commences against you.

2. What is a criminal charge?

If you are “charged” with a crime, this means a prosecutor, as opposed to a grand jury, has accused you of a criminal offense and has filed formal charges against you. Prosecutors can bring charges in both misdemeanor and felony cases.

If you are accused of a crime by a prosecutor, the criminal laws of most jurisdictions require the prosecutor to file a charging document with the court. These documents are often called “criminal complaints” or “informations.” They basically describe the criminal charges against you and the factual basis for those charges based on police investigations.

Preliminary hearings

If you get charged with a felony, you are entitled to a preliminary hearing where a judge determines whether there is probable cause to believe you committed the charges listed in the charging document. If the judge finds there is probable cause, only then can your case proceed to trial.

Preliminary hearings are much fairer than grand jury proceedings because you get to be present with your attorney. Plus your attorney can introduce evidence and cross-examine the state’s witnesses, similar to a regular trial.

Note that if you are indicted by a grand jury, you do not get to have a preliminary hearing. This is because the grand jury essentially serves the same purpose as the preliminary hearing: Having both would be redundant.

Grand jurors decide whether to indict. Trial jurors decide whether to convict or acquit.

3. When are grand juries used in place of criminal charges?

Prosecutor may choose to use the grand jury and indictment process, as opposed to filing charges, when:

• the alleged crime is a serious felony,
• there is high public interest in the case,
• the case seems weak, and the prosecutor wants a chance to “test” it out before jurors,
• the case involves wrongdoing by a public officeholder, and/or
• the witnesses are incarcerated in state prison.⁴

Federal charges and indictments are governed by the Federal Rules of Criminal Procedure, whereas state charges and indictments are governed by that state’s procedural rules.⁵  In practice, federal prosecutors rely on grand juries far more often than state prosecutors do.

Overall, grand jury proceedings in state courts are similar to federal court, though each county has its own way of doing things. That is why it is so important for defendants to hire an attorney familiar with the court they are being charged in.

4. When does the arrest happen?

Most of the time, when you get arrested, it is the very beginning of your case. Then the police turn over their evidence to the prosecutors, who decide whether to proceed by grand jury or an information.

In some cases, prosecutors may already be secretly investigating you on suspicion of criminal activity without your knowledge. They may summon a grand jury without your knowledge, too. If they indict, then you would get arrested.

Either way, once you get arrested, you are entitled to an arraignment where you are formally charged in open court. If you bail out or are released, the arraignment may occur several weeks down the line. If you are still in custody, your arraignment must occur within days, usually within 72 hours.

5. Can I bail out whether I am indicted or charged?

Whether you can be released following your arrest depends on the seriousness of your charge and whether you are a flight risk or are violent. This is true whether you are indicted or charged.

For most state and federal misdemeanor charges, the judge will likely release you on your own recognizance or allow you to bail out. Bail is usually an option in most felony cases, too, unless the charges are very serious such as murder.

Additional reading

For more in-depth information, refer to these scholarly articles:

• Sufficiency of an Indictment or Information When Charged with a Crime – Howard Law Journal.
• Grand Jury Indictment Versus Prosecution by Information–An Equal Protection-Due Process Issue – Hastings Law Journal.
• Initiation of Criminal Prosecutions by Indictment or Information – Michigan Law Review.
• Indictment and Information in Federal Criminal Procedure – Syracuse Law Review.
• From Indictment to Information–Implications of the Shift – Yale Law Journal.