Securing an indictment from a grand jury is an important stage in the federal criminal justice system. Without one, prosecutors are unable to bring charges against an individual and pursue a conviction on behalf of the people.

The general public may be familiar with the terms “indictment” and “grand jury” — thanks largely to news outlets broadcasting indictments of high-profile individuals — but these legal concepts’ purposes and innerworkings are lesser-known. A report found that the most googled legal question in the United States for 2023 was “What does indictment mean?” with more than 161,000 internet queries per month per one million people.

In the following conversation, David Garavito, assistant professor at the University of Washington School of Law, answers commonly asked questions about indictments and grand juries, and provides further context on the topic.

UW Law: What is an indictment?

David Garavito: When we talk about indictments, what we're really talking about is the outcome of a grand jury. The Fifth Amendment to the U.S. Constitution says, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,” with the term “infamous crimes” typically meaning felonies. Though, the Fifth Amendment is not what we call incorporated. So, the states technically don't have to have grand juries if they don't want to, but the federal government does, according to the Fifth Amendment. That being said, most states do, although the rules may vary.

Furthermore, an indictment is a signal from the public that the investigative bodies — police, prosecutors, etc. — have enough evidence that the people feel comfortable charging a particular individual and bringing a criminal charge to trial.

In terms of the makeup of a grand jury, it typically consists of a cross-section of people in the local community where that crime took place. And generally, they are the ones who are determining whether all the evidence that has been presented to them meets the bare minimum standard of probable cause.

UW Law: How is the grand jury process initiated?

DG: After police conduct an investigation, they hand over evidence to a prosecutor. The prosecutor then signals that a grand jury is needed and that they want to seek an indictment. A grand jury is then collected, which is similar to any other type of jury selection or jury duty where people receive mailings stating that they are called to serve the public. They are then instructed on how to do their job. They will listen to all the evidence, read all the evidence, and absorb all the evidence that the police have collected and given to the prosecutor. Then, they will determine whether there are reasonable grounds that a crime has been committed, and that the person or persons who are the subject of the grand jury committed those crimes.

UW Law: How is the grand jury different from a trial jury?

DG: A grand jury is different from a trial jury in several key ways. First off, in a trial jury, they are seeking to convict. And because this can limit life and liberty, the standard is beyond a reasonable doubt, which is very, very high.

In a grand jury, they are simply determining whether there is enough evidence to even seek a trial in the first place and to bring these charges on behalf of the people. Because of that, the standard is much lower. The standard is probable cause, which is termed as reasonable grounds that a crime has been committed and that this person or persons committed this crime.

There are also different rules in terms of unanimity. When we think of trial juries, we think of the jury unanimously saying, “We find the defendant guilty beyond a reasonable doubt.” With a grand jury, it’s common to have any number of individuals from around 16 to 23. For federal grand juries, as an example, you only need 12 members out of that 23 to vote to indict—it's much easier to meet this standard.

Another important difference to note is that, typically, a grand jury is allowed to see and hear evidence that otherwise would not be presented to a trial jury.

UW Law: Who is present at a grand jury?

DG: There is a judge who oversees things as well as the grand jurors. And, in terms of federal grand juries, they need a minimum of 16 in order to start their business and to conduct their business. But you can have as many as 23. That number can also vary depending on the jurisdiction.

You also have a prosecutor. They are typically telling the story and presenting the evidence to the grand jury, which can include witnesses. You also have other people in the room, such as interpreters and record keepers, depending on the needs of the jurors and the witnesses.

Importantly, the defendant —the person who the accusations are about — is almost assuredly not in the room. There is no requirement that they be included at all in almost any jurisdiction that I'm aware of.

When it comes to the grand jury deliberations, it is very secretive and highly protected. The only people who are allowed in the room are the grand jurors. And if necessary, interpreters. One example for needing an interpreter would be for someone who's hard of hearing as they might need an interpreter to help them understand the deliberations. Anyone else present in the room could render the indictment void.

UW Law: How do prosecutors obtain indictments from a grand jury?

DG: After the grand jury has been assembled, the prosecutor will present a slew of evidence. They will help the grand jury call witnesses that the prosecutor has provided, because the grand jury has that power. They will present documents or other physical evidence to the grand jury. Then the prosecutor will signal that that is the end of the evidence. Then the grand jury will go into deliberations and will again be instructed by the court about their duty and what standards to meet.

For their deliberations, the prosecutor provides a preset indictment, which includes the summary of the charges that are being sought. The grand jury goes down the line and they establish if probable cause was met or not for each charge — and again, probable cause is reasonable grounds that a crime has been committed. They'll look at that crime and ask, “Are there reasonable grounds that that crime had been committed by this person, or these persons?” They will come back with their outcomes and state, “We find probable cause has been met to bring formal charges on behalf of the people on XYZ.”

They will then return the approved indictment to the prosecutor, and the prosecutor can then go and decide whether they want to sign it and go to trial.

UW Law: What happens after a prosecutor does, or does not, receive an indictment from a grand jury?

DG: After a prosecutor receives an approved indictment back from the grand jury, they can decide whether to sign it and make it formal and pursue the trial. They are under no obligation to pursue a conviction. This is part of a historical check on grand juries just in the event they are being overzealous and too willing to bring things to trial. So, the prosecutor has leeway there.

For strategic reasons, they might decide to hold back for additional testimony from valuable witnesses. They could say, “We have valuable indictments; however, we would be willing to make transactional immunity in exchange for your testimony against an additional party.” Or it could be that they're seeking indictments in different federal districts, for example, for other types of purposes.

Now, what if the prosecutor does not receive a validated indictment? What if the grand jury instead says there was insufficient evidence for probable cause? Well, in that case, this does not mean that the potential defendant can never be indicted on that crime. That would be an issue of double jeopardy. And that doesn't apply here because a trial never occurred. The person was never formally brought to trial, never charged by the people for these crimes. So, therefore, further investigation and evidence by the police, or by other investigative bodies, could lead a future grand jury to subsequently rehear evidence, as well as additional evidence, and then vote to indict. And there is no problem with that under the Constitution in terms of double jeopardy.