I. When an Indictment or Information Is Required in Federal Prosecutions

• Library: The Rights of the Accused under the Sixth Amendment (ABA) (2016 Ed.)

I. When an Indictment or Information Is Required in Federal Prosecutions A. Definitions

The Sixth Amendment to the U.S. Constitution states that an accused shall "be informed of the nature and cause of the accusation." The Fifth Amendment further elaborates on this principle by providing that for the most serious crimes, such notice of accusation be issued in the form of an indictment, a charge that is reviewed and approved by a grand jury.

There are several ways in which a criminal defendant is given notice of the accusation against him. The first is an indictment, which is a formal written statement made by a grand jury accusing a person of a crime. The Federal Rules of Criminal Procedure require that an indictment include a "plain, concise, and definite written statement of the essential facts" of the alleged crime, and that each count alleged be supported by the applicable statute, rule, or regulation.¹ An information, a criminal charge brought by the prosecutor without a grand jury indictment, is another form of accusation. A criminal complaint is also a formal charging document, often filed before an indictment or information can be prepared.²

B. The Indictment

An indictment is required for federal felony offenses, for under the Fifth Amendment "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger." "Infamous crimes" have been determined to be those crimes that result in imprisonment in a penitentiary.³ The phrase "capital, or otherwise infamous crime" is thus interpreted in modern criminal procedure as meaning any offense punishable by death or by imprisonment in a penitentiary for more than one year—in other words, a felony.

When deciding whether an indictment is necessary, federal courts have interpreted the Fifth Amendment mandate to mean that an indictment must be returned by a grand jury whenever death or imprisonment of more than one year is possible.⁴ This liberal requirement is based on both English common law principles and the intent of the Founders in the passage of the Bill of Rights. Thus, an actual order that the criminal defendant receive punishment of death or imprisonment for more than one year is not determinative. Where a defendant is in danger of being subjected to such a punishment, the Constitution mandates a grand jury...