II. When an Indictment Is Required in State Prosecutions

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

II. When an Indictment Is Required in State Prosecutions A. Generally

Whether an indictment is necessary in state prosecutions is solely within the discretion of the individual state, as no right to an indictment has been held to exist under the U.S. Constitution.¹⁵ More than half of the states allow prosecution of felonies by either information or indictment.¹⁶ The remaining jurisdictions require indictments in certain circumstances.¹⁷

B. Indictment 1. Indictment in All Cases

In some states, defendants have the right to an indictment issued by a grand jury for all, or virtually all, felonies.¹⁸ Most of these jurisdictions have state constitutional provisions that include the right to an indictment;¹⁹ in three states, indictments are mandated by statute or by common law.²⁰

2. Indictment in a Limited Number of Cases

Some states recognize the right to an indictment, but only with a very few felonies. Usually, only murder charges require an indictment.²¹ As a result, in these states, relatively few charges involve indictments.

C. Waiver of the Indictment

Most, but not all, states permit a defendant to waive the right to an indictment, even in the absence of constitutional or statutory language allowing waiver. States that permit waiver typically do not allow it if the crime charged is a capital offense or carries the penalty of life imprisonment.²² As in the federal system, in order for the waiver to be valid, it must be made knowingly and voluntarily...