V. Waiver of the Indictment Requirement

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

V. Waiver of the Indictment Requirement A. Federal

Federal Rule of Criminal Procedure 7(b) allows for defendants to waive the indictment requirement. Although the Fifth Amendment mandates grand jury indictments in federal prosecutions, the Supreme Court has held that a defendant can constitutionally waive that requirement in noncapital cases.⁶³ Waiver in this context, like many others, requires the defendant do so "knowingly, intelligently and voluntarily."⁶⁴ However, courts often demand more, as an indictment is designed to protect the potentially innocent defendant.⁶⁵ As such, Rule 7(b) explicitly requires that a waiver be made in open court, after the defendant has been advised of the nature of the charge and of her rights.⁶⁶

Rule 7(b) envisions the ability to waive to be most helpful to those defendants who are held awaiting a grand jury decision, but who wish to plead guilty nonetheless.⁶⁷ Due to the formality requirements designed to protect defendants, a guilty plea is insufficient to act as a waiver to indictment.⁶⁸ The explicit authorization to waive, therefore, allows admittedly guilty defendants to expedite the judicial process, especially in jurisdictions where grand juries meet sporadically.⁶⁹

B. States

The law on indictment waivers varies considerably among the states, as the Fifth Amendment's indictment requirement, as previously noted, does not apply to the states.⁷⁰ Each state, therefore, can promulgate its own version of the requirement and, consequently, its own version of waiver. All states that require prosecution by indictment have explicit legislative authority to recognize waivers of indictments, in the form of a state constitutional provision,⁷¹ a statute,⁷² or a court rule.⁷³

States have enacted a number of requirements in order to protect a defendant from involuntarily, unknowingly, or unintelligently waiving the indictment requirement. Many states follow the federal rule that the waiver must be made...