Differences & Stages of Prosecutions

Federal criminal prosecutions follow strict procedural maps. Before one thing can happen, other things must have happened first. An obvious example is that before someone can be sentenced for committing a crime, he or she first has to be convicted of that crime. There are many other landmarks in the prosecution of federal crimes that must be met. One of the most important of them is the indictment. What happens pre-indictment and what happens post-indictment are very different. However, before the difference can be adequately explained, you need to understand exactly what an indictment is.

The Grand Jury Indictment

You have undoubtedly heard before that someone has been indicted on a federal criminal charge. The media often relays this information in a way that makes it sound as if the person indicted is guilty of committing a crime. That is not accurate. All that an indictment really means is that a grand jury has decided that there is probable cause to charge someone with committing a crime. Let’s unpack that last statement.

A grand jury is a group of ordinary citizens tasked with investigating suspected criminal activity to determine whether or not someone suspected of a crime should be brought to trial. If a federal prosecutor believes that someone has committed a felony that is potentially punishable by more than one year in prison, the prosecutor must get the permission of the grand jury to continue the case further.  This acts as a check against overzealous prosecutors bringing baseless charges against innocent people.

The grand jury then investigates the suspected criminal activity by hearing from witnesses and reviewing any physical evidence. For the case to continue beyond that stage, the grand jury must find that there is probable cause to charge the suspect with a crime. “Probable cause” is a legal term of art the meaning of which has been debated since the founding of the United States. For purposes of this article, the exact definition is not necessary. Assume that it means that it is reasonable to charge the suspect with a crime.

When the grand jury decides that there is probable cause, the formal document that is issued is called an “indictment.” An indictment is just the official charging document. That is quite a bit different than someone being found guilty of the crime beyond a reasonable doubt, which everyone knows is the standard necessary to convict a person of a federal crime.


In explaining what an indictment is, you have already learned a great deal about what happens in the pre-indictment stage of a federal criminal prosecution. The prosecutor asks a grand jury to investigate and determine whether or not a suspect should be charged with a crime. However, there are some other important things that you should know about this stage of criminal prosecutions:

  • The suspect does not have to be told that he or she is being investigated by a grand jury. The suspect might be told and the suspect might be called before the grand jury to testify. Neither is strictly required.
  • Grand juries can operate in complete secrecy. A criminal trial is a matter of public record. During a grand jury investigation, witnesses can be ordered to tell no one about the mere fact that the grand jury exists.
  • If someone, including a suspect, is called to testify before a grand jury, he or she cannot have an attorney present in the grand jury room. The witness must answer the questions of the prosecutor without the benefit of having legal counsel present. However, the witness can have an attorney present in the building and may ask to leave the grand jury room to consult with that attorney before answering any particular question.


If you have ever seen a legal drama on television, you are probably much more familiar with the post-indictment phase of a federal criminal prosecution. At this stage, someone has been formally charged with a crime. That person has to be notified of the charges. He or she has a right to have an attorney present when speaking to prosecutors or investigators. The person charged does not have to ask to leave the room to consult with an attorney. The accused has the right to know what evidence the government has against him or her. Most importantly, the indicted person has the right to submit the ultimate matter of his guilt or innocence to a jury of his or her peers who must find that the person is guilty beyond a reasonable doubt of the crime before the accused can be considered convicted of the crime or punished for it.


An indictment is an important landmark in the prosecution of federal crimes. Anyone who is accused of a crime either before or after an indictment should consult with a federal criminal attorney for specifics about the difference between the two stages and what that means for the accused’s particular case. The attorneys at Nemann Law Offices can help determine how to protect the your rights in both of these stages of prosecution.

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices

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