What is an Indictment?

Most people have heard the word “indictment,” and know that it is something that happens when a person is charged with a crime in state or federal court. But what is an indictment?

Is every person indicted before they can be charged with a crime? Before they can be tried for the crime? Where does an indictment come from and who decides what is in it? Can you ever challenge an indictment?

In some cases, an “indictment” is meaningless. In other cases, it could mean everything. How do you know when it matters?

Indictments are issued after “secret” meetings of a grand jury, which could be your county grand jury, a statewide grand jury, or a federal grand jury. If you’ve been charged with a crime in SC state or federal court, your case must be indicted before it can go to trial, although you may not know when, where, or how it is indicted and you may not have the opportunity to challenge it.

Call Charleston, SC criminal defense lawyer Grant B. Smaldone now for a free consultation about your case – do not delay, because the state is building their case against you right now, often before you even know that you are being investigated.

What is an Indictment in SC State Court?

In South Carolina, every case must be indicted before it can go to trial.

Indictments are issued by the grand jury. In most cases, that means a grand jury that has county-wide jurisdiction, although some cases are indicted by a statewide grand jury. What does it mean if you are indicted in SC?

It means that:

  • A grand jury met in secret;
  • A police officer or solicitor’s office employee read a summary of your charges to them; and
  • They stamped “true bill” on a piece of paper that contains the offense you are charged with.

You do not have the opportunity to appear. The “evidence” the jurors hear is presented in a matter of minutes, sometimes taking less than a minute. No one presents evidence on your behalf. The jurors usually do not ask questions or even take time to deliberate as to whether there is probable cause to charge you with the crime.

Almost every case that is presented to the grand jury gets indicted – as I’ve heard judges say to defendants who are about to plead guilty, “the grand jury would indict a ham sandwich.” It’s a procedure that is required by the Constitution to protect us from overreaching prosecutors that has instead been transformed into a rubber stamp for prosecutors.

Does an Indictment Begin a Criminal Case?

An indictment can be the charging document that begins a criminal case, but it usually is not. In most cases, a person is charged with an arrest warrant that details the probable cause for the crime.

Months later, the solicitor’s office presents the case to a grand jury for indictment and the indictment “replaces” the arrest warrant or citation that “kicked off” your case.

Why Would You Waive Indictment?

If you are pleading guilty and your case has not been presented to the grand jury yet, you may be asked to waive indictment. Why would you do that?

First, you may choose to waive indictment because you are ready to plead guilty. Maybe you are going home with a time-served or probationary sentence. Maybe they are making an offer you can’t refuse, and you don’t see a point in waiting for the grand jury to hear a 60-second statement about why you are guilty before indicting you…

If you are pleading guilty and you have not yet been indicted, it probably is not going to hurt to waive indictment but you should not waive any constitutional rights before discussing it with your attorney. I can almost guarantee that the jurors are not going to listen to the brief statement from your prosecutor and then say, “Wait! There’s no probable cause!”

You can’t plead guilty – or go to trial – unless your case has been indicted or you waive the indictment.

Can You Challenge an Indictment?

There are ways to “challenge” an indictment. First, you can challenge the sufficiency of the indictment, but you must do it before the jury in your case is sworn (before your trial starts).

When you challenge the sufficiency of the indictment, ordinarily you are saying that the indictment does not allege facts that fit the crime charged, the indictment does not properly state the charges against you, or the indictment does not put you on sufficient notice of what you have been charged with so that you can defend against the charges.

What is the remedy? If the court agrees with you, the court may “quash” the indictment and allow the solicitor to “re-indict” your case, or the court may allow the prosecutor to amend the indictment on the record before your trial begins.

You can also challenge the “staleness” of an indictment – if the state waits an unreasonable length of time before indicting your case and moving forward, the indictment may be “quashed” and cannot be re-indicted.

On the other hand, if the indictment alleges the wrong facts, or if it details the elements of a crime that does not fit the alleged conduct, you can choose to wait until the directed verdict stage of your trial – if the state does not prove the crime that they have charged in the indictment, the court should “dismiss” your case by granting a “directed verdict of acquittal” at the close of the state’s case…

What is an Arraignment in SC State Court?

I’ve had clients ask me what the difference is between an indictment and an arraignment. An “arraignment” in SC state court is an informal procedure – it’s not a formal hearing that is required before your case is tried. It’s also not related to the indictment procedure in any way.

Prosecutors make a plea offer. We reject it. Then they schedule an “arraignment,” where you appear in court. The prosecutor makes the plea offer on the record, and the court will ask you questions to ensure that you understand 1) what you are charged with, 2) what the potential penalties are, and 3) what the plea offer is.

Then, if you do not accept the plea offer, it will be taken “off the table” and it will no longer be available. You can go to trial or plead with no recommendation from the state (FYI this does not always happen, but they will tell you that is what will happen, and you should assume they are telling the truth).

They will also tell you that your case is going to be tried at the next term of court – that may be true, or it may not be true.

Sometimes your prosecutor will let slip the “real” purpose of the arraignment – to force you into a guilty plea – by scheduling multiple arraignments, sometimes a year after the first one… Because maybe you were just kidding about wanting a trial the first time around?

Often, the arraignment is an opportunity for the prosecutor, judge, and sometimes your defense lawyer to “gang up on you” and try to force you to plead guilty so there will not be a trial. If you know that you are not pleading guilty, and you understand that your only other option may be a jury trial, you should say nothing other than responding to direct questions from the judge and affirming that you want a jury trial.

You decide whether you will plead guilty or go to trial, but an arraignment is a way for the prosecutor and judge to ensure that you understand the potential consequences of your decision (and to try to change your mind).

SC Criminal Defense Lawyer in Charleston

Grant B. Smaldone is a criminal defense attorney in Charleston, SC who handles state and federal criminal defense cases.

If you’ve been charged with any crime in Charleston, SC, call now at (843) 808-2100 or send a message through our website to set up a free consultation about your case.


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