Federal Information as an Alternative to an Indictment
In the federal criminal justice system, felony prosecutions typically begin with an indictment handed down by a grand jury. However, the accused can waive their constitutional right to indictment and instead face charges brought by a federal information. While very similar, there are some key differences between indictments and informations that defendants should understand before agreeing to waive indictment.
What is an Indictment?
An indictment is a formal charging document that contains the allegations against the defendant. It is issued by a grand jury after considering evidence presented by the prosecution.
The Fifth Amendment to the Constitution provides that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” This guarantees a right to grand jury indictment in federal felony cases.
Here’s a quick rundown of the grand jury process:
- Grand juries have 16-23 members who serve on the panel for 18 months. They meet in secret to investigate potential crimes.
- Prosecutors present evidence and testimony to the grand jury, which has the power to subpoena documents and witnesses.
- Grand jurors can ask questions and direct investigations independently of the prosecutor.
- After hearing the evidence, the grand jury votes on whether to issue an indictment.
- An indictment is issued if 12 or more grand jurors vote that there is probable cause to charge the defendant.
So in summary, an indictment is the product of an independent investigation by a grand jury that has determined there is sufficient evidence for a case to move forward. The indictment contains the charges and essential facts constituting the alleged offense.
What is a Federal Information?
A federal information serves the same purpose as an indictment – it is a formal charging document submitted by the prosecution that contains the charges and allegations against the defendant.
However, an information does not involve a grand jury. Instead, the prosecutor drafts the information and files it directly with the court.
By waiving indictment, the defendant gives up the right to have a grand jury make a probable cause determination. This avoids the time and expense required for a grand jury proceeding.
Defendants may choose to waive indictment in order to expedite plea negotiations or if they believe an independent grand jury investigation would likely result in an indictment anyway.
Key Differences Between Indictments and Informations
While they serve the same basic purpose, there are some important differences between indictments and informations:
- Grand Jury Review – An indictment is issued by a grand jury, while an information is filed directly by the prosecutor.
- Probable Cause Determination – The grand jury makes an independent finding of probable cause for an indictment. There is no similar finding for an information.
- Constitutional Right – A defendant has a constitutional right to a grand jury indictment, which they waive by consenting to proceed by information.
- Discovery – Some discovery may be available earlier in cases initiated by information rather than indictment.
- Plea Agreements – Waiving indictment may be a condition of a plea agreement. It avoids the uncertainty of awaiting a grand jury’s decision.
- Secrecy – Grand jury proceedings are secret, whereas cases initiated by information may allow more openness.
So in summary, the key distinction is that an information allows prosecutors to file charges directly without going through the grand jury process.
Why Would a Defendant Waive Indictment?
There are several reasons why a defendant facing federal criminal charges might waive their constitutional right to an indictment:
- Speed up the case – Getting a plea agreement in place faster avoids uncertainty. Defendants may want to get sentencing done with if they expect to plead guilty.
- Avoid grand jury investigation – Defendants may believe the grand jury’s independent investigation could uncover more damaging evidence.
- Grand jury likely to indict – If the evidence appears overwhelming, defendants may concede that an indictment is inevitable.
- Cooperation – Waiving indictment may be a condition of cooperating with prosecutors and getting a better plea deal.
- Uncertainty – Defendants may want to take a known plea deal rather than face the uncertainty of a grand jury investigation and trial.
So in many cases, waiving indictment comes down to expediting plea negotiations or avoiding the risks of an open-ended grand jury inquiry.
The Federal Information Procedure
Here is an overview of how the federal information process works:
- The prosecutor drafts an information containing the charges and factual basis. This is similar to an indictment.
- The defendant files a waiver of indictment indicating they are voluntarily giving up their constitutional right.
- The court must approve the waiver and ensure the defendant is acting knowingly and voluntarily.
- Once approved by the court, the information is filed directly by the prosecutor, initiating the case.
- The defendant typically enters a guilty plea to the charges in the information shortly thereafter.
- Before accepting the guilty plea, the judge again ensures it is knowing and voluntary.
So while an information skips the grand jury stage, judges carefully safeguard the defendant’s rights when waiving indictment. Plea agreements based on an information ultimately require the court’s approval.
Implications of Pleading Guilty to an Information
There are a few important implications to understand when pleading guilty pursuant to an information rather than an indictment:
- No trial – The guilty plea waives the right to trial, so there will be no jury determination of guilt.
- Factual basis – Pleading guilty concedes there is a factual basis for the charges, so no independent examination of the evidence occurs.
- Appeal waiver – Plea agreements often include broad waiver of appeal rights. So there is little ability to challenge the conviction and sentence later.
- Sentencing – With a guilty plea, sentencing will be based largely on the plea agreement and advisory guidelines. Judges have discretion to impose any lawful sentence though.
So essentially, pleading guilty to an information helps streamline the case by removing the grand jury investigation, trial, and appeal stages. But it also means less scrutiny of the factual basis for charges and likely fewer future challenges available.
When Might a Prosecutor Prefer an Information?
Using an information instead of indictment can also provide some advantages to prosecutors:
- Efficiency – Informations are faster and avoid the time and uncertainty of grand jury proceedings.
- Control – Prosecutors have more control over an information. Grand juries can be unpredictable.
- Plea agreements – Defendants may be more willing to negotiate pleas when indictments are waived.
- Discovery – Some discovery may be available earlier in information cases.
- Simplicity – Informations allow prosecutors to proceed with straightforward, uncomplicated charges.
- Cooperation – Requiring indictment waivers can secure cooperation from defendants.
So prosecutors may favor informations in cases where they want to resolve matters quickly and efficiently through plea agreements. It also gives them more control over the charging process.
Key Takeaways
The key points to understand about federal informations as an alternative to indictments:
- An information serves the same purpose as an indictment but avoids the grand jury process.
- Defendants waive the constitutional right to grand jury indictment by consenting to an information.
- Waiving indictment is often done to expedite plea agreements.
- Judges ensure the waiver is voluntary before accepting a guilty plea to an information.
- Pleading guilty to an information means no trial and likely limited appeal rights.
- Prosecutors can use informations to increase efficiency and control over the case.
So essentially, federal informations provide a streamlined alternative to securing a grand jury indictment in appropriate cases. But defendants should weigh the pros and cons carefully before waiving their constitutional protections. Consulting experienced defense counsel is highly advisable when considering an information.