With Trump case looming, what is an indictment?

Written by ABC Audio. All rights reserved. on March 21, 2023

(NEW YORK) — Criminal prosecution proceedings typically start with an arrest and a court appearance, but legal experts say that on many occasions, especially in white collar crimes, suspects aren’t hit with charges or a visit from an officer until long after an official investigation is underway.

Being charged vs. indicted

Typically, if a crime is being investigated, law enforcement agents will make an arrest, file initial charges and bring a suspect to be arraigned in court, Vincent Southerland, an assistant professor of clinical law and the director of the criminal defense and reentry clinic at NYU School of Law, told ABC News.

After this arraignment, prosecutors would impanel a grand jury for a formal criminal indictment. Southerland, who has been practicing law in New York state for 19 years, said this process includes giving the jury evidence, possible testimony and other exhibits before they can officially charge a person with felonies.

New York is one of 25 states where prosecutors are required by law to have a grand jury decide on felony charges for a trial. The other half of the country does not have this requirement and such decisions can be made by the prosecutor themselves.

Southerland said in most criminal cases, “prosecutors and investigators have more than enough evidence or a case to bring that indictment in quickly.”

Why prosecutors may take long for an indictment

However, Southerland noted that prosecutors can start with the criminal indictment process in the beginning, especially if their case needs more evidence to press those charges.

Cheryl Bader, an associate clinical professor of law at Fordham University, told ABC News that such a move is common in white collar criminal investigations that involve looking at delicate nuances in the state law and require more time.

Bader said investigations into prominent figures, such as the current investigation by the Manhattan District Attorney’s office into former President Donald Trump, also prompt prosecutors’ offices to make their case to the grand jury in the most meticulous and thorough way possible.

A Manhattan grand jury is currently investigating Trump’s possible role in the hush payment to adult film actress Stormy Daniels. The former president has denied any wrongdoing and having an affair with Daniels. His attorneys have framed the funds as a response to an extortion plot.

“In an investigation like this, the prosecutor isn’t in a rush and wants to put their ducks in order. They want the evidence fully organized before they go to trial,” Bader told ABC News.

Southerland said that in some cases, a defendant might be offered the opportunity to testify before a grand jury and go on the record.

Two weeks ago, the Manhattan DA’s office informed Trump of his right to testify before the grand jury in the probe, according to sources.

One of Trump’s attorneys, Joe Tacopina, however, told “Good Morning America’s” George Stephanopoulos last week that his client has “no plans” to participate.

Southerland said that anything a witness or a defendant testifies in a grand jury can be used in court.

“It hamstrings here if you want to change your defense,” he said.

What happens after an indictment

Bader said suspects who are indicted can be arrested and remanded into custody while they await trial, but in most white-collar cases, the defendant is released on their own recognizance.

Southerland said another advantage that prosecutors have when it comes to indicting a suspect first before charging them is the secrecy and confidentiality of the grand jury. He noted, however, that in Trump’s pending case, media attention and witness statements have brought the case into the public eye.

“With a lot of things Trump-related, a lot of conventions just don’t hold,” he said.

Burden of proof

Southerland said that in all grand jury indictment cases, jurors are only tasked with determining if a case is strong enough that it should go to a criminal trial.

“The burden of proof is incredibly low,” he said. “This is not like in a criminal trial where something needs to be proven beyond a reasonable doubt.”

As the investigation into Trump continues, Southerland said the public needs to keep in mind that criminal indictments and charges aren’t indicative of any suspect’s guilt.

“When we talk about indictments, we’re talking about whether there is enough evidence to go forward with a trial, which is probable cause,” he said. “Defendants are still innocent until proven guilty and the indictment is just the first step of the legal process.”