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Facing A Criminal Indictment? Expert Tips On How To Fight Back! (2023)

By July 14, 2023February 9th, 2024Criminal Defense

I’m Jeff Hampton with Hampton criminal defense attorneys. We provide criminal defense services in Fort Worth, Texas and other counties in North Texas. Today, I want to talk to you about criminal indictments. Of course, we all see the news about how Trump is facing an indictment and that he’s been indicted by a New York grand jury and a lot of people are asking the question, “what is an indictment and how does this affect me if I’m facing an indictment? What should I know and what are some ways to challenge it.?”

I want to give you some expert tips on ways to not only challenge an indictment but to understand what it is to begin with. Let’s start off by identifying what is an indictment? An indictment is technically a formal accusation by a grand jury that someone has committed a crime. In a criminal case, the criminal prosecutor will present evidence to a grand jury who will then decide. They’re going to decide, is their probable cause that someone has committed a crime.

Now I’m going to just tell you this probable cause can be a very small amount of evidence. In fact, it can just be somebody’s word. There are people who are charged with crimes and the standard of evidence for indictment is the same as being arrested. How many people are wrongfully arrested every day? Thousands of people are wrongfully arrested so the reality of it is it doesn’t take very much evidence to number one get arrested, but it takes the same amount of small amount of evidence to get indicted.

The difference is sometimes there are some steps you can take if you work with the right type of criminal defense attorneys who can actually help you avoid an indictment, so we’re going to talk about that for a minute. Let’s say you’re not aware of when the case goes in front of the grand jury. As a result, the case is indicted without you or your attorney’s say. If the grand jury decides there’s enough evidence to indict, they will issue an indictment which means the individual is formally charged with a crime and the indictment will then list the charges against the person and it will provide a brief description of the alleged crime.

Most presentations to a grand jury are very one-sided. A grand jury only hears what the prosecutor shares with them. I know this because I was a prosecutor for five and a half years so the reality of it is most of the time what happens is a prosecutor prepares a short presentation and the grand jury is just sitting there listening. The grand jury is comprised of normal people. Many times, they’re just older people that are retired that are serving on 90-day terms on a grand jury and they literally hear only what the prosecutor tells them and it’s usually a one-sided story and they base their decision off of what they’re hearing.

If they only hear what the prosecutor says, they decide they believe the accused probably did it or they think there’s enough evidence here for this to move on to the next stage. If a case is indicted by a grand jury, in no way does it mean they hear the other side of the story and many times they actually miss out on big portions of the evidence because it’s hand-picked by the prosecutor to present to the grand jury. Let’s talk for a second about how you get indicted. There are a couple of ways that an indictment takes place. Usually it’s done one of two ways: there’s something known as a direct indictment and then there’s something known as a post-arrest indictment.

Let’s talk about a direct indictment. A direct indictment essentially means there’s a criminal investigation going on. We find this a lot with white-collar crime, we see this a lot with economic crimes, particularly in the North Texas area and State Court. But a lot of times what will happen is you’ll have a detective that’s working on a case, they’re gathering information, and instead of just going straight to a judge and seeking an arrest warrant to have the individual arrested and then proceed forward, what they’ll do is they’ll gather this information and seek an indictment at the same time – they’ll do it hand in hand.

The investigator will work hand in hand with the prosecutor at the District Attorney’s office, and then that prosecutor will take that packet of evidence from the detective and go straight to the grand jury. So what will happen is, let’s say they go straight to the grand jury and present this evidence. If the grand jury then approves what they hear, then they will direct or immediately indict that individual. That triggers a warrant for that individual’s arrest. We see this happen all the time.

There’s a client we represented on a felony case where he was direct-indicted for an economic crime situation against a former employer that he had as the alleged victim. And I mean, this was the most one-sided investigation. They only took the employer’s word for it. The economic crimes division just took the information, ran with it, and threw it in front of a grand jury. And of course, our client did not even know that he had a warrant out for his arrest. So a year and a half later, and we weren’t representing him at the time until he ended up getting arrested.

Our client is taking a trip from Dallas Fort Worth airport out to Florida, and as he’s going to get on the airplane and that’s when they determined he has a warrant, a felony warrant for the felony economic crime. DFW police take him into custody. Our client never even knew, never heard from a detective, had no idea he was even under investigation, and now he’s going into custody and he’s having to bond out, never even knew that he was going to be getting in trouble for anything. That sort of situation happens with a direct indictment, and so we’ll talk about what you can do if that direct indictment takes place, how do you challenge that indictment. But that’s step number one, Direct indictment. That’s one way to be indicted, is a direct indictment.

The second option is what we call a post-arrest indictment. Now, post-arrest indictments are a little bit different. Here you have an investigator, who may be a detective, who’s gathering information. A lot of times, they’ll reach out to the person that they’re investigating, and they’ll try to get them to speak to them. Like, “Hey, give me your side of the story. What’s going on? If you’ll come in and talk to me, they’ll play kind of this good cop bad cop thing. You know, “Hey, listen, if you’ll share some information with me, I’m sure we can move on and just sit down and answer some questions for me, and I won’t, you know, I’ll close out my investigation.” The problem is, I’ve got other videos on this. Never believe what a detective says when it comes to their claims. A detective is always trained to get someone to sit down with them and give some sort of statement, because that statement can then be interpreted however the detective chooses to interpret.

In fact, most detectives have already somewhat made up their mind about what they believe has taken place based upon the investigation they’ve had with the alleged victim or other witnesses that are involved. They usually wait to come to the person being accused after they’ve gathered all the rest of their evidence. It can tend to come across as not really objective but very one-sided and attacking. As a result, it is really important to understand that.

Let’s talk about what happens here. Let’s say the detective is doing that and he’s investigating all this, and now he thinks he has enough probable cause to get a warrant for that individual’s arrest. Well, in this situation, (and we prefer this way) here’s what happens: we don’t want a client to ever get arrested. But let’s say at this point, they’ve gathered evidence, they now move on to arrest the individual on a probable cause warrant, right? They have a Probable Cause warrant. The police go and arrest them. That individual gets booked into jail. They can post a bond and book out. Well, now what happens is the case has not been indicted. The case is now assigned to the district attorney’s office, and now the District Attorney’s office will get the file.

But here’s the key: now the criminal defense attorney, if that individual hires a defense attorney, the defense attorney can now get access to that file as well for almost every type of case. They can get access to that evidence and review it with the client, and now contest that evidence. And here’s what’s key: every state and every county is a little different in how they administer this. But in most counties, at least, you are able to review that evidence because you have a right to criminal discovery. You have a right to be able to see what the file is, and that is pretty much universal. You have a right to be able to see what the evidence is against you if you’re accused of a crime, that your attorney now can go over that with you, and you may have the opportunity to present your side of things to show that you’re exonerated.

On post-arrest indictments, we have had literally hundreds of cases no billed by a grand jury, many, many cases that have started off as a felony crimes reduced down to a lesser charge of a misdemeanor. Because, the reality of it is, cops have a tendency to overcharge people. They’ll charge them with the highest crime they possibly can, and many times they cannot substantiate what that charge is. And look, the prosecutors just take what the cops say and believe it to be gold, and many times, there’s very little investigation. This is kind of what people don’t realize, very little investigation that takes place at the District Attorney’s office. They believe that the investigation work was already done by the police, and they just take it, believe it to be gold, and they present it to a grand jury.

The best criminal defense attorneys, you can share that information with them, they can review it, get your feedback on it, be able to take that information and make a presentation. Now, some states and some counties allow the attorney to actually come in and make a presentation to the grand jury, and other counties and states will only allow maybe an evidence packet of presentation to be made to the grand jury. And so, when that happens, here’s what can take place: either way, whether it’s a direct presentation to the grand jury or whether it’s a packet of evidence, the grand jury can hear a different side of the story.

That’s why we’ve had many, particularly assault-based cases, aggravated assaults, murders, robberies, these kind of cases, can be rejected by a grand jury whenever they see evidence that they look at, reasonable people can kind of bounce it off their gut and go, “This doesn’t make sense. I’m not going to charge somebody and have somebody arrested for a serious crime or have somebody charged with a serious crime when there’s not enough evidence to support it.” So one of the ways that a true bill can work is it’s really important if you’ve been arrested for a felony crime and as far as you know, your case has not been indicted yet, it’s critical to hire a criminal defense attorney as soon as possible because your criminal defense lawyer can get access to that evidence and help you prepare a defense which can be presented to a grand jury.

Now, what are the options for a grand jury? Well, if your case is being presented, the grand jury can do one of three things. They can true bill the case, which essentially means approving the charge as is. They can approve it as whatever it was alleged to be by the police officer, whenever they got the warrant. They can then also reduce the charge from a felony to a lesser charge or a misdemeanor offense based upon a different crime fitting the facts. Or finally, they can do what they call no bill the case. And a no bill means a rejection of all the charges. There’s insufficient evidence to establish probable cause that an individual has committed a crime. And there are literally hundreds of felony cases that are rejected by grand juries all the time.

How does this happen? This is done by criminal defense attorneys who are helping present the other side of the story, information that was neglected either due to a sloppy investigation or information that was not made known to the prosecutor at the time. Here’s the little story people don’t realize, particularly in the North Texas area, many of these grand jury lawyers have quotas of how many cases they must present to a grand jury.

I know when I was a prosecutor, I was expected to present at least, during the short time that I was doing that, I was expected to present 40 cases a week to the grand jury. And if you didn’t keep up with your quota, then you ended up getting in trouble. You were graded partially on how many cases you presented to the grand jury. Now think about that for a second. I wasn’t graded so much on whether or not it was a thorough investigation. I was being graded based on how many cases I’m getting in front of the grand jury and just pushing things through the system. And of course, we all know when you just push things through the system, mistakes are made, people are wrongfully charged.  This is why it’s critical never assume that the prosecutor’s office is going to do a thorough investigation of anything that a detective sent to them. They are trying to meet their quotas and push cases through the criminal justice system.

Last thing I want to cover is what if you’ve been indicted? What can you do? Well, there’s a couple of things that your criminal attorney needs to look at. Number one, was the indictment defective? There’s something known as a motion to quash the indictment for a defective indictment. There are some defects that can be on a document. For instance, let’s say that the actual allegations within the indictment are deficient, they don’t add up as far as the law. What if the manner and means listed, and here’s a big one, let’s say it’s an assault charge or an aggravated assault, but the manner and means that someone was seriously injured, let’s say based upon the intentionally or knowingly actions of the defendant causing a serious bodily injury of the alleged victim by doing what? Striking them or hitting them with the butt of a gun. Well, what if it wasn’t a gun? What if they didn’t strike them? What if it was something else? What if the manner and means by which is being alleged is improper?

Well, there can be things on its face that allow strategically, you need to speak to your attorney about, because your attorney can either wait until it gets in trial (in that situation you have a defective indictment, which can help you with a jury in terms of what is instructed to the jury), or you could end up having a situation where you could file a motion to quash that indictment for it being a defective indictment. Now, some of these can be cured by the prosecutor, depending on how close to trial it is, but sometimes they can’t. Sometimes it can make the case defective on its face, and the prosecutor is going to have a hard time being able to do this, particularly if it’s close to trial.

Remember, though, an indictment is not the end of the road. If you end up being indicted, indictment only requires a showing of probable cause, but a conviction requires proof beyond a reasonable doubt. The main reason I presented this here to you today is because I want you to understand a lot of people think, “Oh, I’m indicted, that means I’m, I have no chance. I’m literally screwed.” No, that’s not the case at all. The reality of it is, there’s still a fight to be had, and an indictment is only a showing that a prosecutor presented something to a bunch of people who only heard one side of the story and thought maybe something happened. That’s all an indictment is, and if you are able to get access to work with an attorney to get access to that information before the indictment, you might be able to get your indictment dropped. You may be able to get the entire case thrown out through a no bill. All right, well listen, I’m Jeff Hampton with Hampton Criminal Defense Attorneys. I hope this has been helpful to you. If so, check out our website. I’d be happy to provide you a free consultation if you or a loved one need some assistance in the North Texas area. And I want to thank you for joining us here today. I’ll see you on our next video.