Charge, indictment, information: how a criminal case begins

A criminal case does not begin with an arrest, or with a trial. It begins when the state formally accuses someone of a specific offence. The accusation is set out in a legal document, and the name of that document varies: a charge, an indictment or an information. This article explains what each term means and how the process works in different systems. A charge is an allegation, not a finding of guilt, and the person accused is presumed innocent until a court decides otherwise.

Arrest, suspicion and charge are different things

People often assume that being arrested means being charged. It does not. An arrest means that officers have grounds to suspect a person of an offence and may detain them for questioning. A person can be arrested and then released without any further action.

A criminal charge is a later and more formal step. It records that the authorities believe there is enough evidence to put the allegation before a court. Once a person is charged, they are told what offence they face, and they are either held in custody or released on bail until their first court appearance.

Who decides to charge

The decision rests with the prosecution, though the detail depends on the country. In England and Wales, police can charge some minor offences themselves. For more serious matters the decision is made by the Crown Prosecution Service, applying the Code for Crown Prosecutors. That Code asks two questions. Is there enough evidence for a realistic prospect of conviction? And is prosecution in the public interest?

In the United States, the decision is made by a prosecutor, such as a District Attorney in many state systems or a United States Attorney in the federal system. Prosecutors have wide discretion over whether to bring a case and which offences to allege.

What an indictment is

An indictment is a formal written accusation, usually for a serious offence. It lists each count, which is a separate alleged offence, and states in general terms the conduct alleged. It is not evidence. It tells the defendant, and the court, what the trial will be about.

Indictments in England and Wales

In England and Wales, a serious case starts in a magistrates' court, which deals with early matters such as bail. Offences that can only be tried in the Crown Court are sent there. The prosecution then draws up the indictment, and the defendant is asked to enter a plea at the Crown Court. No grand jury is involved.

Indictments in the United States

The Fifth Amendment to the United States Constitution says that a person generally cannot be held to answer for a serious federal crime unless a grand jury has indicted them. The same protection has not been applied to the states, so practice varies. Some states use grand juries for serious felonies, while others do not.

What a grand jury does

A grand jury is a panel of citizens, larger than a trial jury, that decides whether a case should go forward. Federal grand juries have between 16 and 23 members. They meet in private, and the prosecutor presents evidence and witnesses. The defence usually does not take part.

The test is not guilt but probable cause: whether there is a reasonable basis to believe an offence was committed and that the accused committed it. If the grand jury agrees, it returns what is called a true bill, and the indictment is issued. If it declines, the result is a no bill, and the case does not proceed on that basis. Because the standard is lower than at trial, an indictment says little about how a trial will end.

What an information is

An information is also a formal accusation, but it is filed directly by the prosecutor without a grand jury. In the United States it is commonly used for less serious offences. It can also be used for felonies where the state does not require a grand jury, or where a defendant waives the right to indictment, often as part of a plea arrangement.

Where an information is used for a felony, a judge may first hold a preliminary hearing. There the prosecution must show probable cause in open court, and the defence can usually cross-examine witnesses. In this way, the information route replaces the secret grand jury stage with a public judicial check.

The word has older meanings elsewhere. In some common law systems, an information has historically meant the allegation laid before a magistrate, and modern rules may use different terms such as a written charge. The label matters less than the function: it is the document that formally states the case.

The stages that follow

After the formal accusation, the usual steps are broadly similar across common law systems:

1. The defendant is told of the charges at a first appearance.
2. Issues of bail or detention are decided.
3. At an arraignment or plea hearing, the defendant pleads guilty or not guilty.
4. The parties exchange evidence, and pre-trial hearings deal with legal disputes.
5. If there is no guilty plea, the case goes to trial.

In the United States, a person arrested on a federal complaint must generally be indicted within 30 days. That deadline is meant to prevent people from being left uncertain about the case against them for long periods.

Why the formal accusation matters

The charging document has several protective functions. It gives the defendant notice of the allegation so they can prepare a defence. It limits the trial to the offences stated. It also supports the principle against double jeopardy, because a later court can see exactly what the person was accused of. Prosecutors can usually amend or add charges as a case develops, but there are rules about when and how.

Legal systems also vary in who guides the early stage. In some civil law countries, an investigating judge plays a larger role before a case is sent for trial. The common thread is that a person should not face trial without a defined accusation, reviewed by someone before it reaches a courtroom.