How to Indict

Bold black headlines that read DONOVAN INDICTED can seem quite damning. Indeed, public officials charged by a grand jury often complain that they are convicted by the press. But in fact an indictment is merely a formal accusation; the state still has a long way to go to prove the defendant guilty.

To win an indictment, the prosecutor must convince at least a majority of a grand jury -- usually no more than 23 citizens -- that there is reason to believe that the accused committed specified crimes. In principle, the grand jury is supposed to serve as a check on unfounded charges and prosecutorial excesses. In practice, it is often a rubber stamp. The U.S. Constitution requires a grand jury indictment before some one can be prosecuted for a major federal offense; 24 states have a similar requirement for serious violations of their laws. At grand jury hearings, conducted in secret, the prosecutor runs the show: he has broad leeway to offer evidence, summon witnesses and make arguments. A witness or "target" can invoke his Fifth Amendment right against selfincrimination, but in most states he cannot bring his lawyer in to the grand jury room. Even where he can, the lawyer is powerless to do much more than tell his client to keep quiet.

At trial, on the other hand, the accused is protected by a panoply of procedural safeguards. Strict rules, enforced by a judge, generally exclude evidence that is unreliable, prejudicial or obtained in violation of the accused's constitutional rights. Defense lawyers are free to challenge the state's case and cross-examine its witnesses, as well as introduce witnesses on the defendant's behalf. Finally, a jury must be convinced of the defendant's guilt "beyond a reasonable doubt." A unanimous vote is required for criminal convictions in federal courts and in 45 states.