Have you ever heard of someone getting charged with a crime, only to find out later that they were actually indicted? What does this even mean?
Many people use the terms “charged” and “indicted” interchangeably, but in legal terms there is a difference between the two.
In short, being charged means a person is accused of committing a crime. Being indicted means that a grand jury has decided that the case should go forward and has issued a formal written accusation. A grand jury is a panel of citizens convened by the court to decide whether it is appropriate to bring charges against someone suspected of a crime. If it decides there is reason to bring someone to trial, it returns a “true bill” and issues an indictment. If it finds insufficient reason, it returns a “no bill” (South Carolina Judicial Branch FAQ on criminal court).
In South Carolina, no person may be held to answer in court for an alleged crime unless there is an indictment by a grand jury, with limited exceptions. Those exceptions include prosecutions that a statute expressly allows to proceed by information and proceedings before a magistrate or police court (S.C. Code Ann. § 17-19-10). The State Constitution also lets the General Assembly provide for the waiver of an indictment by the accused (S.C. Const. art. I, § 11).
Understanding this difference makes the legal process clearer. If you need help understanding where your case stands, you can speak with a Greenville criminal defense lawyer. This article is general information, and a licensed South Carolina attorney at our firm must review the facts of your case before you rely on it. Let’s examine these two terms more closely.
Criminal Charge
A person is charged with a crime when an arrest warrant is issued or when the person is arrested on a charge. A police officer or other authorized official files the charge based on what was observed and the evidence collected in an investigation. In a General Sessions case, the first steps after an arrest usually are a bond hearing, a possible preliminary hearing, a grand jury, and then two court dates at which the person is told of the charge and can say whether to plead guilty or ask for a jury trial (South Carolina Judicial Branch FAQ on criminal court). The step where a person enters a plea of guilty or not guilty is described in more detail in our article on arraignments.
Three issues stand out here: arrest, arraignment and bail. Let’s consider these in more detail.
Arrest
A person is usually arrested by law enforcement before the person is charged with an offense in a General Sessions case. An arrest can occur with a warrant or, in some situations, based on probable cause without one. Probable cause means that the officer has enough facts to reasonably believe that the person committed a crime. A judge or magistrate issues an arrest warrant when the sworn information shows probable cause.
After an arrest, the accused is taken into custody, is booked at a jail and is charged. There may be more than one charge, and the charges may include misdemeanors, felonies or both.
Arraignment
An arraignment is the step in which a person is formally told of the charge and asked to enter a plea. In a General Sessions case, the judicial branch explains that the first court date is set within 45 to 60 days of arrest and that the second court date is set within 120 days of arrest. At the second court date, the defendant tells the judge whether the defendant wants to plead guilty or request a jury trial (South Carolina Judicial Branch FAQ on criminal court). Our article on what an arraignment is explains this stage in more detail.
At this stage, the person may also talk with the solicitor about a plea bargain or plea deal. Whether a charge moves forward is the solicitor’s decision. Within 90 days after the solicitor receives an arrest warrant from the clerk of court, the solicitor must prepare an indictment for the grand jury, formally dismiss the warrant, or make another affirmative disposition in writing, although the circuit court may extend that time for good cause (S.C. Rules of Criminal Procedure, Rule 3).
FAQ: What questions to ask a Columbia criminal defense lawyer?
A person charged with a crime has the right to be fully heard in his or her defense by counsel (S.C. Const. art. I, § 14). If the person is entitled to counsel and cannot afford a lawyer, the court must provide one (S.C. Code Ann. § 17-3-10). In practice, a public defender is appointed after the person applies and is screened.
Bail
A person who is charged with a bailable offense must have a bond hearing within 24 hours of arrest (S.C. Code Ann. § 22-5-510(B)). Bail, also called bond, is the amount of money or the conditions set so that the accused person can be released from jail before trial. If a bail bondsman or bail bond agent is involved, the agent posts the bond on behalf of the accused in exchange for a fee.
Bond is set to make sure that the accused person appears in court. If the person does not appear, the judge may issue a bench warrant for the person’s arrest (South Carolina Judicial Branch FAQ on criminal court). The court looks at things such as the nature of the offense, family ties, employment, financial resources and the person’s record when it decides on conditions of release (S.C. Code Ann. § 22-5-510(C)).
Criminal Indictment
An indictment is a formal written accusation that is issued by a grand jury. A grand jury is made up of members of the community who review the evidence that the prosecutor presents. A grand jury does not decide whether a person is guilty. It decides whether the case should go forward.
If the grand jury decides there is reason to bring the person to trial, it issues a true bill, and the person is then tried on the indictment. Some indictments happen before an arrest. The judicial branch calls this a direct indictment, and in that case the defendant or the defense lawyer arranges for the person to turn himself or herself in for processing and a bond hearing (South Carolina Judicial Branch FAQ on criminal court).
A grand jury is not a trial, and the standard is not the one used at trial. At trial, the State must prove every element of the offense beyond a reasonable doubt (In re Winship, 397 U.S. 358 (1970)). For the state grand jury, which can hear certain cases that the Attorney General brings, the statute requires that twelve or more state grand jurors find that probable cause exists and vote in favor of the indictment in order to return a true bill (S.C. Code Ann. § 14-7-1750). A grand jury may also decline to indict, which is a “no bill.”
Question Witnesses
A grand jury proceeding is not a trial. The prosecutor presents evidence and may call witnesses. Under the state grand jury statute, the only people who may be in the grand jury room while it is in session, other than during deliberations and voting, are the grand jurors, the Attorney General or a designee, the court reporter, an interpreter if one is needed, and the witness who is testifying (S.C. Code Ann. § 14-7-1720(A)). A defendant has the right to review and to reproduce the recorded testimony of a state grand jury, subject to the limits in the statute and Rule 5 (S.C. Code Ann. § 14-7-1700). A client may also tell his or her lawyer about testimony the client gave to a state grand jury (S.C. Code Ann. § 14-7-1720(C)). Because the accused person is not among the people the state grand jury statute lists, he or she may not know what evidence is presented at that stage. The county grand jury statutes we reviewed (S.C. Code Ann. § 14-7-1510 through § 14-7-1560) cover how jurors are chosen and how witnesses are sworn, and they do not say who may attend. How a county grand jury handles a case can vary, so ask a lawyer how it works in your county.
Why Question Witnesses?
Prosecutors may call witnesses during grand jury proceedings as they present the case for an indictment. The foreman may swear witnesses whose names appear on the bill of indictment, and only witnesses who have been bound over or subpoenaed may be sworn (S.C. Code Ann. § 14-7-1550). Witnesses may be called for a variety of reasons, including:
- To provide firsthand information or testimony about the alleged crime
- To establish evidence or corroborate statements
- To address statements made by other witnesses
- To provide expert testimony or analysis
- To establish a timeline of events leading up to the alleged crime
Grand Jury
A county grand jury is made up of citizens whom the clerk of court draws from a qualified list (S.C. Code Ann. § 14-7-1540). They review the evidence presented by the prosecutor to determine whether the case should go to trial. To put it simply, the grand jury decides whether or not to indict a person for a crime.
State grand jury proceedings are secret by statute. A state grand juror may not disclose the nature or substance of the deliberations or the vote, and a person who violates the secrecy provision commits a misdemeanor (S.C. Code Ann. § 14-7-1720).
Some people see the process as one-sided because the grand jury hears the evidence the State presents, and the statutes we reviewed do not provide for the defense to present its case there. The State must still prove guilt at trial, where the accused has the right to be fully heard in his or her defense by counsel (S.C. Const. art. I, § 14).
Final Thoughts
Being charged or indicted does not mean a person is guilty. It means that the case has moved forward. If the grand jury returns a true bill, the case proceeds toward a plea or a trial. At a trial, the jury decides whether the State has proved guilt beyond a reasonable doubt.
Also serving Columbia and the surrounding areas
An indictment is a formal step in a case, and both a charge and an indictment mean that legal proceedings are underway and should be taken seriously. If you have been charged or indicted, you may want to speak with a criminal defense lawyer. At Touma Law Group, we work with clients to explain each stage of the process. We cannot promise any result, and a licensed South Carolina attorney must review the facts of your case.
