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Should a Criminal Defendant Waive Federal Indictment?

Posted by John Rogers | Mar 18, 2021

The decision to waive a federal indictment is a tactical one, and it should only be waived after discussing it with your lawyer. A federal defendant is either arrested when a complaint or indictment is filed. If a suspect is arrested on a complaint, then they have the right to a preliminary hearing within a specific time. However, the government may obtain a grand jury indictment in the interim.

grand jury indictment is when the grand jury finds sufficient cause to believe that the defendant has committed a crime. The evidentiary standard the grand jury applies is probable cause.

Accordingly, there are two ways the government may show probable cause. First, the grand jury may indictment you. Second, the evidence adduced at a preliminary hearing may rise to the level of probable cause. In either case, the government can show the charge sheet is supported with probable cause.

However, holding a preliminary hearing or the process of obtaining a grand jury indictment can be tedious, time-consuming, and expend government resources. Sometimes the federal prosecutor may ask your lawyer if you will waive a grand jury indictment and proceed forward in the case by an information.

This means that you waive your right to a preliminary hearing or your right to have a grand jury listen to the case. When it appears that you may engage in plea agreement negotiations with the prosecution later in the case, it may be wise to waive indictment. Namely, it may be a factor that your lawyer can argue at a sentencing hearing – i.e., that you took early responsibility and saved the government valuable time and resources. 

Because the probable cause standard is relatively low, there is a strong probability the government will obtain a grand jury indictment. Therefore, it may be ideal for you to lend a professional courtesy to the government with an expectation that they may do the same. For instance, the government may agree to recommend a lesser sentence based on your willingness to waive indictment or return some of your property. However, waiving an indictment will not result in getting your case dismissed, nor will it guarantee a particular sentence.

Therefore, whether you decide to waive the grand jury indictment or not, it will require a careful discussion with your lawyer. More likely than not, your lawyer will recommend that you waive the grand jury indictment. Only in rare situations would you be prejudicing your case by waiving grand jury indictment.

If you have been charged in federal court, you must protect yourself with a respected federal criminal defense attorney. Give us a call today to schedule a free case evaluation about your rights, defenses, and all your options. 

About the Author

John Rogers

*State Bar Board Certified Specialist in Criminal Law *Top 40 Under 40 by the National Trial Lawyers Association *Selected “Rising Star” by Super Lawyers Magazine *Federal Criminal Defense Representation Nationwide *Personalized Attention & 24/7 Accessibility


Orange County federal crimes lawyer John Rogers is committed to providing exceptional representation all throughout California federal courts.

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