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A written accusation charging that an individual named therein has committed an act or omitted to do something that is punishable by law.

United States v. Resendiz-Ponce

A criminal indictment is a written charge that states the time, place, and manner in which the defendant is alleged to have committed an offense. By detailing how the alleged actions violated the law, the indictment gives the defendant an opportunity to prepare a defense. Sometimes prosecutors issue faulty indictments, which fail to provide enough specific details on what actions the defendant took that violated a criminal law. The U.S. Supreme Court considered whether a criminal indictment was defective in United States v. Resendiz-Ponce, __U.S.__, 127 S.Ct.782, 166 L.Ed.2d 591 (2007). The Court concluded that the indictment's failure to provide detailed allegations did not violate the defendant's constitutional rights.

Juan Resendiz-Ponce illegally entered the United States from Mexico twice and was twice deported in 1988 and 2002. On June 1, 2003 he walked up to a port of entry near San Luis, Arizona. He presented a photo identification of his cousin to the border agent and told the agent that he was a legal resident traveling to Calexico, California. The agent noted the discrepancy between the photo and Resendiz's features, questioned him, and eventually took him into custody. Resendiz was charged with violating a federal criminal law that makes it a felony to attempt to enter the United States illegally. The indictment against Resendiz stated that he was an alien who "knowingly and intentionally attempted to enter" the United States near San Luis, Arizona after having been deported in October 2002. Resendiz moved the U.S. district court to dismiss the indictment because it failed to allege "an essential element, an overt act, or to state the essential facts of such overt act." The district court rejected this motion and a jury found him guilty of the crime. He was sentenced to 63 months in prison.

Resendiz appealed his conviction to the Ninth Circuit Court of Appeals. The Ninth Circuit reversed his conviction, concluding that an indictment's omission of an essential element of the offense was a fatal flaw." The indictment had failed because it did not allege "any specific overt act that is a substantial step" toward the completion of the unlawful entry." Resendiz had a right to be informed of what overt act the government would try to prove at trial. The physical crossing into the government inspection area was but one of a number of other acts that the government could have alleged as a substantial step toward entry into the United States. The Ninth Circuit noted that the indictment could have alleged the tendering of a false identification card, the successful clearance of the inspection area, or lying to an inspection officer with the purpose of being admitted. The grand jury that issued the indictment "never passed on a specific overt act, and Resendiz was never given notice of what specific overt act would be proved at trial."

The Supreme Court, in an 8-1 decision, overruled the Ninth Circuit. Justice John Paul Stevens, writing for the majority, acknowledged that both common law and federal law hold that "the mere intent to violate a federal criminal statute is not punishable as an attempt unless it is also accompanied by significant conduct." The government argued that the indictment against Resendiz implicitly alleged that he engaged in the necessary overt act simply by alleging that he attempted to enter the United States. Justice Stevens agreed with the government position, finding that the word "attempt" encompasses both the overt act and intent elements. Therefore, an indictment alleging illegal reentry does not have to specifically allege a particular overt act or any other component of the offense. The indictment was legally sufficient because it alleged that Resendiz attempted to enter the United States near San Luis, Arizona on or about June 1, 2003. This time and place information provided Resendiz "with more adequate notice than would an indictment describing particular overt acts," for the defendant might have approached the border or lied to a border-patrol agent "in the course of countless attempts on innumerable occasions." The time and place information in the indictment "provided ample protection against the risk of multiple prosecutions for the same crime."

Justice Steven's rejected Resendiz's claim that the government needed to allege any one of three overt acts: that he walked into the inspection area, that he presented a misleading identification card, or that he lied to the inspector. Stevens rule that those three acts were "part of a single course of conduct culminating in the charged 'attempt."' Though some crimes require more specificity in an indictment, in this case the crime of attempted illegal entry did not depend "so crucially" on specifically identified facts. Moreover, Congress had modified common law principles by moving away from rules of technical and formalized pleading. The indictment met the criteria of the Federal Rules of Criminal Procedure by being a "plain, concise, and definite written statement of the essential facts constituting the offense charged."

Justice Antonin Scalia, in a dissenting opinion, argued that the Court had ignored fundamental rules principles of criminal procedure. The crime of attempt required the government to allege that the defendant had the intent to commit the crime "and that he took some action toward its commission. Any rule to the contrary would be an exception to the standard practice."

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An indictment is a formal written accusation charging an individual with a crime. An indictment is issued by a grand jury when, in its view, there is probable cause to believe that an individual has committed a crime.

Indictments generally arise in two ways. Most commonly, a prosecutor will submit a bill of indictment to the grand jury alleging specific criminal activity by an individual. If the grand jury believes the allegations, the grand jurors will endorse the bill of indictment with the words "a true bill" and thereby officially indict the accused individual. The grand jury can also decide that the accused should not be prosecuted, in which case the bill of indictment will be marked "no true bill" and be dismissed.

An indictment can also originate from a grand jury as a result of the grand jury's own information or as a result of an investigation conducted by a special or investigative grand jury. This type of indictment often arises in cases involving organized crime or political corruption after a secret, lengthy grand jury investigation.

Grand jurors need not be unanimous to indict. The federal grand jury, for example, consists of between sixteen and twenty-three persons, twelve of whom must concur to indict.

The indictment process had its origin in the English grand jury system. Indictments were designed, as the Supreme Court said in Costello v. United States (1956), to provide "a fair method for instituting criminal proceedings against persons believed to have committed crimes." Indictment by a grand jury was historically seen as a way of ensuring that citizens were protected against unfounded criminal prosecutions; however, there is now considerable debate as to whether indictment actually fulfills its protective function. Indictments are also designed to inform accused individuals of the charges against them so that they may adequately prepare their defense.

Under the Fifth Amendment an individual has a right to a grand jury indictment in all federal felony prosecutions. The Supreme Court, however, held in hurtado v. california (1884) that grand jury indictments are not constitutionally required in state criminal prosecutions. Nevertheless, some states, pursuant to their state constitutions, require grand jury indictments in all felony prosecutions.

One recurring question about indictments has been whether they can be based on evidence that would be inadmissible at trial. The Supreme Court held in calandra v. united states (1974) that "an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence." Indictments can be based even on evidence obtained illegally, which must therefore be excluded at trial.

Furthermore, a grand jury indictment can be based on hearsay evidence and other types of evidence that would not be admissible at trial. These decisions rest on the historical view of the grand jury as being a lay body with broad investigative powers that should not be restrained by technical rules of evidence. In addition, the Supreme Court has observed that an indictment is only a formal charge, not an adjudication of guilt or innocence. "In a trial on the merits, defendants are entitled to a strict observance of all the rules designed to bring about a fair verdict," the Court said in Costello, so defendants are not prejudiced by indictments based on inadmissible evidence. The prosecutor, therefore, is permitted to find some admissible evidence to support the indictment between the time it comes from the grand jury and the time of trial.

Charles H. Whitebread


Frankel, Marvin E. 1977 The Grand Jury: An Institution on Trial. New York: Hill & Wang.

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in·dict·ment / inˈdītmənt/ • n. 1. Law a formal charge or accusation of a serious crime: an indictment for conspiracy. ∎  the action of indicting or being indicted: the indictment of twelve people who had imported cocaine. 2. a thing that serves to illustrate that a system or situation is bad and deserves to be condemned: these rapidly escalating crime figures are an indictment of our society.

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A written accusation charging that an individual named therein has committed an act or omitted to do something that is punishable by law.

An indictment is found and presented by a grand jury legally convened and sworn. It originates with a prosecutor and is issued by the grand jury against an individual who is charged with a crime. Before such individual may be convicted, the charge must be proved at trial beyond a reasonable doubt.

The purpose of an indictment is to inform an accused individual of the charge against him or her so that the person will be able to prepare a defense.

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