Federal criminal cases begin with the filing of either an indictment or an information, both of which are documents that set forth detailed accusations of wrongdoing by the defendant. An indictment can only be obtained by a prosecutor by convincing a federal grand jury that there is enough evidence to warrant the filing of formal charges.

A defendant, however, can voluntarily give up his or her right to have a grand jury consider the evidence. If that happens, the prosecutor can avoid the sometimes lengthy and tedious grand jury process and bring charges against the defendant by way of an information.

In practical terms, there is no difference between an indictment and an information, once the document has been filed with the court. The main difference between the two is simply that an information does not require a grand jury proceeding and an indictment does, but there can be some advantages for a defendant to plead guilty to an information instead of an indictment.

What is a federal indictment?

An indictment is a formal accusation against one or more defendants, charging them with one or more crimes. In the federal criminal system, the indictment is the principal method by which a prosecutor initiates criminal proceedings. The Fifth Amendment to the United States Constitution requires that the federal government use a grand jury to obtain an indictment in all felony cases.

How does a federal grand jury work?

A federal grand jury is a group of 16 to 23 citizens chosen from the community who typically serve for a term of 18 months and meet at regular intervals.

The grand jury hears evidence and testimony from witnesses presented by the prosecution. Grand jurors have the power to ask questions, and subpoena witnesses and documents on its own. Once the grand jury hears the evidence, it votes to either indict (“true bill”) or to not indict (“no bill”), based on whether there is “probable cause” to believe the defendant is guilty by the evidence as presented.

A minimum of 16 grand jurors must be present to vote (a quorum), and at least 12 must vote in favor of an indictment before charges can be formalized through filing the indictment with the court.

Grand jury proceedings are secret and closed to the public. In addition, the defense has no opportunity to present evidence at a grand jury proceeding, challenge the prosecution's evidence, or present its side of the story.

The “probable cause” standard is one of the lowest standards in criminal law, defined as requiring only sufficient evidence to lead a reasonable person to believe that a crime has been committed and that the defendant is guilty. This standard is much easier to meet than “beyond a reasonable doubt,” which is the standard of proof necessary to convict a defendant at trial.

What is a criminal information?

Because the Fifth Amendment expressly creates a constitutional right to be indicted by a grand jury, an information is used in federal criminal cases only when a defendant voluntarily pleads guilty and expressly waives the right to being indicted by a grand jury.

Rule 7 of the Federal Rules of Criminal Procedure provides that “An offense punishable by imprisonment for more than one year may be prosecuted by information if the defendant—in open court and after being advised of the nature of the charge and of the defendant's rights—waives prosecution by indictment.”

Why plead to an information instead of an indictment?

An information is similar to an indictment in that it serves as the document formally accusing the defendant of committing one or more crimes, but it allows federal prosecutors to conserve resources by not having to present its case to the grand jury. In exchange, prosecutors view a defendant's willingness to plead to an information as both cooperation with the government and acceptance of responsibility of criminal wrongdoing, which can result in fewer or reduced charges in an information versus an indictment.

Thus, when the defendant chooses to waive or “give up” his Fifth Amendment right to indictment by a grand jury and be charged by an information, it is generally because the defendant and the prosecutor have reached an explicit agreement as to a guilty plea to a particular offense and a specific sentencing calculation under the federal sentencing guidelines.