Long Island Federal Indictment and Information

An indictment is required for federal criminal prosecution in all cases except where either (1) the offense is a misdemeanor or a petty offense or criminal contempt or (2) the defendant waives prosecution by indictment (this does not apply to capital cases). If federal prosecutors fail to charge the defendant by indictment, the district court does not have jurisdiction over the defendant, which could result in overturning a conviction obtained in the prosecution.

An indictment may be used as the means to obtain an arrest warrant because the fact that the defendant has been indicted serves as a probable cause element necessary to issue an arrest warrant.

If information is used, it serves as a criminal complaint. The prosecutor must file and attach an affidavit of probable cause in order for the court to issue a warrant.

The indictment or information must contain a plain definite written statement of the essential facts constituting the offense. An indictment must also ‘set forth the elements of the offense charged and contain a statement of the facts and circumstances that will inform the accused of the elements of the specific offense.

Federal prosecutors have wide discretion in deciding whether or not to prosecute a particular individual and what charge to file or bring before a grand jury. Some defendants attempt to dismiss an indictment on grounds of selective prosecution arguing that they have been “picked” among other potential defendants. This defense is difficult to sustain in view of the prosecution’s wide discretion to choose their defendants. However, an indictment could be dismissed if it could be demonstrated that other similarly situated persons have not been prosecuted and that the government’s decision to prosecute a particular defendant was based on race, religion or other arbitrary factors, or that the prosecution was intended to prevent the exercise of a fundamental right.

An indictment may be also be dismissed for unwarranted prosecutorial delay. This could be accomplished of the defendant shows that the delay actually or substantially prejudiced the right to a fair trial and that the government caused the delay intentionally to gain a tactical advantage over the defendant.
An indictment may also be dismissed because of prosecutorial misconduct such as

• the likelihood that the remarks of the prosecutor tended to mislead the jury or prejudice the defendant;
• the remarks were extensive;
• the remarks were deliberately made; and
• the evidence against the defendant is weak.

If the prosecutors want to change their charging document, they may replace or amend it.