Arraignment vs Indictment: What’s the Difference?

Arraignment and indictment are both critical parts of the justice system. Here is everything you need to know about arraignment vs indictment.

What is Arraignment?

An arraignment can be viewed as a pre-trial. Some states will require an arraignment for misdemeanor cases as well as felony cases, while other states only require an arraignment for felony cases. During an arraignment, the judge will be present and the charges will be read to the defendant. The defendant will also be read their rights.

What is the Process for Arraignment?

Although the outcomes may differ for every arraignment, the court proceedings remain the same.

The judge tells the defendant what they are being charged with.
The defendant is informed of their rights, including their right to be represented by an attorney.
The defendant is given the option to plead in one of three ways: guilty, not guilty, and no contest. A plea of no contest is not an admission of guilt, but rather an acceptance of a conviction sentence. Only if the defendant pleads not guilty will the trial continue.
If the defendant pleads not guilty then the Judge considers the option of bail, and what amount the bail shall be set at.
The arraignment process is concluded once the judge announces the court dates for the preliminary hearing and trial.

What is an Indictment?

An indictment informs the defendant of the formal charge(s) against them. The indictment is usually delivered to the defendant after a grand jury deliberates. Unlike an arraignment, an indictment is charged only for a serious crime.

What is the Process for Indictment?

Before the case can be taken to court, the prosecutor planning to bring the case against the defendant must examine the investigator’s findings and conduct their own interviews with witnesses. Only then can they bring the case to a grand jury.

While not every indictment is the same, the court proceedings remain the same.

The grand jury will be gathered in a courtroom with no judge, and no other lawyers present, except for the prosecutor.
The grand jury will read the evidence against the defendant and hear from the witnesses surrounding the case.
The grand jury will then, in secret, vote on whether they believe there is enough evidence against the individual.
If they believe there is enough evidence against the individual, then the individual will be charged with a crime.

The decision and the deliberation amongst the grand jury are sealed and will be unknown to anyone outside the courtroom.

Arraignment vs Indictment

The three main differences between arraignment and indictment are as follows:

The timing of arraignment and indictment
The severity of the custody required
The difference in necessary legal representation at the arraignment and indictment stages

What is the timing of arraignment and indictment?

An indictment always occurs before an arraignment so the defendant is aware that they have been charged with a crime before they arrive for the arraignment.

What is the difference in the severity of the custody required?

In the case of an arraignment, there is a chance that the defendant can be released through the bail set by the judge, or they will be taken into custody. After an indictment, however, the individual is almost always arrested.

What is the difference in necessary legal representation at the arraignment and indictment stages?

There is no need for a defense attorney before an indictment is sent to the defendant. However, at the arraignment stage, the defendant is asked if they have legal counsel. If the defendant does not have legal counsel, they are informed that they have the right to request representation from the court.

FAQs about Arraignment vs Indictment

Can you leave the state after arraignment?

Even if the defendant posts the bail amount decided during the arraignment, they still cannot leave the state where they were charged.

Can the defendant be incriminated during an arraignment?

While the judge cannot deliberate through any evidence suggesting guilt or innocence during the arraignment, it is important to note that what the defendant says during the arraignment process can be used against the defendant during the trial.

How many jurors must concur for an indictment to be handed to the defendant?

At least 12 jurors must concur for an indictment to be issued. Grand juries always have 16-23 members.

Can a federal indictment be challenged?

Although it is rare, it is possible to challenge an indictment. This would require a defense lawyer to find fault with either the statute of limitations of the crime, misconduct on the prosecutions’ side, or failure in alerting the witness of the criminal charge(s) against them

Do all states use a grand jury?

While it is not federally mandated for states to use a grand jury, many states elect to use a grand jury for felony cases. The use of a grand jury for different types of criminal cases varies per state.

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