What Is a Federal Information vs Indictment
The difference between a federal information and an indictment is not just legal paperwork. It is a signal - one that broadcasts to prosecutors, co-defendants, judges, and anyone watching the court docket whether you are fighting the charges or cooperating with the government. This distinction shapes how your case unfolds from the very first document filed.
The Fifth Amendment guarantees you the right to have a grand jury review your case before you can be prosecuted for a serious federal crime. Sounds protective. Here is the reality: federal grand juries indict 99.993% of the time. That constitutional "shield" is not stopping anyone. Only prosecutors present evidence. No cross-examination allowed. Your attorney cannot even enter the grand jury room. The shield became a rubber stamp decades ago.
Welcome to Spodek Law Group. We handle federal criminal defense cases where understanding these procedural distinctions can mean the difference between years in prison and a more favorable resolution. This article explains exactly what an information versus indictment means for your case - and why the choice between them matters more than most people realize.
The Constitutional Right You're Being Asked to Surrender
The Fifth Amendment states that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury. This protection exists in the federal Constitution. But here is something that catches people off guard: the Supreme Court has never required states to follow this rule. The grand jury right is the only federal criminal procedural right that states are allowed to completly ignore. Hurtado v. California settled that back in 1884. Most states dont require grand juries at all for felony prosecutions. The "protection" you think you have at the federal level is unique to federal court - and even there, it is weaker then you might expect.
The numbers tell the story. In 2010 - the most recent year with complete federal statistics - U.S. attorneys prosecuted 162,000 cases. Grand juries refused to indict in exactly eleven of them. That is a 99.993% indictment rate. Former New York Chief Judge Sol Wachtler famously said prosecutors could get grand juries to "indict a ham sandwich." The data proves he wasnt exaggerating. Your constitutional right to have a grand jury review the evidence against you sounds meaningful until you realize that grand juries basicly approve whatever prosecutors put in front of them.
What does this mean practically? Only 0.4 to 2 percent of federal defendants actualy go to trial. Ninety-seven to ninety-eight percent plead guilty. The grand jury "protection" your waiving by agreeing to proceed by information wasnt going to save you from prosecution anyway. The question is not whether you will face charges. The question is what signal you want to send about how your going to handle those charges.
Here is how the grand jury process actualy works. Sixteen to twenty-three citizens sit in a room. The prosecutor presents evidence - whatever evidence the prosecutor chooses to present. No judge presides. The defendant is not present. Defense counsel cannot attend. There is no opportunity to cross-examine witnesses or challenge the evidence. The grand jurors hear one side of the story. Then they vote. Twelve must agree to issue an indictment. Given that they only hear from the prosecution, the 99.993% indictment rate makes perfect sense. The system is not designed to protect you. Its designed to move cases forward.
So if the grand jury is basicly a rubber stamp, why does the distinction between information and indictment matter?
The cascade looks like this:
- Waive indictment
- Government files information
- Public record shows you proceeded by information
- Co-defendants and there attorneys see the filing
- Everyone assumes your cooperating
- Safety concerns may increase
- Family relationships may change
- Your leverage in certain negotiations shifts
This is not paranoid thinking. This is how federal criminal practice actualy works. The signal you send by proceeding one way versus the other has real world consequences that extend far beyond the courtroom.
We understand that none of this makes the decision easier. Every case is diffrent. The right choice depends on factors specific to your situation, your charges, your co-defendants, and your goals.
Making the Decision That's Right for Your Case
When clients ask us whether they should waive indictment, we look at several factors. What are the charges? Is cooperation even on the table? Are there co-defendants who might pose safety risks? How long would you wait in custody for the grand jury? What does the plea agreement actually offer? Is there any realistic chance of fighting the charges?
Here is the inversion that surprises many clients: waiving your constitutional right to a grand jury is often the smart move. Not always. But often. If your going to plead guilty anyway - and remember, 97-98% of federal defendants do - then demanding an indictment just delays the inevitable. You wait longer in custody. You pay for more attorney time. And you end up in the same place. Waiving indictment signals that you are taking responsibility. Judges notice that. Prosecutors notice that. It can work in your favor at sentencing.
When to consider waiving indictment:
- You have a strong plea agreement
- Cooperation makes strategic sense
- You want to resolve your case quickly
- Co-defendant safety is not a major concern
- The evidence against you is overwhelming
When to consider demanding indictment:
- You intend to fight the charges at trial
- Buying time serves your defense strategy
- Public signaling of cooperation creates real danger
- You want to see what the grand jury process reveals
- Your attorney identifies potential weaknesses to exploit
Todd Spodek has handled federal cases where the information-versus-indictment decision shaped everything that followed. We have seen clients make the wrong choice and pay for it. We have seen clients make the right choice and benefit substantially. The difference is not the document itself. The difference is understanding what that document communicates and how that communication affects every subsequent step in your case.
If you are facing federal charges and trying to understand whether an information or indictment makes more sense for your situation, Spodek Law Group can help you think through the decision. Call us at 212-300-5196. The consultation is confidential. We will explain exactly what each path means for your specific case - not in abstract legal terms, but in practical consequences that affect your life, your freedom, and your family.
The distinction between an information and an indictment is one of dozens of procedural choices that shape federal criminal cases. Each choice sends a signal. Each signal has consequences. Understanding those consequences before you make decisions is the difference between navigating the federal system and being overwhelmed by it.
