BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 1 - Criminal Pre-Trial

        1.06 Waiver Of Indictment (FRCP 6 & 7)

        1.06.1 Waiver Of Indictment: Inquiries And Procedures
        1.06.2 Waiver Of Indictment: Other Sources [Reserved]

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

1.06.1 Waiver Of Indictment: Inquiries And Procedures

[Note: Under the Crime Victims’ Rights Act, 18 USC 3771(a)(2) and (3), any victim of the offense has the right to notice of "any public court proceeding . . . involving the crime . . . of the accused," and to attend that proceeding. It may be advisable to ask the prosecutor if there are any victims and, if so, whether the government has fulfilled its duty to notify them.]

NOTE

An offense that may be punishable by death must be prosecuted by indictment and therefore precludes waiver of indictment. FRCP 7(a) and (b).

A.     Preliminary

Have the oath administered and ask the defendant:

1. What is your full name?

2. How old are you?

3. How far did you go in school? What is your employment experience?

[If you are not sure the defendant can understand English, ask:]

4. Are you able to speak and understand English?

[If the defendant has an attorney, ask counsel if he or she has been able to communicate with the defendant. If you doubt the defendant’s capacity to understand English, use a certified interpreter. See 28 USC 1827.]

5. Are you currently or have you recently been under the care of a physician or a psychiatrist or been hospitalized or treated for narcotics addiction? Have you taken any drugs, medicine, or pills or drunk any alcoholic beverage in the past twenty-four hours?

[If the answer to either question is yes, pursue the subject with the defendant and with counsel to determine that the defendant is currently competent to waive indictment.]

6. Do you have an attorney?

[If the defendant does not have an attorney, inform the defendant of the right to counsel and appoint counsel if the defendant qualifies (see supra section 1.02: Assignment of counsel or pro se representation).]

B.     Ask the defendant:

    Have you been furnished with a copy of the charge(s) against you?

C.     Explain in detail the charge(s) against the defendant and make clear that he or she is charged with committing a felony.

D.     Ask the defendant:

Do you understand the charge(s) against you?

E.     Inform the defendant:

1. You have a constitutional right to be charged by an indictment of a grand jury, but you can waive that right and consent to being charged by information of the U.S. attorney.

2. Instead of an indictment, these felony charges against you have been brought by the U.S. attorney by the filing of an information.

3. Unless you waive indictment, you may not be charged with a felony unless a grand jury finds by return of an indictment that there is probable cause to believe that a crime has been committed and that you committed it.

4. If you do not waive indictment, the government may present the case to the grand jury and ask it to indict you.

5. A grand jury is composed of at least sixteen and not more than twenty-three persons, and at least twelve grand jurors must find that there is probable cause to believe you committed the crime with which you are charged before you may be indicted.

[FRCP 6(a) and 6(f).]

6. The grand jury might or might not indict you.

7. If you waive indictment by the grand jury, the case will proceed against you on the U.S. attorney’s information just as though you had been indicted.

F.     Ask the defendant:

1. Have you discussed waiving your right to indictment by the grand jury with your attorney?

2. Do you understand your right to indictment by a grand jury?

3. Have any threats or promises been made to induce you to waive indictment?

4. Do you wish to waive your right to indictment by a grand jury?

[FRCP 7(b).]

G.     Ask defense counsel if there is any reason the defendant should not waive indictment.

H.     If the defendant waives indictment

1. Have the defendant sign the waiver of indictment form in open court, state that the court finds that the waiver is knowingly and voluntarily made by the defendant and is accepted by the court, and enter an order and finding to that effect.  [FOOTNOTE 1]

2. Proceed to arraignment on information (see infra section 1.07: Arraignment and plea).

I.     If the defendant does not waive indictment:

1. Ask the U.S. attorney whether the government intends to present the matter to the grand jury.

(a) If so, detain the defendant pending indictment or continue or reset bail (see supra section 1.03: Release or detention pending trial).

(b) If not, discharge the defendant.

[Note: Because discharge entails a "release" of the defendant, the Crime Victims’ Rights Act, 18 USC 3771(a)(4), may require allowing any victims of the offense to be "reasonably heard."]

FOOTNOTES:

Footnote 1:    If the waiver was signed before the hearing, the court should examine the signatures on the form and have the defendant and defendant’s counsel verify that the signatures are theirs.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

1.06.2 Waiver Of Indictment: Other Sources [Reserved]