The district attorney presents most felony cases to the grand jury for indictment. An indictment is the formal piece of paper charging the defendant with a crime. The role of the grand jury, similar to the role of the judge at a preliminary hearing, is to determine if there is sufficient probable cause for the case to proceed through the criminal justice system. Barlow v. State, 127 Ga. 58 (1906); U.S. v. Mechanik, 475 U.S. 66 (1986). However, unlike a preliminary hearing, a defendant, except for public officials and peace officers, does not get a chance to present his case to the grand jury. Orkin v. State, 236 Ga. 176 (1976); O.C. G.A. § 17-7-52.
The grand jury is composed of citizens of the state, 18 years of age or older, who are not incompetent because of mental illness or mental retardation, who have resided in the county for six months preceding the time of service, and who are the most experienced, upright, and intelligent persons unless exempted by law. The following persons are unable to serve as grand jurors: (1) Any person who holds any elective office in state or local government or who has held any such office within a period of two years preceding the time of service as a grand juror; and (2) Any person who has been convicted of 56a felony and who has not been pardoned or had his civil rights restored. O.C.G.A. § 15-12-60. The incompetency of one grand juror makes an indictment void. State v. Dempsey, 290 Ga. 763 (2012); Harper v. State, 283 Ga. 102 (2008).
The board of jury commissioners compiles a grand jury list of the most experienced, intelligent, and upright citizens of the county to serve as grand jurors. To compile and revise the grand jury list the board of jury commissioners uses the following: (1) A list of all residents of the county who are the holders of drivers' licenses or personal identification cards issued by the Department of Driver Services; (2) The registered voters list in the county; and (3) Any other list of persons resident in the county as may be deemed appropriate by the board of jury commissioners. O.C.G.A. § 15-12-40.
Grand jury proceedings are confidential and thus the defendant is not entitled to a transcript of those proceedings. O.C.G.A. § 15-12-73; Isaacs v. State, 259 Ga. 717 (1989). If it appears that a competent witness was sworn and examined before the grand jury, a defendant cannot complain that there was insufficient evidence, or illegal evidence, or no evidence for the indictment. Isaacs v. State, 259 Ga. 717 (1989). Under O.C.G.A. § 15-12-74, a grand jury may indict for any crime of which it becomes aware and is not bound by the charges at arrest. Johnson v. State, 242 Ga. 822 (1979); Holmes v. 57State, 306 Ga. App. 656 (2010). Therefore, a defendant can have charges added by the grand jury.
A grand jury can choose to return a “no bilI” essentially saying there is no probable cause for the case to proceed. The case can then be represented to the grand jury or another grand jury. Chafin v. Jones, 243 Ga. 267 (1979); State v. Auerswald, 198 Ga. App. 183 (1998). Two returns of "no bill" by grand juries on the same charge or allegation shall be a bar to any future prosecution of a person for the same offense. However, if the no bills have been obtained by the fraudulent conduct of the person charged or there is newly discovered evidence, upon proof, the judge may allow a third bill to be presented, returned, and prosecuted. O.C.G.A. § 17-7-53.
An indictment takes the following form:
CAPTION Count One (OFFENSE)
BODY
State of Georgia, _______ County.
The grand jurors selected, chosen, and sworn for the County of _________, to wit: (names of grand jurors) in the name and behalf of the citizens of Georgia, charge and accuse (name of the accused) with the offense of ____________; for that the said (name of the accused) (state with sufficient certainty what the accused did to constitute the offense and the time and place of committing the offense), contrary to the laws of said state, the good order, peace, and dignity thereof. O.C.G.A. § 17-7-54; White v. State, 312 Ga. App. 421 (2011).
Every crime is listed and defined under a particular statute. For example, armed robbery is found at O.C.G.A. § 16-8-41. The statute defines the elements of the crime, in other words, what must be proven to convict a defendant of that crime. An indictment must allege every essential element of the offense. Henderson v. Hames, 287 Ga. 534 (2010). An indictment is void to the extent that it fails to allege all the essential elements of the crime or crimes charged. Davis v. State, 272 Ga. 818 (2000); State v. Eubanks, 239 Ga. 483 (1977). Henderson v. Hames, 287 Ga. 534 (2010). Every indictment of the grand jury which states the offense in the terms and language of the statute where the crime is defined or so plainly that the nature of the offense charged may easily be understood shall be considered sufficiently technical and correct. O.C.G.A. § 17-7-54.
The allegations contained in the body of the count of the indictment control over any inconsistent name of the offense in the caption of the indictment. Jackson v. State, 316 Ga. App. 588 (2012); Morris v. State, 310 Ga. App. 126 (2011); State v. Barnett, 268 Ga. App. 900 (2004); State v. Eubanks, 239 Ga. 483 (1977). Therefore, if the indictment names theft by deception as the offense in the caption, but the allegations in the body define the crime of theft by conversion, the incorrect caption may be stricken.
"Unless the character of the place is an essential element of the offense, an indictment which charges the crime to have been committed in a particular county is sufficiently certain as to place." Gentry v. State, 235 Ga. App. 328 (1998). As a general rule, if an indictment charges the defendant with committing a crime against a person, the injured person should be identified in the indictment by his correct name, or by some name by which he is generally called, unless the identity of the alleged victim is not a necessary part of the crime charged. State v. Grube, 315 Ga. App. 885 (2012); Dennard v. State, 243 Ga. App. 868 (2000). The indictment may contain reference to an alias of the defendant. Hawes v. State, 266 Ga. 731 (1996).
When a defendant is charged with the violation of a law and the statute contains the word ["or"] in describing the ways a crime may be committed, the indictment, in order to survive a challenge by the defendant, must charge the ways or methods with the word ["and"] if it charges more than one of them. The State does not have to prove all such separate ways or methods alleged in the indictment, but the State makes a case upon its establishment by proof of any one of the ways. Martin v. State, 299 Ga. App. 845 (2009); Kall v. State, 257 Ga. App. 527 (2002). For example, if a defendant is charged with committing child molestation by touching and kissing the alleged victim, the indictment must state touching and kissing, but the State only needs to prove one method. Judice v. State, 308 Ga. App. 229 (2011).
A grand jury may return another indictment against a defendant even though an indictment is already pending. The second indictment is called a re-indictment. Trimm v. State, 297 Ga. App. 861 (2009). However, a re-indictment adding more severe charges may create an appearance that the prosecutor was being vindictive or seeking vengeance against the defendant. The burden is on the prosecution to prove that the decision to re-indict was not based upon a vindictive motive. Larochelle v. State, 219 Ga. App. 792 (1996). The State may also re-indict a defendant to change the wording of the indictment even after the case has been reversed on appeal and returned to the trial court. Dryden v. State, 316 Ga. App. 70 (2012).
Accusations
Defendant's accused of misdemeanors are generally charged by accusation. For certain crimes, such as forgery, the law allows the district attorney to draft an accusation (another formal piece of paper charging the defendant) without presenting the case to the grand jury. O.C.G.A. § 17-7-70.1. Felony shoplifting cases in which the defendant has waived the preliminary hearing can be charged by accusation. Taylor v. State, 315 Ga. App. 667 (2012). A defendant charged with a felony has a right to be tried on an indictment but can waive this right by doing so in writing. Prior to trial, the prosecutor may amend the accusation to change the allegations. O.C.G.A. § 17-7-71 (f); Wilcox v. State, 229 Ga. App 227 (1997). Further, the judge is not required to grant a mistrial or continuance if the State amends an accusation after the beginning of the trial and the amendment is not material or prejudicial to the defense. Kall v. State, 257 Ga. App. 527 (2002).
If after the return of two "true bills" of indictments by a grand jury on the same offense, charge, or allegation, the indictments are quashed for the second time, such actions will be a bar to any future prosecution of the defendant for the offense, charge, or allegation. O.C.G.A. § 17-7-53.1.
As long as an indictment is proper as to form and substance, the State has a right to prosecute the case to trial. Therefore, there is no basis in Georgia criminal practice for a motion seeking to dismiss an indictment on the ground that the State cannot prove facts essential to the charge. State v. Benton, 305 Ga. App. 332 (2010). Similarly, a case cannot be dismissed because the allegations in the indictment are different than what was presented at the preliminary hearing.
Once an indictment is returned by the grand jury or an accusation is drafted by the district attorney, a defendant is not entitled to a preliminary hearing. Walker v. City of Atlanta, 238 Ga. 723 (1977). After an indictment or accusation, the case moves forward to arraignment.
A defendant can also be arrested after being indicted. This is called a direct indictment. The district attorney presents the officer directly to the grand jury for probable cause instead of to the magistrate judge at a preliminary hearing. The grand jury will return a warrant for the defendant's arrest. Once the defendant is arrested he will be brought to court for arraignment.
An indictment must be returned in open court to be valid. State v. Brown, 315 Ga. App. 282 (2012); Walter v. State, 310 Ga. App. 223 (2011).