A person can be arrested whenever they commit a crime in the presence of
a police officer. But what happens when police conduct an investigation
involving drugs, involving confidential informants and surveillance? How
is a person charged with a crime in a situation where an officer did not
witness the offense? Or what if the officer witnesses a crime, but doesn't
want to make an arrest yet, such as in long-running investigations into
drug or gang activity? Two ways that criminal charges are initiated are
1) through a presentment or 2) through an indictment. Most people have
probably heard the word "indictment" but may not have heard
of a "presentment." So what is the difference?
An indictment is a formal written accusation charging one or more persons
with a crime. It is written by the prosecuting attorney. The prosecuting
attorney's office works with law enforcement to do the investigating.
The indictment is then sent to a grand jury that will determine whether
there is "probable cause" to charge a person with a crime. "Probable
cause" means the grand jury finds there are enough facts to lead
a reasonable person to believe that the accused has committed a crime.
In other words, a grand jury is not like a trial jury. The grand jury
doesn't decide whether there are enough facts to prove a person is
guilty beyond a reasonable doubt. The grand jury simply determines whether
the prosecution has enough evidence for a reasonable person to believe
that the accused committed a crime.
If the grand jury returns a "True Bill," it means they found
sufficient probable cause to charge a person with committing a crime.
If it returns a "No True Bill," they didn't find enough
probable cause. The actual indictment is important in this process because
the indictment must describe each element of the offense the prosecution
will have to prove at trial in order for the jury to find the accused
guilty. The indictment also must describe the facts that support each
element of the offense.
A Presentment is very different from an Indictment. A Presentment results
when the police conduct their own investigation and convey their findings
to the District Attorney's office at the conclusion of that investigation.
Then the District Attorney's office "presents" these allegations
to the grand jury through the testimony of police. If the grand jury determines
that probable cause exists, a Presentment in the form of a "bill
of indictment" is returned. Each member of the grand jury and the
District Attorney must endorse the Presentment. Also, a Presentment includes
the names of the witnesses – generally the police who provided testimony
to the grand jury.
A Presentment can be more damaging to the accused than an Indictment. For
example, if the police use confidential informants in the investigation
of a drug case, the identity of those informants are withheld for months
or even years before police begin grand jury proceedings. In other words,
the police can use these secret informants for a very long period of time
without their identities becoming known while the police build their case.
More importantly, a Presentment does not allow the criminally charged the
benefit of the General Sessions processes. One important aspect of the
General Sessions process is the right to a Preliminary Hearing. If an
individual is charged through a Presentment, the accused will not have
the opportunity to confront police and other witnesses at this critical
stage in order to challenge whether there is actually enough evidence
for the police to make an arrest.
Two very high-profile cases from this area are typical examples of police
investigation resulting in Presentments. The first was known as "Operation
Orange Crush." In late 2009 and early 2010, Morristown police rounded
up 22 people on serious drug charges, including the illegal sale of prescription
pain pills, methamphetamine, ecstasy, cocaine, and marijuana. The investigation
lasted for around two years before the police were ready to finally present
More recently, in "Operation Grainger Strike," more than 55 individuals
were criminally charged using the power of a Presentment. The evidence
came from a highly-organized drug sting that involved not only the local
law enforcement of the Grainger County Sheriff's Office, but also
the 4th Judicial Drug Task Force and the Tennessee Bureau of Investigation.
If you believe you may be the subject on an indictment, presentment, or
any type of criminal complaint or investigation, it is important that
you consult with an experienced criminal defense attorney. Please feel free to
contact The Bowlin Law Firm today to discuss the facts of your specific case and
to learn how we can help you.