Understanding Indictment Review, Grand Juries, Probable Cause, and the Defense Lawyer's Role Before a Case Reaches Massachusetts Superior Court
By Patrick L. Garrity, Boston Criminal Defense Attorney
Being told that a Massachusetts criminal case is “being reviewed for indictment” can be alarming.
For many defendants, the word indictment immediately sounds like a finding of guilt or a conclusion that the case has suddenly become much stronger.
It is neither.
An indictment is a formal criminal accusation returned by a Massachusetts grand jury after determining that probable cause exists to charge the defendant with an offense. It is not a conviction, and the grand jury does not decide whether the defendant is guilty beyond a reasonable doubt.
But an indictment can materially change a criminal case.
Most significantly, it can move a prosecution from Massachusetts District Court into Massachusetts Superior Court, where some of the Commonwealth's most serious felony cases are prosecuted.
I have represented defendants during this period of uncertainty, including cases where prosecutors were considering Superior Court indictment while charges remained pending in District Court. In my experience, the period before an indictment decision should not simply be treated as dead time.
It can be an important stage for investigation, preservation of evidence, legal analysis, communication with prosecutors where appropriate, and preparation for either possible outcome.
What Is an Indictment in Massachusetts?
An indictment is a formal criminal charge returned by a grand jury.
Massachusetts criminal cases generally begin differently depending upon the court.
A criminal proceeding in District Court ordinarily begins through a criminal complaint.
A criminal proceeding in Superior Court ordinarily begins through an indictment returned by a grand jury. Massachusetts Rule of Criminal Procedure 3 expressly distinguishes between those two methods of commencing a prosecution.
The Massachusetts Trial Court similarly explains that most cases begin in District Court, while more serious criminal matters may later be presented to a grand jury for possible indictment and prosecution in Superior Court.
That distinction matters because Superior Court has jurisdiction over the Commonwealth's most serious criminal offenses and generally carries greater sentencing exposure than District Court.
Does Every Felony Case Get Indicted?
No.
A felony charge does not automatically mean that a defendant will be indicted.
Massachusetts District Courts have final jurisdiction over many criminal offenses, including certain felonies. Other offenses fall outside the District Court's final jurisdiction and ultimately must proceed in Superior Court if the prosecution intends to pursue them to disposition.
Rule 3 provides that a defendant charged with an offense punishable by state-prison incarceration generally has a right to indictment unless the offense falls within the concurrent jurisdiction of the District and Superior Courts and the District Court retains jurisdiction.
In practice, this means two defendants facing felony allegations can have very different procedural paths.
One case may remain in District Court from beginning to end.
Another may begin with a District Court complaint while the District Attorney's Office evaluates whether to present the matter to a grand jury.
Another may begin directly through a grand jury investigation without a previously pending District Court complaint.
What Does It Mean When a Case Is “Under Indictment Review”?
“Indictment review” is commonly used in practice to describe a prosecutor's evaluation of whether a case should be presented to a grand jury for Superior Court prosecution.
It is not itself a separate court hearing.
During this period, prosecutors may be reviewing:
- police reports;
- witness interviews;
- forensic evidence;
- medical records;
- digital evidence;
- surveillance footage;
- laboratory testing;
- photographs;
- search-warrant materials;
- statements made by the accused;
- the seriousness of the alleged offense;
- criminal history;
- potential sentencing exposure; and
- whether the available evidence supports the proposed Superior Court charges.
Additional investigation may continue at the same time.
That is one reason indictment review can take time.
A case does not necessarily move directly from arrest to grand jury presentation.
What Happens If the Case Is Already Pending in District Court?
This is a common scenario.
A defendant may already have been arraigned in District Court while the District Attorney's Office determines whether the matter will remain there or be presented for indictment.
That can create understandable uncertainty.
The defendant has a District Court docket number.
Court dates are occurring.
Bail or release conditions may already be in effect.
Discovery may be arriving.
But everyone knows there is a possibility that the case may eventually move to Superior Court.
Massachusetts Rule of Criminal Procedure 7 provides that when a District Court complaint involves an offense outside the District Court's final jurisdiction, the case may be scheduled for a probable cause hearing.
At the same time, the prosecutor may elect to seek an indictment before that hearing occurs.
The commentary to Rule 3 expressly recognizes that a prosecutor can avoid duplicating the process by indicting a defendant before the scheduled probable cause hearing.
What Is a Probable Cause Hearing?
A probable cause hearing is a District Court proceeding used in certain cases to determine whether sufficient evidence exists to bind a defendant over for indictment and trial in Superior Court.
At that hearing, evidence is presented and witnesses may be examined.
The question is not whether the defendant is guilty beyond a reasonable doubt.
The question is whether there is probable cause sufficient to move the matter forward.
The Massachusetts Trial Court describes the hearing as a proceeding in which the judge determines whether probable cause exists to hold the defendant for indictment and trial in Superior Court.
But an important practical point is that not every case headed toward Superior Court actually reaches a probable cause hearing.
The Commonwealth may instead present the case directly to a grand jury first.
What Is a Massachusetts Grand Jury?
A Massachusetts grand jury consists of 23 citizens.
Its function is fundamentally different from that of a trial jury.
A trial jury determines guilt or innocence after hearing both sides of the case and applying the beyond-a-reasonable-doubt standard.
A grand jury determines whether enough evidence exists to formally accuse someone of a crime and require that person to answer the charge in Superior Court.
The grand jury does not decide guilt.
It determines whether probable cause exists.
Under Massachusetts Rule of Criminal Procedure 5, at least 13 grand jurors must be present for the grand jury to hear evidence or take official action, and at least 12 grand jurors must concur before an indictment can be returned.
What Does “Probable Cause” Mean at the Grand Jury?
The probable-cause standard is considerably lower than proof beyond a reasonable doubt.
The Massachusetts Grand Juror's Handbook defines probable cause generally as facts that would cause a reasonably prudent person to believe the accused committed the crime charged.
Massachusetts appellate law also requires, at a minimum, sufficient evidence before the grand jury establishing probable cause that a crime occurred and identifying the accused as the person responsible.
The Rule 3 commentary cites Commonwealth v. McCarthy for that basic requirement.
That is an important distinction for clients to understand.
A prosecutor obtaining an indictment does not mean that the prosecutor has proven the case beyond a reasonable doubt.
It means the Commonwealth convinced at least twelve grand jurors that probable cause exists to proceed.
Those are very different standards.
Is the Defense Lawyer Present at the Grand Jury?
Usually, no.
The grand jury is not an adversarial trial where the prosecutor presents a case and then defense counsel presents another case.
Under Rule 5, the prosecutor, the witness being examined, counsel for that witness, and other persons necessary or convenient to the presentation may be present during the evidentiary portion of the proceeding.
The accused generally does not have a right to sit in the grand jury room simply because he or she is the target of the investigation.
Defense counsel likewise does not get to stand before the grand jury and cross-examine the Commonwealth's witnesses as counsel would at trial.
That is one reason the pre-indictment stage can feel unusual to defendants.
A major decision concerning the future of the case may be happening without the normal courtroom process they expect.
Does the Defendant Have a Right to Testify Before the Grand Jury?
Generally, a target of a Massachusetts grand jury investigation does not have a right to demand the opportunity to testify merely because the grand jury is considering charges against that person.
Massachusetts legal authorities also recognize that a target ordinarily does not have a right to advance notice that he or she is the subject of a grand jury investigation before an indictment is returned.
That is very different from a criminal trial.
At trial, a defendant ultimately has the right to decide whether to testify.
At the grand jury stage, the defendant does not control the presentation in the same manner.
What If the Defendant Is Subpoenaed to the Grand Jury?
That creates an entirely different issue.
A person called as a grand jury witness has rights concerning self-incrimination and counsel.
Massachusetts evidence law provides that where there is a substantial likelihood that a grand jury witness will be indicted, meaning the witness is a target or likely target, that person must be warned before testifying of the right to refuse to answer questions where truthful answers could be incriminating and that statements may later be used against the witness.
Massachusetts law also permits grand jury witnesses to have counsel present, although counsel's role inside the grand jury is substantially more limited than counsel's role during a trial.
Anyone who believes he or she may be a target of a criminal investigation should therefore be extremely cautious about appearing before a grand jury or speaking with investigators without first obtaining legal advice.
Can Hearsay Be Used to Obtain an Indictment?
Yes.
The rules governing grand jury evidence are not identical to trial evidentiary rules.
Massachusetts Rule of Criminal Procedure 4 specifically provides that an indictment will not be dismissed merely because the grand jury relied in whole or in part on hearsay or the record from an earlier probable cause hearing.
This surprises many defendants.
At trial, the Commonwealth ultimately has to prove admissible evidence to a jury beyond a reasonable doubt.
The grand jury stage is different.
The prosecutor can frequently establish probable cause using information that would not necessarily be presented in exactly the same form at trial.
Is the Grand Jury Proceeding Recorded?
Yes, with an important exception.
Rule 5 requires grand jury proceedings to be recorded in a manner that permits reproduction and transcription, including the evidence and legal instructions presented.
The grand jury's own private deliberations are not recorded in the same manner.
Those records can become extremely important later.
Under the current Massachusetts discovery rules, grand jury minutes and written or recorded statements of grand jury witnesses are part of automatic criminal discovery following indictment.
That gives defense counsel an opportunity after indictment to examine what the grand jury actually heard.
Can an Indictment Be Challenged?
Yes, although the legal standard is demanding.
An indictment is not immune from judicial review merely because the grand jury returned it.
Massachusetts law recognizes challenges where the evidence presented to the grand jury did not establish the required probable cause.
Defense counsel can also challenge an indictment where the integrity of the grand jury proceeding was materially impaired, including certain circumstances involving misleading presentation or improper withholding of evidence.
Massachusetts courts refer frequently to Commonwealth v. McCarthy and Commonwealth v. O'Dell in this area. The Trial Court's complaint standards describe those cases as recognizing review where the evidence fails to reach probable cause or where evidence is withheld in a manner that materially misrepresents the case presented.
This is why obtaining and carefully reviewing the grand jury minutes can be an important part of Superior Court criminal defense.
What Can a Defense Lawyer Do Before Indictment?
This is where I think the pre-indictment period is often misunderstood.
The defense lawyer may not be standing in the grand jury room cross-examining witnesses.
That does not mean the lawyer has nothing to do.
Depending upon the case, pre-indictment defense work may include:
- obtaining and reviewing available discovery;
- identifying missing evidence;
- preserving surveillance footage or electronic evidence before it disappears;
- interviewing witnesses;
- reviewing digital communications;
- identifying inconsistencies in the allegations;
- analyzing whether the proposed charge is legally sustainable;
- evaluating jurisdiction;
- retaining investigators;
- consulting experts;
- identifying forensic or scientific issues;
- communicating with the assigned prosecutor;
- determining what evidence the Commonwealth may not yet possess;
- assessing the defendant's sentencing exposure if indicted;
- and preparing for the possibility that the matter moves to Superior Court.
The exact strategy depends heavily on the case.
Can a Lawyer Try to Convince the Prosecutor Not to Indict?
Sometimes, yes.
Whether that is strategically advisable is a different question.
There are cases where communicating with the prosecutor before indictment can be extremely valuable.
There may be legal issues the prosecutor should consider.
There may be evidence materially affecting the charging decision.
There may be circumstances supporting keeping the case in District Court.
There may be weaknesses in the proposed Superior Court charge.
There may be missing records or scientific evidence.
And there may be cases where the defense lawyer can have a productive conversation with the prosecutor responsible for the indictment decision.
I have handled Massachusetts matters in which Superior Court indictment was actively being considered and, after discussions with the prosecution, the matter ultimately remained in District Court rather than proceeding by indictment.
But this should not be confused with simply calling the prosecutor and announcing the entire defense theory.
Sometimes early advocacy helps.
Sometimes revealing too much too early simply gives the prosecution an opportunity to repair weaknesses in its investigation.
That is a strategic judgment.
Do Not Give the Prosecutor the Defense Case for Free
This is an important limitation.
Pre-indictment advocacy should be deliberate.
Suppose the defense discovers an inconsistency that the Commonwealth has completely overlooked.
There may be a strategic benefit to revealing it if doing so could prevent indictment.
There may also be a strategic benefit to preserving it for later cross-examination.
The answer depends upon the strength of the issue, the likely charge, the prosecutor, the potential sentencing consequences, the client's objectives, and what the defense receives in return for revealing the information.
The same is true of witnesses and documents.
A defense lawyer should continually ask:
Will disclosing this now make the client's position better or simply make the Commonwealth's case stronger?
Pre-indictment advocacy is not about showing the prosecutor everything the defense knows.
It is about making strategic decisions concerning what, if anything, should be disclosed.
Early Evidence Preservation Can Be Critical
One of the defense lawyer's most important jobs before indictment may have nothing to do with the grand jury itself.
Evidence disappears.
Surveillance footage is overwritten.
Texts are deleted.
Phones are replaced.
Businesses lose records.
Witness memories fade.
Social-media accounts change.
Location data becomes more difficult to obtain.
The possibility of indictment therefore makes early investigation especially important.
A defendant should not assume that because the prosecutor is still deciding where the case will be prosecuted, the defense should simply wait.
Sometimes the evidence that ultimately matters most must be identified and preserved before the indictment decision is ever made.
The Client Can Be an Important Resource During This Period
This is also where the client becomes particularly valuable to the defense investigation.
The police report may tell defense counsel what investigators know.
The client may be able to explain what investigators do not know.
Who else was present?
Where were the cameras?
What texts exist?
Who was called afterward?
What happened immediately before the incident?
Are there receipts?
Work records?
Medical records?
Transportation records?
Photographs?
Other witnesses?
An effective pre-indictment defense investigation can begin long before the Commonwealth has completed its own investigation.
What Happens If the Grand Jury Indicts?
If the grand jury finds probable cause and at least twelve grand jurors concur, the indictment is returned to the Superior Court.
The defendant will then be required to appear for arraignment in Superior Court.
Massachusetts describes the Superior Court arraignment as the first court date on the indictment.
At arraignment, the court addresses the charges and conditions of release, among other matters. Rule 7 requires the court to read or otherwise address the charges, enter a plea, provide required advisories, and determine release conditions.
If the case began through a District Court complaint and is subsequently indicted, the Massachusetts Trial Court explains that the District Court complaint will generally be dismissed and the prosecution will proceed in Superior Court.
Then the Superior Court phase begins.
What Happens to Discovery After Indictment?
Indictment can generate important additional discovery.
Under Massachusetts Rule of Criminal Procedure 14, automatic discovery includes, among other things:
- grand jury minutes;
- statements of grand jury witnesses;
- statements of the defendant;
- witness statements;
- police and investigative reports;
- photographs and recordings;
- scientific and forensic reports; and
- information favorable to the defense.
One of my first priorities after indictment is therefore understanding precisely what was presented to the grand jury and comparing that presentation with the rest of the discovery.
Did a witness's testimony change?
Was important information omitted?
Did investigators develop new evidence?
What legal theory did the Commonwealth use to obtain the indictment?
Does the evidence actually establish each required element?
Those questions can shape motions to dismiss, discovery litigation, suppression motions, expert work, and eventually trial preparation.
What If the Grand Jury Does Not Indict?
If the grand jury declines to return an indictment, the result is called a “no bill.”
The Massachusetts Grand Juror's Handbook distinguishes a “true bill,” meaning an indictment, from a “no bill,” meaning a decision not to indict.
Rule 5 requires the grand jury to return those no-bill decisions to the court, and if a person is being held on the process associated with that matter, the rule provides for discharge unless the person is held on some other legal process.
A no bill is plainly significant.
But it should not automatically be confused with a jury acquittal following trial. Massachusetts authorities recognize circumstances in which prosecutors may later present a matter to another grand jury.
The precise consequences therefore depend on the posture of the particular case.
An Indictment Is Not Evidence of Guilt
This deserves emphasis.
The grand jury hears the prosecution's presentation under a probable-cause standard.
It is not deciding whether the accused should be convicted.
It does not hear a conventional adversarial trial.
It does not require proof beyond a reasonable doubt.
It may consider hearsay.
And the defense generally does not cross-examine the witnesses during the presentation.
The Massachusetts Trial Court specifically warns that an indictment does not mean the person committed the crime. Guilt still must be determined later.
For someone who has just learned he or she was indicted, that distinction matters.
The defense case is frequently only beginning.
Why the Pre-Indictment Stage Matters
From a criminal-defense perspective, I think the period before indictment presents two separate questions.
The first is procedural:
Will this case be indicted?
The second is strategic:
What should the defense be doing while that decision is being made?
Those are not the same question.
Even where the defense cannot control the grand jury process directly, counsel can investigate, preserve evidence, analyze charges, evaluate exposure, communicate strategically with prosecutors, prepare potential legal challenges, and ensure that the client is prepared for whatever comes next.
Sometimes that work may help keep a case from being indicted.
Sometimes the indictment occurs anyway.
Either way, the defense is better positioned than if everyone simply spent the preceding months waiting.
Questions to Ask Your Lawyer If Your Case Is Being Considered for Indictment
A defendant in this situation should understand:
Why is the Commonwealth considering indictment?
What charges could potentially be presented to the grand jury?
Would those charges change my maximum sentencing exposure?
Is my current District Court charge within that court's final jurisdiction?
Is a probable cause hearing scheduled?
Could the Commonwealth indict me before that hearing?
What discovery do we currently have?
What discovery is still missing?
What evidence should we preserve immediately?
Are there witnesses the defense should interview now?
Should we communicate with the prosecutor before indictment?
Is there anything we should affirmatively present to the prosecutor?
Would doing so reveal too much of our defense?
What happens to my bail or release conditions if I am indicted?
What will happen at Superior Court arraignment?
Could we challenge the indictment after reviewing the grand jury record?
Those are far more useful questions than simply asking:
“Do you think I'm going to get indicted?”
Sometimes nobody can answer that last question with certainty.
What the defense can control is how prepared it is for either outcome.
Massachusetts Pre-Indictment and Superior Court Criminal Defense
Patrick L. Garrity is a Boston criminal defense attorney at Brad Bailey Law, P.C. who represents individuals in Massachusetts criminal investigations, District Court proceedings, indictment matters, Massachusetts Superior Court prosecutions, and federal criminal cases.
His practice includes pre-charge and pre-indictment criminal defense, grand-jury-related issues, serious felony defense, sex-crime allegations, violent offenses, firearms cases, white-collar and public-corruption matters, constitutional motion practice, and Massachusetts Superior Court jury trials.
Patrick works with clients during the early stages of serious criminal cases to analyze potential charges, identify and preserve evidence, investigate factual defenses, communicate strategically with prosecutors where appropriate, and prepare for the possibility of Superior Court prosecution.
Every indictment decision and criminal investigation is different. Anyone who believes a Massachusetts criminal matter may be presented to a grand jury should obtain individualized legal advice before making statements, contacting witnesses, producing information voluntarily, or appearing in response to a grand jury subpoena.
Prior results do not guarantee a similar outcome.