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Will a prosecutor seek an indictment if there is little to no chance of winning at trial?

Memphis, TN |

Just a general question since it seems like Indictments are not nearly as difficult to get.

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Attorney answers 5


No not if little to no chance of winning at trial


Prosecutors push for indictments every day that don't measure up. The question of whether or not it measures up, however, is a decision for the grand jury, not the prosecutor. The prosecutor need not have the proof necessary to win a trial at that stage, only enough to show it was more likely than not that a crime was committed. The prosecutor gets the benefit of less evidentiary restrictions at that stage as well.



But if there is not much of a chance of winning a trial, will a prosecutor bother with an indictment? I know the standard for an indictment is not nearly as strong.

Chase Ryan Brown

Chase Ryan Brown


If he doesn't have much evidence, or likelihood of ascertaining greater evidence after indictment, then likely not.


As a former prosecutor, I can tell you that a prosecutor has special ethical requirements. Prosecutors are not to seek indictments if they believe there is little chance of proving the case beyond a reasonable doubt. There are many times that a prosecutor has to tell the family of a victim that they cannot go forward with criminal charges even against the wishes of the family because of his ethical obligation. Indictments only require a preponderance of the evidence that a crime has occurred - meaning 51%. Keep in mind that at the time of the indictment the prosecutor may not have all the relevant evidence because the investigation is still ongoing. Hiring a competent defense attorney helps the prosecutor see the whole story which is why sometimes a case gets dismissed even after the indictment stage. I hope this helps. If you are worried about a particular case, please feel free to contact me.

Call 615-736-9596 for consultation. This answer does not create an attorney-client relationship. This answer is for information only. Call me or another attorney to represent you.


No. But keep in mind that what you consider no chance of winning and what they consider no chance of winning is likely to vary tremendously.

This is not intended as individual legal advice and there is no attorney client relationship established by this answer. It is advisable that you seek individualized legal assistance. This is not a substitute for hiring an attorney.


Prosecutor's are held to an ethical standard when seeking an indictment; to wit they must have a "good faith belief" that they can prevail at trial. Obviously things like hubris and what one thinks of them self as a trial lawyer comes into play here. The great equalizer with the grand jury route versus the preliminary hearing route (many jurisdictions allow for the DA to use one or the other at their discretion) is that the prosecutor must present all exculpatory evidence to the grand jury. Failure to do so opens the door to motions which can successfully "toss" the indictment. This is where a lot of prosecutors run afoul of their duty. They tend to either mischaracterize or ignore evidence that is exculpatory when making their presentation to the grand jury... that is why there is the old saying "even a ham sandwich could get indicted". The grand jury is their personal sand box; good luck.

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