Indictment vs. Arrest: Understanding the Critical Differences in Legal Proceedings Under California Law
June 8, 2025 | Nafiz M. Ahmed
When someone is accused of a crime in California, there are multiple steps in the criminal justice process. Two of the most misunderstood are indictments and arrests. Although both can lead to criminal charges for defendants, they are not the same thing. Each plays a different role in the legal system and has different consequences for the accused.
Learning about the difference between an indictment and an arrest is critical if you or someone you know is under investigation or facing criminal charges. Here’s how the process works in California and what you need to know to protect your rights.
What Is an Arrest?
An arrest occurs when law enforcement takes someone into custody because they believe that person has committed a crime.
It can happen in a few different ways:
- A police officer directly witnesses a crime
- A warrant is issued based on probable cause
- Law enforcement develops evidence during an investigation
Once arrested, the individual is typically read their Miranda rights, taken to jail, and booked. The booking process includes fingerprinting, photographs, and entering information into a statewide database.
After booking, the person may be released on bail or held until their first court appearance, usually within 48 hours.
In California, arrests are common in cases involving DUIs, theft, drug crimes, domestic violence, and assault. However, not all arrests lead to formal charges. The district attorney still must decide whether to file a criminal complaint.
What Is an Indictment?
An indictment is a formal accusation issued by a grand jury. It means there is potentially enough evidence to charge someone with a felony. Grand juries are typically used in complex or high-profile cases. While most states use indictments frequently, California uses them more selectively.
Instead of relying solely on grand juries, California often uses preliminary hearings where a judge decides whether there’s enough evidence for a trial. However, prosecutors may still use indictments to avoid tipping off a suspect or to keep evidence confidential during an ongoing investigation.
Key Differences Between Arrests and Indictments
Here are some of the major differences between these two legal actions in California:
- Timing: An arrest usually happens early in a case. An indictment can happen later, sometimes after months of investigation.
- Authority: Police make arrests. A grand jury, made up of citizens, issues indictments.
- Evidence: Arrests require probable cause. Indictments are based on evidence presented by prosecutors during a grand jury session.
- Public vs. private: Arrests are public events. Indictments are issued after secret grand jury deliberations.
- Role in court process: An arrest may start the process. An indictment skips early steps and moves a case directly toward trial.
Understanding these differences can help you navigate the legal system and understand the risks at each stage of a criminal investigation or case.
Can You Be Arrested Without Being Indicted?
Yes. In California, many criminal cases typically start with an arrest and proceed through a criminal complaint filed by the district attorney. This process does not require an indictment. The prosecutor can file charges after reviewing the police report and evidence.
After the charges are filed, a preliminary hearing is usually scheduled. At this hearing, the judge reviews the evidence to decide whether the case should move forward. If the judge agrees, the case proceeds to trial.
An indictment skips this step, which is why it’s sometimes used in complex or politically sensitive cases.
What Happens After an Indictment?
If you are indicted, the case moves forward quickly. The court will schedule an arraignment, where the charges are formally presented and you enter a plea. From there, the case proceeds to pretrial motions, possible plea deal negotiations, or trial.
An indictment can feel overwhelming because it often follows a lengthy investigation where prosecutors have built a strong case. That’s why it’s crucial to seek legal representation as soon as you learn you’re under investigation or have been indicted.
Your Rights After an Arrest or Indictment
Whether you’re arrested or indicted, you still have constitutional rights, including due process rights, under California and federal law.
These rights include:
- The right to remain silent
- The right to an attorney
- The right to a fair trial
- The right to confront witnesses
- The right to a speedy trial
If law enforcement violated any of these rights, it could lead to a dismissal of evidence or even the entire case. That’s why it’s critical to consult with a criminal defense lawyer as soon as possible.
Indictments and Arrests in Federal Cases
It’s worth noting that cases involving federal crimes often rely more heavily on grand jury indictments than California state cases do. In fact, under federal law, felony charges generally require a grand jury indictment unless the defendant waives that right.
If you’re facing both state and federal charges, the process may include both an arrest and an indictment at different times. These cases can be especially complex and require experienced legal guidance.
Can the Same Case Involve Both an Indictment and an Arrest?
Yes. Depending on how the prosecutor chooses to proceed, a case can involve both an arrest and an indictment. For example, someone might be arrested on suspicion of a crime and then later indicted as the investigation continues and more evidence is gathered.
Alternatively, someone may be indicted without being arrested first, especially in white-collar crimes or public corruption cases. In those situations, law enforcement may issue a summons rather than take the person into custody right away.
Contact a Redwood City Criminal Defense Lawyer at Ahmed & Sukaram, Criminal Defense Attorneys About Your Case
Being arrested or indicted can turn your life upside down. Both are serious legal actions that require a swift response. A criminal conviction can result in jail time, fines, a criminal record, and other lasting consequences.
If you’re under investigation, have been arrested, or believe you may be indicted, you should immediately contact an experienced Redwood City criminal defense attorney at Ahmed & Sukaram, Criminal Defense Attorneys. The right legal team can review the evidence, explain your options, and fight to protect your freedom. Contact a lawyer for a free case review today.
For more information please contact our criminal defense law firm of Ahmed & Sukaram, Criminal Defense Attorneys at the nearest location for a free consultation.
Ahmed & Sukaram, Criminal Defense Attorneys – San Jose Office
1625 The Alameda, Suite 405, San Jose, CA 95126
(408) 217-8818
Ahmed & Sukaram, Criminal Defense Attorneys – Redwood City Office
600 Allerton St Suite 201G, Redwood City, CA 94063
(650) 299-0500