When an Indictment is Required
The Fifth Amendment to the United States Constitution provides
that prosecutions "for a capital, or otherwise infamous crime" must
instituted by "a presentment or indictment of a Grand Jury."
Ex Parte Wilson, 114 U.S. 417, 427 (1885); United
States v. Wellington, 754 F.2d 1457, 1462 (9th Cir.),
denied, 474 U.S. 1032 (1982); United States v. Gonzales,
F.2d 488, 492 (5th Cir. 1981). As with a capital crime, whether a
is "infamous" depends upon its punishment rather than upon the
of the criminal act. The courts have ruled that any crime that may
punished by more than one year■s imprisonment in a penitentiary or
hard labor is an infamous crime. See Green v. United
States, 356 U.S. 165, 183 (1958); Mackin v. United
117 U.S. 348, 350-52 (1886); United States v. Russell, 585
368, 370 (8th Cir. 1978); Catlette v. United States, 132
(4th Cir. 1943). Since all Federal felonies are punishable in that
fashion they are infamous crimes. See 18 U.S.C. § 4083.
Therefore, unless an indictment is waived, its use is required to
a felony. See this Manual at
Although the penalty for a misdemeanor may be imprisonment for
one year, a misdemeanor is not an "infamous" crime because the
cannot be placed in a penitentiary without his or her consent.
See 18 U.S.C. § 4083. Prosecutions for contempt are an
exception to the constitutional requirement. Green v. United
States, 356 U.S. at 187 (because of its "unique character", a
contempt prosecution may be initiated by information even if the
defendant is sentenced to imprisonment for more than one year).
7(a) provides that an offense punishable by death must be
indictment without exception.