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 How a Criminal Case Begins (10 Things to Know) 

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Michael Santos

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An indictment, information, or complaint are three ways to begin a criminal case and inform the defendant of the government’s charges.

HOW A CRIMINAL CASE BEGINS: INDICTMENT, INFORMATION & CRIMINAL COMPLAINT

INTRODUCTION

When federal law enforcement suspects someone committed a federal crime, prosecutors can proceed via Indictment, Information, or Criminal Complaint.

In a federal white-collar criminal case, an indictment, information, or a complaint are three ways to begin a criminal case and inform the defendant of the government’s charges. They also ensure that a prosecutor has sufficient evidence 

to establish probable cause that the accused committed a crime.

*Pro-Tip: Remember to consult criminal defense counsel for legal advice regarding any court case.

Prison Professors, an Earning Freedom company, regularly helps clients locate and vet experienced criminal counsel. We also assist clients with sentencing mitigation strategies and other aspects of the journey through the criminal justice system.

TOP 10 THINGS TO KNOW

First, under the 5th Amendment of the United States Constitution, a felony prosecution must begin with an indictment. A felony (or an “indictable offense” in some jurisdictions) is the most severe criminal offense a prosecutor can charge. 

Second, a federal indictment (also known as “presentment” or “true bill”) is a formal accusation that a person has committed a federal crime. The indictment is the most commonly used charging document. 

Third, prosecutors must present factual evidence to a grand jury in a secret proceeding in order to obtain an indictment, where they call witnesses and present evidence obtained with grand jury subpoenas. The grand jury consists of 16 to 23 randomly selected jurors investigating crimes and deciding whether to file formal charges. At least 16 of the 23 members of the grand jury must be present to conduct business and at least 12 jurors must vote to indict. At that point, the grand jury issues an indictment describing the criminal charges against the accused and the factual basis for those charges. An indictment follows once the grand jury has considered the evidence and decided there is sufficient cause for the prosecution to proceed. Click here for additional information regarding Grand Jury Subpoenas, published on our Prison Professors Blog.)

Fourth, like an indictment, an information is a formal charging document that describes the criminal charges against the accused and the factual basis for those charges. Unlike an indictment, an information does not require a grand jury vote. Instead, a Magistrate Judge examines the information to decide whether there is probable cause that a crime occurred.

Fifth, a criminal complaint is a statement of the essential facts of the offense prosecutors want to charge supported by a law enforcement agent’s statement under oath. The purpose of the criminal complaint is to establish probable cause and allow a federal court to issue an arrest warrant. Criminal complaints are helpful when time is of the essence to make an arrest, and a grand jury process will take much longer. The criminal complaint facilitates getting an arrest warrant from a court, but it is not a substitute for a grand jury indictment or an information. The prosecution of a felony cannot proceed based on a criminal complaint alone. 

Sixth, armed with a criminal complaint, information, or indictment, prosecutors can now obtain an arrest warrant for the accused. The arrest warrant names the person prosecutors want to arrest and specifies a place and time for the arrest. It also lists the crimes alleged against the target of the arrest warrant. 

Seventh, the defendant will have an initial appearance before a Magistrate Judge within 24-72 hours after the arrest. During the initial appearance, the Magistrate Judge will review the defendant’s rights, including Miranda rights. Miranda rights remind defendants of their 5th Amendment right against self-incrimination, including the right to remain silent, the right to be represented by counsel (or appointment of a public defender); the right to know all charges against them; the right to a preliminary hearing; and the right to seek pre-trial release. The Magistrate Judge also decides whether to set release conditions, including any bond, or detain the accused. (If the court detains the defendant, a detention hearing will take place.)

Eighth, the accused also has the right to arraignment after the arrest, where a Magistrate Judge officially informs the defendant of the charges. The defendant also enters a plea of guilty or not guilty. Under the Federal Speedy Trial Act, the defendant has the right to trial within 70 days from their arraignment. Therefore, if necessary, the court will set a trial date at this time. The arraignment is the judicial proceeding that officially starts the trial process. Often, the initial appearance and arraignment take place at the same time, soon after an arrest.

Ninth, federal criminal procedures provide for a preliminary hearing within ten days of arrest on a Complaint. During this hearing, prosecutors offer evidence to establish probable cause to a Magistrate Judge. If the court finds sufficient probable cause, the case will continue with further proceedings by a grand jury. A preliminary hearing is not necessary if the grand jury returns an indictment against the accused before the arrest.

Tenth, prosecutors do not present a case to the grand jury in a felony case where the accused waives indictment and agrees to plead guilty or proceed by information. In those instances, prosecutors file an information outlining probable cause with the U.S. District Court. A felony case cannot go forward based on a criminal complaint alone. 

CONCLUSION

Most federal white-collar criminal offenses are felonies and require a grand jury  indictment under the US Constitution. The grand jury indictment requirement is supposed to act as a safeguard against overzealous prosecutors. 

But the truth is that it does not take much for prosecutors to overcome the grand jury indictment requirement. Prosecutors alone control the grand jury process. Neither the accused nor defense counsel participate in the process. Prosecutors present all of the evidence and instruct the grand jury on the law and the process. 

Not surprisingly, prosecutors rarely lose at the grand jury. Hence the common refrain that “prosecutors can indict a ham sandwich.”

Sometimes, white-collar cases will begin with an information or a criminal complaint rather than a grand jury indictment. For example, prosecutors can file a criminal complaint or information much more quickly than getting an indictment from a grand jury. When prosecutors need to move quickly in making an arrest, they can file a criminal complaint or information and go to the grand jury after the defendant is under arrest. The defendant can then choose to waive the grand jury requirement and proceed by information instead of an indictment. However, a felony case cannot go forward based on a criminal complaint alone.

Prison Professors, an Earning Freedom company, regularly helps clients locate and vet experienced criminal defense lawyers. We also assist clients with sentencing mitigation strategies.


Prison Professors, an Earning Freedom company, works alongside (not in place of) civil and criminal defense counsel to help clients proactively navigate through investigations and prosecutions. Our team also helps clients prepare mitigation and compliance strategies.

If you have any questions or are uncertain about any of the issues discussed in this post, schedule a call with our risk mitigation team to receive additional guidance.

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