From Arrest to Indictment: Navigating the First Stage of a Federal Criminal Case

A federal criminal case begins when a charging document is filed.  Charging documents are designed to advise defendants of the law or laws they are accused of violating.  Federal laws (also known as “statutes”) are found in the United States Code.  Along with specifying the approximate date and location of the violation, the charging document will cite to a specific section of the United States Code containing the law or laws at issue in your case.

The Grand Jury Process

Generally, cases are initiated through either a complaint or indictment. An indictment is the charging document that is returned after a grand jury (a group of 16-23 people who reside in the district and are selected at random) determines there is probable cause, or “a reasonable ground” to believe the defendant has violated one or more federal laws.  The Fifth Amendment requires that all federal prosecutions eventually be presented to a grand jury.  This is ostensibly a check on the federal government, which would otherwise be free to charge people with whatever it felt like, notwithstanding a lack of evidence.  However, in practice, criminal defendants rarely benefit from the grand jury process.

In determining whether there is probable cause, the grand jury will consider evidence presented to them through prosecutors and witnesses.  Grand jury proceedings take place in secret. Defendants have no right to present evidence in their defense nor can they force the prosecution to present exculpatory evidence.  Therefore, while prosecutors and witnesses are prohibited from lying to the grand jury, the story that the grand jurors hear may be skewed in favor of the prosecution.  Because of this, grand juries almost always determine that there is probable cause to charge a defendant with a crime, and, in doing so, return the indictment requested by the prosecutor.

Criminal Complaints

In general, the government has 30 days from the date of a defendant’s arrest to obtain an indictment.  In the meantime, a temporary charging document called a complaint may be used.

Complaints are longer and more detailed than indictments and incorporate an affidavit (a sworn statement) by a law enforcement officer who has been involved in the investigation. In that affidavit, the law enforcement officer states why he or she believes there is probable cause that the defendant violated one or more criminal statutes.  Affidavits sometimes recount things that law enforcement officers have seen or heard during the investigation, or what third parties have told them. Hearsay can be used at this stage of a criminal proceeding.

Before a complaint is filed, a judge must review it and determine whether the document actually does establish probable cause that the defendant violated the law.  If the judge believes it does, he or she signs the complaint and an arrest warrant for the defendant may be issued.  If the judge believes it does not, the prosecution must go back to the drawing board.

Preliminary Hearings

If a defendant is arrested based on a criminal complaint, this means that a judge has already determined there is probable cause to believe he or she committed a crime.  However, in these cases, the defendant also has the right to a preliminary hearing, where the government must again demonstrate probable cause.  This right only exists, however, until an indictment is returned. Once a grand jury has found that there is probable cause, the defendant no longer has a right to a preliminary hearing. This can happen at any time during the 30 days following the defendant’s arrest.

In theory, preliminary hearings are designed to safeguard criminal defendants, as they require yet another demonstration of probable cause. In practice, however, preliminary hearings do not protect criminal defendants for several reasons.

• The standard for probable cause is low. The court must only find that there is a “reasonable ground for belief of guilt.” Maryland v. Pringle, 540 U.S. 366, 371 (2003).
• The government is permitted to use hearsay and other types of evidence during preliminary hearings that would not be admissible at trial.
• The government is permitted to move the criminal complaint itself into evidence.
• The judge who signed the criminal complaint in the first place—and hence has already found that probable cause exists—generally presides over the preliminary hearing.
• Even if a defendant is able to convince the judge that there is not probable cause, this does not bar the government from going to the grand jury and asking it to indict the defendant for the very same crime.

For all of these reasons, defendants should not view federal preliminary hearings as a way to win the case against them. Instead, defendants should look at preliminary hearings as an opportunity to cross-examine the government’s witness or witnesses, who are almost always law enforcement officers involved in the investigation. In some cases, information can be obtained that can benefit the defendant down the road.  Even if cross-examination does not yield beneficial information, it requires the witness to commit to his or her version of events under oath. This testimony may be able to be used to impeach the same witness at a hearing or trial down the road, if he or she makes an inconsistent statement.

Importantly, there are cases in which it is not advisable to request a preliminary hearing. For example, I generally advise my clients to waive their right to a preliminary hearing in cases where they have already confessed to the crime.  Additionally, it does not make sense to ask for a preliminary hearing if a defendant is, or anticipates, cooperating with the government in the hopes of an advantageous plea deal.  The government may also be willing to offer something—like early discovery—if a defendant agrees to waive the preliminary hearing.  Sometimes the chance to review discovery immediately will trump any potential benefit a preliminary hearing could provide. Ultimately, the decision is one that defendants and their lawyers should make together, as every case is unique.