How the Federal Criminal Process Begins

There are two ways charges can be filed against a person charged with a crime in federal court one is by what is referred to as a Criminal Complaint and the other is after a grand jury indicts.

A criminal complaint is filed by the Federal Prosecutor when there typically is insufficient time to present evidence to a grand jury. The United States Constitution requires that most federal criminal charges be reviewed by a grand jury. A grand jury consists of members of the community who listen to and examine evidence that is presented by the federal prosecutor. The grand jury works in secret. When a grand jury meets to hear evidence, the only persons in the room are the grand jury members, the federal prosecutor, the court reporter, and the witness.

There is no judge present when the grand jury convenes nor is the individual charged or his attorney. After listening to the evidence that the government has presented, the grand jury is asked to vote on whether probable cause exists to believe that you committed a crime. If the majority of grand jurors vote that probable cause exists, the grand jury will issue written charges against you in what is called an indictment.

If an individual is charged by way of a criminal complaint he or she is entitled to a preliminary examination. A “complaint” is a statement written by a federal prosecutor accusing the individual of a crime. Before allowing the complaint to be filed, the judge will have reviewed it and the sworn statement of a federal agent attached to the complaint setting forth the allegations. After authorizing the complaint, the judge can issue an arrest warrant.

While a defendant does not have the right to choose whether he or she will be indicted by a complaint or by an indictment, only in the filing of a complaint is a defendant entitled to a preliminary examination. A preliminary examination is a hearing where a judge decides if there is sufficient probable cause evidence to continue to case. The judge, in essence, does the same thing a grand jury would do. Prosecutors, however, do not prefer this method because a preliminary examination is not in secret but is in open court, it allows the defense attorney to question the witness and a transcript is immediately available.

In federal court, unlike state court, hearsay is allowed in a federal preliminary examination and the parties sometimes present evidence by way of what is referred to as a “proffer,” where the attorneys tell the judge what the evidence would have been had someone testified or the evidence had been brought to court.

Probable cause is a very low burden of proof and requires simply that the prosecutor (referred to as the Government who represent the United States of America in federal court and the People in state court who represent the People of the State of Michigan), prove that there is sufficient evidence to simply proceed with the case.

Once a defendant appears in court on a complaint, a probable cause hearing, also called a preliminary hearing, will be scheduled. A preliminary hearing must be scheduled “within a reasonable time, but no later than 10 days after the initial appearance if the defendant is in custody and no later than 20 days if not in custody.” (Federal Rule of Criminal Procedure 5.1).

If an individual is indicted by a grand jury of if after a preliminary examination a magistrate finds there is probable cause or if after a defendant waives his preliminary examination and agrees that there is probable cause an indictment is issued. On many occasions a prosecutor will charge an individual by way of a criminal complaint and just prior to the scheduled preliminary examination the prosecutor will schedule in secret to present the agent before a grand jury. When the defendant is indicted by way of a grand jury, the criminal complaint and the preliminary examination are dismissed and cancelled.

An indictment is the formal written statement issued by the grand jury and signed by a federal prosecutor accusing one or more people with a crime. An indictment may name just one defendant or several defendants. An indictment is supposed to be sufficient detailed to allow the defendant the opportunity to read the general details about the charges. One of the motions that can be filed is a Motion for a Bill of Particulars. If granted, the judge could require the prosecutor to provide a more detailed indictment or strike portions. If the matter proceeds to trial the jury may read the indictment and the judge will instruct them that the indictment itself is not evidence.

II. Arraignment in (State and) Federal Court