Federal charging procedure

Complaint

The complaint is a written statement of essential facts constituting the offense charge. Fed. R. Crim. P 3. The facts are sworn before a magistrate judge. After the complaint is sworn, an arrest warrant will issue.

A complaint can start the arrest and arraignment process, however, the government must obtain an indictment within thirty days of the complaint.

Example: The FBI has been investigating a burglary gang for several months and presenting evidence to the grand jury but has not yet returned an indictment. The gang conspires to commit another burglary and the FBI catch them in the act. The case will be charged via complaint first given that the FBI made arrest after catching them in the act.

Summons or Arrest Warrant

If a complaint establishes probable cause the magistrate must issue an arrest warrant to an officer authorized to execute it. Fed. R. Crim. P 4.

The government attorney can request a summons be issues instead, which the magistrate must issue. A summons states the date, time and place that the defendant must appear before the magistrate judge. If a defendant does not appear, then warrant will issue.

Initial Appearance and Preliminary Hearing

After an arrest, Fed. R. Crim. P. 5 requires that the defendant is taken before a magistrate judge “without unnecessary delay.” If an arrest was made without a warrant (site arrest), then a complaint establishing probable cause must be “promptly” filed.

At this hearing, the defendant must be advised of:

1) the complaint (which outlines the key facts) and any affidavits;

2) the defendant’s right to retain counsel or have counsel appointed;

3) the circumstances of release or detention;

4) the right not to make a statement.

The magistrate must also give reasonable opportunity to consult with an attorney.

Preliminary Hearing:

The defendant is entitled to a preliminary hearing UNLESS:

1) the defendant waives the hearing;

2) the defendant is indicted;

3) the government files an information under Rule 7(b) charging the defendant with felony;

4) the government files an information charging the defendant with a misdemeanor;

5) the defendant is charged with a misdemeanor and consents to being tried by the magistrate judge.

The magistrate judge must hold the preliminary hearing within a reasonable time, but no later than 14 days after the initial appearance if the defendant is in custody and no later than 21 days if not in custody.

With the defendant's consent and upon a showing of good cause—taking into account the public interest in the prompt disposition of criminal cases—a magistrate judge may extend the time limits in Rule 5.1(c) one or more times. If the defendant does not consent, the magistrate judge may extend the time limits only on a showing that extraordinary circumstances exist and justice requires the delay.

At the preliminary hearing, the defendant may cross-examine adverse witnesses and may introduce evidence but may not object to evidence on the ground that it was unlawfully acquired. If the magistrate judge finds probable cause to believe an offense has been committed and the defendant committed it, the magistrate judge must promptly require the defendant to appear for further proceedings.