Complaint or indictment: how a federal case starts
Some federal cases begin with a criminal complaint, often filed around the time of an arrest. Others begin with an indictment returned by a grand jury of 16 to 23 people, at least 12 of whom must agree to indict.
Under Federal Rule of Criminal Procedure 7, a felony punishable by more than one year must be prosecuted by indictment unless the defendant waives that right in open court. When there is a waiver, the case proceeds on a charging document called an information.
The first weeks, step by step
- ArrestAgents take the person into custody on a complaint, an indictment or a warrant.
- Initial appearanceThe person is brought before a magistrate judge without unnecessary delay.
- Detention hearingIf the government seeks detention, the judge decides whether the person can be released.
- Preliminary hearing or indictmentA judge checks for probable cause, unless a grand jury has already indicted.
- ArraignmentThe person receives the indictment and enters a plea, usually not guilty at this stage.
The initial appearance
Under Rule 5, a person arrested on federal charges must be taken without unnecessary delay before a magistrate judge. In a felony case the judge must explain the complaint, the right to hire a lawyer or request appointed counsel, the circumstances for pretrial release, any right to a preliminary hearing and the right not to make a statement.
Every defendant is also told they may ask that their consulate be notified. If the arrest happened outside the district where the charges were filed, the first appearance generally takes place where the person was arrested.
The detention decision can come at the first appearance or within days of it.
The preliminary hearing
Under Rule 5.1, a magistrate judge holds a preliminary hearing to decide whether there is probable cause, unless the person is indicted, waives the hearing or is charged by information. It must be held no later than 14 days after the initial appearance if the person is in custody, or 21 days if not, unless extended.
At the hearing the defense may cross-examine the government’s witnesses and introduce evidence.
The arraignment
Under Rule 10, the arraignment takes place in open court. The court makes sure the defendant has a copy of the indictment, reads it or states what it charges, and asks for a plea. A defendant charged by indictment may waive appearance with a signed written waiver if the court accepts it, and video conferencing may be used with the defendant’s consent.
What families can do right now
- Call a lawyer early. The detention hearing can happen at the first appearance or within days, and preparation takes time.
- Keep calls off the case. Calls and visits at detention facilities are recorded, and what is said can be used.
- Gather information. Collect details about employment, residence, family ties, health needs and anyone willing to serve as a custodian.
- Keep records. Hold on to any papers left by agents, including warrants and property receipts.
- Avoid others involved. Do not contact co-defendants or witnesses about the case.
Jason Kaufman has tried more than 90 cases and is a Criminal Justice Act panel attorney in the Southern District of Florida. He works with Phil Horowitz, who has practiced criminal defense since 1985 and spent decades on the CJA panel in the Southern and Middle Districts of Florida, and Victor E. Rocha, who was admitted to The Florida Bar in 1983, practices in federal courts including the Eleventh Circuit and the Southern District of Florida, and speaks Spanish. Together they bring more than 100 years of combined experience. The first consultation is free and confidential.