Initiation of a Federal Criminal Case: Complaint, Indictment, or Information?

The Government may initiate a federal criminal case by way of complaint, indictment, or information.

A complaint is a request by a federal law enforcement agent to a federal magistrate or district judge for an arrest warrant, based on an assertion by the agent in an attached affidavit that there’s probable cause—a very low standard—to believe that the person for whom the agent seeks the arrest warrant has committed a federal crime.  If the judge finds probable cause to believe that the person has committed a federal crime, the judge will issue an arrest warrant for that person.

Upon arrest, the person, who’s now a defendant, will appear “without unnecessary delay” before a federal magistrate judge for an initial appearance, which is a statement of the charges and limited advice of rights, and a detention hearing.  However, the Government must present the case to a federal grand jury within thirty days from the defendant’s arrest, with limited exceptions, to avoid the judge’s dismissing the case without prejudice (which means that the Government could refile the charges at any later date within the time required by the statue of limitations on the prosecution for that particular crime.

If the defendant intends to plead guilty to the offense contained in the complaint, or to another offense on which the Government and the defendant mutually agree for the defendant to plead guilty, the Government may file an information, which is a document that’s alternative to an indictment that states the charge or charges.  Of course, the defendant must execute a waiver of the right to require the Government to present the case to a grand jury.  If the defendant decides not to plead guilty, the Government must then obtain the indictment before the matter can proceed to trial.

Although there are certain circumstances in which a defendant would benefit by pleading guilty to an information, those circumstances are rare, and there should be a complete understanding by the defendant and his or her attorney about the evidence that the Government has, and equally important, that it doesn’t have, to confirm that the plea of guilty is in the defendant’s best interest.  Otherwise, the only sound course of action is to force the Government to indict the case and produce the evidence on which it will rely to seek a conviction.  A strong and vigorous defense is almost always the most effective strategy and unequivocally causes the best results, from a more favorable plea agreement to a dismissal of charges or an acquittal at trial.

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