Many of the crimes that make the top of the news are state felony cases, prosecuted by local district attorneys. But the federal criminal justice branch also plays an ongoing part in fighting crime.
Many state criminal cases and all federal criminal cases begin in one of two ways: the filing of a criminal complaint presented to a federal judge or the filing of a grand jury indictment. The former is much faster.
While prosecutors proceeding with criminal complaints must eventually go before a grand jury for an indictment, they can make an arrest once the complaint is filed.
What Is Probable Cause?
Both the filing of a criminal complaint and the filing of an indictment involve a showing of probable cause, and that is probably a good place to begin explaining the purpose each serves. The Fourth Amendment of the U. S. Constitution requires that before law enforcement gets an arrest warrant, makes an arrest or conducts a search, they have probable cause to do so. The courts have defined probable cause in terms of an arrest as meaning a reasonable basis for believing that a crime has been committed.
Who determines whether there is probable cause to make an arrest or issue an arrest warrant? In the case of an indictment, a grand jury makes this determination. In the case of a criminal complaint, a judge hears the evidence and makes the initial determination of whether probable cause exists.
What Is a Criminal Indictment?
One of the ways that a prosecutor can bring a formal criminal charge against an individual is with a grand jury indictment. A grand jury is a group of citizens, usually between 16 and 23, who are charged with considering cases to determine if enough evidence exists for the case to proceed to court. The jury must weigh the evidence presented to see if probable cause exists that a crime was committed and that the person charged committed it.
If the grand jury finds sufficient proof that a particular individual committed a crime, they vote for an indictment in a secret proceeding. A set number of votes are necessary to establish probable cause, the number varying between jurisdictions. The U.S. Attorney’s office or district attorney's office prepares the indictment documents and presents them to the court.
Read More: Difference Between an Arrest & an Indictment
What Is a Criminal Complaint?
The second way a criminal case begins is with a criminal complaint. This complaint is a legal document prepared by the U.S. Attorney’s Office working with the federal law enforcement agency involved, such as the FBI, IRS, CIA or Secret Service, or a state district attorney's office working with state law enforcement.
The prosecutor presents the criminal complaint to a judge. That judge determines the question of probable cause – whether there is sufficient proof to show that a crime was committed and that the person charged in the criminal complaint committed it.
Note that a criminal complaint doesn't actually allow the case to move forward. Rather, the filing and service of the complaint starts the running of a 30-day period during which the government must take the matter to a grand jury to obtain an indictment.
When Is the Criminal Complaint Procedure Used?
The United States Constitution mandates indictments for all felony offenses. However, some federal felonies can start with a complaint and get an indictment later. The complaint can be filed with the judge in much less time than it takes for an indictment to be obtained from a grand jury. So, if prosecutors need to move quickly in making an arrest, they may file a complaint instead of seeking an indictment.
Once the individuals are taken into custody, the government has a month to go to a grand jury and obtain an indictment. This is particularly useful when a law enforcement agency wants to conduct a coordinated arrest of a large number of drug conspirators. simultaneously accept plea bargains from some of them, then take the rest to the grand jury for indictment.
- Cornell Law: Probable Cause
- Mololamken Law: What’s the Difference Between a Criminal Indictment, a Criminal Information, and a Criminal Complaint?
- Varghese Law: What’s the Difference Between a Federal Criminal Complaint and Indictment?
- Crotty Saland Law: Understanding the Federal Court Process From Complaint & Indictment to Motions & Trial
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.