When the federal government has gathered evidence and is ready to charge a defendant with a crime, it has three options depending on the circumstances. While the end result may be the same, each process is different. If You Are under investigation, a federal criminal defense attorney can explain these charging methods so that you know What to Expect. Here are the basics of each federal charging process.
Federal agents can go to a magistrate with a complaint in order to get an arrest warrant. They must demonstrate probable cause that you committed the crime. After arrest, you will be brought before the court and informed of the charges against you and the maximum penalty. Your rights will also be communicated, including the right to an attorney and the right against self-incrimination. You will be asked if you want to plead guilty or not guilty. Depending on the charge, there may be a detention hearing to address bond. Under federal law (18 U.S.C. § 3142(f)), the detention hearing must occur immediately upon the defendant’s first appearance before the judicial officer. If a continuance is requested by the defendant or their attorney, it may not exceed five days (excluding weekends and holidays); if requested by the government, it may not exceed three days.
You have a right to a preliminary hearing where a magistrate judge decides whether there is probable cause to charge you. The hearing must be held within 14 days of the initial appearance if you are in custody, or within 21 days if you are not in custody. The time limit can be extended with the defendant’s consent and a showing of good cause, or without consent only upon a showing of extraordinary circumstances. You can also waive your right to a hearing.
The government has 30 days to indict you (or 60 days if no grand jury was in session during that period for a felony charge). The deadline can only be extended through court-approved continuances based on specific statutory grounds; a defendant cannot simply agree to extend the indictment deadline and cannot waive rights under the Speedy Trial Act.
Another path to a criminal charge is for the government to convene a grand jury. The grand jury has the power to issue subpoenas to third parties to obtain information from those parties in the form of either testimony or documents. Prosecutors also present evidence they have gathered to the grand jury. Notably, the prosecution is not required to present all the evidence it has or share exculpatory evidence with the jury.
A grand jury investigation is conducted in secret. A defendant or the defendant’s attorney cannot attend, see the evidence presented, or present their own evidence. This process differs significantly from a trial, where a criminal defense attorney can actively represent the accused and challenge the government’s case.
At the conclusion, the jury weighs the evidence and decides whether to indict.
Charging by information is available in limited situations. Typically, it’s used when a party is cooperating with the government or has already been charged with a crime that has been reduced, and the defendant is being recharged with the lower offense.
In this case, the defendant signs a waiver of the right to a grand jury indictment. The information is filed, and the defendant is charged with the crime.
Regardless of how you may be charged, hiring a skilled federal criminal defense attorney is essential. Each charging method carries different procedural rights and strategic considerations that an experienced criminal lawyer can navigate on your behalf. We have extensive experience representing defendants accused of a wide variety of federal crimes. Contact us for help if you are being investigated or have been charged with a federal crime.