IG10084 — Proceedings in Federal Criminal Cases: From Initiation to Indictment

/ Information as of July 30, 2025. Prepared by Cassandra J. Barnum, Legislative Attorney and Jamie Bush, Visual Information Specialist. 1 See generally Federal Bureau of Investigation, A Brief Description of the Criminal Justice Process, https://www.fbi.gov/how-we-can-help-you/victim-services/a-brief-description-of-the-federal-criminal-justice-process (last visited July 1, 2025). 2 Id.; see also Fed. R. Crim. P. 7, 58. 3 See, e.g., United States v. Shober, 489 F. Supp. 393, 400 (E.D. Pa. 1979) (noting indictment is “impracticable” in certain situations, as in the case of a federal agent making a warrantless arrest or where “there is a risk that a defendant will abscond or behave violently before a prosecutor can present the case to a grand jury,” requiring that a complaint be led instead). a For procedures specic to misdemeanor o-enses, see Fed. R. Crim. P. 58. b There is no bright line rule for what constitutes “unnecessary delay.” See, e.g., United States v. Jones, 524 F.2d 834, 840 (D.C. Cir. 1975) (charges must be dismissed where pre-arrest delay is “unreasonable and prejudicial”); United States v. Thompson, 772 F.3d 752, 761 (3rd Cir. 2014) (applying reasonableness test in deciding whether confession made during 6-hour delay between arrest and presentment should be suppressed). c “Promptly” means within 48 hours. See Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991). d The statute provides for a number of conditions the judicial ocer must consider, to include the nature and seriousness of the o-ense, weight of the evidence against the person, the person’s individual characteristics, and others. 18 U.S.C. § 3142(g). e Subsequent to the ling of the indictment/information, the defendant is arraigned under Fed. R. Crim. P. 10 and the subsequent pretrial proceedings are subject to the Speedy Trial Act, which starts the 70-day trial clock at the ling of the indictment/information OR the rst appearance before an ocer of the court where the charge is pending, whichever is later. 18 U.S.C. § 3161(c)(1). Proceedings in Federal Criminal Cases: From Initiation to Indictment The procedural requirements for the commencement of a federal criminal case vary depending on whether the defendant is arrested prior to or after the return of an indictment.1 Cases in which law enforcement agencies and prosecutors proactively investigate potential o-enses generally commence with the return of an indictment upon a grand jury’s nding of probable cause that a federal crime was committed (or with the ling of an “information” if the penalty for the charged o-ense does not exceed one year).2 In other cases, law enforcement may be acting in rapid response to an event, requiring that the defendant be arrested prior to an indictment being returned.3 The law governing the procedures in such cases is complex and draws from both the Federal Rules of Criminal Procedure and the U.S. Code. The following table explains what generally happens when someone is arrested for a federal crime, the applicable rules or code provisions, and the time frame for each phase of the proceeding. COMPLAINT/ ARREST INITIAL APPEARANCE BOND/DETENTION HEARING PRELIMINARY HEARING INDICTMENT OR INFORMATION Governing Law What Generally Happens at This Stage? Fed. R. Crim. P. 3, 4, 5 Fed. R. Crim. P. 5a 18 U.S.C. § 3142d Fed. R. Crim. P. 5.1 18 U.S.C. § 3161(b) and Fed. R. Crim. P. 7 or 58 When Does This Stage Happen? First, complaint, adavit, and warrant or summons are signed by judicial ocer Then, defendant is arrested pursuant to arrest warrant or served with summons for initial appearance OR Defendant arrested without warrant At initial appearance, judicial ocer advises the defendant of certain information, including: Pending charges Maximum penalties Right to counsel Right to a preliminary hearing Right to remain silent General circumstances of pretrial release Judicial ocer issues: A detention order if the defendant meets condition(s) specied in statute (e.g., defendant might harm others) OR A release order with conditions if such conditions will reasonably assure the defendant’s appearance and safety of the community Magistrate judge: Requires defendant to appear for further proceedings if judge nds probable cause that the defendant has committed an o-ense OR Dismisses the complaint and discharges defendant where no probable cause found Grand jury returns indictment (for crimes punishable by more than one year in prison) (Rule 7) OR Government les information (for crimes punishable by one year or less in prison) (Rule 58) Arrest with Warrant: Warrant must command law enforcement ocer to arrest and bring defendant before judicial ocer “without unnecessary delay” (Rule 4(b)(1)(C))b Arrest Without Warrant: For warrantless arrest, complaint must be led “promptly” (Rule 5(b))c Summons sets a date OR Defendant must be presented to a judicial ocer “without unnecessary delay”b Must be held immediately upon the defendant’s rst appearance, unless: The defendant seeks a continuance – not to exceed 5 days unless good cause shown The government seeks a continuance – not to exceed 3 days unless good cause shown Within 14 days after initial appearance OR Within 21 days if not in custody OR Not at all if defendant waives hearing or is formally charged by indictment/ information (Rule 5.1(a)) Within 30 days from date defendant is arrested or served with a summons (60 days for a felony charge if a grand jury was not in session for the original 30-day period)e v

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