In the federal system, a person may be charged and arrested by way of a complaint or indictment. A complaint is a written statement of essential facts establishing the offense charged made under oath by the agent before a magistrate-judge. Based upon the complaint, an arrest warrant may be issued upon the establishment of probable cause to believe that an offense has been committed and that the defendant committed it. The warrant must list the defendant’s name, or description by which he can be identified, the offense charged, command that the defendant be brought without unnecessary delay before a magistrate-judge and be signed by the judge.

An indictment is returned after a properly impaneled grand jury, consisting of 23 grand jurors with a minimum quorum of 16, hears evidence from the U.S. Attorney’s Office and at least 12 grand jurors find probable cause to believe that a crime has been committed and that the defendant committed the crime.  The grand jury presentation is done in secret, with evidence presented by the prosecution through agents and witnesses. The defendant, and his counsel, are not permitted to attend and may not even be aware of the grand jury investigation or presentation. Once the grand jury votes on the indictment drafted and presented to them by the Assistant U.S. Attorney (AUSA), an arrest warrant may issue by a magistrate-judge based upon the probable cause finding of the grand jury.

If a person is charged by way of a complaint, they are entitled to a preliminary hearing before a magistrate-judge within 14 days of the arrest to determine whether there is probable cause that the crime charged was committed by the defendant. At such a hearing, the defense may cross-examine adverse witnesses and may introduce evidence. However, most defendants, if they do not waive the preliminary hearing, are indicted by a grand jury before the scheduled hearing as the government usually does not want to reveal and expose their witnesses and case to the defense at this early stage.

In either event, the magistrate-judge will set the conditions of release, or in particularly serious cases to pre-trial detention, at the initial appearance. In the federal system, if the defendant is released on bail, the judge will set the conditions of release which customarily require the signing of a bond by the defendant and other responsible parties, travel restrictions to the District of the offense or the person’s home state, surrender of passport, and other conditions to reasonably assure the defendant appears at all court proceedings and is not a danger to the community.

Stahl Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at