Proceedings in Federal Criminal Cases: From Initiation to Indictment

Proceedings in Federal Criminal Cases: From Initiation to Indictment

Proceedings in Federal Criminal Cases: From Initiation to Indictment

July 30, 2025 (IG10084)

Summary

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