Criminal Investigations: What Happens Before Charges Are Filed

What happens during a criminal investigation before charges are filed?

During a criminal investigation before charges, the federal rules described here address grand-jury proceedings rather than every investigative step. A grand jury can hear witnesses with government attorneys present and return an indictment under Rule 6. Rule 4 addresses an arrest warrant or summons based on a complaint and its probable-cause showing. This page explains those federal charging procedures and selected state grand-jury provisions, not whether anyone will be charged. [9][11][10]

Which rules does this page describe?

This page describes the supplied federal criminal rules and selected statutes from Florida, Michigan and Nevada. The state statutes are examples with their own scope, not a statement that the federal procedures govern every state case. Police interviews, search warrants and charging decisions beyond these sources are outside this page. [1][14]

What does a federal grand jury do before charges are filed?

A federal grand jury is a group of citizens, summoned by the court, that hears evidence and decides whether to indict. To indict means to formally charge someone. Rule 6 says the court must order grand juries summoned when the public interest requires it. [2][10]

Grand jury sessions are not held in open court. Under Rule 6, the only people who may be present during a session are government attorneys, the witness being questioned, interpreters when needed, and a court reporter or recording operator. A lawyer for the person under investigation is not on that list. [9]

When the grand jurors deliberate and vote, only the jurors are present, plus any interpreter a hearing-impaired or speech-impaired juror needs. The rest of the proceedings must be recorded. The rule also says that an unintentional failure to record does not affect the validity of a prosecution. [9]

Who must keep federal grand jury matters secret?

Rule 6 bars a specific list of people from disclosing what happens before the grand jury. The list includes grand jurors, interpreters, court reporters, recording operators, transcribers, government attorneys, and certain people who receive authorized disclosures. The rule also says no secrecy obligation may be placed on anyone except under that list. [9]

Secrecy also reaches court records. Records, orders and subpoenas connected to grand jury proceedings must stay sealed for as long as necessary to prevent unauthorized disclosure. A subpoena is a court order requiring a person to testify or produce something. [10]

The rule has exceptions. One allows a court to authorize disclosure when a defendant shows that grounds may exist to dismiss the indictment because of something that happened before the grand jury. [3]

How can a federal investigation lead to a charge by complaint?

One route is a complaint, a filed document that charges an offense. Under Rule 4, if the complaint or supporting affidavits show probable cause to believe that an offense was committed and that the defendant committed it, the judge must issue an arrest warrant. Affidavits are sworn written statements. At a government attorney's request, the judge must issue a summons instead of a warrant. [11][12]

A case does not always begin with an arrest. If a government attorney asks, the judge must issue a summons instead of a warrant. A summons requires the person to appear before a magistrate judge at a stated time and place. [11][12]

A warrant is carried out by arresting the person. The warrant must order that the person be brought before a magistrate judge without unnecessary delay. If no magistrate judge is reasonably available, the person goes before a state or local judicial officer. [13][12]

How does a federal grand jury turn an investigation into an indictment?

A federal grand jury can return an indictment only if at least the number of jurors set in Rule 6(f) agree. An indictment is the formal written charge the grand jury approves. [10]

The foreperson signs indictments. The grand jury, or its foreperson or deputy foreperson, must then return the indictment to a magistrate judge in open court. The foreperson, or another juror the foreperson designates, also records how many jurors agreed. That record is not made public unless the court orders it. [8][10]

Can the makeup of a federal grand jury be challenged?

Yes. Under Rule 6(b), either the government or a defendant may challenge the grand jury as not lawfully drawn, summoned or selected. Either side may also challenge an individual juror as not legally qualified. [8]

A party may also move to dismiss an indictment based on those objections, unless the court has already ruled on the same objection. The rule limits this remedy in one case. A court may not dismiss because one juror was unqualified if the record shows that enough qualified jurors agreed to the indictment. [8]

How do state grand jury rules compare?

States write their own grand jury rules, and the details differ from the federal rule. Michigan's statute sets its own range for grand jury size. Under that statute, the court appoints the foreman, the juror who leads the grand jury. [14]

Nevada works differently. There, the grand jury elects its own foreman, deputy foreman and secretary. Nevada's statute lets the district attorney, or a defendant who has been held to answer in district court, challenge how the grand jury was selected. [4][1]

Some state statutes direct grand juries toward particular subjects. Florida's § 876.28, for example, has a judge charge the grand jury to inquire into violations of a specific group of statutes on subversive organizations. It is a narrow provision, not a general description of how Florida cases are charged. [5]

Can a federal indictment be kept secret after it is returned?

Yes, under Rule 6(e)(4). The magistrate judge who receives an indictment may direct that it be kept secret until the defendant is in custody or has been released pending trial. The clerk then seals it. No one may disclose that the indictment exists except as necessary to issue or carry out a warrant or summons. [10]

What is the difference between an arrest warrant and a summons in federal court?

Both start from a complaint. A warrant orders that the defendant be arrested, and it is carried out by making the arrest. A summons has the same form, except that it requires the defendant to appear before a magistrate judge at a stated time and place. Under Rule 4, the judge must issue a summons instead of a warrant if a government attorney requests it. [12][13][11]

What happens if a federal grand jury does not vote to indict?

Rule 6(f) addresses one situation directly. It applies when a complaint or information is already pending against the defendant and the required number of jurors do not agree to an indictment. In that case, the foreperson must promptly report the lack of agreement to the magistrate judge in writing. The rule does not describe what follows that report. [6]

Can a federal warrant be issued by phone?

Federal Rule 4(d) allows it. Following the procedures in Rule 4.1, a magistrate judge may issue a warrant or summons based on information sent by telephone or other reliable electronic means. [7]

Does a federal officer have to show the warrant at the time of arrest?

Under Rule 4(c)(3)(A), an officer who has the original or a duplicate original warrant must show it to the defendant upon arrest. If the officer does not have it, the officer must tell the defendant that the warrant exists and what offense is charged. If the defendant asks, the officer must show the warrant as soon as possible. [13]