Most people imagine that a criminal case, including those in the federal criminal justice system, begins when law enforcement officials put a suspect in handcuffs and bring them in for booking. But can the government bring federal charges against a defendant without first arresting them? In federal court, a criminal case does not always have to begin with an arrest.
How Federal Criminal Cases Typically Begin
A federal criminal case can begin in one of two ways: a criminal complaint or an indictment. In a criminal complaint, a federal prosecutor alleges facts to establish that a crime has likely occurred and that the government has probable cause to believe the named defendant committed it. Federal prosecutors submit criminal complaints to judges, who review the allegations to determine if probable cause exists to issue an arrest warrant for the defendant. After authorities arrest a defendant on a warrant issued on a criminal complaint, the defendant will make an initial appearance before a magistrate judge.
Conversely, federal prosecutors may choose to bring charges before a federal grand jury composed of approximately two dozen citizens. The grand jury hears evidence presented by the federal prosecutor and decides whether sufficient evidence exists to establish probable cause to issue an indictment. An indictment formally charges a defendant with federal criminal offenses and allows the prosecution to move toward trial.
Yes—Federal Prosecutors Can Charge Someone without an Arrest
Some federal criminal cases do not begin with a criminal complaint or law enforcement officials arresting a suspect for a federal crime. Federal prosecutors may choose to skip a criminal complaint and proceed directly to the grand jury. Because suspects or defendants do not have the right to appear during grand jury proceedings or to challenge the government’s evidence, federal prosecutors can formally bring charges against a defendant without first arresting them.
Indictments and Sealed Charges
Federal grand jury proceedings typically occur in private, with only the grand jury, the presiding judge, the federal prosecutor, and court staff in attendance. An indictment represents the grand jury’s determination that the government has sufficient evidence to establish probable cause to try the defendant on the charged offense(s). Sometimes, federal prosecutors may ask the court and grand jury to seal an indictment. A sealed indictment means that the charges remain confidential temporarily and do not become part of the public court docket. Sealed indictments allow prosecutors and federal agents to continue investigating a case or coordinating a defendant’s arrest without alerting them to their pending criminal charges.
Arrest Warrants vs. Court Summonses
After a grand jury issues an indictment, the federal court may issue either an arrest warrant or a summons. Prosecutors may request an arrest warrant if they believe the defendant will not appear in court voluntarily or poses a flight risk. However, courts may issue summonses for defendants facing non-violent charges with legal counsel who have assured authorities of the defendant’s willingness to appear in court.
Why Federal Authorities Sometimes Do Not Immediately Arrest Suspects
Federal law enforcement authorities and prosecutors may not arrest a suspect as soon as they develop probable cause to believe the suspect committed a crime for various reasons. Some of the common reasons why authorities may delay an arrest or pursue an indictment before arresting a defendant include:
- Wanting to continue an investigation into a defendant without alerting the defendant or their associates
- Concerns that a defendant may attempt to flee the country before an indictment
- Needing to protect ongoing undercover investigations
- Coordinating criminal cases against multiple co-defendants
Contact Our Federal Criminal Defense Attorneys Today
An arrest for a federal crime can feel shocking. However, you may also feel blindsided when you learn that federal prosecutors have already indicted you for an offense without even having you arrested or brought in. Contact Guest & Gray today for a free, confidential consultation with our Kaufman County federal criminal defense attorneys to learn more about how a federal criminal prosecution might begin against you or a loved one, even without federal agents making an arrest.
