§ 15.01 Complaint

 

After a suspect is arrested and booked, a complaint is prepared by the police or a prosecutor and is filed with the court. A complaint is “a written statement of the essential facts constituting the offense charged.”  Fed. R. Crim. P. 3.  The complaint serves as the official charging document prior to the issuance of an information or indictment.

 

§ 15.02 Probable Cause (Gerstein) Hearing

 

When the police arrest a suspect without an arrest warrant, a prompt judicial determination of probable cause must ordinarily be made in order to continue to detain the defendant where a “significant pretrial restraint on liberty” is involved.  Gerstein v. Pugh, 420 U.S. 103 (1975).  A Gerstein hearing that is held more than 48 hours after the defendant's arrest is presumptively unreasonable.  Riverside County v. McLaughlin, 500 U.S. 44 (1991).  In indictment jurisdictions, if a grand jury previously returned an indictment, a Gerstein hearing is unnecessary.

 

A Gerstein [420 U.S. 103] hearing is equivalent to a pre-arrest warrant hearing, at which probable cause must be demonstrated in order to be granted a warrant.  It is nonadversarial in nature.  The hearing may be conducted in the defendant's absence, and the probable cause determination may be based on hearsay testimony.  

 

§ 15.03 Initial Court Appearance

 

A defendant must be brought before a judicial officer for a hearing “without unnecessary delay,” Fed. R. Crim. P. 5(a), usually within 24 hours of the arrest, except on weekends.  Such hearing is variously called the “initial arraignment,” “arraignment on a warrant,” “arraignment on a complaint,” or the “initial appearance.”

 

At the initial appearance:

(1) the defendant receives formal notice of the charges against him.

(2) relevant constitutional rights are explained to the defendant.

(3) a date is set for a preliminary hearing.

(4) counsel is appointed if the defendant is indigent.

(5) a Gerstein [420 U.S. 103] probable cause determination may be made at such time if the defendant was arrested without a warrant.

(6) the magistrate determines whether the defendant should be set free on his own recognizance, released on bail, or detained pending further proceedings. [See Chapter 16, Pretrial Release or Detention.]

 

§ 15.04 Preliminary (Bindover) Hearing

 

In most jurisdictions, a preliminary hearing is held within two weeks after the initial appearance before the magistrate, unless the defendant waives the hearing.  Fed. R. Crim. P. 5(c). The primary purpose of a preliminary hearing is to determine whether there is probable cause to believe that the defendant committed a specified criminal offense.  Fed. R. Crim. P. 5.1(a).  Like the Gerstein [420 U.S. 103] hearing, a preliminary hearing is not required if a grand jury previously returned an indictment.

 

Unlike a Gerstein [420 U.S. 103] hearing, the preliminary hearing is adversarial in nature.  Defense counsel may be present, and the prosecutor and the defendant may call witnesses on their behalf and cross-examine adverse witnesses.  Many jurisdictions permit the introduction of hearsay and evidence obtained in an unconstitutional manner at the preliminary hearing.  Fed. R. Crim. P. 5.1(a).

 

            [A] Information Jurisdictions

 

If the magistrate in an information jurisdiction – i.e., a state in which an indictment by a grand jury is not required – determines that there is sufficient evidence to bind over the defendant for trial, the prosecutor files an information.  An information states the charges against the defendant and the essential facts relating to the charges and replaces the complaint as the formal charging document.

 

If the magistrate in an information jurisdiction does not find sufficient evidence to bind over the defendant, the complaint is dismissed and the defendant is discharged.  If the prosecutor wishes to proceed with the dismissed case:

(1) he may file a new complaint, in which case the prosecution begins anew;

(2) in some states, he may appeal the magistrate's dismissal to the trial court; and/or

(3) in some circumstances, he may seek an indictment from a grand jury.

 

In an indictment jurisdiction – states in which the defendant ordinarily cannot be brought to trial unless indicted by a grand jury – the preliminary hearing functions as little more than an adversarial Gerstein-type hearing.  Indeed, the magistrate's probable cause determination may be superseded by the grand jury; if the grand jury does not indict the defendant, he must be released, despite a finding by the magistrate that probable cause exists to believe that the defendant committed the offense.

 

§ 15.05 Grand Jury Proceeding

 

In indictment jurisdictions, a defendant may not be tried for a serious offense unless he is indicted by a grand jury or waives the right to a grand jury hearing.  A grand jury proceeding differs from a preliminary proceeding in that:

(1) the defendant is not permitted to be present during the grand jury proceedings, except if and when he is called as a witness.

(2) the defendant (as well as all other witnesses) may not have counsel present while he testifies before the grand jury.

(3) no judge is present during the proceedings, and thus, rules of evidence – e.g., those excluding hearsay and evidence obtained in violation of the Constitution – do not apply.

(4) the prosecutor is not required to disclose exculpatory evidence to the grand jurors.

 

If a majority of grand jurors believe that the prosecutor presented sufficient evidence on which a trial may proceed, the grand jury issues an indictment, a document that states the charges and the relevant facts relating to them.  If the jury does not indict the defendant (a “no-bill”), the complaint is dismissed and the defendant is discharged.

 

§ 15.06 Arraignment

 

Upon the filing of an indictment or information, the defendant is arraigned.  Defense counsel may be present at the arraignment.  At the arraignment, the defendant is provided with a copy of the indictment or information, after which he enters one of the following pleas to the offenses charged:

·        “not guilty”

·        “guilty”

·        “nolo contendere”

·        “not guilty by reason of insanity” (available in some states)