How A Defendant's First Appearance In A Federal Criminal Case Works

As I write this it seems pretty clear that CNN shat the bed by reporting that the FBI arrested a suspect in the Boston Marathon bombing and that there will be an appearance in federal court today.

Who knows when — or even if — an arrest and federal court appearance will happen.

But the media has been spewing inaccuracies about how it will happen, if it does. Here are a few things to keep in mind if the feds arrest someone and charge a federal crime. Federal criminal lawyers will find this oversimplified.

1. Federal prosecutions start in one of two ways: by a criminal complaint or an indictment. You get a complaint by presenting a federal magistrate judge with an affidavit explaining the facts establishing probable cause that the defendant committed the specified crime. You get an indictment by presenting a case to a grand jury. If an arrest happens soon, it will be by complaint. If it takes months, it could possibly be by indictment.

2. The feds will probably get an arrest warrant before they arrest a suspect. They will probably do that by filing an affidavit in support of a criminal complaint, as set forth above in (1). The feds could arrest someone without a warrant, but they won't unless emergency circumstances (like the suspect fleeing) arise. If they do arrest the suspect without a warrant, they'll immediately draft an affidavit in support of a criminal complaint and present it to a magistrate judge, as the defendant will be entitled to a prompt determination of probable cause after arrest. They will probably do that before the defendant's first appearance. So: if they arrest without a warrant, there will be a delay while they draft the affidavit.

3. The feds will probably try to interview the defendant. If the defendant is dumb or dumb-political and talks to them, the interview process will consume some time.

4. The defendant will be entitled to talk with an attorney before the first appearance. That will likely be a Deputy Federal Public Defender or someone from the local federal indigent defense panel. The first attorney meeting won't be extensive but will consume some time.

5. Pretrial Services — an arm of the court — will want to meet with the defendant. Pretrial Services' purpose is to gather information the court can use in making a bail determination. Here that's something of a farce; there's no way someone charged with this bombing will get bail. Nevertheless, Pretrial will go through the motions. The defendants' lawyers will tell Pretrial the defendant doesn't want to talk to them.

6. The arresting agent will have to get the office of the clerk to put the defendant on calendar before the magistrate judge on duty that day. How difficult that is depends on how busy the calendar is, which depends on who else has been arrested. Practically speaking, in a busy federal court like Boston, if the feds don't check in with the clerk by noon, it's very hard to get someone on calendar before the judge that day. Here the clerk's inclination to treat the case specially will conflict with all the complicating factors, causing a wash. Our defendant may not appear on the same day he's arrested unless he's arrested quite early. (Feds and locals everywhere love arresting people late morning Friday, which assures a weekend in custody with no bail determination. Some agencies love bringing in hordes of defendants as late as possible on Friday just, as far as I was ever able to determine, for the lulz. I'm looking at you, DEA.)

7. At his first appearance the magistrate judge will arraign the defendant. That means the judge will inform the defendant of the charges against him and his relevant constitutional rights. The judge will set a next court date. The government will ask the court to detain the defendant without bail, which the court will do. (Under the Bail Reform Act a federal defendant is entitled to bail unless no bail conditions will assure the safety of the community and the appearance of the defendant — here the judge will likely find both a flight risk and a danger to the community, no matter who the defendant is.) The defense may simply submit or ask for a delay of the bail hearing.

8. If the defendant was arrested based on a criminal complaint, and he's held without bail, he's entitled to a preliminary hearing within 14 days unless he's indicted. The feds will avoid the need for a preliminary hearing by indicting him first.

The bottom line is this: if there is an arrest, it's possible (or probable) the defendant won't make his first appearance the day of the arrest.

Last 5 posts by Ken White


  1. PLW says

    "Federal criminal lawyers will find this oversimplified. " I'll just wait for the lolCat version.

  2. Digital Ruse says

    I worked for the Federal Court in Baltimore, Maryland and if memory serves me, the DC sniper appeared before one of the magistrates the day he was apprehended. They may have hustled through the first couple of steps because it was just a formality to hold him on federal gun charges until the states issued their formal charges, but I know he was processed the same day.

    Probably an exception, given the circumstances, but a similar exception seemed likely in this case.


  3. AtlPatrick says

    So, in easy-to-read oversimplified terms, why would a prosecutor use a criminal complaint vs. an indictment? I'm guessing that the criminal complaint occurs when you have some pretty strong evidence of some sort of wrong-doing vs. the fishing party that at least some grand jury events seem to be (ie, Barry Bonds). Will a criminal complaint still go through a grand jury to get the formal indictment?

  4. says

    @AtlPatrick: An indictment is more time consuming. You need to present the case to the grand jury. A place like Boston probably has an available federal grand jury every day, but it's still a pain in the ass. Plus grand jurors ask questions you might not be ready to answer. An affidavit in support of a complaint is relatively quicker. The prosecutor controls the circumstances.

    And yes, for felonies, unless the defendant decides to plead guilty, there will be an indictment.

  5. Grifter says

    Thanks for the explanation for us IANALs!

    On a side note: if indictments are more of a pain in the butt, why do they ever go for that instead of for complaint? Is it just to save a step on felonies so that you don't do a complaint then an indictment?

  6. nlp says

    If agents are talking to someone and, based on what the person says, decide to arrest him or her right then and there, how would that work? Do they have to go to the judge first and get a complaint before they make the arrest, or are they allowed to arrest the person and then get the complaint signed?

  7. Pete says

    Why do you think there will be a federal court appearance? Our President has asserted the power to summarily kill anyone he deems to be the enemy.

  8. says

    Eric – Very funny.

    Grifter – A complicated question. One reason for going the GJ route is that the GJ has investigatory as well as accusatory powers. The GJ can issue subpoenas for documents and testimony.

    Basically, whether the AUSA goes the indictment route or the complaint and then indictment route usually depends on the nature of the crime and the time available for investigation. A complicated financial crime will almost always be via indictment. A case where the feds grab a bank robber in the act will almost always be via complaint and then indictment.

  9. Zack says

    @Ken: Grand jurors ask questions? Must be different than our neck of the woods. In SC, (at least, as far as my mother- who is a lawyer and actually served on a grand jury once) a grand jury's basically a rubber stamp and they could bring a duck in for murder and still get a true bill. The jury she was on actually caused a major stir…out of the hundreds of bills they heard, they actually returned no bill on one case.

  10. SharonA says

    Erik – wonderful pairing of captions and photos, thank you!!

    Nicholas – you nailed modern "news" media

  11. MZ says

    "Feds and locals everywhere love arresting people late morning Friday, which assures a weekend in custody with no bail determination. Some agencies love bringing in hordes of defendants as late as possible on Friday just, as far as I was ever able to determine, for the lulz."

    While this isn't the first time I've heard this, I still have to ask how this is possibly still legal in the United States. I'm sure that judges and court employees don't want to work weekends (though I bet that police officers and jail guards don't want to be there either), but it's absurd that someone can be out on bail in a few hours if arrested early Wednesday morning but will spend 60+ hours in jail if arrested Friday night. In this day and age, there's no excuse for a defendant waiting more than 24 clock hours after arrest to see a judge.

  12. AlphaCentauri says

    In local criminal courts, he could well be in a holding pen eating cheese sandwiches several days before getting a bail hearing.

  13. DEA says

    " Some agencies love bringing in hordes of defendants as late as possible on Friday just, as far as I was ever able to determine, for the lulz. I'm looking at you, DEA."

    You have the wrong TLA, it wasn't me, the ATF did it.


  14. Trebuchet says

    So how does the State of MA fit into this? As far as I can see they don't have the death penalty so it's presumably life without in either case. Are they just deferring to the feds?

  15. Nobody says

    The nice thing about this article is that, with any luck, you might be able to cite it as a reference in your Prenda coverage soon. At least, that is my fond hope.

  16. AC says

    You mentioned what a 'dumb' defendant might do. I'm wondering what things a 'smart' defendant (who knows he is guilty as charged and likely facing the federal death penalty) might do just to mess with the system and create more of a media spectacle? For example, the judge always asks the defendant if they understand the charges against them, and they say 'yes'. What happens if the defendant says 'no'? Just curious how much of this process is just 'going through the motions' and a smart person could create additional hassles or delays for everyone involved?

  17. Duncan says

    Ken, just wanted to say I really love your writing style! It's very clear and well written, and the humour is snarky in the best possible way. Keep it up!

  18. Delvan says

    Feds and locals everywhere love arresting people late morning Friday, which assures a weekend in custody with no bail determination. Some agencies love bringing in hordes of defendants as late as possible on Friday just, as far as I was ever able to determine, for the lulz. I'm looking at you, DEA.)

    That'd be great.

  19. Quantum Mechanic says

    So how does the State of MA fit into this? As far as I can see they don't have the death penalty so it's presumably life without in either case. Are they just deferring to the feds?

    Both MA and the US can separately try the accused (double jeopardy doesn't apply across sovereigns). And MA can't block the US from carrying out its death sentence should the US win a conviction and impose death.

  20. Maxcat says

    Having spent months serving on a Federal Grand Jury, I’m pretty sure it’s up to the defendant whether the case has to be brought to the Federal Grand Jury, not the prosecutors. The Fifth Amendment of the Constitution: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury… The only exceptions to this are for members of the military in military trials. A defendant can waive their right to a Grand Jury, but the prosecutors can’t do it for them.

    That said, it is not difficult to get an indictment from a Grand Jury. In simplified form, the job of the Grand Jury is to determine whether or not a crime has been committed and whether it is reasonable to believe the individual for which the indictment is sought committed the crime. The rules of evidence at a Grand Jury are different than a regular trial, for example, hearsay evidence is generally allowed. And there is no requirement that the Federal Prosecutors bring the defendant before the Grand Jury – in fact in many cases the defendant doesn’t even know they have been indicted until after they have been arrested. Also, a simple majority vote of a quorum of jurors is all that is required for indictment. In most large Federal Districts there is a Grand Jury in session every business day. As to the idea of Grand Jury jurors asking questions: yes they can but generally the Federal Prosecutors discuss the questions with the jurors before the questions are ever asked and can advise them that “they don’t want to ask a particular question.”

    Personally, I wouldn’t be surprised if the Federal Prosecutors have already started presenting evidence before an existing Grand Jury in the Boston Bombings case. It’s very common for Grand Juries to be used as an investigational tool. It is one thing to have an FBI agent knock on your door and start asking you questions and something altogether different to be brought before a Grand Jury, without a lawyer, and asked questions that you have to answer truthfully, on the record, under oath, under penalty of perjury. I say without a lawyer because individuals testifying before Grand Juries are not allowed to have lawyers present during testimony. Of course, they can leave and consult an attorney, and they can always remain silent, but their attorney is not allowed to be present.

    I may be wrong, but I’m pretty sure the only way there won’t be an indictment in the Boston Bombings case is if no one is ever charged with a crime or the defendant decides to waive his Fifth Amendment rights.

  21. k-lo says

    Hey Ken, nice post. Also, Maxcat, thanks for the thorough explanation of the federal grand jury system and means of issuing criminal complaints. The only time I had to even think about a federal grand jury was when I was studying for the Bar (although the state I work in, California, has them too, the vast majority of felony charges are issued via "informations") and I initially had it in my head that indictments for federal charges could only be issued via grand jury. So, yes, it makes sense that it would actually only apply to capital / infamous offenses and that there would be another mechanism (i.e. by a magistrate's finding of probable cause) for lesser crimes, as otherwise there would be a lot of overworked grand juries.
    So, just to clear things up a little bit and make sure I get the rudiments of the federal system:

    1. Law enforcement need probable cause to make an arrest

    2. Even in capital charges, a PC hearing must be held either before or after the arrest.

    3. Only a grand jury can issue an indictment, but the right is waivable by the defendant.

    4. After the grand jury issues an indictment, I am assuming the 6th amendment right to counsel attaches? Wouldn't this make things complicated for law enforcement (as regards their normal tactics) when the indictment is issued before an arrest is made (because law enforcement would not be able to interview the defendant without counsel present)? Further, wouldn't this practically ensure that all the deputy US attorney's out there would never go this route unless it was absolutely the last possibility for some reason (In my state system, a huge amount of criminal defendants get sunk during the interview phase, before formal charges have been issued, and the right to counsel has attached, and I can only assume the situation is similar in the federal system).

    5. So no prelim if the indictment is via grand jury? The next step is straight into trial?

    Neat. Thanks again for sharing your erudition about this stuff. Every day I see the shiny federal court house from the murkier confines of the state court house I haunt, but I have practically no idea what goes on in there.

  22. EricE says

    Holy crap – the FBI released pictures of two suspects and flat came out and said they have suspect 2 leaving the bomb at location 2.

    And love him or hate him, Bill O'Reilly was right there with the Richard Jewel/Atlanta bombing concerns.

    Ok 4Chan, Reddit and the like – now's your chance to be really useful!

  23. MOG says

    I am always amazed at how uninformed the media is when reporting about courtroom issues. They rarely get it right. And with the general public basically relying on what they believe is an informed reporter (because that's what they get paid for right?) … No wonder the general public has no clue.

  24. NotCGG says

    @Maxcat, shhhh… remember, Grand Jury Proceedings are super secret even to jurors, judges, and even counsel. That being said, it is pretty cool when you read in the newspaper or see on television someone going to trial from an indictment you were involved in. Uhh, err… Would be cool. If one was on a Grand Jury.