In a federal white collar criminal case, an “indictment,” an “information,” and a “complaint” all serve the same function – they initiate a criminal case and inform the defendant of the charges against him. They also ensure that a prosecutor has sufficient evidence to establish probable cause that a crime has been committed.
The Fifth Amendment to the U.S. Constitution requires that, in the federal system, a felony prosecution begin with an indictment. To obtain an indictment, a prosecutor must present proposed charges to a grand jury – a body of jurors that investigates crimes and decides whether charges should be filed. If, after considering the evidence, the grand jury decides there is sufficient cause for the prosecution to proceed, it will issue an indictment that describes the criminal charges against a person and the factual basis for those charges.
Like an indictment, an information is a formal charging document that describes the criminal charges against a person and the factual basis for those charges. Unlike an indictment, however, an information does not require a grand jury’s vote. Instead, the information is presented to a judicial officer, usually a magistrate judge, who examines the information and decides whether there is probable cause that a crime occurred.
A complaint is simply a statement of the essential facts of the offense to be charged, made under oath by a law enforcement official. The purpose of the complaint is to establish probable cause, which will allow an arrest warrant to issue.
Most federal white collar criminal offenses are felonies, and thus require an indictment under the Constitution. But some white collar cases – even the felonies – can begin with an information or a complaint. For example, a complaint or an information can be filed much more quickly than an indictment can be obtained from a grand jury. So, if prosecutors need to move quickly in making an arrest, they may file a complaint or information. After the defendant is arrested, the government will have to go to a grand jury and obtain an indictment, unless the defendant chooses to waive that requirement and proceed by information. A felony case cannot go forward on the basis of a complaint alone.
By including the indictment requirement in the Fifth Amendment, the Framers intended that the grand jury – a body of ordinary citizens – would act as a buffer against an overzealous prosecutor. But in reality, the indictment requirement presents a relatively low hurdle to criminal prosecution. Prosecutors control all the evidence that the grand jury sees. They instruct the grand jury on the law. And they write the indictments. Under those circumstances, it is no surprise that prosecutors frequently obtain the indictments they seek.
To learn more about corporate and executive criminal liability, follow us on LinkedIn. “Brilliant lawyers with courtroom savvy” – Benchmark Litigation. Copyright MoloLamken LLP 2018.