Once you have been arrested on a Federal Complaint and Warrant, the government must hold a preliminary exam with 14-21 days unless you consent, and good cause is shown. Otherwise, the rules require that you be released. However, you can only be held on a complaint. You cannot be prosecuted further on a complaint and warrant. To prosecute you further, the government must either file an information or obtain an indictment.
To better understand this, it is helpful to consider that when the government believes that you have committed a felony over which the federal courts have jurisdiction, the prosecution for this crime may be initiated by the government in one of three ways. The most common of the three is the criminal indictment. However, in certain circumstances, the government may determine that there is a need to forgo the grand jury and instead will prepare and file a complaint. This procedure is governed by Rules 3-5.1 of the Federal Rules of Criminal Procedure.
A compliant, and the necessary probable cause to support it, may be based in whole or in part on hearsay. According to Rule 3 of the Federal Rules of Criminal Procedure, a complaint must contain the essential facts of the crime alleged, and must be presented to a magistrate judge, under oath. Rule 4 of the Federal Rules of Criminal Procedure provides that, in reviewing the warrant and deciding whether to issue an arrest warrant, the magistrate judge must determine whether the complaint establishes probable cause to believe 2 things; first that the crime alleged has been committed and that second that the defendant committed it.
Once you have been arrested pursuant to a federal warrant issued under rules 3-5.1, you must be taken before a magistrate judge for an arraignment “without unnecessary delay.” At this arraignment, you must be advised of the information contained in the complaint, your right to counsel, under what circumstances you may obtain bail, your right to a preliminary hearing, your right to not make any statements. This is all explained and set forth in Rule 5 of the Federal Rules of Criminal Procedure.
The time limits for the preliminary examination are set for in Rule 5.1 of the Federal Rules of Criminal Procedure as well as United States Code, 18 U.S.C. §3060. According to both, if you are in custody, then the preliminary examination must be held within 14 days, and if you are not in custody, 21 days. Also, according to both, provided you consent, these dates may be continued one or more times. Rule 5.1 varies from section 3060 in that Rule 5.1 also requires good cause. Without consent, a judge or magistrate judge may extend these time limits only if the government can show “extraordinary circumstances.”
There are five exceptions to this preliminary exam requirement. The most common of the five is where you agree or consent to a waiver of the preliminary exam. Three more relate to the criminal procedure alluded to above, either you are indicted after a grand jury proceeding, or a felony information is filed under Federal Rules of Criminal Procedure Rule 7(b) or a misdemeanor information is filed. The fifth exception is when you are charged with a misdemeanor and agree to have a trial before a Federal Magistrate.
If a preliminary exam cannot be held within the prescribed time, you must be released from custody or the requirements of bail. However, this does not apply if either an indictment or information is filed.
At the preliminary hearing, the magistrate will be examining any evidence provided by the government with an eye toward determining if probable cause exists to believe that the crime alleged has been committed, and that you committed that crime. Through your attorney, you may present evidence and may cross exam the government’s witness. However, you may not object to the government’s evidence on the belief that it was unlawfully acquired.
If the government fails to demonstrate probable cause, then the complaint must be dismissed. On the other hand, if the magistrate judge finds probable cause then you will be required to appear for further proceedings. Usually this means that you may be held only until either an information is filed or a grand jury returns an indictment.