Federal criminal charges can be brought in one of three forms: indictment, criminal complaint (followed by indictment), or information.
Grand Jury Indictments
Grand juries hear evidence presented by the government to determine whether there is probable cause that a crime has been committed. Typically, grand juries convene to consider an indictment presented by a prosecutor and to vote on it after hearing testimony given under oath by an investigator and sometimes witnesses. However, a grand jury can also be called as an investigative grand jury that, over a period of time, will hear testimony and consider evidence from various witnesses, supporting both the government’s case and that of the defense. Investigative grand juries are almost always used in federal human trafficking cases. Although victims may not be called to testify before a grand jury, the prosecutor typically will call any potential witness who is unpredictable or inclined to be untruthful to lock in testimony under oath.
Grand jury proceedings are conducted in strict secrecy. Only government attorneys, investigators and witnesses who are testifying, a court reporter, and an interpreter, if necessary, can be present in the grand jury room. Anyone who makes an unauthorized disclosure of information from grand jury proceedings is subject to contempt charges. However, the court may authorize disclosure at any time, including imposing conditions pursuant to a judicial proceeding and other specified purposes.
Criminal Complaints: Initial Appearance and Preliminary Hearing
Criminal complaints are typically sought when an arrest must be made immediately. A complaint and arrest warrant can be obtained quickly whereas an indictment requires a grand jury to be seated, with an indictment and evidence presented. A preliminary hearing is held when a defendant is arrested on a criminal complaint. A preliminary hearing involves a prosecutor presenting sufficient evidence to establish probable cause that the alleged crimes were committed. Such a hearing may involve a victim testifying, but more often a law enforcement investigator can present the essential facts.
Resolution of Criminal Charges
Criminal charges are resolved by pleas, usually through a written plea agreement, trial, or dismissal of charges. Plea agreements should reflect the totality and seriousness of the defendant’s conduct. Prosecutors should consider having the defendant plead guilty to the crime but require restitution to ensure that victims are able to receive support.
Arrest and Arraignment on Indictment
When a grand jury returns an indictment, the court will issue an arrest warrant for each defendant. Once arrested, a defendant will be brought before the court for an initial appearance. Subsequently, the defendant will be brought to the court for an arraignment (a public hearing), when the judge will ensure that the defendant has a copy of the indictment, read it to the defendant, and then ask how the defendant pleads.
Bail or Detention
Smart Tip: Detention helps the victims feel safe because the defendant is physically removed from direct access to the victims. Even when the defendant is detained, the prosecutor should also seek a restraining or protective order that includes a provision that the defendant cannot have any direct or indirect contact with the victim by any means, including third parties or social media.
Judges can detain or release a defendant, with or without conditions. Control and manipulation of the victim through violence, threats, intimidation, and various coercive means are inherent in trafficking and do not end with the trafficker’s arrest. Physical, mental, and emotional separation of the trafficker and the victim is critical to breaking the enormous control that the trafficker maintains over almost all victims. Moreover, if a victim is expected to testify at the trial, this separation is imperative so that the victim feels some level of comfort and safety. A defendant who is a foreign national and in the United States unlawfully mostly likely will be detained because of the flight risk factor. Victims may present testimony to the court, but more typically, an investigator will testify about the nature of the crime, particularly if violence or threats are involved. In these instances, the prosecutor probably will prepare and argue for detention.
For additional information and tools, visit the Resource page for Section 5.6, Case Proceedings.