USA Law and Practice Contributed by: Daniel J. Fetterman and Brian S. Choi, Kasowitz LLP
believe that the defendant charged in the complaint committed the offences that are charged. It is a tem - porary charging instrument and is used if a case must be initiated quickly. A complaint must be followed by one of the other two methods of initiating a criminal prosecution – an indictment or an information. An indictment is the classic way in which a financial crime is initiated. To obtain an indictment, the govern - ment must present its case through testimony and physical evidence to a grand jury consisting of 16 to 23 citizens, 12 of whom must agree that there is probable cause to support the indictment, which is then returned to a magistrate judge. Depending on the sensitivities and circumstances of the case, an indict - ment may be sealed by the court until the defendant is arrested. The third way that a financial crime prosecution can be initiated is through the filing of an information. An information contains the same statement of essential facts as is in an indictment and must be signed by the prosecutor, but rather than being returned by a grand jury that has heard all of the government’s evidence, the government can proceed by information only if the defendant waives his or her right to proceed with an indictment by a grand jury. A prosecutor makes the decision whether to charge a person with a financial crime. A federal prosecu - tor’s decision is governed by several documents. First, there are specific Rules of Professional Responsibility that outline the special responsibilities of a prosecu - tor. For example, a prosecutor may not proceed with a prosecution if he or she knows that a charge is not supported by probable cause. Second, the Principles of Federal Prosecution in the Justice Manual set forth numerous guidelines that federal prosecutors should consult to inform their decision to charge a defendant. Among a host of other considerations, these princi - ples cover the circumstances under which a declina - tion is appropriate, identify which charging considera - tions are permissible or impermissible, and whether a non-criminal alternative should be pursued. 4.2 Due Process and Bail Under the Sixth Amendment, defendants in criminal cases are entitled to a speedy trial. The Speedy Trial
Act of 1974 dictates the time limits for processing defendants, and requires an indictment to be filed within 30 days of an arrest, and for a trial to begin within 70 days of the indictment or an initial appear - ance by the defendant. The time under the Speedy Trial Act may be extended if a court determines that the “ends of justice” are served by doing so. In many complex cases, these extensions allow the parties additional time to prepare for trial. Defendants may apply for bail or pretrial release. In deciding whether to grant bail, courts will consider the history and characteristics of the defendant, including whether he or she presents a risk of flight, and whether he or she poses a danger to the com - munity if released; the nature and circumstances of the charged offence; and the weight of the evidence. Because financial crime cases are almost always non- violent in nature, the court is likely to grant bail unless it believes the defendant poses a serious risk of flight or a risk that he or she will tamper with evidence or witnesses. Bail decisions are within the discretion of the court. The conditions of bail can range from a per - sonal recognisance bond or a significant monetary bond secured by cash or real property, among other conditions such as the surrender of a passport. 4.3 Public or State Funding Under the Sixth Amendment of the US Constitution, indigent defendants who cannot personally afford a lawyer are entitled to have one appointed for them by the court. The court will either appoint a Federal Defender or a private defence lawyer designated to serve as trial counsel under the Criminal Justice Act (CJA). A Federal Defender or CJA lawyer is compen - sated through government funding. A defendant is not required to make any contributions, irrespective of whether he or she is acquitted or convicted at trial. 4.4 Venue and Specialisation At the federal level, financial crimes are prosecuted in the United States District Court, which is the trial court created pursuant to Article III of the US Constitu - tion. District Court judges, who are appointed by the President and confirmed by the US Senate, oversee these cases. In many instances, a Magistrate Judge of the court will handle pre-trial proceedings, such as the initial arraignment of the defendant or bail deter -
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