Criminal Law

Criminal Complaints

Criminal complaints are the way some criminal prosecutions start. They're "accusatory instruments," that is, they're the papers filed in the courts that charge or accuse persons of committing crimes. It's only "some" prosecutions, though, because they're not used for all crimes or in all courts. Whether or not a complaint will be used in a particular criminal case depends on:

  • Whether federal or state laws were broken. That is, whether the trial will be in a federal or state court
  • The seriousness of the crime. Whether a complaint is used often depends on whether the defendant is charged with committing a serious, often violent crime (called a felony) or a less serious crime (called a misdemeanor)

Each state has its own set of rules that apply to criminal prosecutions. And, federal courts have their own rules as well, which often are very different from the rules of the states. So, if you have any questions about a criminal complaint, you should look at the laws and rules for the court where the trial will be, or talk to an experienced criminal law attorney.

Some General Things to Know

Regardless of whether you're in federal or state court, there are some things that criminal complaints in both systems have in common. For example, a complaint:

  • Is a formal, written list of criminal charges that the prosecution may file against someone
  • Must contain a written statement of the specific facts of the case that make up the crime being charged
  • Will list the specific statute or law that the defendant is accused of breaking
  • Must be made under oath, that is, the person filing the complaint, which usually is the prosecutor, must swear that the complaint is truthful and accurate
  • May be filed either before or after the person accused is arrested. If it's filed before you're arrested, the complaint works like an application for an arrest warrant. It must show probable cause that a crime was committed and you're the one who committed it. Basically, probable cause means that it's more likely than not that you committed the crime described in the complaint. After the complaint is filed, and if the judge agrees on probable cause, you'll be arrested or sent a "summons," telling you when and where to appear in court

When They're Used

Generally, whether a complaint will be filed against you depends on whether you're accused of violating a federal or state law, how serous the crime is.


The federal system has some hard and fast rules about the use of criminal complaints. If you're charged with a federal felony, the prosecutor (she's called the US attorney or federal prosecutor) may file a complaint against you. However, the government can't take you to trial unless it first gets a grand jury indictment against you. That's because the Fifth Amendment to the US Constitution requires an indictment for a "capital" or "other infamous" crime. A federal felony is any crime that is punishable by death or imprisonment for more than one year. Armed bank robbery and murder are good examples of federal felonies.

Grand jury indictment? What's that? A federal grand jury is a group of 23 citizens (state grand juries may have fewer members) who listen to and look at the evidence the government has against you. It's their job to decide if there's probable cause to believe that you committed the crime. If 12 or more grand jurors think there's probable cause, it will indict you. The indictment is what formally charges you with the crime; it's the accusatory instrument in your case. If the jury doesn't indict you, you may be released if you're in jail (custody), but don't be surprised if the government continues its investigation and tries to indict you later.

If the US attorney charges you with a misdemeanor, he prosecutor may file a criminal complaint against you. Generally, a federal misdemeanor is any crime that's punishable by one year in prison or less, the payment of a fine, or both. Trespassing on federal land and theft of up to $1,000 worth of federal property are good examples of federal misdemeanors. Once the complaint is filed, the case can go straight to trial, that is, there's no need for a grand jury indictment.


Unlike the federal government, the states aren't required to use grand juries. However, some states use them anyway, and others don't. In states where grand juries aren't used, criminal cases begin with a complaint. Sometimes an "information" is filed, which essentially is the same things as a complaint. It's an accusatory instrument that specifies the crime you're being charged with committing.

In states that use grand juries, the process usually is identical or very similar to the federal process. In some states, a grand jury indictment is required for any felony prosecution. In other states, the prosecuting attorney has the option of getting a grand jury indictment or filing a complaint. In still other states, a criminal case can begin with a complaint, but you can't be taken to trial unless a grand jury indicts you first.

You need to check the laws and courts rules in your state to see if you case can go to trial on a complaint alone.

Bad Complaint

It's critical to the prosecution that a criminal complaint is accurate and complete. If it's not, the prosecution may not be able to take you to trial. You may be able to get the complaint "dismissed" or thrown out if, for example, it doesn't:

  • Show probable cause that that you committed the crime specified in the complaint
  • Properly charge a crime by not stating all of the essential elements of the crime charged. For example, say state law defines burglary as: (1) Entering a home; (2) At night; (3) Without permission; (4) With the intent to commit a crime in the home. If a complaint charges you with burglary and states that you broke into a building without permission with the intent to steal goods or money, the complaint doesn't properly allege the crime of burglary

If you're named in a criminal complaint and you think it contains errors, you should ask an attorney to look at it immediately.

Questions for Your Attorney

  • I was arrested two days ago, but I haven't been told if I'm going to stand trial. How long can they make me wait?
  • Do we have grand juries in our state? How long does it take for a grand jury to decide if I should go to trial?
  • My name is misspelled in the criminal complaint that was filed against me. Can we get it thrown out?

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