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Robbins: Indictments, referrals, complaints, charges, and more

Whatever you may think of him, the ex-president has a way of focusing our attention.

As Roseann Rosannadanna keenly observed, from behind her “Saturday Night Live” news desk, “It’s always something.”

Indeed.



And the something, now that the ex has been indicted, is criminal process.

Unless you’ve been nesting beneath a rock, you know that a New York grand jury has indicted the ex-president. He has been fingerprinted and advised of the charges lodged against him.

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Except that he is an ex-president, and except that he is at the moment the leading candidate for the Republican nomination for another moon shot at the White House, this is pretty quotidian stuff. Yeah … except for that.

In fact, I’m sure I am not the first to tell you that this is the first and one and only time in the two-and-a-half-century history of the United States that this has happened. Never before has an ex-president been perp-walked or its equivalent to court.

But what about these terms?



What’s the diff between an indictment, a referral, a criminal complaint and being charged?

An indictment formally charges a person with a crime. During an indictment proceeding, a grand jury determines if there is an adequate basis for bringing criminal charges against a suspected criminal actor. An indictment is one of two options a prosecutor has to formally charge a person with a criminal offense:

  1. Indictment issued by a grand jury
  2. Criminal complaint filed directly to the court (in this case, the prosecutor does not need to get an indictment from a grand jury

The indictment enables the prosecution of a suspect for the offenses charged.

So what about the “other” option — being charged with a criminal complaint? As you can see, there are two parts: being charged and the complaint.

A criminal complaint is a self-contained charge that sets forth sufficient facts that, with reasonable inferences, allow a person to reasonably conclude that a crime was likely committed and that the suspect/defendant, is likely culpable.

A criminal complaint is also known as a felony complaint and is different from a civil complaint. Instead of an individual filing the complaint, it is the government that files the complaint against the individual. It is essentially a judicial order, a court-issued document that charges a defendant with a specific crime or crimes.

As the name implies, an individual is charged with a crime via a criminal complaint. 

Usually in criminal cases, the police first arrest the defendant and then file a report to the local prosecutor. Then, the prosecutor decides whether to formally process charges against the defendant. The prosecutor’s decision to charge the defendant with the crime is based on whether there is enough evidence and if the case is worthy enough to merit the prosecutor’s time. In some states, however, the criminal complaint must be filed before the court issues an arrest warrant.

The processes for a complaint vary throughout jurisdictions, and it is normally the prosecutor who determines whether to present the criminal complaint to the court. 

Channeling Roseann Rosannadanna again, “So what’s this I hear about ‘charging?'”

Charging is just a fancy way of saying in a criminal case that one is formally accused of the alleged criminal activity. One can be charged by way of an indictment and one can be charged with the filing of a criminal complaint. Sort of six of one, half a dozen of another. Either way, it suggests that your legal stew is being cooked.

Lastly, a “referral” — what the heck is that?

A referral basically means a suggestion. But a strong one. For example, after the House Select Committee investigating the Jan. 6 attack on the Capitol concluded its proceedings, it issued a referral to the Department of Justice saying that, in its opinion, there was substantial there there. Although a referral has no real legal teeth, the suggestion of a referral for charges has a “bite.”

However one gets there when one is charged, it is generally not one’s finest moment.

As Roseann Rosannadanna keenly observed, “It just goes to show you, it’s always something — if it ain’t one thing, it’s another.”

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the law firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, and divorce, and civil litigation. Robbins may be reached at 970-926-4461 or at his email address at Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers. 


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