Ch5. Charging Decisions — Indictment, Prosecution, and Statutes of Limitations

Charging Principles

Grand Jury Indictment (5th Amendment — Federal):
Federal felony prosecutions must be initiated by
  grand jury indictment (Fifth Amendment).
Grand jury: 16–23 citizens; vote to indict = majority.
Standard: probable cause to believe the person committed
  the offense charged.
Proceedings are secret; witness has no right to counsel
  inside the grand room (though may consult outside).

Information (State / Federal Misdemeanor):
Prosecutor files a charging document without grand jury.
Available for: federal misdemeanors; state felonies
  in states that allow information charging; and any
  federal felony if defendant waives indictment.

Prosecutorial Discretion:
Prosecutor decides whether to charge, what to charge,
  and whether to offer a plea.
Limits on discretion: selective prosecution doctrine
  (cannot charge based on race, religion, sex, or
  exercise of constitutional rights —
  United States v. Armstrong, 1996).

Checks on Prosecutorial Discretion:
Federal: no formal mechanism to compel prosecution
  (private citizens cannot bring a criminal case).
State: some states allow private prosecution in limited
  circumstances.
Grand jury: independent body; may decline to indict
  (rare but possible).
Congressional oversight; Inspector General; DOJ
  internal review.

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Declination, Diversion, and Plea Bargaining

Declination:
Prosecutor declines to charge (no case, insufficient
  evidence, low priority, prosecutorial resources).

Deferred Prosecution Agreement (DPA) / Non-Prosecution
  Agreement (NPA):
Common in corporate and white-collar cases.
Government agrees not to prosecute (or to defer) in
  exchange for: cooperation, compliance reforms,
  remediation, and/or payment.

Diversion Programs:
Pretrial diversion: charges dismissed upon completion
  of conditions (community service, treatment, restitution).
Drug courts, mental health courts, veterans courts.
Used for first-time, low-level, or rehabilitation-
  appropriate offenders.

Plea Bargaining:
Charge bargaining: plead to a lesser charge.
Sentence bargaining: plead guilty in exchange for
  a sentencing recommendation.
~97% of federal convictions result from guilty pleas.
Due process requirements:
  — Voluntary, knowing, and intelligent waiver of rights
    (Brady v. United States, 1970).
  — Judge must advise defendant of rights being waived,
    the maximum penalty, and any mandatory minimums
    (Fed. R. Crim. P. 11).
  — Factual basis must be established on the record.

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Statutes of Limitations

General Rule — Federal (18 U.S.C. § 3282):
Non-capital federal crimes: 5-year limitations period.
Clock starts when the crime is complete (or, in some
  cases, when it is discovered).

Specific Federal Periods:
Capital offenses: no statute of limitations.
Child sex abuse (18 U.S.C. § 3299): no limitations
  period for offenses against minors under 18.
Major bank / financial institution fraud: 10 years.
DNA evidence cases: clock may be tolled until DNA
  match confirms identity.
RICO (18 U.S.C. § 3282): 5 years from last predicate act.
Securities fraud (18 U.S.C. § 3301): 6 years.

Tolling (Suspension of the Clock):
Fugitive tolling: limitations period tolled while
  defendant is a fugitive or outside the US
  (18 U.S.C. § 3290).
Pending indictment: clock stops when indictment is
  returned.
Concealment: in fraud cases, discovery rule may
  apply — clock starts when the victim discovers
  (or reasonably should have discovered) the fraud.
Minor victims: many states toll the statute until
  the victim reaches majority.

Double Jeopardy and Re-prosecution:
5th Amendment: bars re-prosecution after acquittal
  or conviction for the same offense (same-elements
  test — Blockburger v. United States, 1932).
Dual sovereignty: federal and state governments are
  separate sovereigns; both may prosecute for the
  same conduct without violating double jeopardy.

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Key Concept Cards

Grand Jury = Probable Cause Screening ★★★★★ : Grand jury indictment required for federal felonies (5th Amendment). Standard = probable cause, not proof beyond a reasonable doubt. Grand jury proceedings are secret. Memory tip: Grand jury = gate; standard = PC, not BARD.

Plea Bargaining Voluntariness ★★★★★ : A guilty plea must be voluntary, knowing, and intelligent. Judge must conduct a Rule 11 colloquy on the record — rights waived, maximum penalty, mandatory minimums, and factual basis. Memory tip: Rule 11 = VKI + rights + penalties + factual basis.

Murder Has No Federal Statute of Limitations ★★★★☆ : Capital offenses and crimes resulting in death have no SOL under federal law. Child sex abuse offenses against minors also have no federal SOL. Memory tip: Death + child sex abuse = no clock.

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Practice Quiz

Q. What are the constitutional limits on prosecutorial discretion?

A prosecutor generally has broad discretion to charge, decline to charge, and offer plea deals. Constitutional limits: (1) Selective prosecution — charging may not be based on race, religion, sex, or exercise of a constitutional right (United States v. Armstrong, 1996); defendant bears a heavy burden to show discriminatory effect AND intent. (2) Vindictive prosecution — charging may not be used to punish a defendant for exercising a legal right (e.g., appealing a conviction), where there is objective evidence of prosecutorial vindictiveness. (3) Double jeopardy — re-prosecution after acquittal or conviction for the same offense is barred; dual sovereignty allows both federal and state prosecution for the same conduct.

Q. What tolls the federal statute of limitations, and why?

The default federal SOL of 5 years is tolled (paused) in several situations: (1) when the defendant flees the country or becomes a fugitive — the clock stops because the government cannot prosecute someone who is not present; (2) when a grand jury indictment is returned — prosecution has been initiated; (3) in fraud cases, under the discovery rule, the clock may begin upon the victim’s discovery of the fraud rather than the date of commission. These tolling doctrines prevent defendants from defeating prosecution by hiding, fleeing, or concealing the crime until the limitations period expires.