Pre-Indictment Defense
The pre-indictment phase runs from the start of an investigation to the return of the indictment. Warrants issued in that phase must satisfy Fed. R. Crim. P. 41(d), and defenses arising in it — including preindictment delay — must be raised by pretrial motion under Fed. R. Crim. P. 12(b)(3).
Warrants and Subpoenas
The tools of the investigation
Search warrants require probable cause established by affidavit under Fed. R. Crim. P. 41(d); grand jury subpoenas compel documents and testimony without it.
Both can be challenged: warrants for probable cause and scope, subpoenas for overbreadth and privilege.
Preserving Defenses
What Rule 12 requires
Fed. R. Crim. P. 12(b)(3) requires certain defenses to be raised by pretrial motion when the basis is reasonably available, including preindictment delay and defects in instituting the prosecution.
A defense that must be raised pretrial and is not can be waived.
The Corydon Law Research Desk
Each reference page links the statute or rule it describes, quoted from the primary source. Browse the depth library for the full set.
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Published by the Corydon Law Research Desk — John D. Kirby, publisher — former federal prosecutor. This page is reference information about federal law and procedure, not legal advice.
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