What Happens Leading Up To A Federal Criminal Trial
Preparation is one of the most important stages of any federal criminal law case going to trial, yet it is so often overlooked. People tend to equate progress in their cases with going to court and seeing something happening. As such, it is very common for people to become frustratingly convinced that nothing is happening because they are not going to court or seeing their case move forward. This is a huge mistake.
Contrary to what you may be led to believe from the numerous law-based popular television programs, it is by far more common than not that a case does not go to court (at all) between the an arraignment on the indictment and the trial.
The vast majority of judges will set what is referred to as a final pretrial about a week or two before trial. This is essentially a plea cut-off, a last chance for a defendant to take a plea to a reduced charge. If a final pretrial is not set (for whatever reason), in most circumstances the only reason a case would end up going to court is because the government or the defense files a motion. With motions comes delays in the trial date, often anywhere from three to nine months.
The period leading up to trial is critical to the defense of a federal criminal charge. The defendant and their lawyer must meet frequently to evaluate the discovery and charges of the case. Since federal discovery is considerably large in scope, this quickly becomes a daunting endeavor. It is not unheard of to have gigabytes, if not terabytes, of information provided in the discovery process.
The federal government has several ways to acquire information, a virtually unmeasurable amount of manpower to investigate cases, and unlimited financial and technical resources at its disposal. All this information has to be evaluated, reviewed, and discussed by the defendant and his/her lawyer – on top of examining the potential for pretrial motions.
When considering pretrial motions, it is imperative to understand that federal criminal practice tends to be more formalized and, in most cases, more pretrial motion-driven than state court procedure. Federal judges expect and encourage both parties to identify and focus legal issues, and potentially find resolution, in pretrial motions so that these issues do not have to be dealt with in a trial.
Pretrial motion discussions typically begin with motions to suppress, namely, suppress some form of evidence. The most common types of motions to suppress in federal court are:
- Motions for pretrial release.
- Motions to suppress evidence because of a violation of the Fourth Amendment right to be protected from unreasonable search and seizure.
- Motions to suppress a statement made by the defendant due to a violation of their Fifth Amendment Miranda Right to not self-incriminate, a Sixth Amendment right to counsel, or a claim the statement was not voluntarily.
These Motions Must Be Filed In Federal Court Prior To Trial.
The first motion (chronologically) that may be considered is a motion for pretrial release. If the defendant waived their detention hearing at the time of filing the complaint or their arraignment on an indictment, they still have the right to one detention hearing. If they have not had a detention hearing yet, it is a simple process to file a motion for pretrial release and set aside the detention order.
Every bond motion is determined de novo, which means looked at fresh and new. Federal judges are required to look at a motion for pretrial release fresh and not give any credence to prior decisions made by a magistrate judge, particularly if a defendant has not yet had a detention hearing.
An additional (or subsequent) motion for pretrial release and to revoke a detention order can be renewed anytime there is a change in circumstances in the case. With this, even if a defendant was previously denied pretrial release and was detained, a change in circumstances would allow a defendant to file a new motion for pretrial release and to revoke a detention order.
Motions to suppress must also be brought in advance of trial. It is difficult to imagine a situation where a federal judge would entertain a motion to suppress evidence or a defendant’s statement during a trial. In fact, an untimely motion to suppress may be filed beyond the motion cut off only upon a showing of good cause. Remembering this is critical.
Motions to suppress evidence or statements should assert specific facts. They should not presume an evidentiary hearing will be granted where facts can be established. Instead, the motion and brief should proffer facts that would allow a federal judge to conclude that the evidence or statement may have been seized in some violation – or at least that an evidentiary hearing is necessary to make a proper ruling. Federal judges demand to see focused and case specific argument – citing specific authority that supports your position is extremely beneficial, if not necessary. Cut-and-pasting or broiler plate motion sand briefs should be avoided.
The third most commonly seen motion in federal court is a motion in limine. A motion in limine is a motion that attempts to resolve some evidentiary issue related to a case before the trial begins. For example, suppose a defendant plans to produce evidence that would otherwise be banned because of hearsay – his/her lawyer can file a motion in limine before the trial and disclose that the defense plans to elicit hearsay from government witnesses. Doing this gives the court notice as to the fact that it will likely happen, why it will happen, and the legal reasoning behind why the court should allow it to happen. These in limine motions tend to be far more important in federal court than they are in state court.
There are also miscellaneous federal pretrial motions. What can constitute as “miscellaneous” in this context is limited only by a lawyer’s imagination and creativity. Examples include motions to strike surplusage contained in an indictment if there is information that is prejudicial to a defendant and unnecessary to the charging notification of that defendant. The defendant can strike this information as a surplus.
The opposite of surplusage is the defendant can file a motion for a bill of particulars. If a defendant believes that an indictment does not properly notify him/her of the charges and their factual support in an indictment, the defendant can file a motion demanding a bill of particulars. A bill of particulars is a statement by the government that includes information to further clarify the acts or facts that the government believes support the idea that a crime was committed, what crime the government believes the defendant committed, and why the government believes the defendant committed the crime.
Motion to dismiss an indictment as a matter of law, or at least one count of an indictment, is another commonly seen motion in federal court. A good example of this can be seen in the recent United States Supreme Court ruling in New York Rifle & Pistol Ass’tion v. Bruen. Following the holding in Bruen, there was a series of motions filed by the criminal defense bar arguing federal statutes that criminalize status weapon offenses. This means, then, that a criminal charge against the possession of a firearm by either a prohibitive person or under unlawful circumstances is an unconstitutional infringement on a person’s Second Amendment right to possess and bear arms.
With the guidance of a skilled attorney for Criminal Law Cases, you can have the peace of mind that comes with knowing that all preparation is done, and every defense is researched.