The Federal Criminal Process: What Every Accused Should Know

Every state in the country has their own legal system that includes procedures for dealing with the criminally accused. Likewise, the federal government has their own legal system and procedures for determining the guilt or innocence of the criminally accused. Often there are similarities between state and federal criminal processes. However, there can be procedural differences between state and federal practice that impacts the rights of the criminally accused.

This article will provide a step-by-step flyover of the federal criminal process.

• Investigation – The initial phase in both state and federal criminal proceedings is the “investigation”. At the federal level, multiple law enforcement agencies exist to investigate possible crimes. The following is a list of law enforcement agencies conducting criminal investigations at the federal level: Federal Bureau of Investigation (FBI); Drug Enforcement Agency (DEA); Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); United States Secret Service; and, Homeland Security (DHS/HSI). The sheer volume of law enforcement resources at the federal level is astounding.

This reason alone makes it important for a person to remember that he or she has Constitutional Rights—even during the investigation phase. Every person under investigation has a Fourth Amendment Right that prevents federal law enforcement from searching his or her home, business, or property without a warrant. Also, the Fifth Amendment protects individuals from self-incrimination. The existence of Constitutional Rights may be the only thing to protect a person when the federal government is investigating the possibility of criminal charges.

• Charging Phase – There are two ways criminal charges can be initiated against a person in federal court: (1) through a grand jury indictment; and, (2) by the filing of a Complaint. Certain types of crimes require an indictment through a grand jury. A grand jury consists of 16-23 members, or citizens, who determine if criminal charges are appropriate in a given case. The grand jury hears a presentation of evidence, including the testimony of witnesses. If 12 members of the grand jury vote to indict, then criminal charges will go froward against the accused.

The second way to initiate federal criminal charges against an accused is through a Complaint. The Complaint is accompanied by an Affidavit executed by a member of law enforcement attesting to the facts necessary to prove each element of a crime. If a criminal case is started by the filing of a Complaint, then the accused has a right to a Preliminary Hearing within 14 days of his or her arrest. If the accused was charged through a grand jury indictment, then he or she has not right to a Preliminary Hearing.

• Initial Appearance and Arraignment – Law enforcement is required to take “the defendant without unnecessary delay before a magistrate judge” upon making an arrest. Generally, this requirement is satisfied by taking the accused before a magistrate judge within 24 hours of the arrest.

If the arrest was made within the district, then the defendant must appear before a magistrate judge in the district where the alleged crime occurred. If the arrest was made outside of the district, then the Initial Hearing can take place in a different district, although the Federal Rules of Criminal Procedure would require additional steps before the defendant would be required to appear in the proper district, including conducting the Preliminary Hearing, if one is required, in the district where the defendant was arrested.

The magistrate judge conducting the Initial Hearing is required to perform the steps of a traditional “arraignment”, including: 1) advising the defendant of the charges pending against him or her; 2) advising the defendant of his or her right to counsel and to have counsel appointed if the accused cannot obtain one; 3) the circumstances, if any, under which the defendant may secure pretrial release; 4) the defendant’s right, if any, to a preliminary examination; and, 5) the defendant’s right to not to make a statement and to remain silent.

Most importantly, a magistrate judge conducting the Initial Hearing must make decisions regarding the granting or denial of bail. In determining whether to release or detain a defendant, the magistrate judge will look at many issues including: how long the defendant has lived in the area, if the defendant has family nearby, if defendant has a prior criminal record, and if the defendant has threatened any witnesses in the case. If the magistrate judge is convinced the defendant will return to court and does not present a danger to the community, then he or she should be released on bail.

• Preliminary Hearing – At the Preliminary Hearing, a defendant is permitted to cross-examine adverse witness and can introduce evidence. However, a defendant is not permitted to challenge whether evidence was unlawfully obtained at a Preliminary Hearing.

If the magistrate judge during the Preliminary Hearing finds probable cause to believe an offense has been committed and the defendant committed it, then the magistrate judge must promptly require the defendant to appear for further proceedings.

• Discovery – The defense attorney will need to obtain “discovery”, or simply all available information, about your case. Discovery allows the defense attorney to properly prepare for trial. Discovery may consist of things such as: law enforcement reports, statements of eyewitnesses, and any other evidence about the case. The defense attorney will likely need to interview all material witnesses to learn more about the facts supporting the charges and to develop defenses to combat the charges.
• Plea Bargaining – Plea Bargaining describes the negotiation process between prosecutors and defense attorneys. Plea Bargaining can provide a defendant with the ability to control the result in his or her case while minimizing the risk so often present when one goes to trial. The by-product of Plea Bargaining is that a defendant can frequently plead guilty to a less serious charge and receive a lighter sentence in exchange for foregoing his or her right to a trial.

The importance of plea bargaining can never be over stated. In many cases, the Plea Bargaining process continues throughout the pre-trial period and proves beneficial to a defendant.

• Pre-Trial Motions – A number of pre-trial motions may be filed by defense counsel. The range of motion topics includes dismissal and/or suppression of evidence. There may be a number of other motions regarding the conduct of the trial, too. Pre-Trial Motions are another tool in the defense counsel’s belt.
• Trial – A defendant has many Constitutional Rights, including to the right to a jury trial by his or her peers. A trial begins with voir dire or what is commonly known as “jury selection”. The purpose of jury selection is to select twelve persons who can impartially determine the guilt or innocence of the defendant. The weeding out of jurors during voir dire is done through the questioning of each prospective juror by the judge, prosecutor, and defense counsel.

The second step in a trial is “opening statements.” Each party–the prosecution and the defense–are afforded an opportunity to make “opening statements” to the jury. Opening statements are important because they allow both the prosecution and defense counsels to describe their respective cases to the jury. The hidden benefit of opening statement is that the prosecutor and defense attorney have a chance to begin to build a rapport with the jury.

The third step in a trial is the presentation of the case in chief. The prosecution carries the burden to prove the accused is “guilty beyond a reasonable doubt”. If the prosecution cannot meet this burden, then the defendant is required by law to be acquitted of the charges. The prosecution will utilize witness testimony and evidence to prove the defendant’s guilt.

Meanwhile, the defendant’s counsel will counter by cross examining the prosecution’s witnesses and presenting the defendant’s own case. Like the prosecutor, defense counsel will rely on witness testimony and evidence to create “reasonable doubt”.

After both the prosecution and defense have “rested”, or finished, their cases, then the judge will instruct the jury. After receiving their instructions the jury must determine the guilt, or innocence, of the defendant by a unanimous vote. If the jury verdict is not unanimous, then the case will end without guilt or innocence being determined. In such a case, a defendant could be re-tried in a second trial.

• Post-Trial Motions – If a defendant is convicted following a trial, then he or she may file post-trial motions. These types of motions can, and often do, include requests for the court to vacate the jury’s decision by acquitting the defendant or granting the defendant a new trial.
• Sentencing – If a defendant has been convicted of a crime and has not been successful in obtaining relief through a Post-Trial Motion, then he or she will have to be sentenced.

The sentencing judge will receive information and guidance from multiple sources to prepare a sentence for an individual defendant. Among the things the judge will consider are: 1) the minimum and maximum punishments for the type of crime the defendant was convicted; 2) the sentencing guidelines prepared by the United States Sentencing Commission that recommends certain punishments for certain crimes while considering various factors; 3) a presentence report and statements from the victims as well as the defendant and lawyers.

In addition to this list of considerations, the sentencing judge may also look at a variety of aggravating and mitigating factors. Aggravating and mitigating factors are—like most everything in the law—factually driven. They include whether the defendant has committed the same crime before, whether the defendant has expressed regret for the crime, and the nature of the crime itself.

• Appeal – If a defendant has gone through the gambit of proceedings from Trial through Sentencing, then he or she has a right to appeal his or her conviction to a Circuit Court of Appeal. In Michigan, a defendant convicted of a federal crime would have a right to appeal to the Sixth Circuit Court of Appeals.

If the defendant was unsuccessful appealing his conviction or sentence in the Sixth Circuit Court of Appeals, then he or she could seek relief from the United States Supreme Court by filing a Petition for a Grant of Certiorari. However, the United States Supreme Court has no obligation to hear any case. The United States Supreme Court is considered the Court of Last Resort. If a defendant loses at the United States Supreme Court, then he or she has no other legal remedies available.

• Summary – Although similarities exist between state and federal courts, the differences can be vast with significant impact on an accused’s rights. Understanding the federal process is an important first step for anyone who might be facing criminal charges. If you have questions about anything relating to federal criminal procedure, then you should contact us to discuss your case.