How Federal Cases Work

What happens in Federal Criminal Cases?

Federal criminal cases have their own rules and procedures. Federal cases are different from state court cases or municipal court cases. Netflix and Hollywood try to portray how these federal cases are handled, but they rarely get it right.

Investigation

All federal criminal cases start with an investigation. Before charges are brought, the federal government does it homework first. Some cases can move quickly from investigation to charges, but the more complicated the case, the longer the investigation. For example, a federal white-collar criminal case investigation can take months or years.

Pretrial

Here, a person is charged. The initial charge can be brought by a complaint or an indictment. The government needs probable cause that a defendant has committed a crime.

Complaints are less formal than an indictment. If the charges are brought by the less formal “complaint,” the government then has 30 days (or 60 days if an extension is granted) to present the matter to the federal grand jury for possible indictment. That can be extended by agreement of the parties and judge, or waived by the person charged, in particular if a plea agreement is worked out and the person pleads guilty.

Initial Appearance

When the person is charged, they are brought before a judge, usually a federal magistrate judge. This is known as the “initial appearance” if the person is charged by complaint, and the “arraignment” if charged by indictment. At the hearing, the person will be told of the exact charges and the maximum possible sentence. The judge will also determine whether the person will be held in jail or released, and if released, on what conditions.

If charged by complaint, there is also the possibility of a “preliminary hearing,” where the government would have to provide testimony and the judge would officially determine whether there is probable cause to move forward. In practice, the preliminary hearing is often waived, or if not waived, used to gather information about the case. In some rare cases, the preliminary hearing can expose problems in the government’s case, which can even ultimately lead to dismissal of the charges.

Discovery

After the initial appearance, the real work begins. If the person has been indicted, the Assistant United States Attorney will have to provide evidence about the case, known as “discovery.” Under federal discovery rules, however, the government may be able to hold back much of the most critical evidence until close to or at the time of trial, such as statements of witnesses. This is also the stage where the defense can submit pretrial motions about whether the case should be dismissed or whether some evidence should be thrown out (“suppressed”). And, this can be the time for potential plea negotiations.

Trial or Plead Guilty

During this stage, one of three things will happen. In the majority of federal criminal cases, a person will plead guilty. But there are a number of factors that go into the decision of whether a person should plead guilty or go to trial.

If a person accused of a federal crime pleads guilty, the case then proceeds to the sentencing stage, as discussed below.

If the person decides not to take a plea, the case proceeds toward trial. At trial, if the jury or judge decides that the person is not guilty, then the case is finished and the person can go back to living their life. If the jury instead finds the person is guilty, the case then goes to sentencing.

Finally, in some rare situations where a person has been charged, a defense lawyer may be able to convince the Assistant U.S. Attorney and his/her supervisor to dismiss the case.

Sentencing

Federal sentencing is extremely complicated. There are detailed federal sentencing guidelines, promulgated by the non-partisan United States Sentencing Commission, which must be factored into every sentence. It is important to have a defense attorney who understands the federal sentencing guidelines very well and who can watch for potential pitfalls.

Soon after the plea hearing, the person is interviewed by a probation officer, who will write a detailed background report on the person in what is called a Presentence Investigation Report. That report typically takes at least six weeks to complete. It is first provided to the defense and prosecution for review and possible requests for changes, then provided to the judge a month or so before the sentencing hearing. Prior to the hearing, the defense and prosecution prepare and submit sentencing memos to the judge, putting their sentencing arguments in writing. That submission is very important to the person’s case.

At the hearing, the judge will hear argument from both the government and defense lawyers, and the defendant also has the opportunity to give a statement (“to allocute”). The judge then will determine three issues before deciding the appropriate sentence:

(1) the applicable sentencing guidelines range;

(2) whether any “departure,” downward or upward, is appropriate; and

(3) whether to deviate from the sentencing guidelines for other reasons, based on a number of sentencing factors listed in a federal statute.

Because of the complex and complicated nature of federal sentencing, it is very important to have an experienced federal criminal defense lawyer, who knows the ins and outs of the federal sentencing guidelines and all the intricacies of federal sentencing, at your side.