If you are charged with a serious crime, it is important to know your rights and options. If the crime is a federal offense, it’s equally important to understand how the federal criminal justice system operates.

Most who find themselves accused are very unfamiliar with the process and have garnered most of their knowledge from inaccurate portrayals on TV and in movies.

The following article is intended to help those accused of a federal crime understand what to expect as their case moves through each step of the federal criminal justice system, from investigation to trial, possible sentencing, or later appeal.

The 10 steps listed below are common to most federal criminal cases, however, they are not exhaustive; some cases will be much less complex and others will include steps that we won’t cover here.

If you face federal criminal charges, it is in your best interest to consult with an experienced federal criminal defense attorney immediately.

The first stage in the federal criminal process is an investigation into the crime, and the federal government uses certain agencies to perform this investigation. These agencies include:

• Federal Bureau of Investigation (FBI)
• Drug Enforcement Administration (DEA)
• Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
• United States Secret Service (USSS)
• Homeland Security Investigation (DHS/HSI)

One or more of the agencies listed above will gather evidence and provide information to prosecutors in an effort to help them better understand the details of the case. Federal investigators must usually obtain a search warrant or arrest warrant before searching a suspect’s property or carrying out an arrest.

Once the prosecution has studied the information gathered during the investigation, the next step is to decide whether there is enough evidence to indict (charge).

If the defendant is charged with a felony, the prosecutor must first present the evidence to a grand jury, a 16 to 23-person group of impartial citizens.

After the grand jury has seen the evidence and heard from the prosecutor and witnesses, it will cast a secret vote indicating whether it believes there is sufficient evidence to justify the charges.

In order to indict, at least 12 grand jurors must agree. Following an indictment, the defendant will hire an attorney or be assigned a public defender, if unable to afford legal counsel.

Almost immediately following indictment, the defendant will appear before a judge for an initial hearing.

At this initial appearance, the judge will give the defendant a detailed explanation about the situation, including his/her constitutional rights, the charges filed, information pertaining to legal representation, and may set a hearing to consider bail. The bail hearing is critical for release from jail while the case is pending trial.

During the initial appearance, the defendant will also be asked to plead guilty or not guilty.

Unlike state court, most federally-indicted crimes are considered, at their outset, serious felony offenses. Judges often, therefore, deny bond to a federal defendant concluding that the defendant is either a flight risk or a danger to the community.

In fact, there is a presumption that must be overcome by a defendant to obtain release pending trial for certain designated federal crimes, such as major drug felonies, crimes of violence, and gun crimes.

To determine whether granting bail is warranted in a particular case, a bail hearing will be held to gather answers to a number of questions, but not limited to:

• How long has the defendant lived in the local area?
• Does the defendant have a family in the local area?
• Does the defendant have a prior criminal history?
• Has the defendant threatened any witnesses?
• Is the defendant a danger to the public?

If there is no plea deal and the defendant pleads not guilty, a preliminary hearing may be held.

It is not always in the defendant’s best interest, however, and he/she may waive this hearing when doing so makes strategic sense.

If the preliminary hearing is to take place, it must occur within 14 days of the initial appearance for defendants held in jail, or 21 days for defendants out on bail.

At this “mini-trial” the prosecution will present evidence, including witness testimony usually from the federal agent leading the investigation.

For each government witness, the defense has the right and opportunity to cross-examine them to test the accuracy of their testimony as well as their credibility.

The defense wants to test the government’s case without disclosing its own case strengths. Therefore, the defense will rarely call witnesses at this stage of the litigation. The defense will save its witnesses for trial.

Following this preliminary hearing, the judge will either decide there is enough probable cause to go forward toward trial or that the charges should be dismissed due to a lack of supporting evidence.

Preparing for trial in federal court is a long, complicated process.

The prosecution must familiarize itself with the defendant’s history and the facts of the actual crime. This process is called discovery.

The defense engages in discovery as well, preparing for trial in much the same way. But where the prosecution looks for evidence to paint the picture of a criminal, the defense seeks evidence of innocence as well as evidence that refutes proof of guilt “beyond a reasonable doubt.”

Talking to witnesses who may be called to testify in court is one of the most important steps of discovery. There are generally three types of witnesses in federal criminal cases:

• Lay witness – Someone who witnessed an important event associated with the crime and can describe what they saw.
• Expert witness – An individual who can provide unique and specialized information due to experience or education in a specific area.
• Character witness – Someone who knows the victim, defendant, or another person involved in the case and can provide information about that person’s character.

The prosecution is required to provide the defendant with the physical evidence – information, documentation, or other exhibits – that it intends to use in court.

However, the prosecution may be allowed to withhold some information (for example, impeachment material) until the eve of trial or until during the trial.

Exculpatory evidence, which may prove the defendant’s innocence, must be provided by the federal prosecutor to the defense. Failing to provide any of this information can lead to problems for the prosecution.

Filing and/or responding to motions is one of the last steps before going to trial.

When the prosecution or defense wants the court to decide on a specific issue before trial, it can officially make this request by filing a motion. Common motions include:

• Motion to Dismiss – This is a request to dismiss a specific charge or the case in its entirety if the evidence is insufficient or the facts do not add up to a crime.
• Motion to Suppress – This is an attempt to make certain evidence inadmissible, usually because it was obtained in a manner that violated the defendant’s constitutional rights.
• Motion to Compel – When the prosecution fails to share important information that may help the defendant’s case, the defense will file this motion compelling the opposition to produce the requested information.

Federal sentencing occurs after an individual either enters into a plea agreement with the government or is found guilty at a federal criminal trial. However, federal sentencing does not begin on a defendant’s sentencing date in federal court. It is a process that usually takes several months to complete. Lawyers view it as an entire phase of criminal practice.

Once a plea is entered or a defendant is found guilty in a federal criminal trial, a set of events is set in motion prior to the defendant’s sentencing hearing. This includes a visit by a United States Probation Officer to the defendant for an in-depth interview. The defendant’s attorney can be present (and should be present) for this interview.

Several weeks after the interview takes place, the United States Probation Officer will issue a lengthy (often 25-40 page) report about the defendant to the attorneys for both sides. The parties then have a limited period of time to object to the Presentence Report, which is also known as a PSR.

Prior to the sentencing hearing, the parties have an opportunity to file motions related to sentencing. The Government may ask for a higher sentence by filing a motion for an upward departure or a motion for an upward variance.

Likewise, the defense can file motions for a downward departure or a downward variance. At the sentencing hearing, the judge considers a number of filed documents in the case, including the Presentence Report and any objections to the PSR as well as all motions to raise or lower the defendant’s sentence.

This is possibly the most complex area of all criminal law. Definitions of the simplest terms matter. For example, the definition of person, crime of violence, serious drug felony, or firearm may dramatically influence an individual’s potential sentence. Lawyers do not necessarily look to the dictionary for these terms, but they instead look to the interpretation of these terms by federal precedent or case law.

The judge must further consider two different systems that guide him in arriving at an appropriate sentence. One is the statutory provisions set forth by Congress. The laws created by Congress control the maximum and minimum sentences that a defendant can face at sentencing. These are mandatory laws that the judge must follow. At the same time, the judge must also consider the United States Sentencing Guidelines.

The United States Sentencing Guidelines (or Guidelines) are set forth in a book of no less than five-hundred (500) pages. Initially, the Guidelines were intended to be mandatory so that sentencing would be fairly equal for similarly situated individuals guilty of similar charges throughout the United States. The idea was that the same crime ought to carry the same sentence whether committed in California or Iowa. As one might imagine, drug transportation and drug distribution offenses might receive harsher penalties in Tennessee than in an area of the country more accustomed to the drug trade. The Guidelines were an attempt to solve this problem.

The United States Supreme Court later determined the Guidelines to be advisory, not mandatory, for judges’ consideration. As a consequence, judges use the Guidelines as a starting point, but they may depart from the Guidelines, up or down. It is an attorney’s job to look for appropriate reasons why a judge may want to depart or grant a downward variance to a sentence (in relation to the advisory Guidelines sentence).

As this very short synopsis illustrates, this area of federal criminal procedure and law is extraordinarily complicated. This is one reason why a defendant should not venture into federal court without an attorney experienced in federal criminal practice – experience in state criminal practice is not enough.

If the defendant is found guilty and believes he/she was wrongly convicted or sentenced too harshly, they can appeal the decision. An appeal is an opportunity for the defendant to address errors that may have occurred during the trial.

For example, if evidence was excluded in error and that evidence could have helped the defendant’s case, he/she may raise this error in an appeal to the Circuit Court. The appeals process is complex and may even result in another trial.

If the initial appeal is unsuccessful, the defendant may appeal to the U.S. Supreme Court. If the Supreme Court decides to hear the appeal, its decision will be final.