The Federal Criminal Process
It can be both frightening and overwhelming to find out that you are facing potential criminal charges at the federal level.
The federal criminal process is much different than facing typical criminal charges in state courts—and the penalties for conviction tend to be more severe for federal cases than they would if prosecuted at the state level.
Understanding how the federal criminal process works can help you can make informed decisions about your rights and options throughout the process.
Knowing your rights and options is essential if you are charged with a serious federal crime. It's equally important to understand how the federal criminal justice system operates. Unfortunately, most people facing federal criminal allegations are unfamiliar with the process.
Thus, the information below is intended to help anyone accused of a federal crime understand what to expect as their case moves through each step in the federal criminal justice system, from investigation to trial, sentencing, or later appeal.
These steps below are common to most federal criminal cases, but there are exceptions, such as in some complex fraud-related cases, that are not covered on this page.
If you face federal criminal charges, immediately discussing the case with an experienced federal criminal defense lawyer will serve your best interest. The following overview of each step in the process will help you prepare for what's ahead.
The first step is the investigation phase if you're suspected of committing a federal crime. The federal government has hundreds of different agencies and offices nationwide that may investigate potential crimes, including the following:
- Federal bureau of investigation (FBI);
- Drug Enforcement Administration (DEA):
- Department of Homeland Security (DHS);
- Bureau of Alcohol, Firearms, and Explosives (ATF);
- United States Secret Service (USSS).
This investigation may take years, and the defendant may not even know it's happening in many cases.
Once the agency has gathered enough evidence to support their suspicions of criminal activity, they may refer your case to prosecutors for possible charges.
Federal investigators typically have to obtain a search warrant or arrest warrant before searching someone's property or carrying out an arrest.
Grand Jury Indictment and Charges
Prosecutors must now decide whether or not to charge you with a crime. Felony offenses at the federal level must be charged via an indictment.
This is a formal charge recommended by a Grand Jury, a group of up to 23 impartial citizens, after considering the evidence against you.
After they examine the evidence and hear from the prosecutor and witnesses, they will cast a secret vote on whether they believe there is sufficient evidence to justify the charges.
To indict someone, at least 12 grand jurors must agree. After the indictment, the defendant will retain a lawyer or be assigned a public defender if unable to afford legal counsel.
Federal misdemeanors don't require a formal indictment to charge you. These can be charged via a less formal document known as an information or a complaint. However, most federal prosecutions involve felony offenses and are therefore done by indictment.
Arraignment / Initial Hearing
Immediately following your indictment, once you're brought into custody, you'll attend an initial hearing and arraignment. You'll be informed of the charges against you and asked to enter a guilty or not guilty plea. The bail terms (if any) may also be determined at this hearing.
Notably, most federal indictments are serious felony crimes. Thus, judges will often deny a bond to a defendant based on either a flight risk or a danger to the community.
For a defendant to obtain a release from custody, especially for major drug offenses or violent crimes, they will have an uphill battle.
To determine whether granting bail is justified, a bail hearing will be held to answer several crucial questions, such as the following:
- Is the defendant a danger to the public?
- Is the defendant a flight risk?
- What is the criminal history of the defendant?
- How long has the defendant lived locally?
- Does the defendant have a local family?
- Did the defendant make any threats to witnesses?
Suppose the defendant has pleaded not guilty and has not agreed to a plea bargain. In that case, a preliminary hearing could be held. However, in some cases, a defendant will waive this hearing based on their best interest.
During the preliminary hearing, a judge will review the evidence presented by prosecutors and determine whether there is enough evidence to warrant a trial.
This hearing must occur within 14 days of your initial arraignment if held in jail, or 21 days for those out of custody, unless you waive this timeline in writing.
At the preliminary hearing, prosecutors will present evidence, including government witness testimony, which is typically the federal agents leading the investigation.
Defense counsel has the legal right to cross-examine witnesses for their testimony's accuracy and credibility. But, strategically, the defense lawyer seeks to examine the government's case without revealing the strength of their case and will save their witnesses for the trial.
After the preliminary hearing, the judge will decide whether there is enough probable cause to proceed to trial or whether the charges should be dismissed due to a lack of supporting evidence.
During the discovery phase, both the prosecution and the defense must exchange any evidence they plan to use in court so each side can prepare for trial.
Discovery is significant to you and your attorney because it lets you know how strong the prosecution's case is against you and enables your attorney to prepare a solid defense.
Preparing for a trial in federal court is a long and complex process. First, prosecutors must thoroughly review all the specific details of the crime and the defendant's history, called discovery. Defense counsel also engages in discovery by preparing for trial similarly.
Federal prosecutors seek evidence to support a defendant's guilt beyond a reasonable doubt, while the defense lawyer seeks proof of innocence or casts reasonable doubt.
Speaking to witnesses who might be called to testify in court is a crucial step in the discovery process. Typically, there are different types of witnesses in federal criminal cases, such as the following:
- Expert witnesses provide specialized information from experience or education in a specific area;
- Character witnesses usually know the victim or defendant and provide information about their character;
- Lay witnesses are somebody who witnessed an important event related to the crime and will describe what they observed.
Federal prosecutors must provide the defendant with the physical evidence, documents, or other exhibits they intend to use in court but could withhold some information until the eve of trial or during the trial.
The federal prosecutor must provide exculpatory evidence that could prove the defendant's innocence to the defense counsel. If they intentionally fail to deliver it, the prosecutor will face severe issues with the judge.
Most federal criminal cases never make it to trial—because during the pre-trial, defendants and prosecutors often work out plea bargains, which involve a defendant agreeing to plead guilty in exchange for leniency or reduced charges.
In other words, a plea bargain refers to negotiations between the federal prosecution and defense lawyer. Defendants must be incentivized to plead guilty, such as a reduced sentence or the government agreeing not to seek enhanced sentencing.
The judge will determine the sentence in the end. If the defendant accepts a plea deal, then there is no need for a trial. Whether or not to accept a plea bargain is an issue you must closely review with your defense lawyer.
Plea bargaining can occur at any time throughout the pre-trial process but most often during the discovery phase. It can result in a much more favorable outcome than the maximum sentence.
It's usually not recommended to accept a plea deal unless the prosecution has a strong case—but at the federal level, prosecutors don't usually even seek an indictment unless their case is strong. This is why federal plea deals are so common.
Pre-trial motions are written documents filed by defense attorneys that challenge the legality of certain aspects of a criminal case. Filing or responding to motions is one of the last steps before going to trial.
When the federal prosecutor or defense lawyer wants the court to decide on a specific issue before the trial, it can make its request by filing a motion. The most common motions include the following:
- Motion to suppress is an effort to make certain evidence inadmissible, generally because it was obtained in a manner that violated the constitutional rights of the defendant;
- Motion to dismiss is a request to dismiss a specific charge or the entire case if there is insufficient evidence to support the criminal charges;
- Motion to compel is used when the prosecutor fails to share essential information that could help a defendant's case. A defense lawyer can file this motion compelling the prosecution to produce the requested information.
There may be a situation where a defense lawyer could also file a motion to exclude particular testimony. If successful, these motions can significantly weaken the prosecution's case and result in reduced charges or a complete dismissal.
Suppose negotiations do not result in a plea agreement.
In that case, your case will proceed to trial, where both sides present their arguments in front of a jury that decides whether or not there is sufficient evidence to find you guilty beyond a reasonable doubt.
The prosecution and defense attorney are both involved in selecting a jury comprised of members of the public from throughout the community.
Both sides will ask potential jurors questions and may decide to excuse jurors from service if they have concerns about potential biases.
Notably, an unlimited number of jurors can be stricken for cause, but the court must first give their permission, but both sides can strike a limited number of jurors based solely on their judgment. The trial has the following steps:
- Opening statements by the prosecutor and the defense to give the jury information about the charged crime, the basic facts each side says they will prove. First, the prosecution who must prove their case beyond a reasonable doubt;
- Government's case is first where they will call on witnesses and show the jury supporting evidence. They will usually ask for testimony from the federal agent who investigated the case. They may introduce direct or circumstantial evidence. The defense is allowed to cross-examine the witnesses to raise doubt or impeach their credibility;
- Defendant's case by their lawyer can also involve eyewitnesses and expert testimony, but there is no legal requirement to present evidence or for the defendant to take the stand in their defense;
- Objections can be made by the defense or prosecutor and during direct and cross-examination;
- Closing statements are made after the defense counsel rests its case. Again, both sides will present their closing arguments to summarize the testimony and evidence and ask the jury to return the verdict they are seeking.
If found guilty by the jury's verdict, then sentencing begins.
Federal sentencing occurs after a defendant enters a plea agreement with the government or is found guilty at a federal criminal trial. However, sentencing is a process that usually takes several months to complete.
After a defendant is found guilty, a set of events begins before the sentencing hearing, such as a United States Probation Officer visiting for an interview, who will issue a Presentence Report (PSR) to both sides about the defendant.
Before the sentencing hearing, both sides will have an opportunity to file motions related to sentencing. For example, the prosecutor could request a higher sentence by filing a motion for an upward departure or variance. Conversely, defense counsel can file motions for a downward departure or variance.
At the sentencing hearing, the federal judge considers several filed documents in the case, including the Presentence Report, any objections to the PSR, and all motions to raise or lower the defendant's sentence.
The sentencing phase determines what penalties will be imposed based on applicable laws regarding minimum and maximum penalties and the current United States Sentencing Guidelines.
As noted, it is usually several months between the guilty verdict and the sentencing hearing as the judge compiles information and data regarding your case and background.
If you are found guilty, you may appeal the verdict. The appellate court reviews transcripts from your trial and decides whether any errors occurred, that could have affected the trial's outcome. An appeal is an opportunity for the defendant to address errors that could have occurred during the trial.
For example, suppose evidence was excluded in error, and that evidence could have helped the defendant. In that case, they can raise this error in an appeal to the Circuit Court, which is a complex process and may even result in another trial.
They can reverse or modify the decision or order a new trial if an error occurs. An appeal does not determine guilt or innocence; instead, it is used to review alleged errors of law that could have affected the outcome of your trial.
If the appeal is unsuccessful, the defendant might be able to appeal to the United States Supreme Court. If they decide to hear the appeal, its decision will be final.
Contact our federal criminal defense lawyers to review the details and legal options if you have been charged with a federal offense. We provide legal representation across the United States on federal matters. Eisner Gorin LLP is located in Los Angeles, California.