Facing federal criminal charges is always a serious matter. The potential penalties for federal crimes are severe, often involving high stakes and extensive investigations. This seriousness is heightened when compared to crimes prosecuted at the state level, making it crucial to understand the federal criminal process.

Discovering that you are facing potential criminal charges at the federal level can be a daunting and overwhelming experience. The federal criminal process is markedly different from facing typical criminal charges in state courts, presenting unique challenges and complexities.

Understanding how the federal criminal process works is crucial. It can empower you to make informed decisions about your rights and options throughout the process, potentially influencing the outcome of your case.

Equally important is having the right legal representation. A skilled attorney can guide you through the complexities of the process, providing you with the support and reassurance you need.

If you are suspected or accused of a federal crime, having a basic understanding of how your case will progress can help you with your defense. While federal criminal cases may differ in complexity depending on the charges and the circumstances, a general overview of the steps is below.

This information 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.

Criminal Investigation

The federal criminal process starts with an investigation by agencies like the FBI, DEA, or IRS. This may include interviews, surveillance, subpoenas, and search warrants. Depending on the case, investigations can last weeks, months, or even years.

If you learn you're under investigation, consult an attorney immediately to protect your rights during this process. 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).

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 must obtain a search or arrest warrant before searching someone's property or making an arrest.

Filing 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, a formal charge recommended by a Grand Jury, a group of up to 23 impartial citizens, after considering the evidence against you.

If investigators gather sufficient evidence, federal prosecutors may decide to file criminal charges. The grand jury reviews the evidence presented by the prosecution and determines whether there is probable cause to bring charges.

For misdemeanor-level offenses, prosecutors may skip the grand jury and file a criminal complaint or criminal information. Once charges are filed, you will be formally notified and summoned to court.

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

At your first court appearance after being charged, the court informs you of the charges, your rights, and the potential penalties. You'll also be asked to enter a plea of guilt, not guilty, or no contest. The court may address bail or conditions of release at this stage.

Notably, most federal indictments involve serious felony crimes. Thus, judges often deny a bond to a defendant based on either a flight risk or a danger to the community. A defendant will have an uphill battle to obtain a release from custody, especially for major drug offenses or violent crimes.

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?

Preliminary Hearing

If you do not accept a plea deal, a preliminary hearing is held to determine whether there is enough evidence to proceed to trial. During this hearing, the prosecution presents its case to a judge, who decides if the evidence establishes probable cause.

While the defense may cross-examine witnesses, this is not a full trial and does not determine guilt or innocence. 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.

Discovery

The discovery phase allows the prosecution and defense to exchange relevant information and evidence, including witness lists, documents, recordings, and reports. This critical stage helps the defense identify weaknesses in the prosecution's case.

Your attorney will review the evidence and develop a defense strategy based on the information. Discovery is significant to you and your attorney because it reveals 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 people 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 to defense counsel that could prove the defendant's innocence. If they intentionally fail to deliver it, the prosecutor will face severe issues with the judge.

Plea Bargaining

Many federal cases are resolved through plea bargaining, a process where the defendant agrees to plead guilty to certain charges in exchange for reduced penalties or dismissal of other charges. Plea deals spare both sides the time and expense of a trial.

However, accepting a plea requires careful consideration of the potential consequences. An attorney can negotiate with prosecutors on your behalf to secure the most favorable outcome.

In other words, a plea bargain refers to negotiations between the federal prosecution and the 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 federal 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. Still, at the federal level, prosecutors don't usually seek an indictment unless their case is strong, which is why federal plea deals are so common.

Pre-Trial Motions

Before the trial begins, both parties may file pre-trial motions to address various legal issues. Common motions include requests to suppress evidence, dismiss charges, or compel the sharing of additional discovery materials.

The outcome of these motions can significantly impact your case. For instance, if critical evidence is excluded, it may weaken the prosecution's argument.

When the federal prosecutor or defense lawyer wants the court to decide on a specific issue before the trial, they can make their request by filing a motion. The most common motions include the following:

• A 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.
• A 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.
• A 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.

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.

Federal Trial

If no resolution is reached during the earlier stages, the case proceeds to trial. Federal trials are typically held in front of a jury unless the defendant waives their right to a jury trial, in which case the judge will issue a ruling based on the evidence (called a "bench trial").

During the trial, the prosecution and defense present their arguments, question witnesses, and submit evidence. The prosecution is required to prove guilt beyond a reasonable doubt. After deliberation, the judge or jury delivers a verdict of guilty or not guilty.

The prosecution and defense attorneys 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 its permission; 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 must prove its case beyond a reasonable doubt.
• The 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. Still, there is no legal requirement to present evidence or for the defendant to take the stand in their defense.
• The defense or prosecutor can make objections 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.

After the trial concludes, post-trial motions may be submitted. For example, the defense can file a motion asking the judge to overturn the verdict, request a new trial, or modify sentencing. These motions are typically based on claims of legal error, unfair trial proceedings, or the discovery of new evidence.

Federal Sentencing

If a guilty verdict is reached, the case moves to sentencing. Federal sentencing follows U.S. Sentencing Commission guidelines, considering the crime's severity and the defendant's record. Judges have some discretion, with penalties including imprisonment, probation, fines, or restitution. Sentencing hearings allow your attorney to push for a fair outcome.

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 U.S. 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.

Federal Appeal

Defendants can appeal a federal conviction based on legal errors during the trial that impacted the outcome. A higher court will review the case and can uphold the verdict, order a new trial, or overturn the conviction. The appeals process is complex and requires an experienced attorney to argue your case.

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, their decision will be final.

Contact a Federal Defense Lawyer

The federal criminal process differs significantly from cases handled at the state level. Federal cases often involve more extensive resources, higher stakes, and stricter sentencing guidelines, and federal prosecutors rarely file charges unless they are highly confident they can win based on an extensive investigation.

If you are suspected of or charged with a federal crime, having an experienced federal criminal defense attorney on your side is essential. From investigation through appeal, skilled legal representation can make all the difference in navigating the complexities of the federal legal system and protecting your rights.

If you have been charged with a federal offense, contact our federal criminal defense law firm to review the details and legal options. Eisner Gorin LLP is located in Los Angeles, California, and we provide legal representation across the United States on federal matters.

Related Content:

• Steps in Federal Criminal Process
• The Federal Criminal Justice Process
• Federal Rules of Criminal Procedure