Investigation

A person may be taken into custody at the time when a crime is committed. Just as likely, however, in federal criminal cases, there's an extensive investigation before the arrest. This investigation may be conducted by the FBI, DEA, SEC, and other federal agencies.

Search Warrant

Generally speaking, however, a search warrant is necessary. To obtain a search warrant or a warrant for arrest, the government agent and/or the prosecutor will have to ask a judge. To get the warrant, the agent or prosecutor will need to show that there is "probable cause" to believe that evidence of a crime will be found. Therefore, an application for a search warrant include an affidavit which tell the judge what evidence exists to show probable cause.

The application for the search warrant – a one-page form – will include information about the defendant.

Indictment and the Grand Jury

Prior to the arrest, prosecutors usually present their evidence to the grand jury. A grand jury is made up of 16-23 people, a majority of whom must agree that probable cause exists that a crime was committed in order for them to indict the target. Grand juries operate under the auspices of the U.S. Attorney's Office and only the prosecutor presents evidence at this stage. The grand jury need not believe that the target is guilty beyond a reasonable double. Once a defendant is indicted, the defendant is arrested and the charges are presented to him or her in federal court.

A criminal case also can begin by "information" where the indictment is not necessary. "Information" is a sworn complaint by a chief investigator that sets forth the allegations against the defendant. The prosecutor must prove to the judge that there is probable cause to proceed with the case. A defendant can also agree to waive indictment.

Initial Federal Criminal Court Appearance

Within hours of his arrest, the defendant will be seen in federal court for his "initial appearance". Defendants often do not have a federal criminal lawyer at this hearing, which is a mistake that should be avoided when possible. A free lawyer is appointed to represent those who are deemed unable to pay for their own federal criminal lawyer. Bail may be set at this point.

If there's no indictment, the defendant will have a preliminary examination hearing at which the government will present its evidence. If the judge finds there is probable cause (or if an indictment has already been returned), there will then be a detention hearing, where it will be determined whether the defendant needs to be held in jail until trial. Both sides may present evidence at this hearing, as well as cross-examine the other side's witnesses.

The decision whether to release the defendant is governed by the Bail Reform Act of 1984 and subsequent amendments to it. The law presumes that defendants should be released on personal recognizance or unsecured personal bond (that is, without putting up any money or other asset as security) unless the judge determines "that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community."

The judge can put restrictions on defendants – such as requiring a secured bond, forfeiture of a passport, electronic monitoring of defendants' location, requiring they remain in their home, etc. But the judge must choose "the least restrictive ... condition, or combination of conditions, that ... will reasonably assure the appearance of the person as required and the safety of any other person and the community."

There are exceptions to the presumption that defendants should be released pending trial. The Act creates a rebuttable presumption that defendants should not be released under the following circumstances:

• The defendant is accused of one of a list of crimes listed in the statute, and was previously convicted of committing one of the specified crimes while free on bail.
• The judge finds there is probable cause the defendant committed a federal drug offense that carries a penalty of 10 years or more in prison.
• The judge finds there is probable cause the defendant used a firearm to commit a felony.

To rebut the presumption and release a defendant, the judge must find that some condition or combination of conditions of release will assure defendants' appearance at trial and safeguard the community.

A decision to release or detain a defendant that is made by a magistrate judge may be reviewed by a district judge on the motion of either party. (This is a kind of appeal, though the word "appeal" is not used to describe it.) Detention orders may also be appealed to the court of appeals after a district judge rules on them.

The last of the early hearings in a criminal case is the arraignment. The defendant's counsel is asked three questions:

• Does the defendant waive a formal arraignment, at which the indictment would be read in its entirety?
• How does the defendant plead, guilty or not guilty?
• Does the defendant request a trial by jury? (If not, the case will be decided by the judge in what is known as a bench trial.)

If a formal arraignment is waived – as it almost always is – the hearing can be over in five minutes.

At the arraignment, some judges also schedule the trial date and dates for motion hearings. Under the Speedy Trial Act, criminal defendants are entitled to a trial that begins no later than 70 days from the date the indictment or information was filed, or from the date the defendant appears before a judge, whichever is later. The defendant can waive the right to a speedy trial, or the judge can waive the requirements of the Act by finding that the interests of justice require it.

These four hearings can be held at a single time under certain circumstances. In some courts magistrate judges hold all of these hearings; in other courts, some are held by magistrate judges while others are held by District Court judges. In most courts, the District Court judge who will handle the trial is assigned to the case after the initial appearance; check with the clerk's office for that judge’s name. Judges are assigned to cases at random, to avoid the possibility that prosecutors might "judge shop" their case to a jurist considered friendly to prosecution arguments.

Pretrial Motions and Hearings

A wide variety of motions may be made prior to trial. Among the most common that are filed by the defense are:

• Motions to relocate the trial through a change of venue, claiming pretrial publicity will make it impossible to select an impartial jury.
• Motions challenging the admissibility of certain pieces of evidence.
• Motions seeking access to evidence in the possession of the prosecution.

This phase of the case, known as motion practice, occurs primarily on paper. Only if a judge feels that oral argument of the issues or evidence from witnesses would aid in a decision will a hearing be held.

During the pretrial phase, you also may encounter efforts to seal what hearings there are. Most pretrial hearings must be open to the public, but there are a complicated set of exceptions. Media organizations may decide to oppose the sealing of court records.

Plea Bargains and Sentencing

More than 90 percent of federal defendants plead guilty. Some do so during the pretrial phase as part of a plea bargain, in exchange for the prosecutors' dropping some charges or recommending a more lenient sentence.

Two documents are filed with the court at the plea hearing: the plea agreement, which outlines what charges are being pleaded to and which are being dropped; and a statement of facts describing what the defendant admits to doing. Both generally are available only after the hearing has ended.

During the hearing, the judge will conduct what is known as the plea colloquy, in which defendants are informed of the rights they are giving up and the crimes they are admitting. At some point, the judge will ask the defendants to, in their words, describe what they did.

The presentence report makes a recommendation as to how the guidelines rate the seriousness of the offense and the defendant's criminal history. Prosecutors and defense counsel will have made a similar estimate when they agreed to the plea bargain. The judge is bound by the Guidelines, but may depart upward or downward, subject to review on appeal. The judge is not required to follow the recommendations of the probation office or the parties. During the sentencing hearing, defendants are given a chance to tell the court anything they believe the judge should consider before imposing sentence.