The federal criminal system is similar to the state system, but has several significant differences. One difference is that the typical United States Attorney's office, who prosecutes federal crime charges, generally has more time and resources to prosecute than would a state prosecutor. Federal prosecutors usually have better academic credentials than state prosecutors, and many have a lot of leeway in choosing cases to prosecute through the federal courts. Federal crimes, because they tend to be of an interstate nature, are usually more factually complex.
As a result, federal criminal defense involves cases which are usually more difficult to defend than state cases, and the cost of a federal defense attorney is often very high. Federal Defender's offices are located in each federal jurisdiction and provide legal representation to indigent defendants.
The federal crime process begins in court, and moves steadily towards trial. There are many facets to the system. This section introduces you to the system of federal procedures beginning with the arrest and ending with sentencing.
After the arresting agency has processed the individual for arrest (and usually after interrogating or attempting to interrogate the person), the arresting officers turn the person over to the marshals. The marshals will usually place the person in a metropolitan correctional center. The marshals will keep the person in custody until he/she is bailed out, the charges are dismissed, or the person is sentenced.
If the person is sentenced to custody, the responsibility for housing the person passes to the Bureau of Prisons ("BOP").
You have the right to remain silent
If you give up the right to remain silent, anything you say might be used against you in a court of law
You have the right to an attorney before questioning; and
If you cannot afford an attorney, one will be appointed for you by the courts.
This does not mean that the arresting agents will call a federal crime attorney for you before they begin to question you. It does mean that if you already have an attorney, you can have him or her come and consult with you before you answer any questions.
Given this, if the agents want to question you, you should say either (1) I wish to remain silent; or (2) I wish to have an attorney present, but preferably both.
If you say you want to remain silent, but do not ask for an attorney, they can keep coming back to try and question you in the hopes you will get tired and agree to answer questions.
If however, you ask for an attorney, they cannot come back to question you other than to clarify your desire to have an attorney present. Accordingly, you should say, in no uncertain terms "I want to talk to an attorney before you ask me any questions."
At the arraignment, the defendant will be informed of the charge(s) against him/her, counsel will be appointed if the defendant cannot afford to hire counsel, and bail will be set. The defendant will be given a date to return to court for a preliminary examination ("PE") in approximately 10 days.
The prosecutor calls and questions witnesses; based on this one-sided presentation, the grand jury makes its decision. The standard is very low. Only a simple majority of the grand jurors need to find probable cause for an indictment (the formal charging document) to be issued.
Grand juries can and are used by the prosecutors to investigate cases where no one has been arrested as well as cases where someone has already been arrested. Grand juries can issue subpoenas and compel persons to testify and submit documents to them.
If you are subpoenaed to appear as a grand jury witness or to produce documents to a grand jury, you should seriously consider seeking competent legal representation.
Misdemeanors do not require a preliminary examination and this information does not apply to them. The vast majority of cases brought in federal court are felony charges.
Discovery, where the defendant is asking the judge to order the prosecutor to turn over discovery as required by law;
A motion to suppress statements of the defendant because of Miranda violations or the coercion of the statements;
A motion to suppress evidence due to an illegal search or seizure of that evidence;
A motion to sever the defendant's case from the case against other codefendants being tried with him or to obtain a separate trial of some of the charges against the defendant.
Other common motions ask the court to exclude or include certain evidence under the rules of evidence.
A defendant is entitled under the due process clause of the constitution to have the government turn over any evidence in its possession which is exculpatory (that is, which tends to prove his or her innocence) as well as evidence which might cast doubt upon the credibility of government witnesses (such as inconsistent statements or evidence of bias or motive to fabricate).
-the right to a speedy and public trial by a jury selected from the community;
-the right to have the trial take place in the community wherein the offense occurred;
-the right to have the government prove all elements of the crime beyond a reasonable doubt;
-the right to subpoena persons at no cost to testify on your behalf and the right to present evidence on your behalf (or no evidence if you so choose);
-the right to confront and cross examine witnesses against you, and
-the right to remain silent (or to testify if you so choose).
Because the government has the burden of proof, they go first, and present their evidence in the form of witnesses, documents and other physical objects. After the prosecutor questions the witnesses (known as direct examination), your federal crime attorney will have the right to question the witnesses (known as cross examination). After the prosecution has presented all its evidence, it will rest.
At that point, your federal crime attorney has the right to ask the judge to find that no reasonable jury could convict on the evidence presented by the government. If he or she agrees, he or she will enter a judgment of acquittal.
If the judge disagrees, you then have the right to present evidence (or to decline to do so). Once the defense rests, the government has the right to present a rebuttal to your evidence (if there was any).
Once the government rests its rebuttal case, the federal crime attorneys can present their closing arguments. The government goes first, then the defense; the government once again gets a chance to rebut the defense argument. The court will then instruct the jury on the law that applies to the case, and they will retire to deliberate their case in secret. They will either return a verdict of guilty (on some or all charges) or not guilty (on some or all charges).
If you are convicted on any charges, the net phase will be sentencing. If you are acquitted on all charges, you are free to go.