Federal Criminal Procedures
Federal Laws vs. State Laws
Federal laws, or statutes, are created by the United States Congress to safeguard the citizens of this country. Some criminal acts are federal offenses only and must be prosecuted in U.S. District Court. Other criminal acts are offenses under both federal and state law; so, in those cases, federal and county attorneys must decide if the offender should be tried in U.S. District Court or state court.
Felony or Misdemeanor
Criminal acts fall into two categories: felonies and misdemeanors. Felonies are offenses that may result in prison sentences of more than one year, while misdemeanors carry sentences of one year or less. The United States Congress decides which criminal acts are felonies and which ones are misdemeanors. State legislatures make those determinations for criminal acts that violate state law.
When Someone is Suspected of a Federal Crime...
1. Complaint and Arrest Warrant -- Law enforcement obtains a Warrant for Arrest of the alleged offender. The warrant is based on an Indictment (see below) or a Complaint filed with the U.S. District Court. An Affidavit, signed by a law enforcement officer, usually accompanies the Complaint. The Affidavit explains the crime committed as well as the role of the accused in that crime. In other words, the Affidavit is used to establish probable cause that the accused committed the crime.
2. Initial Appearance -- As soon as practicable after arrest, the alleged offender must be granted an Initial Appearance before a Magistrate Judge. The Magistrate Judge advises the accused of his or her rights and determines if he or she has the financial ability to hire an attorney or if a public defender must be appointed. The Magistrate Judge also sets release conditions, including any bond. At the same time, a federal prosecutor, known as an Assistant United States Attorney, may ask that the defendant be detained.
3. Detention Hearing -- If the alleged offender is detained, a Detention Hearing must be held within three working days. At that hearing, the Magistrate Judge listens to evidence about the accused's risk of flight or danger to the community. The Magistrate Judge then decides if the accused should be detained or released pending trial.
4. Preliminary Hearing -- Within 10 days of arrest on a Complaint, the accused also has the right to a Preliminary Hearing, during which an Assistant U.S. Attorney may offer testimony to establish probable cause, and the defense attorney may provide evidence on behalf of the accused. If the Magistrate Judge overseeing the hearing finds sufficient probable cause as to the commission of the crime as well as the accused's role in it, the accused is bound over for further proceedings by a grand jury. Note, if the grand jury returns an Indictment against an alleged offender before arrest is made, a Preliminary Hearing is not necessary.
5. Grand Jury -- The final decision to prosecute a federal criminal case rests with a grand jury. A federal grand jury is comprised of 23 randomly selected citizens from across the judicial district (This judicial district encompasses the entire state of Nebraska). Those selected to serve on the grand jury do so for a few days each month for approximately one year, after which a new grand jury is selected by the U.S. District Court.
6. Indictment Sought -- Instead of filing a Complaint, or after filing a Complaint, Assistant U.S. Attorneys appear before the grand jury to establish probable cause that a particular person committed a federal felony. They do this by calling witnesses and presenting evidence obtained with Grand Jury Subpoenas. Defense attorneys are not allowed to appear before the grand jury; the accused does not need to testify before the grand jury; and the work of the grand jury is to be kept secret.
7. Indictment Returned -- If the grand jury decides the evidence presented establishes probable cause, it issues an Indictment against the accused. At least 16 of the 23 members of the grand jury must be present to conduct business, and at least 12 jurors must vote to indict. The Indictment is called a True Bill. If the grand jury does not find sufficient probable cause, it returns a No Bill. In a misdemeanor case, or in a felony case where the accused has waived indictment and has agreed, instead, to plead guilty, no case is presented to the grand jury. In those instances, an Information, which is a document outlining probable cause, is filed with the U.S. District Court.
8. Arraignment -- Within 10 days from the time an Indictment or Information has been filed and arrest has been made, an Arraignment must take place before a Magistrate Judge. During an Arraignment, the accused, now called the defendant, is read the charges against him or her and advised of his or her rights. The defendant also enters a plea of guilty or not guilty. If necessary, a trial date is selected and a schedule set for motion hearings, which may include in-court arguments as to suppression of evidence, etc. Note, the Federal Speedy Trial Act dictates the defendant has right to trial within 70 days from his or her initial appearance in U.S. District Court.
9. Plea Agreement -- Defendants are presumed innocent until they admit guilt or are proven guilty. If a defendant pleads not guilty, a trial takes place unless a Plea Agreement can be reached between the Assistant U.S. Attorney and the defense attorney. In those instances, the defendant must offer a change of plea before a U.S. District Court Judge, who needs to approve the terms of the Plea Agreement.
10. Trial -- A trial is heard before a jury of citizens selected at random from across the judicial district and overseen by a U.S. District Court Judge. At trial, the Assistant U.S. Attorney must -- and the defense attorneys may -- call witnesses and present evidence (The government has the burden of proving the elements of the offense beyond a reasonable doubt). Afterwards, the jury must unanimously decide the verdict. If the defendant is found not guilty, he or she is released. If he or she is convicted, however, the pre-sentencing process begins.
11. Pre-Sentencing -- After the entry of a guilty plea or the unanimous finding of guilt by a jury following trial, the U.S. Probation Office collects information about the defendant and crime victims and supplies it, along with a recommendation for sentence, to the U.S. District Court Judge as part of a Pre-Sentence Investigation Report.
12. Sentencing -- Approximately eight weeks after the entry of a guilty plea or a jury finding of guilt, the U.S. District Court Judge imposes sentence. The sentence may include incarceration in a federal prison; a term of supervised release, formerly called probation; the imposition of a monetary fine; and/or an Order of Restitution directing the defendant to pay the crime victims money lost or expenses incurred due to the offense.
13. Appeal -- The defendant may appeal either the finding of guilt or the sentence or both. To do so, he or she must file with the sentencing court a Notice of Appeal within 10 days from the sentencing, or Judgment, date. Note, if the defendant pled guilty, generally only the sentence may be appealed. Also, sometimes, the defendant gives up, or waives, the right to appeal in the Plea Agreement.