FIFTEEN THINGS TO KNOW ABOUT FEDERAL CRIMINAL LAW

1. The Difference Between Federal Laws vs. State Laws

The United States Congress in Washington, D.C. creates federal laws. Some acts are federal offenses and can only be prosecuted in federal courts. Other criminal acts (for example selling illegal drugs) are offenses under both federal and state laws and, in those cases, federal and state prosecutors often decide if the offender should be tried in federal or state court. Generally, federal criminal laws carry much harsher penalties than state criminal statutes.

2. Felony vs. Misdemeanor

The majority of federal crimes are felonies. A “felony” is any offense that may result in a prison sentence of more than one year. Misdemeanors on the other hand are those offenses which carry a prison sentence of one year or less. Being charged with a felony instead of a misdemeanor can be significant apart from the jail time involved. A felony conviction can deprive a person of the right to own a firearm, vote in federal elections, hold certain jobs and many other important things.

3. Complaint vs. Indictment

In order to arrest a person for a crime, federal law enforcement, subject to few exceptions, needs proceed based upon a Complaint or an Indictment. A criminal Complaint is simply a document filed in federal court accompanied by an affidavit from a law enforcement agent describing a crime committed and the role of the accused named in the Complaint in that crime. The affidavit is used to establish “probable cause” that the accused committed the crime.

On the other hand, an indictment is a document approved by a federal grand jury alleging that a person committed a particular crime. A federal grand jury is comprised of between 16 and 23 citizens who listen to testimony in a secret proceeding and determine if there is probable cause for the government to charge a particular person or group of people that are the subject of an investigation with a crime.

4. Initial Appearance

As the name would imply, this is a hearing where a person charged with a crime appears for the first time before a federal judge and is advised of the charges he or she faces and advised of his or her rights. The judge will also determine at this hearing whether the accused has the financial ability to hire an attorney or whether a public defender must be appointed.

5. Arraignment

Within 10-days from the time an Indictment or Information has been filed and an arrest has been made, an “Arraignment” must take place before a federal judge. During this proceeding, the accused is read the charges against him or her and advised of their rights. This is the time when the accused will either plead “guilty” or “not guilty” to charges.

If the accused pleads “not guilty,” a trial date is selected and a schedule set for motions hearings, which may include in-court arguments for the suppression of evidence. Under a law known as the Federal Speedy Trial Act, every person accused of a crime in federal court has the right to have a trial within 70-days from his or her initial appearance. In most federal courts, the “initial appearance” occurs at the same time as the “arraignment” and they are, for all practical purposes, the same hearing.

6. Detention Hearing

A person who has been detained following the issuance of a criminal Complaint or Indictment must be brought before a federal judge within 72-hours, or three working days, of his or her arrest for a determination of whether the government should be able to continue detaining the person before trial. Many times, federal prosecutors, known as Assistant United States Attorneys, will ask that a defendant be detained because they are either a “flight risk” or a “danger to the community.”

The prosecutor will be required to provide some explanation in support of these arguments. A defendant, through his or her attorney, has the right to challenge these arguments. After listening to both sides, a federal judge will make a decision on pre-trial detention.

7. A Preliminary Hearing

If a person is charged with a crime by way of a criminal Complaint instead of an Indictment, within 10-days of his or her arrest they have the right to a “Preliminary Hearing.” At this hearing, an Assistant United States Attorney may offer testimony to establish probably cause and the defense attorney may provide evidence on behalf of the accused.

If a federal judge overseeing the hearing believes there is sufficient “probable cause” established to indicate the commission of a crime and the accused’s role in it, the accused is bound over for further proceedings by a grand jury. Preliminary Hearings are rare because most people charged with federal crimes are charged by way of Indictment.

8. Grand Jury

A federal grand jury is comprised of between 16 and 23 randomly selected citizens from the community. Persons who are selected to serve on a federal grand jury do so for a few days each month for approximately one year.

After the one year is over, a new grand jury is selected by the federal court. Grand juries operate in secret. The process is generally controlled by the federal prosecutor. A person being investigated has no right to know what is going on in the grand jury or have his or her attorney cross-examine witnesses testifying before a federal grand jury.

9. How An Indictment Is Obtained

Only a grand jury can return an Indictment. All felony charges require Indictment by a grand jury. The process for obtaining an Indictment requires a federal prosecutor to call witnesses before a grand jury, have them testify, produce evidence obtained through grand jury subpoenas and then request that the grand jury confer and decide if there is probable cause to charge a person with a crime.

A grand jury proceeding is a one-sided process that favors the government. It is very rare for the government to fail to obtain an Indictment. An Indictment is not evidence of a crime but merely a document that accuses a person of a crime.

10. A “True Bill”

If the grand jury decides that evidence presented by the government establishes probable cause that a crime was committed, it issues an Indictment against the accused. At least 16 of 23 grand jurors must be present for a grand jury proceeding to occur. However, only 12 grand jurors are needed to indict. The Indictment is called a “True Bill.”

If the grand jury finds there is no probable cause to approve an Indictment, it returns a “No Bill.” In misdemeanor cases or in felony cases where the accused has waived his right to indictment by grand jury and has simply agreed to plead guilty, no case is presented to a grand jury. Instead, in those cases, an “Information,” a simple document outlining probable cause, is filed with the federal court.

11. Plea Agreement

Defendants are presumed innocent until they either admit guilt or are proven guilty beyond a reasonable doubt by the government. If a defendant pleads not guilty, a trial takes place unless a plea agreement can be reached between the federal prosecutor and the defense attorney.

A plea agreement is basically a negotiated contract between the government and an accused governing the disposition of criminal charges. Generally, most defendants enter into plea agreements to avoid a harsher sentence that may result if the defendant is convicted following trial. Because of the harshness of federal laws, many defendants decide to enter into a plea agreement to avoid lengthy jail sentences and the uncertainty of a trial.

12. Trial

A trial is held before a jury of citizens selected at random from a federal judicial district. A federal judge makes legal rulings during the trial. The decision of whether a person should be found guilty or not guilty rests squarely with the jury. The government always has the burden of proof during criminal trials and must establish an accused’s guilt beyond a reasonable doubt. In federal criminal cases, a jury’s decision must be unanimous. In other words, every jury must reach the same decision. If that cannot happen, then the federal judge will declare a mistrial.

13. Pre-Sentencing

After the entry of a guilty plea or the unanimous finding of a jury that a person is guilty, a federal judge will order the United States Probation Office to collect information about the convicted defendant and create what is known as a “presentence investigation report.”

The report will contain information about the defendant’s life history, information about any victims of the crime and other relevant information for the Court’s consideration. The Probation Office will recommend that the judge sentence the defendant to a particular sentence. A defendant will have the right to disagree with anything in the report that may be inaccurate or objectionable. A federal judge will rely on the report to hand down a sentence to a defendant.

14. Sentencing

Approximately 2-3 months after a guilty plea or finding of guilt by a jury, a federal judge will impose a sentence. The sentence may include incarceration in a federal prison followed by a period of supervised release during which time a convicted defendant can be arrested and re-imprisoned if he or she violates the terms of supervised release. For all practical purposes, supervised release is basically a type of probation.

15. Appeal

A defendant may appeal either a finding of guilt by a jury or the imposition of a sentence by a judge following a conviction at trial. In federal criminal cases, an appeal must be filed within 10-days from the date of sentencing or when a judgment is handed down.

If a defendant voluntarily pleads guilty, then he or she can only appeal the sentence handed down. When the government offers a plea agreement to a defendant, it generally requires the defendant to give up appeal rights. Accordingly, in most cases, the grounds for an appeal are limited.

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