A Comprehensive Guide to Federal Criminal Defense (2025)

This article is an excerpt from:

Federal Criminal Defense Guide
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A Layperson’s Guide to Federal Criminal Cases
Table of Contents (Click to Expand/Collapse)
  • I. Investigation
    • Federal Investigative Agencies
      • Federal Bureau of Investigation (FBI)
      • Drug Enforcement Administration (DEA)
      • Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
      • United States Secret Service (USSS)
      • Homeland Security Investigations (DHS/HSI)
    • Evidence Gathering and Probable Cause
      • Investigators collect and provide information to the U.S. Attorneys in each federal district.
      • They may collaborate with multiple agencies.
      • Search warrants require probable cause and must be issued by a neutral judge.
      • Arrests also require probable cause; officers sometimes get an arrest warrant first.
      • Sometimes police can arrest on the spot if they witness the crime.
    • Direct Evidence vs. Circumstantial Evidence
      • Direct evidence: Supports a fact without an inference (e.g., an eyewitness who saw the crime).
      • Circumstantial evidence: Requires inference (e.g., seeing fresh snow in the morning suggests it snowed overnight).
    • Initiation of a Case
      • If a crime is brought to the attention of federal authorities (by a victim, a witness, or discovered through investigation), a federal agency will investigate if it appears to violate federal law.
      • Not all crimes fall under federal jurisdiction (e.g., common murder is typically a state offense unless specific federal elements are involved).
  • II. Charging
    • Grand Jury and Indictment
      • A prosecutor may decide to present evidence to a grand jury (16–23 members).
      • At least 12 jurors must vote to indict for felony charges.
      • Witnesses may be compelled to testify; all proceedings are sealed.
      • If the grand jury finds probable cause, they issue an indictment (formal notice of charges).
      • Some states use grand juries, others don’t. Under the U.S. Constitution, federal felony charges generally must come from a grand jury.
    • Venue
      • Federal criminal cases are tried in a U.S. District Court.
      • There are 94 federal districts (including D.C. and U.S. territories).
      • Many states have multiple districts; venue depends on where the alleged crime occurred.
      • Example: The federal courthouse in Minneapolis is one of the venues for the District of Minnesota.
  • III. Initial Hearing / Arraignment
    • Timing
      • Occurs either the same day or the day after arrest.
      • Defendant hears charges, is informed of rights, and representation by counsel is arranged.
      • Judge decides if the defendant is held in custody or released pending trial.
    • Bail
      • Judge considers flight risk, criminal history, ties to the community, and danger to the public.
      • Defendant may be released on bail or remanded to U.S. Marshals.
    • Entering a Plea
      • Defendant is asked to plead guilty or not guilty.
      • Formal reading of the indictment/information in court.
  • IV. Discovery
    • Obligations
      • Prosecutors must provide the defendant with any evidence and materials intended for use at trial.
      • Discovery continues from the start of the case to the trial.
      • Prosecutors must also turn over exculpatory evidence (favorable to the defendant).
      • Failure to do so can result in sanctions or a new trial.
  • V. Plea Bargaining
    • Process
      • If the government’s case is strong, it may offer the defendant a plea deal to avoid the uncertainty of trial.
      • The defendant can only plead guilty if they admit to the crime in open court.
    • Guilty Plea and Sentencing
      • No trial is held if the defendant pleads guilty; the next step is sentencing.
      • Sometimes, as part of the plea agreement, the government agrees not to recommend enhanced penalties.
      • The judge always has the final say on what sentence is imposed.
  • VI. Preliminary Hearing
    • Purpose
      • A mini-trial to determine if enough evidence exists to continue.
      • The prosecutor must show probable cause that the defendant committed the crime.
      • Not always required; the defendant can waive it.
    • Timing
      • Held within 14 days of initial appearance if defendant is in custody, or within 21 days if out on bail.
    • Outcome
      • If the judge finds probable cause, the case proceeds.
      • If not, charges may be dismissed.
  • VII. Pre-Trial Motions
    • Definition
      • A motion is a request for the court to make a ruling on a particular issue before trial.
      • Only judges decide the outcome of motions.
    • Common Pre-Trial Motions
      • Motion to Dismiss
        • Argues insufficient evidence or that alleged facts don’t constitute a crime.
      • Motion to Suppress
        • Seeks to exclude certain evidence (e.g., evidence obtained in violation of the Fourth Amendment).
      • Motion for Change of Venue
        • May be requested to ensure an impartial jury (e.g., if local pre-trial publicity is extensive).
  • VIII. Trial
    • Preparation
      • After weeks or months of preparation, the prosecutor (and defense attorney) develop trial strategy, line up witnesses, and review evidence.
      • Witnesses:
        • Lay witnesses (saw or heard the crime).
        • Expert witnesses (specialists).
        • Character witnesses (know victim or defendant personally).
    • Jury Selection (Voir Dire)
      • 12 jurors are chosen from the venire (pool of potential jurors).
      • Lawyers may not discriminate based on race, gender, etc.
      • Each side can exclude a limited number of potential jurors without giving a reason (“peremptory challenges”).
    • Opening Statements
      • The prosecutor goes first, giving an outline of the case.
      • The defense may follow immediately or wait until presenting its evidence.
    • Presentment of Cases
      • Prosecution’s Case:
        • Direct examination of witnesses, introduction of evidence.
        • Defense cross-examines to challenge credibility.
        • Redirect by prosecutor for clarification.
        • Prosecution then “rests” (no further evidence from government).
      • Defense’s Case:
        • May present its own witnesses and evidence.
        • Defendant may or may not testify; the jury must not hold a defendant’s silence against them.
    • Objections
      • Either side may object to testimony or evidence (e.g., hearsay, relevance).
      • The judge rules on objections by sustaining or overruling.
    • Closing Arguments
      • Each side summarizes the evidence, urging the jury toward a verdict.
      • Prosecutor goes first, then defense, then prosecutor rebuts (because government carries the burden of proof).
    • Jury Instructions
      • The judge explains the relevant law and how the jury should approach its deliberation.
    • Jury Deliberations & Verdict
      • Jurors deliberate in private until they reach a unanimous decision (guilty or not guilty).
      • The verdict is announced in open court.
      • If not guilty, the defendant is typically free to go.
      • The U.S. Marshals Service provides security for everyone involved.
  • IX. Post-Trial Motions
    • After a Guilty Verdict
      • Several motions can be filed by the defense:
        • Motion for a New Trial
          • Rarely granted; must show the interests of justice require it.
        • Motion for Judgment of Acquittal
          • Asks court to set aside the verdict and free the defendant.
        • Motion to Vacate, Set Aside, or Correct a Sentence
          • Often used to correct clerical errors or contest certain legal issues.
  • X. Sentencing
    • Timing
      • Generally occurs a few months after conviction, allowing time for investigations and preparation of a presentence report.
    • Factors Affecting Sentencing
      • Statutory Minimums and Maximums
        • Congress sets certain minimum/maximum punishments for many crimes.
      • United States Sentencing Guidelines
        • Recommends punishments based on crime severity and other factors.
      • Presentence Report
        • Compiled by a probation officer.
        • Includes the defendant’s background, prior record, and impact on victims.
      • Statements from Victims, Defendant, and Attorneys
        • Victims may explain how the crime affected them.
        • The defendant can express remorse or other mitigating information.
    • Aggravating and Mitigating Factors
      • Repeat offenses, nature of the crime, defendant’s remorse, etc.
    • Death Penalty (Capital Cases)
      • Can only be imposed for certain offenses (murder, treason, genocide, or killing/kidnapping high-level officials).
      • A jury, not the judge, decides whether to impose death.
      • Many states have stopped using it, but the federal government retains it.
      • The Supreme Court has ruled it unconstitutional for defendants who were under 18 at the time of the crime or are intellectually disabled.
  • XI. Appeal
    • Right to Appeal
      • A defendant can appeal the conviction or sentence to the circuit court of appeals.
      • If the defendant loses, they can request review by the U.S. Supreme Court, although the Court is highly selective in the cases it hears.
    • Additional Post-Conviction Relief
      • Habeas Corpus: An offender may challenge their detention on specific legal grounds.
      • Clemency/Pardon: Rarely granted by the President.
      • Parole: No longer applies to most federal offenders whose crimes occurred after November 1987 (only older cases remain eligible).

A Layperson’s Guide to Federal Criminal Cases

Introduction

Many people think they understand criminal proceedings based on what they see on TV or in movies. In reality, the federal criminal justice system has its own rules and procedures that can be confusing for newcomers. This guide walks you through how a federal criminal case typically unfolds—from the initial investigation to post-trial motions and appeals. While every case is unique, this overview will help you grasp the big picture, peppered with a bit of skepticism, forward-thinking tips, and maybe the occasional dash of humor to keep things clear.

Investigation

A federal investigation usually starts with a tip or an event that comes to the attention of federal law enforcement agencies. Depending on the crime, this might be the FBI, DEA, ATF, Secret Service, or Homeland Security Investigations. Agents gather evidence—interviewing witnesses, tracking down documents, or even installing undercover operations. If a judge believes there is “probable cause,” search or arrest warrants may be issued.

During an investigation, direct evidence is anything witnessed first-hand (like someone who actually saw the bank robbery). Circumstantial evidence supports an inference (like footprints in the snow that suggest someone walked by). Both types are important. Don’t be surprised if the investigators keep building their case over many months; sometimes they want rock-solid proof before seeking charges.

Charging

Once investigators have enough evidence, prosecutors can bring the case before a grand jury—16 to 23 citizens who decide if there’s enough to charge someone with a federal felony. The grand jury might issue subpoenas, examine evidence, and hear witnesses, all in secret. If they believe there’s probable cause, they return an indictment against the suspect.

If you ever find yourself wondering, “Where would the trial take place?” that’s about venue. Federal cases are tried in U.S. District Courts—94 of them spread across the country. Which one gets the case often depends on where the alleged crime happened. For instance, a case in Minnesota might go to the federal courthouse in Minneapolis.

Initial Hearing / Arraignment

Soon after an arrest, the defendant is brought before a magistrate judge, who reads the charges and ensures the defendant knows their rights. If the judge thinks the defendant might vanish before trial or pose a danger to the community, the defendant might remain in custody. Otherwise, bail or release on certain conditions is possible.

The defendant then formally hears the charges at an arraignment and enters a plea—usually “not guilty” or “guilty.” Lawyers also figure out representation; those who can’t afford an attorney get one assigned by the court (a public defender).

Discovery

During discovery, prosecutors must hand over any evidence they plan to use at trial, plus any information they stumble on that might help the defense. This is more than good manners—it’s the law, and failing to disclose evidence can lead to serious consequences for the prosecution. Meanwhile, the defense may also have to reveal certain evidence they intend to use at trial.

Plea Bargaining

If the government’s evidence is particularly strong, prosecutors might offer a plea deal to avoid the uncertainty of a trial. In such cases, the defendant pleads guilty—admitting they committed the crime—in exchange for some benefit, such as reduced charges or no recommendation of an enhanced sentence. The judge still has ultimate say over sentencing, even if the parties strike a deal.

If a defendant does plead guilty, there’s no trial, and things move on to sentencing. If they opt not to plead guilty, the case marches ahead through further hearings and eventually, a trial.

Preliminary Hearing

The preliminary hearing is like a “mini-trial” where the prosecutor must show there’s enough evidence (probable cause) to continue. Defendants can cross-examine witnesses, but they can’t usually object to evidence. This hearing is optional; a defendant can waive it. If held, it typically occurs within 14 days if the defendant is in custody (21 days if out on bail). If the judge decides the evidence is lacking, the charges might be dismissed.

Pre-Trial Motions

Before the main event (the trial), lawyers often file motions asking the judge to rule on specific issues. Common examples include:

  • Motion to Dismiss: Argues there isn’t enough evidence, or the facts alleged don’t amount to a crime.
  • Motion to Suppress: Challenges the legality of certain evidence (e.g., a search that violated the Fourth Amendment).
  • Motion for Change of Venue: Addresses concerns about bias in a particular location—perhaps because of excessive media coverage.

Judges rule on motions before (and sometimes during) trial. It’s the legal warm-up before the big show.

Trial

After weeks or months of prep—digging through reports, rehearsing arguments, and lining up witnesses—the prosecutor is ready for trial. The defense is equally busy preparing a rebuttal. A federal criminal trial typically involves:

1. Jury Selection

Twelve jurors are chosen from a pool (called the “venire”). Lawyers from both sides can challenge potential jurors and ask the judge to dismiss them for cause. They can also use “peremptory challenges” to excuse some jurors without giving a reason—though not based on race, gender, or other discriminatory grounds.

2. Opening Statements

The prosecutor goes first, outlining what they aim to prove. The defense may respond with their own version of events. No witnesses or evidence are presented at this stage—just a roadmap.

3. Presentment of Cases

  • Prosecution’s Case: Witnesses testify, the prosecutor offers evidence. Defense cross-examines. The prosecutor can redirect to clear up confusion. Eventually, the government “rests” its case.
  • Defense’s Case: The defense can present witnesses and evidence, or even choose not to present anything at all (the burden is on the government to prove guilt). Defendants can testify, though they don’t have to.

4. Objections

Either side may object to testimony or evidence—common ones include “hearsay” (secondhand info) or “relevance.” The judge decides on the spot whether to allow or disallow the contested material.

5. Closing Arguments

Each side summarizes the evidence. Since the prosecutor has the burden of proof, they go first and last, with the defense sandwiched between.

6. Jury Instructions

The judge tells the jury about the relevant laws and how to apply them to the facts.

7. Jury Deliberations & Verdict

The jury meets in private. If they unanimously decide the defendant is guilty, they announce it in open court. If they find the defendant not guilty, that’s the end—no second trial on the same charge. If it’s guilty, we move on to post-trial motions and sentencing.

Throughout the trial, U.S. Marshals provide security, especially if tensions run high. A fair trial is the goal, and the judge acts like a referee to keep everyone playing by the rules.

Post-Trial Motions

If there’s a conviction, the defense still has a few arrows in its quiver:

  • Motion for a New Trial: Rarely granted, but possible if the “interests of justice” so require.
  • Motion for Judgment of Acquittal: Asks the judge to override the jury’s guilty verdict.
  • Motion to Vacate, Set Aside, or Correct a Sentence: Often used to correct clerical mistakes or address legal issues in how the sentence was imposed.

These motions can be a Hail Mary pass—hard to complete, but worth the attempt if a defendant believes errors or injustices occurred during trial.

Sentencing

A few months after a guilty verdict, the defendant returns to court for sentencing. The judge doesn’t do this in a vacuum; there’s a whole set of guidance and checks:

1. Statutory Minimums and Maximums

Congress sets some punishments. If the crime has a mandatory minimum, the judge can’t go lower even if they want to.

2. U.S. Sentencing Guidelines

The Sentencing Commission publishes advisory guidelines, suggesting ranges based on the crime’s severity and the defendant’s criminal history.

3. Presentence Report

A probation officer investigates the defendant’s background—prior convictions, personal history, the crime’s impact on victims—and compiles this into a report for the judge.

4. Victim and Defendant Statements

Victims can address the court directly, explaining how the crime affected them. The defendant (and lawyers) can make statements about the defendant’s remorse or other mitigating factors.

5. Death Penalty (Capital Cases)

In rare federal cases—like certain murders, treason, or genocide—a jury can decide whether to impose the death penalty. Not all states allow the death penalty in their own courts, but the federal government still does. However, the Supreme Court has ruled it unconstitutional for crimes committed by minors or for defendants with intellectual disabilities.

The judge weighs aggravating and mitigating circumstances: Was the defendant a repeat offender? Did they show genuine remorse? Was the crime particularly violent or harmful? Based on all this, the judge announces a sentence—anything from probation to life in prison, or even death in the most extreme federal cases.

Appeal

A defendant has the right to appeal to the federal court of appeals, challenging the conviction or sentence on specific legal grounds. If that fails, they can ask the Supreme Court to hear the case, although the Supreme Court only accepts a small fraction of petitions. Even then, a defendant might try habeas corpus or request presidential clemency, but these are long shots.

In practical terms, most defendants who lose at trial either serve their sentence or attempt an appeal. Parole is almost obsolete at the federal level (except for older offenses), meaning a convict typically serves the bulk of the sentence.

Conclusion

The federal criminal justice system can appear complicated, but it follows a clear sequence: Investigation → Charging → Initial Hearing → Discovery → Possible Plea Bargain → Preliminary Hearing → Pre-Trial Motions → Trial → Post-Trial Motions → Sentencing → Appeal. Each step has its own rules, designed to protect the rights of both the accused and the community.

The best advice for anyone tangling with the system—defendant, witness, or curious observer—is to pay close attention to each phase and keep in contact with legal counsel (or a victim-witness coordinator if you’re a victim). Despite the rumors and drama you see on TV, real federal cases can take time and a ton of paperwork. But by the end, the hope is that justice, guided by due process, ultimately prevails.

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