We offer the following general description of what happens in a federal criminal case to assist families and friends of our clients. It is not a substitute for legal advice. The attorney assigned to a particular case is the best source of information about the statutes, rules, and court decisions that govern a particular case. Click to view timeline chart of a typical Federal case in Southern District of New York. Click here for timeline chart for Eastern District of New York.
Anyone charged with a crime is presumed to be innocent. A case ends up in federal as opposed to state or local court because the federal prosecutor, the United States Attorney’s Office, has brought the charges. A person accused in federal court is suspected of breaking a federal law. There are charges that can be brought in either federal or state courts, or both. Just because a case “goes federal” does not necessarily mean it is more serious than a state charge.
A federal case usually begins with an arrest on a document called a criminal complaint or an arrest warrant. These documents are not evidence. They simply set forth charges. What happens next is a series of court appearances that follow a specific procedure set forth in the Federal Rules of Criminal Procedure. The process may vary a bit from district to district. There are two district courts in metropolitan New York: the Southern District of New York (covering Manhattan, the Bronx, Westchester and other counties north of New York City) and the Eastern District of New York (covering Brooklyn, Queens, Staten Island, and Long Island).
A federal criminal case usually begins with an arrest. Occasionally federal law enforcement agents will question a suspect without making a formal arrest, but a federal court case does not officially begin until charges are filed by a federal prosecutor in federal district court.
If someone is arrested, they have a right to remain silent. Arresting officers are supposed to read these rights (known as Miranda rights) to the suspect. Miranda rights can be waived. It is occasionally in a suspect’s interest to waive these rights, but generally speaking, if you are accused of a crime it is a bad idea to talk to law enforcement without an attorney. Waiting for a lawyer’s advice is almost always the smart thing to do, as anything said to law enforcement is potentially admissible in court.
The first chance an accused person will have to go to court is called an Initial Appearance. This Initial Appearance is supposed to happen within 48 hours of the arrest. The first appearance before a judge will be before a United States Magistrate Judge. The Magistrate Judge will generally conduct a brief appearance, called an initial appearance, the same day an accused person is brought to court. The Magistrate Judge will decide whether to release the person from custody. The Initial Appearance will generally be brief. At that appearance, the Magistrate Judge will appoint a lawyer for the accused (unless the accused has retained counsel at that time). The accused will receive a copy of the charge against him and/or have the charges read to him in open court. If an interpreter is needed, one will be provided by the court.
Occasionally someone is brought to court for the first time on an Indictment. This means that there will be no need for a complaint or arrest warrant, and the case will proceed before a district court judge.
Initial Appearances in the Eastern District of New York generally take place in Courtroom 2A, 225 Cadman Plaza East, Brooklyn, NY 11215. In the Southern District of New York they take place in Courtroom 5A, 500 Pearl Street, New York, NY 10007. In Long Island and White Plains, they take place in the courtroom of the magistrate who is on duty for that day.
Anyone who cannot afford an attorney will be appointed one by the court at the Initial Appearance. The accused person must show that they are financially eligible for assigned counsel by filling out a sworn financial affidavit. Assigned counsel in federal court in the Eastern and Southern Districts of New York is usually one of the members of the Federal Defenders of New York. In cases in which there is a potential or actual conflict of interest, the court will assign an attorney from the Criminal Justice Panel (also known as CJA Panel).
Bail is generally decided at the Initial Appearance. Sometimes a lawyer will find it necessary to postpone a bail hearing for a very short period, usually within a week of the Initial Appearance, in order to increase the chances of getting the client bailed. Bail can be agreed to or contested by the federal prosecutor, but the decision about whether to release someone on bail is up to the court. If the prosecutor agrees to bail, it is more likely that the judge will order it. Sometimes a client can be released on his own recognizance, but in practice most bail bonds are secured.
Security for the bond can be cash, property, or the signatures of suretors or cosigners. Co-signers are people who stand up for the accused person in court, guaranteeing his return. If the client fails to show up for court, then the government can hold the co-signers responsible for the full amount of the bond. Co-signers are generally required to be employed. If property is used as security, the court generally requires that the property owners all sign the bond and that they also post a lien against the property in the county in which the property is located.
Before the bail hearing, a member of the Pretrial Services Office will interview the client. Everything said at that interview will go into a bail report for the court, prosecutor, and defense attorney. It is not a confidential interview. The Pretrial Service Office makes a recommendation about bail to the court. The officer may call the friends or family members of the client to verify his background. If the court sets bail, there may be restrictions placed upon the client while the case is pending. These restrictions may include travel limitations, curfew, reporting to pretrial services, drug testing or treatment, mental health testing or treatment, and electronic monitoring, among others.
If while out on bail a client fails to obey the conditions set by the judge, he could be rearrested. The bail could be revoked and new charges could be brought based upon the violation of the bail conditions.
Once released on bail, a client must attend every court appearance. If the client does not appear, the judge can issue a warrant for arrest. It is important that the lawyer always know how to reach his or her client, and be advised of any changes in contact information.
The next step after the Initial Appearance is a formal charge, by either an Indictment or an Information. To get an Indictment, the federal prosecutor must present evidence to a Grand Jury. The Grand Jury determines whether there is probable cause to believe that the client has committed a federal crime, and if so it issues an Indictment outlining the charges. The Grand Jury proceedings are secret and in federal cases a criminal defendant does not have a right to appear before the Grand Jury. If the Grand Jury issues an indictment the case will be randomly assigned to a district court judge.
On his or her attorney's advice, a client may choose to give up the right to be indicted by a Grand Jury. If that happens, the charge will be brought in a document signed by the United States Attorney called an Information. An Information is also the document that is used to charge federal misdemeanors.
Generally speaking, an Indictment or Information must be returned within 30 days following the arrest or within 14 days if the client is in custody. It is sometimes in the client’s best interest for the lawyer to waive the 14-day time limit in order to use the full 30 days to negotiate the most beneficial disposition.
On rare occasions, the prosecutor chooses not proceed to formal charges by indictment or information and offers an opportunity for the accused to participate in a Pretrial Diversion Program instead. In that instance, the case is referred to a pretrial services officer who will conduct an investigation and evaluate the client’s eligibility to participate. There may be certain conditions that must be met (e.g. quitting a job, staying on a probationary period, completing a drug program, repaying stolen money), after which the prosecutor will move to dismiss the charges. The advantage of Pretrial Diversion is that the client will have no criminal record upon successful completion of the Program.
If the case proceeds by Indictment or Information, the next court appearance will be the arraignment. At that appearance, the client is read or given a copy of the charge and is asked to plead guilty or not guilty. Most people plead not guilty at the arraignment, even if everyone knows that a disposition and guilty plea are likely to occur. There is rarely any reason to plead guilty at the arraignment unless all the details of the disposition have been previously worked out.
Sometimes a lawyer will advise a client to file pretrial motions. Depending upon the outcome of these pretrial motions, the client may decide to plead guilty or schedule a trial.
The most common pretrial motion is a motion to suppress evidence. If law enforcement agents took property as evidence, took statements, or had witnesses identify the accused, and the attorney believes that there is a good faith basis under the law for suppressing that evidence, the attorney may file a motion to suppress. The motion seeks to preclude illegally-obtained evidence from being offered by the prosecution at trial. The suppression hearing is held in open court and generally the presentation of live witnesses. The defense attorney can cross examine the government’s witnesses and present defense witnesses at the hearing.
If the judge finds that the law enforcement officers violated the law, the remedy may be suppression of the evidence at trial. If the judge finds no violations, then the evidence will be admissible at trial.
There are many other pretrial motions that may apply in any given case. These will be discussed between the lawyer and the client.
If no plea disposition is reached, the case will proceed to trial. This is usually done within 70 days from the filing of the Indictment; however, that 70-day period can be extended on consent of the parties and with the judge’s agreement. It is often extended to allow the parties to review discovery, file motions and engage in plea discussions.
Before trial, the attorney for the defense will obtain "discovery." Broadly speaking, discovery typically consists of documents, recordings, and statements of a defendant which are relevant to the case. In the week before trial, the attorney will also receive what is known as “3500 material.” This material usually consists of prior statements of the government witnesses who will testify at trial. The defense must also turn over to the government any prior statements of defense witnesses.
The vast majority of federal cases result in guilty pleas. If a person chooses to plead guilty, he or she may do so with or without a plea agreement. If a person chooses to plea guilty with an agreement, a formal document called a Plea Agreement will be drafted, which represents the agreement between the prosecution and the defense about which charges will result in guilty pleas, which charges will be dismissed, and many other details about the sentencing guidelines.
A Plea Agreement is never final until a judge reviews it and decides it is acceptable. Even if the judge accepts the agreement, however, he or she does not need to follow it. A plea agreement may contain an estimate of the sentence with which the judge disagrees. Even if the judge imposes a sentence different than what is in a written plea agreement, a client will not be permitted to withdraw his or her plea, except under rare circumstances.
Federal sentencing is very different than sentencing in state court. Unlike some state court systems, the federal system operates without certainty about what a sentence will be. In other words, a person will have to decide whether to plead guilty or go to trial without knowing in advance what the sentence is going to be. In general, the vast majority of pleas take place with only estimates about what the sentencing guidelines are. In order to accept the plea, the judge will spend about half an hour asking questions of the person to ensure that he or she understands the rights being relinquished by pleading guilty.
If a person agrees to plead guilty there will be no trial. The court will order a sentencing date, generally three months after the guilty plea. During that time, a member of the Probation Department will meet with the person and prepare a Presentence Report. The Presentence Report will contain a recitation of the offense, a computation of the sentencing guidelines and the person's background information, including family and employment information. If the sentence includes prison time the Presentence Report will be sent with the person to the Bureau of Prisons, so it is important that the information in the Report be accurate and complete. The attorney will send the client a copy of the report and if there are any errors in it, objections may be filed with the Probation Department. At sentencing the judge will decide whether to make the requested changes to the Report.
After a guilty plea, the next court appearance is the sentencing date. This is arguably the most important appearance in a criminal case. The attorney and client will have worked to prepare for sentencing by filing a sentencing memorandum in most cases. This memorandum can include a letter from the attorney outlining the mitigating factors, arguing for the lowest possible sentence. It may also include letters and statements from family and friends, written in support of the defendant.
Once sentenced, a person has a criminal record, even if the judge imposes no prison time.
A number of court officials will be present in court. In addition, there may be members of the public. Except in rare cases, courtrooms are open to the public so anyone can attend a proceeding. It is appropriate, especially for defendants, to dress formally in the courtroom. For men, slacks and a collared shirt are appropriate.
There is generally a courtroom deputy who manages the judge’s caseload. There may also be legal interns or clerks who work for the judge who are present in court for court proceedings. There may be court interpreters and parties waiting for other cases. There is also a court reporter who records all the proceedings. You can usually find a summary of the proceedings on the court docket, accessible in the court clerk’s office or online at www.pacer.gov
If a case proceeds to trial, the first thing that happens is the selection of the jury. In federal court jury selection is almost always conducted by the judge. Lawyers for both sides can submit questions in advance for the jurors, but the judge usually interacts with the jurors, not the lawyers. In a criminal case, 12 jurors are chosen to sit on the case, and often 2-6 alternates, depending on the length of the case.
Occasionally federal criminal trials are tried before the judge. These are called bench trials. Both the defense and the prosecution must agree to waive a jury trial, and the judge must consent.
In the case of a jury trial, once the jury is selected the judge will swear them in and explain basic legal principals to them. The defendant will be present for all aspects of the trial. If he or she is in custody there will be plain-clothes United States Marshals in the courtroom to escort him. The defendant can wear clothes provided in advance so that the jury does not know he is in custody.
A trial begins with an opening statement by the prosecutor, telling the jury how he or she will prove the charges against the accused. The defense lawyer can then make an opening statement explaining why the anticipated evidence will not prove guilt.
The case then proceeds with presentation of evidence by the prosecution. Evidence typically consists of witnesses. Witnesses may also be used to introduce documents, demonstrative evidence, video or audio tapes, or any other evidence deemed admissible by the Court. If the defense lawyer objects the judge has to decide whether the Rules of Evidence or other legal considerations bar the introduction of the evidence. The defense lawyer may also object to certain questions. The judge has to decide to sustain or overrule the objections. “Sustained” means the objection is valid. “Overruled” means the objection is rejected. Sometimes attorneys will request or be asked to have a “side bar” conference so that legal matters can be discussed outside of the hearing of the jury.
A criminal defendant has no burden to put on any evidence. However, the attorney and client may decide to offer evidence and/or witnesses. The client must always decide whether he or she wants to testify or to remain silent. If silence is chosen, the jury will be instructed not to use that silence against him.
At the end of the case the prosecutor and defense attorney deliver closing arguments, or summations, to the jury. The prosecutor gives the opening summation, followed by the defense summation, and then a rebuttal by the prosecutor.
After the closing arguments, the judge will instruct the jury as to the relevant law. The jury then retires to deliberate. Their verdict must be unanimous. Occasionally, a jury cannot agree on a verdict. This is called a “hung jury.” In that instance, the judge may declare a mistrial and the prosecutor can retry the case.
If at the end of jury deliberations the jury announces a “not guilty” verdict, the defendant is acquitted and will be released immediately assuming no other charges are pending and there is not a detainer holding him in custody (such as an immigration hold).
If the verdict is guilty the case is adjourned so that the judge can determine the sentence. Generally if the client was in custody during the trial he will he will remain in jail to await sentencing. If he was out on bail and is convicted, he is sometimes remanded to custody following the verdict.
After trial, an attorney may make a motion to set aside the decision of the jury. The judge may then dismiss the charges or order a new trial.
As is the case after a guilty plea, following a guilty verdict the Probation Department will prepare a Presentence Report. The same considerations apply as discussed above.
If a client was found guilty of more than one charge the Judge will usually have the discretion whether to run the sentences concurrently (at the same time) or consecutively (one after the other). There are certain charges that must be run consecutively and the judge will have no choice on these. In addition to any prison time imposed, the sentence will include an order to pay a special court fee called a special assessment, which is now set at $100 per count of conviction. The judge may also order restitution (to pay back victims of the crime) and a separate fine. The sentence may also include conditions such as drug/mental health treatment or community service, to name a few. If no prison time is imposed, the court may order a term of probation with certain conditions (again, travel restrictions, drug or mental health treatment, etc).
If prison time is imposed the court may order Supervised Release to begin upon completion of the term of imprisonment. Supervised Release works similarly to Probation in that the defendant will be assigned a supervising probation officer and have conditions that he or she must follow.
If the client is out on bail at the time of sentencing the attorney can seek voluntary surrender to the institution designated by the Bureau of Prisons, or to the local facility. Voluntary surrender is not a matter of right, but if the judge permits it, the person will have the opportunity to turn himself in on a designated day, usually about six weeks following the sentencing. If the surrender is to the designated institution he must travel to the institution on his or her own rather than while in the custody of the United States Marshal, and must pay his own travel expenses.
An appeal is a request to a higher court to review possible errors made at the trial or on motions. After sentencing, the client has a right to appeal the sentence or conviction or both, unless there was a waiver of that right in plea agreement. Even after a guilty plea there may be certain questions that are appealable. A notice of appeal must be filed within 14 days of the judgement.
The appeal will be decided by a panel of three judges appointed to decide appeals. During the appeals process the defendant still has a right to court-appointed counsel, so an appellate lawyer will be assigned if the defendant cannot afford to hire one. The lawyer can argue the appeal without the client’s presence, but he or she will consult with the client about the arguments to be raised on appeal.
If the appellate court finds no error in the trial court's decision, the sentence or conviction is affirmed, and the appeal has been lost. There is a limited right to petition for further review to the United States Supreme Court. Most such petitions are denied.
If the appellate court finds that the lower court made a substantial error, the decision of the trial court is reversed. All or some of the charges may be dismissed. This may mean that the accused gets a new trial. It may also mean that the conviction gets modified so that, for example, a different sentence can be imposed.
There is a limited right to bail pending appeal, but these requests are rarely granted.
In some very limited circumstances there may be grounds for attacking a conviction even after the final sentence and appeal. These circumstances can be discussed with the assigned attorney or the pro se clerk of the district court.