Legal Developments -

Common Steps in Federal Criminal Cases 

Common Steps in the Federal Criminal Process

This web-page will provide you with a basic understanding of how the criminal process works in the federal system in a criminal case. There are different terms used in the federal system compared to the state criminal justice system.
  • In Michigan, state cases are brought by prosecuting attorneys or may be brought by a city attorney; federal cases are brought by United States Attorneys and Assistant United States Attorneys (AUSA).
  • Michigan state court trial judges are generally district court judges and circuit court judges. Federal judges are called district court judges.
  • Federal magistrate judges are frequently used in federal cases to hear initial matters (such as pre-trial motions, detention hearings), but they do not usually decide cases.
  • The use of grand juries to charge defendants is not required in Michigan, but it is a requirement in federal felony cases unless the defendant waives the grand jury indictment.
  • States and the federal government have laws making certain acts illegal, and each jurisdiction is responsible for setting punishments for committing those crimes. A state may punish a certain crime more harshly than the federal government (or vice versa), but a defendant can be charged and convicted under both systems.
The steps that are listed here are not exhaustive.  Some cases will include many more steps and others will be much simpler.  Please consult an attorney to better understand how (or if) the information presented here applies to your case.
  1. Investigation - the Federal Government has several agencies that employ criminal investigators to gather, collect and provide information to the United States Attorney.  Some agencies used by the Federal Government are (ATF) Bureau of Alcohol, Tobacco, Firearms and Explosives; (DEA) Drug Enforcement Administration; (DHS/HSI) Homeland Security Investigation; (FBI) Federal Bureau of Investigation; (IRS) Internal Revenue Service; and (USSS) United States Secret Service. These agencies will frequently work with local agencies such as WEMET, KANET, the Michigan State Police, local police departments and County Sheriff Departments.
  2. Charging - after the AUSA has reviewed the information from investigators he decides whether to present the case to the grand jury.  When a person in indicted, he is given formal notice that it is believed that he committed a crime.  The indictment contains the basic information that informs the person of the charges against him.  Grand juries are made of between 16-23 members.  If you are called to testify before a grand jury your attorney is not allowed to be present during your testimony before the grand jury.  Your attorney may be available to assist and be available to provide guidance outside of the proceedings.
  3. Initial Hearing/Arraignment - generally in the federal system, either the same day, or the day after a defendant is arrested, he is brought before a magistrate judge for an initial hearing.  At the initial hearing the defendant learns about their rights and the charges against him, arrangements are made for the defendant to have an attorney, and the magistrate judge decides if the defendant will be detained in custody or released pending trial.  In many cases the defendant will be released if they meet the requirements for bail.  The defendant will also enter an initial plea of guilty, not guilty or stand mute and a not guilty plea would be entered on your behalf.
  4. Discovery - AUSA's must provide the defendant with copies of materials and evidence that the prosecution intends to use at trial. This process is called discovery, and continues from the time the case begins to the time of trial. An AUSA has a continuing obligation to provide the defendant documents and other information which may reflect upon the case. A failure of the AUSA to do so can expose them to to fines/sanctions by the court. Further, the AUSA is required to provide the defense with evidence that may hurt his case, called exculpatory evidence. This evidence could show the defendant’s innocence. If the prosecution does not provide it to the defense, it may require a new trial.
  5. Plea Bargaining - If a defendant pleads guilty, there is no trial; the next step is to prepare for a sentencing hearing. A defendant may only plead guilty if they actually committed the crime and admits to doing so in open court before the judge. When the defendant admits to the crime, they agree they are guilty and they agree that they may be “sentenced” by the District Judge presiding over the court — the only person authorized to impose a sentence. Sometimes the Government will agree, as part of a plea agreement, not to recommend an enhanced sentence (such as additional time in prison for certain reasons) but it is left up to the District Judge to determine how the defendant will be punished.
  6. Preliminary Hearings - After the defendant has entered a plea of not guilty, a preliminary hearing will often be held before a Magistrate Judge. The AUSA must show that enough evidence exists to charge the defendant. Preliminary hearings are not always required, and the defendant can choose to waive it.  It must be held within 14 days of the initial appearance if the defendant is being held in jail. If the defendant is out on bail, it must be scheduled within 21 days of the initial appearance.  The preliminary hearing is like a mini-trial. The AUSA will call witnesses and introduce evidence, and the defense can cross-examine witnesses. However, the defense cannot object to using certain evidence, and in fact, evidence is allowed to be presented at a preliminary hearing that could not be shown to a jury at trial.  If the magistrate Judge concludes there is probable cause to believe the crime was committed by the defendant, a trial will soon be scheduled. However, if the Magistrate Judge does not believe the evidence establishes probable cause that the defendant committed the offense, he will dismiss the charges.
  7. Pre-Trial Motions - A motion is an application to the court made by the AUSA or defense attorney, requesting that the court make a decision on a certain issue before the trial begins. The motion can affect the trial, courtroom, defendants, evidence, or testimony.
    Only judges decide the outcome of motions.
    Common pre-trial motions include:Motion to Dismiss – an attempt to get the judge to dismiss a charge or the case. This may be done if there is not enough evidence, if the alleged facts do not amount to a crime. Motion to Suppress – an attempt to keep certain statements or evidence from being introduced as evidence. For example, if police conducted a search without probable cause (in violation of the Fourth Amendment), it may be possible to suppress the evidence found as a result of that search. Motion for Change of Venue – may be made for various reasons including pre-trial publicity. If the local news has covered the case a great deal, it may be necessary to move the trial to another venue to protect the defendant’s right to an impartial jury.
  8. Trial - After many weeks or months of preparation, the AUSA is ready for the trial. The trial is a structured process where the facts of a case are presented to a jury, and they decide if the defendant is guilty or not guilty of the charge offered. During trial, the AUSA uses witnesses and evidence to prove to the jury that the defendant committed the crime(s). The defendant, represented by an attorney, also tells his side of the story using witnesses and evidence.
    In a trial, the judge is the impartial person in charge of the trial and decides what evidence can be shown to the jury.
    Jury Selection
    At trial, one of the first things a AUSA and defense attorney must do is the selection of jurors for the case. Jurors are selected to listen to the facts of the case and to determine if the defendant committed the crime. Twelve jurors are selected randomly from the jury pool (also called the “venire”), a list of potential jurors compiled from voter registration records of people living in the Western District of Michigan.
    When selecting the jury, the prosecutor and defense attorney may not discriminate against any group of people. For example, the judge will not allow them to select only men or only women. A jury should represent all types of people, races, and cultures. Both lawyers are allowed to ask questions about their potential biases and may excuse jurors from service. Each side is allowed to excuse certain potential jurors without providing a reason by using a limited number of “peremptory challenges.”
    Opening Statements
    Opening statements allow the AUSA and the defense attorney to briefly tell their account of the events. These statements usually are generally short and do not involve witnesses or evidence. The AUSA makes an opening statement first.  The defense may make an opening statement or may reserve and make an opening statement at the commencement of the defense case.
    Presentment of Cases
    Witness Examination

    Following opening statements, the prosecutor begins direct examination of his first witness. This is the AUSA's initial step in attempting to prove the case, and it can last from a few minutes to several days. During direct examination, the prosecutor can introduce evidence such as a weapon or something from the crime scene.
    Following the AUSA's examination of a witness, the defense attorney has an opportunity to cross examine or ask questions to the same witness. The purpose of cross examination is to create doubt as to the credibility of the witness.
    After the defense attorney cross examines the witness, the AUSA asks the witness final questions to clarify testimony for the jury. This is called redirect examination. Once the process of direct examination, cross examination, and redirect of all the witnesses is complete, the AUSA rests his case. After the AUSA rests, no more witnesses can be called to the stand or evidence introduced by the government.
    After the Government rests, the defense has the opportunity to present witnesses and evidence to the jury. The defense also has the option of not having the defendant testify. There is no burden upon the defendant to prove that he is innocent. It is the government's responsibility to prove the defendant committed the crime as detailed in the indictment. The fact that a defendant did not testify may not be considered by the jury as proof that the defendant committed the crime. The defense may also waive his case. If the defense does not put on any evidence, the jury cannot assume that the defendant is guilty simply because they did not put on a defense. The decision to put on a defense is solely up to the defendant and the defense attorney. However, the defense will usually present its own version of the case.
    During direct or cross examination, either attorney can make an objection to a question or a piece of evidence to the judge. For example, an AUSA or defense attorney may object to the wide range of the direct examination because it is beyond the knowledge of the witness, the attorney may be arguing with the witness rather than asking questions, or the witness may be talking about things irrelevant to the case.
    Common objections include: Hearsay – Statement by a witness who did not see or hear the incident in question but learned about it through secondhand information such as another’s statement, a newspaper, or a document. Relevance – Testimony and evidence presented at trial must be relevant to the case.
    The judge decides the outcome of an objection, sometimes after allowing attorneys on both sides to comment before making a ruling. The judge either “sustains” the objection so that the action stops, or he “overrules” the objection and allows the action to continue.
    Closing Arguments
    After the defense’s direct testimony and cross examination by the AUSA of all the witnesses, the defense rests, and the AUSA and defense attorney prepare for closing arguments.
    Closing arguments are the final opportunity for the AUSA and the defense attorney to talk to the jury. These arguments allow both attorneys to summarize the testimony and evidence, and ask the jury to return a verdict of guilty or not guilty.
    Jury Instructions
    Following the closing arguments, the judge “charges the jury,” or informs them of the appropriate law and of what they must do to reach a verdict.
    Jury Deliberations & Announcement of the Verdict
    After being charged, the jury goes into deliberation, the process of deciding whether a defendant is guilty or not guilty. During this process, no one associated with the trial can contact the jury without the judges and lawyers. If the jury has a question on the law, they must write a note to the judge, which the judge will read in court with all parties present. In federal criminal trials, the jury must reach a unanimous decision in order to convict the defendant.
    After the jury reaches an agreement on a verdict, they notify the judge, the lawyers, and the defendant in open court. Everyone is present in court for the reading of the verdict. The United States Marshals Service is present during trial to protect the judge and and participants from potential harm. If the defendant is found not guilty, they are usually free to go home.
  9. Post-Trial Motions  -If the defendant is convicted, there are several motions that can be filed after the trial is over.
    Common post-trial motions include:
    Motion for a New Trial – The court can vacate the judgment and allow for a new trial. This is rarely granted, but may be done “if the interest of justice so requires.”
    Motion for Judgment of Acquittal – Court may set aside the jury’s verdict and allow the defendant to go free.
    Motion to Vacate, Set Aside, or Correct a Sentence – Often successful for the purpose of correcting a clerical error in the sentence.
  10. Sentencing - A few months after the defendant is found guilty, he returns to court to be sentenced.  The District Judge receives guidance and assistance from several sources including the scrivener of a presentence report and often letters of support for the defendant.  The United States Sentencing Commissions has produced a set of sentencing guidelines that recommend a sentencing range for certain crimes while considering various factors. Further, the District Judge will look at a presentence report and consider statements from the parties involved in the case as well as the defendant and lawyers.
    The judge may consider a variety of aggravating or mitigating factors.
  11. Appeal - After a defendant is found guilty, he can appeal to the Sixth Circuit Court of Appeals if he believes he was wrongly convicted or the sentence was unlawful.  An appeal is not another trial.  Appeal is an an opportunity for the defendant to raise specific errors that might have occurred at trial.  Appeals are complicated and sometimes result in the case going back to the trial court. A specific conviction may be reversed, a sentence altered, or a new trial may be ordered altogether if the Appeals Court decides that particular course of action. Even after an appeal is decided by a circuit court judge, a defendant can try to appeal that decision to the United States Supreme Court in Washington, DC. The United States Supreme Court — the highest appellate court in the American court system — makes the final decision concerning a defendant’s appeal. The Court is not required to hear an appeal in every case and takes only a small number of cases each year.