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The Basics of A Federal Criminal Case

A Federal criminal case is very different than a state criminal case. A separate set of laws and processes must be understood and carefully considered.

The following is a broad overview of the basics, the “nuts and bolts” if you will, of the process of a Federal Criminal Case.

The Initial Appearance

Typically, a Federal felony defendant will be brought to U.S. District Court in custody on a complaint and will likely appear before a U.S. Magistrate Judge.   A complaint is an affidavit describing the allegations against the accused.  At the initial appearance, the Magistrate Judge will inform the accused of the complaint against the person. That the person has the right to retain an attorney. Notify the person of the circumstances in which they may be released. They have the right to a preliminary hearing, and the right to remain silent.

The Court will also consider the issue of release or detention, and this topic will be covered in more detail in the Detention Hearing section.

Preliminary Hearing or Arraignment

A person is entitled to a preliminary hearing within fourteen days if they are unindicted and in custody. The Court will consider whether an offense was committed and whether the defendant committed it.  If the Court finds probable cause, the Court will require the defendant to appear for further proceedings.  The Court may also consider bail or release at this hearing.

The Detention Hearing

The Bail Reform Act governs bail in Federal Court. The Court may release a person on conditions, or detain them pending trial.  In making this decision the Court must consider whether the arrested person will be a flight risk and whether the person, if released, will pose a danger to any person or the community.  If the Court makes the determination that no condition or combination of conditions of release will assure the appearance of the arrested person, or that the arrested person presents a danger to the community, the Court must detain the arrested person pending the trial of the case

The U.S. Attorney’s office will file a Motion for Detention at the initial appearance if the Government wants the accused person detained pending trial. An Assistant U.S. Attorney is known as the Prosecutor in Federal criminal cases.

There are certain categories of offenses for which the law creates a presumption of pretrial detention.  Specifically, this presumption applies to drug offenses with a potential maximum penalty of ten years or more. At a Detention hearing, you must present evidence that rebuts the law’s presumption that the arrested person must be detained.

Pretrial Motions

A defendant may file a number of different pretrial Motions in a Federal criminal case. These depend upon the circumstances of the particular case.  Examples of some common pretrial motions are:

Motion to Suppress.  A Motion to Suppress is a filing in the court in which the accused person is asking the judge to exclude certain evidence or statements( prevent the Government from presenting the evidence against the defendant at trial) due to violations of law in the way that the Government collected the evidence.

Motion for Discovery.  A Motion for Discovery asks the Court to Order the Government to disclose to the accused person evidence that the Government has in its possession concerning the accused person.  The Federal Rule of Criminal Procedure 16 regulates discovery in Federal cases. Typically, the defendant does not need to file a formal Motion for Discovery, rather Rule 16 requires the Government to provide discovery as a matter of course.

Motion in Limine.  A Motion in Limine is a Motion that asks the Court to make pretrial rulings on evidentiary matters that are likely to arise at trial.

Additional pretrial motions is a Federal criminal case might include, among others, a Motion for a Bill of Particulars, a Motion to Dismiss, and a Motion to Sever.


The Assistant U.S. Attorney must inform the Federal criminal defendant of every plea offer issued. A Federal criminal defendant has the absolute right to a jury trial, among other rights discussed more fully in the trial section.

A Federal criminal defendant that is considering entering a plea of guilty to a federal indictment should be sure that they have fully considered the indictment, the likely admissible evidence against them,  and the Sentencing Guideline range that will likely apply to their case.   A federal criminal defendant should discuss all of these matters in detail with his or her attorney.  It is the accused person’s decision alone as to whether to proceed to trial or to plead guilty.


A Federal criminal defendant has an absolute right to a jury trial that is guaranteed to them by the U.S Constitution.  The right to a jury trial includes the right to remain silent. To confront the witnesses against them. To require the Government to present proof beyond a reasonable doubt and to present witnesses and admissible evidence on their own behalf.

In addition, a person accused of a Federal felony crime has a right to a jury of twelve persons and a unanimous verdict on each and every element of the charged crime.  The jury must be persuaded beyond a reasonable doubt for the defendant to receive a guilty verdict. The jury will trigger the Sentencing process if they find the defendant guilty.

Federal Criminal Cases: Sentencing

Following a guilty plea to a Federal indictment or a guilty verdict, the U.S. Probation office will prepare a Presentence Investigation Report for use by the Court in sentencing.  The Presentence Investigation Report (PSR) will address the facts of the case and the defendant’s role in the offense.  In addition, it will analyze the guideline range applicable to the defendant according to the advisory U.S. Sentencing Guidelines.

The defendant and his or her lawyer will be given the PSR. The defendant has a certain time period in which to file objections to the PSR.  The objections may be either based on the law (contending the PSR misstates or misapplies the law). Or on the facts alleged in the PSR.  If the defendant timely files objections, the Court must rule on the factual objections.  Or the court must indicate that is not relying on the disputed facts in assessing the sentence.

The sentencing itself will largely be a product of the United States Sentencing Guidelines.  The process by which a Court assesses the applicable Guideline range will be the subject of a future blog post.  In assessing the sentence the court must consider the applicable guideline range as well as the factors set out in 18 U.S.C. 3553(a). Before the Court imposes a sentence, the defendant has the right to address the Court.

Written by: Rosenthal Kalabus & Therrian Last Updated : June 16, 2023