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The Basics of A Federal Criminal Case

A Federal criminal case is very different than a state criminal case.  There exists a separate set of laws and processes that 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, the circumstances under which the person may be released, 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

If unindicted,  a person is entitled to a preliminary hearing within fourteen days if 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

Bail in Federal Court is governed by the Bail Reform Act. 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

If the Government, through the U.S. Attorney’s office wants the accused person detained pending trial, the prosecutor will file what’s known as a Motion for Detention at the initial appearance. In Federal criminal cases, the Prosecutor is known as an Assistant U.S. Attorney.

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. This means that the law presumes that the arrested person must be detained you must present evidence at a Detention hearing that rebuts this presumption.

Pretrial Motions

There are a number of different pretrial Motions that may be filed a defendant in a Federal criminal case depending 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 so 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.  Discovery in Federal cases is regulated by Federal Rule of Criminal Procedure 16.  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 aks 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, Motion to Dismiss and Motion to Sever.


A Federal criminal defendant has the right to be informed of every plea offer that is issued by the Assistant U.S. Attorney.  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 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.  If the jury is not persuaded beyond a reasonable doubt, the defendant is entitled to a not guilty verdict.  If the jury finds the defendant guilty, the Sentencing process is triggered.


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 PSR will be disclosed to the defendant and his or her lawyer.  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 indicate that is not relying on the disputed facts in assessing 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 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 sentence, the defendant has the right to address the Court.

Written by: Rosenthal Kalabus & Therrian Last Updated : August 6, 2019