Who brings a federal case
Only the government starts a federal criminal case, usually through the U.S. Attorney’s Office working with agencies such as the FBI, DEA, IRS or HHS-OIG. Many investigations run for months before anyone is charged.
A grand jury reviews the evidence the prosecutor presents and decides whether it is enough to require a trial.
From investigation to appeal
- InvestigationAgents gather records, interview witnesses and may use subpoenas and search warrants.
- Charges and arrestA complaint or indictment is filed, and the person is arrested or summoned.
- Initial appearance and detentionA magistrate judge explains the charges and rights and decides on release or detention.
- ArraignmentThe person receives the indictment and enters a plea.
- Discovery and motionsThe defense reviews the evidence and files motions, such as to suppress evidence.
- Plea or trialThe case resolves by plea agreement, by motion or by a jury verdict.
- SentencingProbation prepares a presentence report, and the judge imposes sentence.
- AppealA notice of appeal must be filed within 14 days after judgment.
Speedy Trial Act basics
The Speedy Trial Act, 18 U.S.C. § 3161, sets two main clocks. An indictment or information generally must be filed within 30 days of arrest, and trial generally must begin within 70 days of the later of the indictment or the defendant’s first appearance in that court.
Unless the defendant agrees in writing, trial cannot start less than 30 days after the defendant first appears through counsel. Many periods are excluded from the clock, including time for pretrial motions and continuances a judge grants for the ends of justice with reasons stated on the record. Court congestion and lack of diligence by the government are not valid reasons for those continuances.
The Speedy Trial clock stops for pending motions and approved continuances.
Pleas and plea agreements
According to the federal courts, more than 90 percent of defendants plead guilty rather than go to trial. Under Rule 11, the prosecutor and defense negotiate any agreement, and the judge must not take part in those discussions.
Some agreements include a sentencing recommendation that does not bind the judge. Others set a specific sentence or range that binds the court once it accepts the agreement. Before accepting a guilty plea, the judge must confirm the person understands the rights being given up, the maximum penalty and any mandatory minimum.
Trial, sentencing and appeal
At trial, the government must prove guilt beyond a reasonable doubt. If the jury acquits, the government cannot appeal. After a conviction, the court’s probation office usually prepares a presentence report before the judge imposes sentence.
A defendant’s notice of appeal in a criminal case is due within 14 days after the later of the entry of judgment or the government’s notice of appeal.
What defense counsel does at each stage
- Before charges. Handles contact with agents and prosecutors, and responds to subpoenas and target letters.
- After arrest. Prepares for the detention hearing and protects the client from statements that hurt the case.
- Discovery. Reviews the government’s evidence and investigates independently.
- Plea discussions. Explains options and risks so the client can make an informed choice.
- Trial and sentencing. Prepares the case for a jury and builds the record for sentencing.
Jason Kaufman has tried more than 90 cases and is a Criminal Justice Act panel attorney in the Southern District of Florida. He works with Phil Horowitz, who has practiced criminal defense since 1985 and spent decades on the CJA panel in the Southern and Middle Districts of Florida, and Victor E. Rocha, who was admitted to The Florida Bar in 1983, practices in federal courts including the Eleventh Circuit and the Southern District of Florida, and speaks Spanish. Together they bring more than 100 years of combined experience. The first consultation is free and confidential.