U.S. Attorney Todd Graves
Western District
Of
Missouri

Guide to the Federal Judicial System

How a Criminal Case Proceeds in Federal Court

A. Investigation. Every criminal case begins with an investigation--a search for facts and information that will lead to a suspect or suspects and evidence supporting the charge or charges. The investigation may involve many different techniques, including witness interviews, search warrants, searches incident to an arrest, electronic or physical surveillance, examination of documents and testimony before a federal grand jury.

Before a law enforcement officer can perform a search for evidence, he or she must obtain a warrant from a district judge or magistrate judge. The officer's application for a search warrant usually takes place in private and is not open to the press.

The Fourth Amendment to the U.S. Constitution requires that a search warrant be supported by proof that probable cause exists to expect the search to produce evidence of a crime. One or more affidavits will be attached to the application for the search warrant to establish probable cause. The search warrant will clearly specify the place to be searched and the things to be seized.

After the warrant is served and the search is completed, an inventory of items seized is filed along with the warrant in the court clerk's office. Normally, both the warrant with affidavit and the inventory list of seized items is open to public inspection, unless they have been ordered sealed by a judge. The sealing of a returned warrant may be justified if, for example, the suspect has not been apprehended or if the search is part of a continuing criminal investigation.

As soon as a person is arrested or taken into custody, he or she must be advised of his or her constitutional rights. This process, known as giving the Miranda warning, includes informing the person of the right against self-incrimination and the right to have an attorney present during questioning. If the suspect cannot afford a lawyer, he or she can have an attorney appointed at public expense. Once a suspect expresses the desire to consult an attorney, questioning must cease until an attorney is present.

B. The Charging of a Crime. Sometimes, a suspect is arrested on the basis of an arrest warrant, also known as a complaint. The complaint is issued by a judge and details why the government believes there is probable cause for the arrest. More commonly, however, an arrest is the result of an indictment. Even when a defendant is initially charged by complaint, the law provides that an indictment must be returned within 30 days. Otherwise, a defendant may be charged in an information, but only if he or she waives the right to be indicted.

To obtain an indictment, the U.S. Attorney's Office presents evidence to a grand jury. A grand jury has more jurors than an ordinary trial jury, from 16 to 23 people in federal cases. It sits for a term of a year or more, and not just for a single case. During the grand jury investigation, the U.S. Attorney or his or her assistant presents the available evidence without anyone presenting the other side. The job of the grand jury is to decide if the case is strong enough to merit a trial. If 12 members find probable cause to believe the accused committed the crime, they issue a bill of indictment. The defendant's opportunity to rebut the evidence and present exculpatory testimony does not come until the trial occurs.

Grand jury proceedings are conducted in secret. This is because witnesses are thought to speak more freely in secret, and the privacy and reputation of the person being investigated is respected at this investigatory stage. Members of the grand jury and attorneys are prohibited from revealing anything about the proceedings, although no secrecy restrictions are placed on witnesses who are subpoenaed to appear before the grand jury.

Reporters are permitted to observe the comings and goings of witnesses into the grand jury room. However, a reporter who receives leaked information from a juror or prosecutor about the proceedings risks being called to testify as to the source of that information. A judge may ask the reporter to reveal his or her source, or, in extreme cases, face punishment for contempt.

The bill of indictment, commonly called the indictment, is returned in open court and filed in the clerk's office. In some cases, indictments may be sealed if a judge determines that the defendant may flee before he or she can be apprehended.

The only alternative to charging a defendant by the grand jury process is to charge him or her by the filing of an information. Informations, which are formal written accusations of a crime, may be filed in any federal misdemeanor case. An information may also be filed in a federal felony case, but only if a person waives the constitutional right to indictment by a grand jury.

C. Appearing in Court. The proceeding in which a defendant makes his or her initial appearance in court is referred to as a first appearance. At the first appearance, which normally occurs before a magistrate judge, charges are read and the defendant is advised of the right to counsel. If needed, counsel will be appointed at public expense.

A bond hearing often occurs at the same proceeding. The Constitution guarantees a defendant the right to a reasonable bail, unless the court determines that the defendant poses a risk to flee or a danger to the community.

A defendant's first appearance and arraignment may be combined into a single proceeding. At the arraignment, the defendant hears the charge and enters a plea of guilty, not guilty or nolo contendere (no contest). Only when a not guilty plea is filed will a case go to trial. This is often the last stage of the case in which the defendant will appear in court until the trial.

D. Pretrial Motions. It is common for defense counsel to file motions to suppress any evidence obtained in violation of the Fourth or Fifth Amendments. These amendments contain guarantees against unreasonable search and seizure and self-incrimination. Motions to suppress may be considered by the court at a suppression hearing, at which law enforcement officers are essentially put on trial to make sure that the evidence they gathered was obtained through legal means.

The exclusionary rule prevents the prosecution from using illegally obtained evidence to prove the defendant's involvement in the crime charged. The exclusionary rule is a remedy devised by the court to address an unconstitutional search. The exclusion of such evidence is not required by the Constitution. The theory behind the exclusionary rule is that if a court permits evidence to be used that was gained through violations of the law, the court then becomes a party to the official misconduct. Evidence that is ordered suppressed can be used in court for the limited purpose of proving a defendant is lying on the stand or otherwise casting doubt on the accused's credibility.

Often, however, a motion to suppress will be resolved on the basis of written briefs without a separate hearing.

E. Plea Agreement. At any point in the prosecution, a defendant may agree to plead guilty. In such cases, a written plea agreement is filed with the court, wherein the defendant agrees to plead guilty in return for a reduction in the charge, the dropping of other charges that are pending, or the government's support in asking the court for a more lenient sentence.

The vast majority of federal cases end in plea agreements. A plea agreement saves the prosecution the time and expense of a trial, and may produce valuable cooperation from the defendant in the investigation of other criminal cases. Defendants similarly save time and money, but also avoid the risk of a harsher punishment and the negative publicity that can accompany a trial. The courts benefit from the reduction in caseload.

F. Discovery. Defendants who plead not guilty become eligible for an omnibus hearing, a proceeding held before a magistrate judge, sometimes in conjunction with the arraignment. The omnibus hearing is unique to this district. During the omnibus hearing, the prosecution and defense counsel state for the record various procedural matters that relate to how the defendant's trial will proceed. Included in those matters are declarations of what kinds of evidence may be used at trial.

Also included are discussions of discovery, the process by which each side learns about the other's witnesses and evidence. Usually, both the government and the defense exchange a list of witnesses each intends to call to testify as well as a summary of exhibits that will be entered into evidence. In addition, the prosecution must turn over to the defense any evidence discovered in the course of the criminal investigation that tends to prove the defendant's innocence or another person's guilt.

The defense must exchange similar information with the government. Both the discovery order and the parties' responses are filed in the clerk's office and are available for public inspection.

G. Jury Selection. When a jury trial is scheduled, the district court summons a pool of prospective jurors. In the federal courts, the judge often plays an active role in the screening of these prospective jurors, the first real phase of a criminal trial. This process is known as voir dire.

Attorneys usually have an idea about the characteristics they want in jurors. The U.S. Attorney's office, for instance, might want jurors who are concerned about crime and want criminals off the street, while the defense will seek jurors likely to empathize with the defendant--because of age, ethnic background or occupation.

Attorneys may use peremptory challenges to strike, or eliminate jurors lacking the profile they are seeking. Other jurors may be dismissed for cause, because something in their background or answers render them less than impartial.

Jurors are instructed not to discuss the case with anyone else and to consider only the evidence introduced at trial. In particularly controversial or highly publicized cases, the jurors may be sequestered to prevent them from being subject to any outside influences.

H. Opening Statements. Once the jury is selected, the trial begins with opening statements, when the attorneys tell the jury what the case is all about. The prosecution, which has the burden of proof, makes the first remarks to the jury. Opening statements cannot be argumentative; they simply give the jury an orientation about the evidence that will be produced in the trial.

I. Witnesses and Evidence. At any criminal trial, it is up to the prosecution to prove the defendant's guilt beyond a reasonable doubt. The defendant is not obligated to put forth any evidence in rebuttal.

The prosecution offers witnesses and evidence to prove the points raised in the opening statement. The defense will be free to cross-examine these witnesses to highlight gaps in their knowledge of the events in question or contradictions with earlier statements.

Defense counsel may choose to forego the cross-examination of a witness if the testimony is not particularly damaging, or if there is no evidence favorable to the defense or unfavorable to the prosecution that can be produced by cross-examination.

After the government presents its case, the defense may offer its own witnesses and physical evidence. However, the defendant is never required to take the stand or present evidence in his or her defense.

Attorneys may object to the opposition's questions on a number of grounds. Generally, leading questions (questions which suggest the answer sought) are prohibited on direct examination, but not on cross-examination. Counsel may also object to hearsay evidence. If the witness has no personal knowledge, but merely knows something second hand, allowing the evidence into the record denies the defendant an opportunity at effective cross-examination and admits rumor as evidence. There are a number of exceptions to the hearsay rule, such as death bed statements.

Only evidence that has some logical relevance to the case is allowed, and only original documents, unless proven to be unavailable, can become exhibits.

J. Closing Arguments. The case ends with closing arguments from both sides. Unlike the opening statements, which are previews, these statements are literally arguments that seek to influence the jury's interpretation of the facts. They often try to establish a theme that will allow the jurors to organize the evidence in their minds in a manner favorable to the side arguing. The prosecution presents its argument first and may make a rebuttal after the defense argues its side.

K. Jury Instructions. Usually after the closing arguments, but sometimes before the closing arguments, the judge instructs the jurors on the law applicable to the case. Attorneys on both sides may have previously requested that the jurors receive specific instructions. The judge decides what instructions are appropriate in advising the jurors of their responsibilities as judges of the facts in the case and how the facts they determine will affect the verdict, based on the laws in question.

The jury retires behind closed doors to deliberate on a verdict. Whether the deliberation takes a few minutes or several weeks, jurors are prohibited from discussing the case with non-jurors or examining items related to the case that were not placed in evidence. Once the jurors are discharged from their duties, reporters are generally free to interview them about the verdict.

L. Verdict. The verdict is announced in open court. In federal cases, the jury decision must be unanimous. A jury that is unable to reach a decision is known as a hung jury. In this case, a mistrial may be declared and the accused may be prosecuted again on the same charges.

An acquittal is final because of the constitutional protection against double jeopardy. If a guilty verdict is not sustainable by any reasonable interpretation of the facts, the judge could grant a motion for acquittal before the case goes to the jury or an acquittal motion for judgment notwithstanding the jury's guilty verdict. It is rare, but possible at this stage, that a motion for a new trial will be granted because of legal errors in the trial procedures. Losing defense counsel often make the motion as part of routine procedure.

If a defendant is convicted, he or she may be returned to custody or allowed to remain free on bond pending sentencing. At the time of conviction, the trial judge will order a presentence investigation. The results of this investigation, compiled in a written report that is not made available to the public, will include details about the defendant's background and information that could affect the severity of sentence.

In virtually all federal criminal cases, no date for sentencing is scheduled until the presentence report is completed and made available to the judge and attorneys for both sides. Specific challenges and objections to the report may be raised by either side.

M. Sentencing. In the federal courts, persons convicted of violations that occurred on or after Nov. 1, 1987, are punished under the provisions of the federal sentencing guidelines. These guidelines are a complex series of criteria, regulations and limits used by the court to determine an appropriate range of punishment. Various types of information gathered in the presentence investigation are used to produce a numerical score that helps determine this range. Each criminal offense carries a basic score, known as a base offense level, which may be subject to enhancement or reduction by the determination of other factors. For example, playing a major role in a conspiracy could warrant an increase, while acceptance of responsibility for the criminal actions could warrant a decrease. A defendant's criminal history also figures into the formula.

Under the sentencing guidelines, a defendant is not eligible for parole. For example, a 10-year prison sentence under the guidelines means the defendant will spend 10 years in prison. Aside from an appeal or presidential pardon, the only opportunity for a reduction in prison time comes if an inmate displays positive, cooperative behavior while incarcerated. In such cases, up to 54 days of so-called "good time" may be subtracted from a sentence as a reward for each year of positive behavior.

Normally, a defendant may be sentenced above or below the determined guideline range only if the government files an appropriate motion for upward or downward departure with the court.

Otherwise, the only cases that escape the governance of the sentencing guidelines are those involving convictions for offenses that occurred prior to Nov. 1, 1987. In those cases, judges have greater discretion in sentencing, with limits imposed only by statutes, and defendants may face greater eligibility for parole.

N. Appeals. Cases from U.S. District Courts may be appealed by either the prosecution or the defense. An appeal may challenge a verdict because it is not supported by the evidence, because procedural errors by the court prejudiced the case, or because the trial judge misapplied the law. Appeals may also challenge the application of a particular sentence.

An appellate court may choose to affirm (uphold) or reverse (overturn) any or all parts of a district court's decision. Some appeals may result in the granting of a new trial.

An appellate court also may choose to affirm a judgment of conviction while vacating (rejecting) a sentence in a given case. In that event, the case is remanded (returned) to the lower court for resentencing.

Cases on appeal from the U.S. District Court for the Western District of Missouri are heard by the U.S. Court of Appeals for the Eighth Circuit in St. Louis, Mo.