The federal criminal case process, step by step

A federal criminal case moves through set stages: investigation, charges, a first court appearance and a decision on release or detention, arraignment, discovery, pretrial motions, then a guilty plea or a trial and, after a conviction, sentencing and a possible appeal. The Federal Rules of Criminal Procedure and the Speedy Trial Act set most of the steps and deadlines.

What are the stages of a federal criminal case?

1. Investigation. Agents and prosecutors gather evidence, often with grand jury subpoenas and search warrants. See federal investigations.
2. Charges. A case can start with a complaint, a sworn written statement of the essential facts made before a magistrate judge (Fed. R. Crim. P. 3), often used for an arrest. A felony must then be charged by a grand jury indictment, unless the person waives that right in open court and agrees to be charged by an information filed by the prosecutor (Fed. R. Crim. P. 7(a), (b)). After an arrest or summons on a complaint, the indictment or information is generally due within 30 days (18 U.S.C. § 3161(b)).
3. Initial appearance. A person who is arrested must be brought before a magistrate judge without unnecessary delay (Fed. R. Crim. P. 5(a)(1)(A)). The judge explains the charges and the right to a lawyer. At the first court date with both lawyers present, the judge also reminds the prosecution, in an oral and written order, of its duty to disclose evidence favorable to the defense (Rule 5(f)). If the case started by complaint and there is no indictment yet, a preliminary hearing must be held within 14 days if the person is in custody, or 21 days if not, unless it is waived (Fed. R. Crim. P. 5.1).
4. Detention hearing. The judge decides whether the person is released, and on what conditions, or held until trial. When the government asks for detention, the hearing is usually held at the first appearance, and a continuance generally may not exceed 5 days for the defense or 3 days for the government, not counting weekends and holidays (18 U.S.C. § 3142(f)). See federal detention hearings and bond.
5. Arraignment. In open court, the person gets a copy of the indictment or information, hears the charge read or explained, and enters a plea (Fed. R. Crim. P. 10).
6. Discovery. The government turns over its evidence under Fed. R. Crim. P. 16 and its constitutional duty to disclose favorable evidence (Brady v. Maryland, 373 U.S. 83 (1963)).
7. Pretrial motions. Motions to dismiss, to suppress evidence, to sever, and for more discovery (Fed. R. Crim. P. 12). See motion to suppress.
8. Plea or trial. Most federal cases end in a guilty plea. Before accepting one, the judge must address the defendant personally in open court, make sure the plea is voluntary, and find a factual basis for it (Fed. R. Crim. P. 11(b)). Otherwise the case goes to trial, usually before a jury of 12, unless the defendant waives a jury in writing with the government’s consent and the court’s approval (Fed. R. Crim. P. 23(a), (b)(1)). A jury verdict must be unanimous (Fed. R. Crim. P. 31(a)). See federal trials.
9. Sentencing. After a conviction, a probation officer prepares a presentence report, and the judge imposes a sentence after considering the Sentencing Guidelines and the factors in 18 U.S.C. § 3553(a) (Fed. R. Crim. P. 32). Sentencing.net explains federal sentencing in depth.
10. Appeal. A notice of appeal usually must be filed within 14 days after the judgment is entered (Fed. R. App. P. 4(b)(1)(A)). See federal criminal appeals.

What is the pretrial process in a federal case?

“Pretrial” covers stages 3 through 7 above. In a federal felony case, “going to a pretrial” can mean any of several court dates:

• the initial appearance, detention hearing and arraignment;
• status or pretrial conferences, which the court may hold to promote a fair and efficient trial (Fed. R. Crim. P. 17.1);
• hearings on pretrial motions, such as a suppression hearing;
• a change-of-plea hearing, if the case resolves with a guilty plea.

What happens at each depends on the stage and on the judge’s practice. A defense lawyer can explain what a particular date is for.

What are pretrial motions?

Pretrial motions ask the court to decide an issue before trial. A party may raise any issue the court can decide without a trial on the merits (Fed. R. Crim. P. 12(b)(1)). Some must be raised before trial if their basis is reasonably available (Rule 12(b)(3)):

• defects in starting the prosecution, such as improper venue, pre-indictment delay, a speedy trial violation, selective or vindictive prosecution, or errors in the grand jury or preliminary hearing;
• defects in the indictment or information, such as failing to state an offense, lack of specificity, or charging one offense in several counts;
• suppression of evidence;
• severance of charges or defendants (Rule 14); and
• discovery under Rule 16.

The court may set a deadline for these motions; a late motion is considered only for good cause (Rule 12(c)).

What does the Speedy Trial Act require?

Many periods don’t count toward those limits, including time for pretrial motions and continuances a judge grants because the ends of justice outweigh the interest in a speedy trial (18 U.S.C. § 3161(h)). Unless the defendant agrees in writing, trial also may not start less than 30 days after the defendant first appears through counsel (§ 3161(c)(2)).

How long does a federal case take?

There is no standard length, and no one can tell you in advance how long a particular case will take. The main factors are:

• how much evidence there is to review, especially in fraud and wiretap cases;
• how many defendants are charged together;
• which pretrial motions are filed and whether hearings are needed;
• continuances requested by either side and excluded under § 3161(h);
• whether the case ends in a plea or goes to trial; and
• the court’s calendar, and the time between a conviction and sentencing.

Is there discovery in federal criminal cases?

Yes. On the defendant’s request, the government must disclose the defendant’s own statements, the defendant’s prior record, documents and objects, reports of examinations and tests, and certain disclosures about opinion witnesses (Fed. R. Crim. P. 16(a)(1)). Rule 16 does not reach the government’s internal reports and memos, and statements of government witnesses come under a separate statute, 18 U.S.C. § 3500 (Rule 16(a)(2)). When the defense asks for and receives certain discovery, it must give reciprocal discovery (Rule 16(b)).

Separately, the prosecution must disclose evidence favorable to the accused that is material to guilt or punishment, whether or not it acted in good faith (Brady v. Maryland, 373 U.S. 83 (1963)). At the first court date with both lawyers present, the judge must remind the prosecution of that duty in an oral and written order (Fed. R. Crim. P. 5(f)).

Which guides cover each stage?

• Motion to suppress: excluding evidence from unlawful searches and interrogations, including geofence warrants.
• Detention hearings and bond: how a judge decides release or detention before trial.
• Federal trials: jury selection, evidence, the verdict and what follows.
• Federal investigations: agents, search warrants, grand jury subpoenas and target letters.
• Federal criminal appeals.

How can Criminal Center help at each stage?

We represent people in federal criminal cases at every stage, from the investigation through trial, sentencing and appeal. Criminal Center is a boutique federal criminal defense firm. We take on a limited number of cases at a time, so each one gets close, personal attention. See federal criminal defense for how we work.

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