Understanding the Federal Criminal Process

Judge gavel on law books with statue of justice and court building - federal criminal process concept

The federal criminal process is unique, and many people, including some lawyers, do not fully understand what is involved when someone is facing federal criminal charges.

If you believe you are under investigation for a federal crime or are facing federal criminal charges, choosing an experienced federal criminal defense lawyer should be your top priority. An experienced federal criminal defense attorney can explain the federal criminal process, protect your rights, and fight for a reduction in charges, a reduced sentence, or dismissal of the case.

Understanding Federal Criminal Process Steps

The United States Congress passes laws that define offenses that are federal crimes. If you are under investigation or have been charged with a federal crime, a federal criminal defense lawyer can protect your rights, explain your options, and help you develop an understanding of the federal criminal process.


The first stage of the federal criminal process is the investigation. Various federal agencies investigate alleged violations of federal law. The investigating agency will gather evidence and present it to federal prosecutors, who decide whether to present the case to the federal grand jury.

The investigation may involve a search warrant or, in some cases, a knock at your door seeking an interview by federal agents. The Fourth Amendment to the U.S. Constitution requires that law enforcement agents have probable cause before they search a person’s home, clothing, car, or property. In many cases, law enforcement agents will obtain a search warrant before making an arrest. However, no warrant is required for agents to request an interview. However, every person has the right to request a lawyer and to decline the interview and remain silent.


Prosecutors present evidence to the grand jury in order to have the grand jury return an indictment. Prosecutors can also issue subpoenas and compel testimony before the grand jury. If the grand jury finds that there is probable cause to believe a particular person committed a crime, an indictment will be returned. Rarely does a grand jury fail to return an indictment once an investigation has begun.

Initial Hearing / Arraignment

After an indictment is returned, or if the defendant is arrested upon a complaint and warrant, the defendant appears in court for an initial hearing, where the judge advises the defendant of his/her constitutional rights, reads the charges, and advises the defendant of their right to legal representation. The conditions of bail are determined at the initial hearing. The defendant will be required to plead guilty or not guilty to the charges at the arraignment. Sometimes, an initial appearance and arraignment are handled in one proceeding.

Preliminary Hearing

If a defendant is arrested upon a complaint and warrant and pleads not guilty, a preliminary hearing will be held. At the preliminary hearing, the prosecutor must show that there is probable cause to believe that the defendant committed the crimes charged. The defendant has the right to waive a preliminary hearing and often does when he/she intends to plead guilty at a later time.

If the judge decides there is probable cause to believe the defendant committed a crime, the case will be scheduled for trial. If the judge finds the prosecutor did not establish probable cause, the case will be dismissed.

In cases where an indictment has been returned, there is no preliminary hearing because the grand jury has already found probable cause when it returned the indictment.


Before trial, the prosecutor and defense attorney work to prepare their respective cases. An attorney’s trial preparation involves studying the evidence, hiring experts to dispute the government’s case and support the defense’s case, interviewing to witnesses, developing a trial strategy, and anticipating unique issues that could arise at trial.

The prosecutor must provide the defendant with copies of materials and evidence they intend to use at trial and all Brady and Giglio evidence. This process is called discovery and continues from the time the case starts until the trial begins. The prosecutor has a continuing obligation to provide the defendant with relevant information and is required to provide the defendant with exculpatory evidence. If the prosecutor does not provide the defense with exculpatory evidence, it could be grounds for a new trial.

Pretrial Motions

When the prosecutor or defense attorney wants the judge to address a specific issue before trial, they can file a motion. Common pretrial motions include:

  • Motion to Dismiss - a request to dismiss a specific charge or the entire case because there is insufficient evidence or the facts of the case do not constitute a crime.
  • Motion to Suppress Evidence - a request to have certain evidence declared inadmissible, often because it was illegally obtained or its presentation would violate the defendant’s rights.
  • Motion for Change of Venue - a request to change the location of the trial, often because of pre-trial publicity that could violate a defendant’s right to an impartial jury.
  • Motion to Compel - a request asking the judge to issue an order requiring that a party provide the requested information.
  • Motion to Preclude the Admission of Evidence - a request by either the defense or the prosecution to preclude certain testimony from being admitted at trial. This is often done to limit the scope of evidence that the jury hears


Trial is a structured process in which lawyers present evidence to a jury, who will decide whether the defendant committed the crime they are accused of. The prosecutor presents witnesses and other evidence they believe proves the defendant committed a crime. The defendant defends the case by cross examining the prosecution’s witnesses and, sometimes, presenting evidence of their own. A defendant, however, has a Fifth Amendment right to remain silent and is not required to put on any evidence at all and the jury may not make any adverse inference if he invokes his rights.

Trial is a complicated process that involves opening statements by the prosecutor and defendant, the presentation of evidence through questioning of witnesses, objections, and closing arguments. Once closing arguments are complete, the judge explains the law to the jury, who retires to deliberate and then announces their verdict.

Post-Trial Motions

If the defendant is found guilty, they can file post-trial motions. Common post-trial motions include:

  • Motion for a New Trial - asking the judge for a new trial if significant new evidence is discovered or a judicial error or juror bias impacted the jury’s decision.
  • Motion for Judgment of Acquittal - asking the judge to overrule the jury’s verdict and allow the defendant to go free.
  • Motion to Vacate, Set Aside, or Correct a Sentence - asking the judge to correct an error that was detrimental to the defendant.

Plea Bargaining

Instead of going to trial, a defendant can choose to plead guilty to the charges for a variety of reasons, presumably to avoid exposure to a longer sentence. This can be done with or without a plea agreement. However, in the federal courts, it is essential that a defendant who is contemplating a guilty plea, be represented by an experienced federal criminal defense lawyer during the negotiation of the plea and throughout the sentencing process. The reason is that the federal sentencing guidelines are extremely complex and through concepts such as “relevant conduct” and Commentary to the sentencing guidelines, significant additional jail time can be added.

A defendant should only plead guilty if they actually committed the crime. When pleading guilty, the defendant admits to having committed a crime and is sentenced by the judge. Once a defendant pleads guilty, the next step is to prepare for a sentencing hearing.


If a defendant is found guilty or has pled guilty, a sentencing hearing will be scheduled. Sentencing can be one of the most complicated areas of federal criminal law. The judge will have received and reviewed information about the defendant and the crime they were convicted of and will review the Federal Sentencing Guidelines to determine what punishment to impose. Before imposing a sentence, the judge can listen to aggravating or mitigating factors, such as whether the defendant expressed regret or has committed the same crime before or about the nature of the crime itself. It is ultimately the Judge’s decision as to what sentence to impose after review of the parties’ sentencing memorandum, arguments and testimony at sentencing and the Presentence Investigation Report.

Experience Matters When Choosing a Federal Criminal Defense Attorney

As this short synopsis demonstrates, the federal criminal process is extraordinarily complicated. Someone facing federal criminal charges should not venture into federal court without an experienced federal criminal defense attorney who understands the federal criminal process.

Federal criminal defense attorney Hope Lefeber has been practicing criminal defense in federal court for over three decades. During that time, she developed trust and respect among prosecutors, judges, and other criminal defense lawyers, and has earned a reputation as a tenacious and fearless advocate who is meticulously prepared and is not afraid to fight for her client’s rights.

If you are facing federal criminal charges, Hope Lefeber should be your first call.

Categories: Federal Law