If you have been arrested and charged with a federal crime or have received a letter from the Department of Justice (DOJ) saying that you are the target of a criminal investigation, then you are going to want to know what may be lying ahead for you. The pre-trial process in federal cases can be long and arduous, but is often the key to determining whether you are able to stay out of prison or if you will be facing incarceration. An experienced federal criminal defense attorney here in Michigan can guide you through the process, protecting your rights, and getting you the best outcome possible.
1. Investigation: The Start of the Process
Every criminal case begins with an investigation. The DOJ or the Federal Bureau of Investigations (FBI) will determine that a federal crime may have been committed, or will receive a criminal referral from another government agency. As part of the investigation, the DOJ and FBI will contact witnesses and persons of interest, gathering evidence and interviewing people. If you receive a letter from the DOJ or FBI, you should find out if you are the target of the investigation. Even if the answer is no, you should have an attorney assist you and accompany you to any meetings with federal agents.
2. Criminal Complaints and Information
If the DOJ and FBI determine that a crime has been committed, they will identify the defendants who will be charged with such crimes. This may be one person or multiple people depending on the circumstances. Unless a grand jury has been impaneled for the case, the federal government will begin the criminal case against the defendant through either a criminal complaint or a criminal information. The complaint is prepared and filed by a law enforcement officer, usually a member of the FBI. The document will describe the facts in order to establish probable cause for an arrest warrant from a federal judge. The agent will also sign an affidavit attesting to the veracity of the facts listed in the complaint. A criminal information will also describe the facts and request an arrest warrant like a complaint, except this is prepared and filed by a federal prosecutor.
3. Grand Jury and Indictments
In the federal system, any crime that is a felony requires an indictment from a federal grand jury. So, if you are arrested and charged with a misdemeanor, then there is no requirement for an indictment in your case. With an indictment, the grand jury will be presented with evidence provided by a federal prosecutor and will hear testimony from witnesses. This is a one sided affair, as defense attorneys are not permitted to address the grand jury. This is also done in secret.
In some cases, the target of the investigation may be invited to give testimony, but this can be a very risky proposition as any misinformation can give rise to a charge of perjury. Also, giving grand jury testimony requires you to waive your Fifth Amendment right against self incrimination.
When the federal prosecutor completes the presentation, the grand jury will vote. If a majority finds probable cause, the grand jury will indict the defendant. If the majority does not, then it will issue a “no bill” and the defendant will not be indicted on those charges. If you were arrested based on a complaint or information and the grand jury returns a no bill, then the charges will be dropped.
4. Voluntary Surrender
One of the worst experiences for criminal defendants is being arrested at home by the FBI. This usually happens early in the morning and can be very traumatic. There is often a search of the premises as well during the arrest, which can lead to property being damaged or destroyed. This is why most criminal defense attorneys will arrange for their clients to self surrender when a criminal complaint, information, or indictment is handed down with an arrest warrant. In a voluntary surrender, you will appear with your attorney, be processed by the U.S. Marshall, and appear for your arraignment.
5. Arraignment, Pre-Trial Bond or Bail, and Detention Hearings
Your first appearance in court will be your arraignment. This is usually held before a Federal Magistrate Judge, although in some high profile cases, the Federal District Judge may handle the arraignment him or herself. At the arraignment, the federal prosecutor will read the complaint, information, or indictment, and the judge will ask you how you plead to your charges. Even if you think you are guilty of any of them, you will be best served by pleading not guilty. You are innocent until proven guilty, with the burden on the federal prosecutor to prove guilt beyond a reasonable doubt.
The arraignment will also set conditions for your pre-trial release. It is crucial that you are freed, as this will allow you to directly assist your legal team with your defense. It is very difficult to help with a defense if you are in pre-trial detention. In addition, the conditions of many federal pre-trial detention centers can be bad and dangerous.
Most defendants will be able to post a pre-trial bond for release. This is where a bail bond company will front the money for your bail. Sometimes, you may be required to post at least part of the amount of your bail in cash. If you and a spouse or other relative have sufficient funds, the magistrate may allow you to sign a pre-trial bond form pledging assets as collateral. The bail is set in order to guarantee that the defendant will appear in court.
In some cases where there is a flight risk or where the defendant poses an ongoing risk to the community, the magistrate may deny bail. This can trigger a detention hearing where you will be able to present evidence why you should be freed on bail. In addition, if you violate the conditions of your bail, like traveling outside of the federal district without permission or using drugs, then your bail may be revoked and you will be remanded to a federal jail.
6. Motion Practice and Discovery
Federal law requires the government to turn over any information that may be introduced against you at trial. This is referred to as open discovery. This includes potentially exculpatory evidence called Brady material. However, some information like witness statements are not turned over until later in the process. In addition, you are not entitled to see any of the grand jury minutes. If your attorney does not receive such evidence in an expeditious manner, your attorney could file a motion compelling such discovery from the federal prosecutor.
Prior to the trial, your attorney may file a series of motions on your behalf. For example, your attorney may file motions to exclude certain evidence, such as that which was discovered by the FBI in violation of the Constitutional right against unreasonable searches and seizures. Such motions will help to set the parameters of the case, may get certain charges against you dismissed, and can assist you in getting a positive disposition to your case. If the federal prosecutor believes that his or her case has been weakened by successful defense motions, a decision may be made to either drop the charges, or offer a plea deal that allows you to avoid prison time, getting either home confinement or probation instead.
If You are Facing Federal Criminal Charges, Our Attorneys Can Provide You with the Assistance You Need
The federal criminal process can be long and complicated. It is fraught with peril that can land you in jail even before your trial. The pre-trial period can also lay the groundwork for a successful outcome of your criminal case. The experienced defense attorneys at Federal Criminal Attorneys of Michigan can provide you with the representation you need to get a positive outcome of your case while protecting your rights.
