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Overview of a Federal Prosecution

This blog provides a broad overview of the progress of a federal prosecution. Of course, there are several factors that may determine how quickly a case moves and/or if/when a case will reach a particular point in the general process (i.e. early pleas, multiple motions to review detention orders, pre-trial motions, etc.).

Initial Hearing/Arraignment

Felony defendants are usually brought to federal court in the custody of federal agents. Usually, the charges against the defendant are in a criminal complaint, but there are times when a defendant has been indicted prior to his or her initial appearance. 

At the initial appearance, generally a Magistrate Judge will inform the defendant of his or her constitutional rights, including the right to remain silent and the right to counsel. The Magistrate Judge will then inform the defendant of the charges against him or her and the statutory maximum sentence. The Magistrate Judge then often turns to the issue of bail – whether or not the defendant will be released (with or without conditions) pending trial. 


If the government wants a defendant detained pending trial, the prosecutor will file a motion or move for detention at the initial appearance. Bail in Federal Court is governed by the Bail Reform Act. See 18 U.S.C. § 3141 et seq.

Preliminary Hearing

Once the Defendant has entered a plea of not guilty, the Court typically holds a Preliminary Hearing although these hearings do not occur in every case.  These hearings are conducted only in cases involving felonies and are to be held within 14 days of the initial appearance if the defendant is in custody and within 21 days of the initial appearance if the defendant is not in custody. See Fed. R. Crim. P. 5.1(c). A Preliminary Hearing will not be held if a criminal defendant waives the hearing, the defendant is indicted, or the Government files an information under Fed. R. Crim. P. 7(b) (when a defendant waives the indictment process). See Fed. R. Crim. P. 5.1(a).


This is the process during which the Federal Government and the Defendant’s attorney will exchange information relating to the case. The Defense attorney should be using this time to review the discovery turned over by the Government, as well as talking to witnesses, speaking with the defendant, and planning its defense strategy. 

Pre-Trial Motions

There are a variety of motions that can be filed pre-trial, including motions to dismiss the charges, motions to suppress evidence illegally obtained, motions for a bill of particulars, and motions in limine (asking the court to keep certain evidence out of the trial). 

The most common defense motion is a motion to suppress, which essentially asks the Court to rule that certain evidence was illegally obtained and prevent the Government from introducing that evidence at trial, such as a gun or drugs seized during a search or incriminating statements made by the defendant. Some of the most common arguments are:

  1. That evidence was obtained as a result of an unlawful search or seizure, in violation of the Fourth Amendment; 
  2. That a defendant was not advised of his Miranda rights before speaking to authorities;
  3. That a defendant’s statement was “involuntary”, which violates the Due Process Clause of the Fifth Amendment; and
  4. Violation of the defendant’s Sixth Amendment right to counsel. 


In the majority of federal cases, the defendant pleads guilty and does not go to trial. When a defendant pleads guilty, it is generally done so in agreement with the prosecutor (i.e. a written plea offer with the terms of the plea). 

Throughout the life of a matter, a defendant has an absolute right to be informed of every plea offer made by the Government. The defense attorney will explain to the defendant the terms of the agreement, as well as the defendant’s exposure if the case goes to trial, but it is ultimately the defendant’s decision as to whether he or she will accept any plea offer.


Albeit not many, some cases ultimately go to trial. Depending on the severity and extent of the charges, a trial can last anywhere from a few days to even a few weeks – the duration of the trial is heavily contingent on the case. 

At trial, after opening statements, the Federal Government will present its case-in-chief first. The Government will call and examine its witnesses. Under the Sixth Amendment, the defendant has the right to “confront” all witnesses used against him or her. Once the Government rests it case, the defendant is then able to present its case. A defendant has the right to testify. Ultimately, it is the client’s decision as to whether he or she will testify, and the jury is not allowed to draw a negative inference from the defendant’s decision to forego testifying. 

After the defendant rests, the trial will then move to closing arguments. The Federal Government will have an opportunity to present its closing argument first. The Defendant will then present its closing argument, and the Federal Government will then have another opportunity. See Fed R. Crim. P. 25.

Following closing arguments, the case is submitted to the jury. Before deliberating, the Judge presiding will instruct the jury on the relevant law by way of “jury instructions.” Ultimately, the Federal Government has the burden of proof. The Government must prove “beyond a reasonable doubt” that the defendant committed the crime(s) in question. The defendant has no obligation to prove his or her innocence. 

The jury will generally consist of 12 jurors, unless the parties stipulate to a smaller jury or the Judge finds it necessary to excuse a juror. See Fed. R. Crim. P. 23(b). In order to convict a defendant, the jury verdict must be unanimous. See Fed. R. Crim. P. 31(a). 

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