THE INVESTIGATION

A defendant may be arrested in the course of allegedly committing a crime. But the criminal cases that attract media attention most often involve a protracted investigation prior to a defendant’s arrest. The investigation will generally be conducted by the FBI, but other federal agencies may be involved depending on the nature of the alleged crime (DEA for drug investigations, SEC for securities investigations, etc.).

To obtain a search warrant or arrest warrant, the law enforcement agent and an assistant U.S. attorney will have to make an application to a magistrate judge or district court judge. The applications will be accompanied by an affidavit filed by the lead law enforcement agent, which is meant to provide the judge with evidence of probable cause. Both documents can be valuable for reporters. The application itself – a one-page form – will include information about the defendant, and the affidavit will include an overview of the facts of the case.

To avoid public disclosure of the investigation, search warrant applications generally are sealed, at least until the search is conducted and sometimes until after the arrest is made. While they are sealed, the warrant application will typically show up on the court's docket under a title that gives away nothing about the substance of the case, such as "In re search warrant application."

But if a search warrant application is unsealed before an arrest, that provides a valuable lead that an investigation is underway. Courthouse beat reporters should review unsealed warrants on a regular basis. The ways that clerk’s offices file search warrant applications vary greatly from office to office; you’ll have to ask at your courthouse about the easiest way to routinely review the documents.

Prosecutors use three terms to describe people involved in investigations, and it is critical that you distinguish among them. A "witness" is someone who merely has information useful to the investigation. A "subject" of an investigation is a person whose conduct is within the scope of a criminal probe, although they themselves may not be suspected of breaking the law. A "target" is someone who is likely to be indicted. A subject of an investigation can become a target.

INDICTMENT

Before the target of an investigation is arrested, prosecutors generally will take the evidence they have gathered to a grand jury. Grand juries are composed of 16 to 23 citizens. Agreement by a bare majority is required to find probable cause exists that a crime was committed.

Grand juries are formally supervised by a district judge, often the chief judge, but for all practical purposes they function day-to-day under the auspices of the U.S. Attorney's Office. Only prosecutors present evidence before a grand jury, and a finding of probable cause – necessary to issue an indictment – is a relatively low standard of proof.

The indictment lists the crimes the defendant allegedly committed and describes the facts the government believes support those allegations. It is a roadmap to what the prosecution intends to prove at trial. Grand jury indictments are returned to the district court – usually to a magistrate judge – in a sealed court hearing. Indictments generally are unsealed after a defendant is arrested.

A criminal case also can begin without an indictment. In these cases, the lead investigator swears out a criminal complaint, called an "information," setting forth the same kinds of allegations and facts that would be contained in an indictment. Absent an indictment, the prosecution must convince a judge that there is probable cause to proceed with the case. These hearings are held in open court after the defendant has been arrested in a felony case. A defendant can agree to waive indictment and proceed with the case based on the criminal complaint, or can demand that the prosecutor seek an indictment.

DEFENDANT APPEARS IN COURT

Within hours of the defendant's arrest, he or she will make an initial appearance in court. Defendants are typically not represented by counsel at this hearing. They are advised of the charges they face, their rights are explained to them by the judge, and counsel is appointed if defendants cannot afford to hire their own lawyer. Defendants will be remanded to the custody of the U.S. Marshals Service at the conclusion of this hearing unless they are released, in which case conditions of release will be set.

Defendants are provided with the services of a court interpreter in all courtroom appearances when language is a barrier to the effective administration of justice.

If no indictment has been issued, the defendant will next have a preliminary examination hearing, at which the government will present its evidence. If the judge finds there is probable cause (or if an indictment has already been returned), there will then be a detention hearing, where it will be determined whether the defendant needs to be held in jail until trial. Both sides may present evidence at this hearing, as well as cross-examine the other side's witnesses.

The decision whether to release the defendant is governed by the Bail Reform Act of 1984 and subsequent amendments to it. The law presumes that defendants should be released on personal recognizance or unsecured personal bond (that is, without putting up any money or other asset as security) unless the judge determines "that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community."

The judge can put restrictions on defendants – such as requiring a secured bond, forfeiture of a passport, electronic monitoring of defendants' location, requiring they remain in their home, etc. But the judge must choose "the least restrictive ... condition, or combination of conditions, that ... will reasonably assure the appearance of the person as required and the safety of any other person and the community."

There are exceptions to the presumption that defendants should be released pending trial. The Act creates a rebuttable presumption that defendants should not be released under the following circumstances:

The defendant is accused of one of a list of crimes listed in the statute, and was previously convicted of committing one of the specified crimes while free on bail.

The judge finds there is probable cause the defendant committed a federal drug offense that carries a penalty of 10 years or more in prison.

The judge finds there is probable cause the defendant used a firearm to commit a felony.

To rebut the presumption and release a defendant, the judge must find that some condition or combination of conditions of release will assure defendants' appearance at trial and safeguard the community.

Prior to the detention hearing, a member of the court's Pretrial Services office will speak to the defendant and as many family members as possible. The officer will file a report with the judge, prosecutor, and defense counsel that makes a recommendation whether the defendant can be released and, if so, under what conditions. This is a recommendation only, and it is not binding on the judge.

A decision to release or detain a defendant that is made by a magistrate judge may be reviewed by a district judge on the motion of either party. (This is a kind of appeal, though the word "appeal" is not used to describe it.) Detention orders may also be appealed to the court of appeals after a district judge rules on them.

The last of the early hearings in a criminal case is the arraignment. The defendant's counsel is asked three questions:

Does the defendant waive a formal arraignment, at which the indictment would be read in its entirety?

How does the defendant plead, guilty or not guilty?

Does the defendant request a trial by jury? (If not, the case will be decided by the judge in what is known as a bench trial.)

If a formal arraignment is waived – as it almost always is – the hearing can be over in five minutes.

At the arraignment, some judges also schedule the trial date and dates for motion hearings. Under the Speedy Trial Act, criminal defendants are entitled to a trial that begins no later than 70 days from the date the indictment or information was filed, or from the date the defendant appears before a judge, whichever is later. The defendant can waive the right to a speedy trial, or the judge can waive the requirements of the Act by finding that the interests of justice require it.

These four hearings can be held at a single time under certain circumstances. In some courts magistrate judges hold all of these hearings; in other courts, some are held by magistrate judges while others are held by District Court judges. In most courts, the District Court judge who will handle the trial is assigned to the case after the initial appearance; check with the clerk's office for that judge’s name. Judges are assigned to cases at random, to avoid the possibility that prosecutors might "judge shop" their case to a jurist considered friendly to prosecution arguments.

PRE-TRIAL MOTIONS

A wide variety of motions may be made prior to trial. Among the most common that are filed by the defense are:

Motions to relocate the trial through a change of venue, claiming pretrial publicity will make it impossible to select an impartial jury.

Motions challenging the admissibility of certain pieces of evidence.

Motions seeking access to evidence in the possession of the prosecution.

This phase of the case, known as motion practice, occurs primarily on paper. Only if a judge feels that oral argument of the issues or evidence from witnesses would aid in a decision will a hearing be held.

During the pretrial phase, you also may encounter efforts to seal what hearings there are. Most pretrial hearings must be open to the public, but there are a complicated set of exceptions. Media organizations may decide to oppose the sealing of court records.

PLEA BARGAINS AND SENTENCING

More than 90 percent of federal defendants plead guilty. Some do so during the pretrial phase as part of a plea bargain, in exchange for the prosecutors' dropping some charges or recommending a more lenient sentence.

Two documents are filed with the court at the plea hearing: the plea agreement, which outlines what charges are being pleaded to and which are being dropped; and a statement of facts describing what the defendant admits to doing. Both generally are available only after the hearing has ended.

During the hearing, the judge will conduct what is known as the plea colloquy, in which defendants are informed of the rights they are giving up and the crimes they are admitting. At some point, the judge will ask the defendants to, in their words, describe what they did.

Sentencing is generally scheduled for a month or more after the plea hearing, to allow time for the staff of the court's Probation Office to prepare a presentence investigation report. The probation officer will speak to the defendant, family members, friends, and others as part of the investigation. The report is always filed with the judge, prosecutor, and defense counsel under seal. Since 1987, sentencing in federal court has been governed by the U.S. Sentencing Guidelines. They are set by the U.S. Sentencing Commission, a judicial branch agency created by Congress to make sentencing more determinate and lessen sentencing disparities.

The presentence report makes a recommendation as to how the guidelines rate the seriousness of the offense and the defendant's criminal history. Prosecutors and defense counsel will have made a similar estimate when they agreed to the plea bargain. The judge is bound by the Guidelines, but may depart upward or downward, subject to review on appeal. The judge is not required to follow the recommendations of the probation office or the parties. During the sentencing hearing, defendants are given a chance to tell the court anything they believe the judge should consider before imposing sentence.

JURY SELECTION

During jury selection, which is also known as voir dire, the lawyers, the judge or both will question prospective jurors about their backgrounds and their ability to be impartial. Prospective jurors may be struck from the panel in two ways. Lawyers may exercise a "challenge for cause," claiming the juror could not be impartial. If the judge agrees, the potential juror is excused. "Peremptory challenges" allow lawyers to remove a juror without stating a reason. Both sides are given a limited number of these peremptory challenges.

Jury selection in death penalty and other complex cases can take several weeks. In some courts, judges handling a high-profile trial will call in 200 or more jurors to fill out an extensive questionnaire, and then call in 20 or more a day to be questioned individually and challenged for cause. On the final day of jury selection in such cases, the qualified pool of jurors is called in, both sides exercise their peremptory challenges, and the jury is seated.

You should never contact a prospective juror or his or her family or close friends, nor should you speak about the case if you know you are in the presence of a juror while a case is active. This is considered jury tampering—a crime.

In cases in which judges are concerned about the safety of jurors, the jury may be anonymous, identified only by numbers. No one, other than the person in the clerk's office who arranges their payment (jurors are paid $40 per day), will know their names in such a case. A judge may decide that a need exists to sequester a jury—keep all jurors in the court’s custody until a trial concludes.

OPENING STATEMENTS

It is opening statements and closing arguments. At the beginning of a trial, lawyers are limited to telling the jury what they believe the evidence will show. Only at the end can they marshal those facts to make an argument the defendant did or did not commit the crime.

Prosecutors go first because they bear the burden of proving beyond a reasonable doubt that the defendant committed the crime. Defense counsel are not obligated to make an opening statement or present any evidence, since the defendant is presumed innocent. Defense counsel may choose to make an opening statement at the conclusion of the initial set of prosecution witnesses, known as the prosecution's case-in-chief.

TESTIMONY, EXHIBITS AND TRANSCRIPTS

Some individual judges or local rules of court require the prosecution to file a list of potential witnesses prior to trial, along with a list of exhibits that may be entered into evidence. These lists can provide a handy reference for reporters. Check the case file about a week before trial begins.

Prosecution witnesses take the stand first. Each can be cross-examined by the defense. If a witness is cross-examined, the prosecution is permitted a "redirect," asking the witness only questions related to the topics discussed during cross-examination. You are free to speak to witnesses after they are excused by the court, unless the judge indicates the witness is subject to recall to the stand later in the trial. The witness, however, is not obligated to respond to your questions, and often may be advised by counsel not to do so.

At the end of the prosecution's case-in-chief, the defense likely will make what is known as a Rule 29 motion. Named after Federal Rule of Criminal Procedure 29, the motion asks the judge to acquit the defendant because the prosecution's evidence is insufficient to sustain a conviction. This motion may also be made after the conclusion of testimony by the defense witnesses. These motions are almost always denied because the prosecution’s case is rarely that weak. But if the motion is granted, the defendant goes free; the prosecution cannot appeal such a ruling and the defendant cannot be tried again in federal court on the same charges because of the constitutional protection against double jeopardy. If, however, the judge waits to rule on the motion until after the jury reaches a verdict, and that verdict is guilty, prosecutors can then appeal the judge's acquittal.

During testimony, both sides will seek to introduce pieces of evidence. If the judge allows an item to be admitted, it becomes part of the public record of the case and should be available for members of the media to inspect and copy. However, your interest in seeing the item sometimes conflicts with the court's interest in insuring none of the evidence is tampered with. This is another of those issues you'll want to broach with your contact person in the clerk's office. Getting a copy of the exhibit from the party that introduced it is another option you can pursue.

Transcripts of courtroom proceedings are provided to the court and litigants by a court reporter. Many court reporters are trained in what is called real-time court reporting, which makes a daily copy of a transcript available, for a fee.

CLOSING ARGUMENTS

The prosecution goes first, followed by the defense and a rebuttal by the prosecution. Because the prosecution has the burden of proof, it gets the final word.

Jury Instructions, Deliberations, and the Verdict

After the closing arguments, the judge will give the jury its final instructions. Both sides may contest the content of those instructions because they can have an enormous effect on the jury's verdict.

During deliberations, the jurors may have questions about the evidence or the instructions. They will give a note to the Deputy Marshal or some court employee, who will take it to the judge. The judge will then call the lawyers back into court, discuss what the answer to the note should be, call the jurors back into the courtroom, and give them the answer.

Criminal juries must reach a unanimous verdict of guilty or not guilty. The jury may say at some point that it is hopelessly deadlocked. At this point, judges typically give the jury what’s known as an Allen charge. Named after a 1896 U.S. Supreme Court case, the Allen charge urges jurors to reconsider their opinions and try again to reach a verdict. If they attempt to do so but still report they are deadlocked, the judge may declare a mistrial.

In most federal courthouses, once a jury has reached a verdict, it is announced as soon as all the lawyers can get to the courtroom. You may have as little as 15 minutes warning.

Once a jury's members have been dismissed by the judge, you are free to speak to them. (The clerk's office may be willing to provide the names and addresses of the jurors, unless the jury is anonymous.) Still, no juror is obligated to speak with you.

In high-profile cases, the crush of media attention can be overwhelming for some jurors. In such cases judges will sometimes have court security personnel escort the jurors out a back door of the courthouse. You may want to suggest to your contact person in the clerk’s office that the judge ask any jurors who would be willing to speak to the media to remain in the jury room or convene at a specific location inside or outside the courthouse. That gives journalists the access they want, while providing a controlled environment in which the jurors can feel comfortable.

APPEALS

The losing party in a decision by a federal trial court usually has the right to appeal the final decision to a federal court of appeals. Similarly, a litigant not satisfied with a decision made by a federal administrative agency usually may seek review by a court of appeals. Parties who contest decisions made in certain federal agencies – for example, disputes over Social Security benefits – may be required to seek review first in a district court rather than go directly to an appeals court.

In a civil case, either side may appeal the judgment based on a jury verdict or bench trial. In a criminal case, the defendant may appeal a conviction based on a guilty verdict, but the government may not appeal if a defendant is found not guilty. Either side in a criminal case may appeal a sentence that is imposed after a guilty verdict if it departs from the sentencing guidelines.

If the dissatisfied party in the district court plans an appeal, the first step usually is to file a notice of appeal in the district court, which informs the court of appeals and other parties.

A litigant who files an appeal from a district court decision is known as an appellant. The term "petitioner" is used for a litigant who files an appeal from an administrative agency or who appeals an original proceeding. The appellant (petitioner) bears the burden of showing that the trial court or administrative agency made a legal error that affected the decision in the case. The court of appeals makes its decision based on the record of the case established by the trial court or agency. The court of appeals does not receive additional evidence or hear witnesses. The court of appeals also may review the factual findings made by the trial court or agency, but typically may overturn a decision on factual grounds only if the findings were "clearly erroneous."

THREE-JUDGE PANELS

Appeals normally are decided by panels of three judges working together. A panel may include a senior circuit or district judge, a district judge from a district court within the particular circuit, or a visiting circuit or district judge from another circuit. In general, judges are assigned to panels randomly. The judges may play no role in determining who will sit on which panel or in the assignment of cases to a particular panel. Indeed, the creation of the panels and the assignment of cases to individual panels are separate functions often performed by different court units.

Additionally, judges do not participate in cases in which their participation would constitute a conflict of interest or create an appearance of impropriety. In such circumstances, the judge should recuse himself or herself from the case.

The appellant presents legal arguments to the panel in a written brief, seeking to persuade the judges that the trial court committed substantial error, and that the trial court's decision should therefore be reversed. The party who prevailed in the trial court, known as the appellee (or respondent for administrative agency appeals), argues in a reply brief that the trial court was correct, or that any error made was not significant enough to affect the outcome of the case.

In the majority of circuits, most appeals are decided solely on the basis of briefs submitted to the court. In other circuits, the court more often renders its decision after oral argument, which is a structured discussion in which both sides present arguments on the legal principles in the dispute. Each side is given a short time, typically 15 minutes, to present its case, but the judges may interrupt to ask any questions they have. Oral arguments traditionally are open to the public.

Judicial Conference policy leaves it to the individual appellate courts to decide whether electronic and photographic coverage of oral arguments will be allowed. The Second and Ninth Circuits will consider requests for such coverage in civil cases. The Seventh, Eighth and Ninth Circuits make available on the Internet digital recordings of oral arguments.

Some time after the submission of briefs or after oral argument, the court of appeals will issue a decision, usually accompanied by an opinion explaining its rationale. A decision may be reached by a 3-0 or 2-1 vote. A decision will take into account and apply any relevant precedents, similar cases already decided by that court, or by the U.S. Supreme Court.

This decision will be controlling unless: (1) the judges send the case back to the trial court for additional proceedings (i.e. remand the case); (2) the court determines on its own that the matter should be reheard because of a potential conflict with a prior decision; (3) the parties seek a rehearing before the panel; (4) the parties seek review before the full appeals court (called an en banc session); or (5) the parties seek review in the Supreme Court.

Federal courts of appeals issue tens of thousands of decisions each year, and only a small percentage of them are taken to the Supreme Court, which grants review only to a fraction of the cases it receives. Opinions issued by the courts of appeals and by the Supreme Court are posted on the respective court web sites.

Adapted with thanks from Administrative Office of U.S. Courts, “A Journalist’s Guide to the Federal Courts.”

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