Journalist's Guide

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Glossary

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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.

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.

Pretrial Motions and Hearings

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.

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.

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