Reporting on Criminal Cases – Journalist’s Guide
Following an indictment or arrest, most criminal cases are resolved before trial, often with a guilty plea.
On this page:
Criminal cases involve an allegation by the government that an individual or entity violated the criminal laws of the United States. Read additional information about criminal cases. Except where noted in Sealed Documents and Closed Hearings and in Older Documents, criminal case records are available in PACER.
Although a defendant may be arrested during the commission of a crime, most criminal cases that attract media attention begin with a federal investigation. Generally, this involves the U.S. attorney’s office in coordination with a law enforcement agency, such as the FBI, the Drug Enforcement Administration, or the Securities and Exchange Commission.
Most investigations remain confidential, with prosecutors and investigators presenting evidence in closed session to a grand jury. A magistrate judge or district judge may authorize search warrants, also in closed hearings. Warrant applications remain sealed until after a search is conducted – and sometimes until after an arrest is made or an investigation is closed.
Courthouse beat reporters may find it useful to review unsealed warrants regularly, as the application documents can provide an early window into the facts of a criminal investigation. In particular, a supporting affidavit – written by the lead law enforcement agent to supply the judge with evidence of probable cause – offers a detailed account of the allegations. The one-page warrant application includes information about the defendant.
Clerk’s offices maintain search warrant applications in widely varied ways. Ask local courthouse staff for the easiest way to review these documents routinely. However, some courts do not keep them at all, instead returning them to the U.S. attorney’s office.
In most felony cases, prosecutors present evidence to a grand jury. Grand juries are composed of 16 to 23 citizens, who hear a wide range of criminal cases and decide whether there is evidence to justify indictments sought by federal prosecutors. Grand juries are seated for up to 18-month terms, but their service can be extended an additional six months if needed by an order from a district judge.
Extensive information on grand juries is available in the Handbook for Federal Grand Jurors. Grand juries are formally supervised by a district judge, often the chief judge, but for all practical purposes, they function from day to day under the auspices of the U.S. attorney’s office. Only prosecutors present evidence before a grand jury, and neither the accused nor his or her lawyer is present when a grand jury meets.
An indictment is a road map to what the prosecution intends to prove at trial.
To return an indictment, a minimum of 12 members of a grand jury must find probable cause. Grand jurors are prohibited from discussing case-related information with the media or others.
Grand jury indictments are returned to the district court – usually to a magistrate judge – in a closed court hearing, and often are sealed until after an arrest is made. Indictments list the offenses allegedly committed by defendants and describe the facts supporting those allegations. An indictment is a road map to what the prosecution intends to prove at trial.
The defendant’s arrest, when it follows a felony indictment, begins a series of three preliminary proceedings in open court. They are the initial appearance, the detention hearing, and the arraignment. The first two always are before a magistrate judge.
The initial appearance must take place “without unnecessary delay,” under Rule 5 of the Federal Rules of Criminal Procedure, and it typically occurs within hours of an arrest. The defendant is advised of the charges, his or her rights are explained by the judge, and counsel is appointed if the defendant cannot afford a lawyer.
The prosecutor also is asked whether the government will seek to detain a defendant pending trial. If the answer is no, the magistrate judge will determine any conditions of release and order the defendant freed. If the prosecution seeks to hold the defendant, a detention hearing will be scheduled for three days after the initial appearance, in accordance with the Bail Reform Act of 1984.
The detention hearing determines whether the accused must be held in jail until trial. Prior to the hearing, a pretrial services officer files a report with the judge, based on interviews with the defendant, family members, and others who have relevant information.
The report, which recommends whether the defendant should be released and under what conditions, is not public, and it is not binding on the magistrate judge. But if the judge releases a defendant pending trial, the conditions of release are listed in a court order, which is public.
During the detention hearing, both sides may present evidence and cross-examine the other side’s witnesses.
Federal law requires that individuals be released on personal recognizance or unsecured appearance bond (that is, without putting up any money or other asset as security) unless, under the Bail Reform Act, 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.”
If the judge determines that a person presents a flight risk or a danger to the community, the judge still may order release subject to certain restrictions, such as requiring a secured bond, forfeiture of passport, electronic monitoring, or home confinement. The Bail Reform Act requires that a judge choose “the least restrictive” conditions that protect the community and ensure the defendant’s appearance in court.
Under certain circumstances, a judge is to presume that a defendant cannot be released safely. These include cases that involve an act of terrorism, federal drug offenses carrying a penalty of 10 years or more in prison, possession of a firearm during a crime of violence or drug trafficking crime, and certain offenses involving minors. The accused may present evidence at the detention hearing to rebut the presumption that detention is necessary.
Once a magistrate judge has ordered the detention or release of a defendant, either party can obtain a review of that decision by a district judge. Detention orders also may be appealed to the court of appeals after a district judge’s ruling.
The arraignment is a formal reading of the charges. In response, the accused is expected to enter a plea of guilty or not guilty. At this time, the accused may request a jury trial or a bench trial before a judge. Some judges also schedule the trial date and dates for motion hearings at the arraignment.
A defendant can be arrested without an indictment. When an arrest is made during the alleged commission of a crime, the lead investigator submits a written criminal complaint.
In addition, a federal prosecutor may, without going to the grand jury, file charges in a document called a “criminal information.” An information sets forth the same kinds of allegations and facts that would be contained in an indictment.
When there is no indictment, one additional early proceeding is required: the preliminary examination hearing, in which the prosecution must convince a judge that there is probable cause to proceed with the case. A defendant may choose to waive the preliminary examination hearing. If the judge finds probable cause, or if the defendant waives the hearing, the judge will require the defendant to appear for further proceedings.
The prosecution and defense often file pretrial motions, asking the judge to decide specific issues before the trial begins. Certain motions must be made before trial or the issue will be deemed waived.
Some common pretrial motions that may be filed by the defense:
- Motions to dismiss the charges
- Motions for access to the prosecution’s evidence
- Motions to suppress certain pieces of evidence, for instance evidence found as a result of a search that may have violated the individual’s Fourth Amendment rights
- Motions to relocate the trial through a change of venue, claiming, for instance, that pretrial publicity in the local news media will make it impossible to select an impartial jury in the original venue
- Competency motions asking a judge to postpone the trial on the grounds that a defendant is not able to understand the proceedings or to assist in his or her defense – essential elements of a fair trial. If such a motion is granted, all trial activity ceases, and there is no determination of guilt or innocence. A trial may occur at a later date if the defendant’s legal competence is restored through medical or other treatment.
This phase of a case is known as motion practice. A judge may decide motions based purely on written briefs, or set a hearing if oral argument of the issues or evidence from witnesses will aid in a decision.
Nearly 90 percent of federal criminal cases are resolved by a guilty plea. Many of these cases involve a plea agreement: The defendant pleads guilty and forgoes a trial in exchange for the prosecutor's dropping some charges and/or recommending a more lenient sentence. During the plea bargaining process, prosecutors often require defendants to waive the right to appeal a conviction.
Ultimately, a judge must approve the terms of a plea agreement.
Ultimately, a judge must approve the terms of a plea agreement. Two documents are filed with the court at the plea hearing: the plea agreement, outlining the specific charges to which the defendant pleads guilty, and a statement of facts describing what the defendant admits to doing. Both generally are available only after the hearing has concluded.
During the hearing, the judge will conduct a plea colloquy in which the defendant is informed of the nature of the charges to which he or she is pleading guilty and the rights that are being waived. Before accepting the plea, the judge must be satisfied that a guilty plea is voluntary and legally appropriate.
If the defendant pleads guilty, a sentencing hearing is scheduled. If he or she does not plead guilty, the case will proceed to trial.