This is a portion of a letter I sent to an attorney in Colombia and Mexico that may be of interest to those of you unfamiliar with the federal criminal process. My explanation of the process begins after the defendant’s attorney receives the evidence from the government and engages in plea negotiations with the prosecutor:
After the evidence (“discovery”) is given to the accused, the defense attorney will review the evidence and a meeting with the prosecutor takes place. For the sake of argument, suppose this meeting leads to no agreement, be it because the defendant denies his guilt, or is unable or unwilling to cooperate. Then, all the parties attend the status conference previously set by the defendant’s judge. Being advised that there will be no plea of guilty, the judge will then set a motion schedule with the dates when the defense lawyer must file motions, when the government must respond, when the defense lawyer must reply to the responses, and when the parties will appear before the judge for his decisions on the motions. After the motions have been filed and responded to, the parties appear before the judge, whereupon he hands down his decision. There may be hearings on the motions if the judge believes that hearings are warranted and after those hearings the case will be set down for trial. That, essentially, is what happens before trial, an inherently adversarial system.
The trial starts with the selection of the jury. The jury is picked from a pool of citizens either from the list of names of licensed drivers or from the voter registration list. The lawyers submit questions they want the judges to ask the jurors to determine if they can be fair (for example: “would anyone feel that just because he defendant is indicted, he must be guilty?”). Then, depending on the jurisdiction, attorneys may have an opportunity to mount a “challenge for cause” argument or use one of a limited number of “peremptory” challenges, where for any reasons a juror may be challenged.
Once the jury is selected, the trial begins with “Opening Statements.” First, the prosecutor tells the jury what the case is about and how he intends to prove the guilt of the defendant beyond a reasonable doubt. Then the defense lawyer tells the jury what his defense will be, what evidence he will present, if any, why witnesses may be lying, why certain facts inferred from telephonic interceptions may have innocent explanations, and what evidence he will present that will support his defense narrative.
Thereafter the prosecutor will call his first witness. He will conduct a “direct examination.” Then, the defense lawyer will cross-examine the witness, and the prosecutor will “re-direct” his examination, but only with respect to subjects brought out by the defense during cross-examination. He cannot ask questions simply because he forgot to ask them on his direct examination. There are no do-overs. The process continues until the government “rests” (i.e. finishes) its presentation of the evidence. Motions are then made by the defendant to dismiss the case on the grounds that the evidence presented, even if true, is insufficient to convict the defendant and should not be allowed to go to a jury. Rarely does a judge grant the motion, especially where credibility is an issue, since credibility is a factor that only a jury can determine. After the motion to dismiss is decided and presumably denied, the defense’s case begins.
The defendant has the right to call witnesses or not, to testify or not and the judge will tell the jury, if requested, that those are “rights” of the defendant. The defendant then “rests.” The prosecutor may present rebuttal evidence limited solely to issues raised by the defense in its case. The defendant, through discovery, will know what the evidence will be. There are no ambushes in criminal law, nor should there be.
After the prosecutor’s “rebuttal,” the trial ends. The judge then instructs the jurors on the law and how they must apply it to the facts presented by the prosecutor. He will tell them that just as he cannot question their judgment as to facts, they cannot question his judgment as to law. The jury then retires, deliberates and returns a verdict. If the verdict is “not guilty,” the defendant is discharged from custody. However, in an alien’s case, the defendant would be detained in an ICE detention center pending deportation or transferred to another district, should he have been requested in extradition to another district on other charges.
If the defendant is found guilty, there will be an adjournment for sentencing in order to permit the defendant’s lawyer to file motions and present a pre-sentence report, arguing why the defendant should receive a lenient sentence. If his motions are denied, the defendant proceeds to sentencing.
The sentence is based on “3553” [18 USC 3553(a)] sentencing factors, which include the consideration of the Federal Sentencing Guidelines. The defendant has the right to appeal to an appellate court as a matter of right. If defendant loses his appeal, he can petition the Supreme Court to hear his claim, but he does not have a “right” to have the Supreme Court hear it. The Supreme Court accepts only 60-70 cases out of thousands submitted for review—only those that will have a far-reaching effect on all cases in the United States will be accepted for review, like Obamacare for example. If the petition to hear his case is denied, sometimes there are post judgment motions that can be made. But that, in a nutshell, is the criminal process in the United States.