Everything You Need to Know About a Federal Criminal Trial

It can be intimidating to consider an appearance in federal court, but understanding how a trial works and the potential outcomes can limit stress and anxiety around the experience.

However, you should also understand that a federal criminal trial is serious and the outcome could substantially change your future. It is necessary to be fully prepared for a federal criminal trial and have full faith in the defense lawyer representing you at trial.

If you have been charged with a federal crime, our attorneys are here to help.  

What is the Purpose of a Criminal Trial?

A federal criminal trial is the final determination on your guilt or innocence.  It is a formal proceeding that follows specific laws laid out by the U.S. Constitution and Congress.

The purpose of a federal criminal trial is to protect your right to due process and uphold federal law. While the prosecution and defense both present evidence before a judge and jury.

In most instances, this evidence is presented before a jury, with the judge acting more as referee. When a federal criminal trial is held before only a judge, it is called a bench trial.

“Standard of Proof” During Trial

In every criminal trial, the burden of proof is on the prosecutor, and the defendant is innocent until proven guilty. This burden on the prosecutor is one of the cornerstones of the U.S. criminal justice system. A prosecutor must show that beyond a reasonable doubt the evidence shows the defendant committed a federal crime.

That means that a federal defense lawyer must use whatever evidence there is to create doubt in the mind of the jury.

Reasonable doubt can come from:

  • Presenting logical and possible alternative theories of the case;
  • Creating doubt around witnesses and the trustworthiness of this testimony;
  • Show the defendant had an alibi for the time and place of the criminal offense; or
  • Making arguments that a procedural defense requires acquittal of the charges, for example, that the defendant acted in self-defense or suffers from insanity.

If a federal defense lawyer does show that there is doubt to the guilt of the defendant, then the jury (or judge in a bench trial) must acquit.

What Happens Before a Federal Criminal Trial?

You don’t go from arrest to trial in the federal court system. Instead, federal criminal defendants are required to follow a series of explicit and mandatory court procedures that both:

  • Protect the constitutional rights of the defendant; and
  • Allow for a systemic and regulated approach to the federal courts.

In fact, it can take months from the time of your arrest for a federal criminal trial to take place. What happens in those months before your trial date?

  1. Criminal complaint or indictment: There are two starts to a federal criminal trial; either a federal criminal complaint is filed by the United States Attorney’s Office or a grand jury returns an indictment for a specific crime or crimes. While a criminal complaint is a sworn statement of the facts and circumstances of a particular crime or criminal enterprise, a grand jury indictment is much more involved.

Grand jury proceedings are entirely confidential and closed to the public. A U.S. prosecutor, typically an Assistant United States Attorney, will present evidence to the grand jury and witnesses can be called. The grand jury must decide if there is probable cause to indict a defendant. This is a far lower standard of evidence than at a federal criminal trial.

  1. Initial appearance: Following a complaint or indictment by a grand jury, federal law enforcement has the authority needed to arrest an individual for a federal crime. The first appearance in court occurs soon after arrest. The standard in place by the federal courts is “within a reasonable amount of time.” Most federal courts hold an initial appearance within 72 hours of arrest.

An initial appearance is before a federal magistrate, not a district court judge. During this proceeding, the defendant is read his or her constitutional rights and can file a financial affidavit to show an inability to afford an attorney.

  1. Federal arraignment: A federal arraignment is the first formal court appearance in district court. The district court judge presiding over the criminal case will also preside over the federal arraignment. It is during this early hearing that the criminal charges against the defendant are read allowed and provided to the defendant. The defendant must enter a plea of guilty, not guilty, or no contest to each charge of the indictment. Defense counsel can and should be present for this crucial hearing.
  2. Bail hearing: Often a federal bail hearing is held in tandem with the federal arraignment, but not it is not a requirement and at the discretion of the judge, or request of the parties, can be held at a later date. During the federal bail hearing, the availability and conditions of pretrial release are determined, bail is set, and the defendant is either remanded to federal prison or released until the date of a criminal trial.
  3. Pretrial motions: During the discovery phase of a criminal trial, which occurs in the months following a federal arraignment, the defense and federal prosecutor can file pretrial motions with the court. These motions include a variety of requests from the court that range from dismissing the charges to holding closed hearings. When needed, the judge will hold a hearing to issue a decision on these pretrial motions.
  4. Preliminary hearing: At the preliminary hearing, the final step in the criminal process before a federal trial, the U.S. Attorney General, through a federal prosecutor, must demonstrate that there is enough evidence against the defendant to warrant a trial. Witnesses can be subpoenaed and evidence presented in this shorter, more concise version of the actual federal trial. The standard required to move forward is also much lower than beyond a reasonable doubt.

Court Procedure in a Federal Criminal Trial

Often, the most nerve-wracking part of a federal criminal trial is that first day at trial. The courtroom is located in the federal courthouse, many of which are ornate, old, and imposing. Therefore, understanding what will happen when you enter the courtroom for the start of the trial can ease many concerns and worries. Here’s what you can expect.

Who Are the Participants in a Criminal Trial?

A courtroom can be crowded with interested parties, the general public, and press. We will cover the role of these individuals in a courtroom in the next section, but there are a number of people present that are active participants or have a direct interest in a criminal trial.


The individual charged with a crime, named in the indictment, and appearing for trial is the defendant. It is possible, in rare instances, for defendants involved in the same criminal activity or enterprise to be tried together in federal court.

United States Attorney

The federal government is the prosecution in every federal criminal case. In a criminal matter, the government is represented in court by a United States Attorney, also called a federal prosecutor. A United States Attorney is appointed by the President of the United States and confirmed by the Senate.

Assistant United States Attorney

A federal trial can also be handled by an Assistant United States Attorney. These federal prosecutors work in various federal offices around the United States and are authorized to prosecute cases on behalf of the federal government. Unlike the United States Attorney, an Assistant doesn’t require the same rigorous appointment and confirmation process.

Federal Judge

A federal criminal trial is held in one of the 93 federal district courts in the United States, including those courts located in United States territories of Puerto Rico and Guam. The judges that preside over a federal district court are appointed by the United States President, confirmed by the Senate, and serve for a lifetime appointment.

Federal Jury

There are two types of federal juries. The federal grand jury is empaneled to make a decision on an indictment. A grand jury can have between 16 to 23 members, and concurrence of 12 jurors is required for an indictment. Separately, a petit jury is the jury that hears evidence at a criminal trial and returns a verdict. The jury will hear all evidence, receive instruction from the federal judge, and then deliberate to reach a decision.

In some instances, a federal jury is sequestered for the duration of a federal trial and deliberations to prevent influence by the media and any other individuals. The petit jury is instructed to return a verdict or guilty or not guilty on each charge of the indictment, and in federal criminal cases, the decision must be unanimous. All 12 jurors must reach the same outcome, or the trial is declared a mistrial, and the process begins again. When all 12 jurors don’t reach the same verdict, it is called a hung jury.

Witnesses and expert witnesses:Witnesses provide crucial evidence in a federal criminal case, as the explicit rules against hearsay prevent either party from presenting any non-physical evidence that wasn’t seen by someone available to give testimony. Witnesses can only describe what they saw at the time of a crime or events around criminal activity, as well, a witness can add color and other information to physical evidence presented at trial.

Who Is Allowed in the Courtroom?

Members of the public

Federal cases are public proceedings. An important case in the 1980’s determined that members of the public, including the press, have a right to attend and watch federal criminal trials. This decision also permitted public access to other parts of a federal case, such as arraignment, jury selection, and sentencing.

There are exceptions to this general rule; members of the public can be barred from a federal court case when one of the parties requests a private trial and has an overwhelming interest in a closed trial. Typically, a closed trial is afforded to a defendant when the case has received substantial negative attention in the media, or highly sensitive and confidential information is part of the evidence at court. A motion for a closed hearing should be made as part of the pretrial procedures.

When a federal criminal case is closed to the public, the restrictions must be no broader than necessary.

The Press and Media

The press and media’s role in covering federal court proceedings are considered instrumental in informing the public not present in the courtroom of events and trial outcomes. Through federal laws and the same 1981 decision that covers public access to federal courts, the media is granted substantial access to federal court proceedings, including those steps occurring before and after the actual trial.

Electronic equipment

The use of electronic and camera equipment is governed by a set of rules called the Judicial Conference of the United States and the Federal Rules of Criminal Procedure. According to these guidelines, recording, filming, and the use of electronic devices in a federal courtroom is prohibited. Journalists and members of the public must take notes the old-fashioned way, by pen and paper.

Two circuit courts are piloting the use of electronic and recording equipment in their courtrooms. The Second and Ninth Circuits will provide both audio and video equipment for use in the courtroom when it is specifically requested. However, the judges sitting in these courts have latitude to deny requests for any recording.


In general, federal criminal courts do not allow witnesses to view or observe a federal criminal trial. This rule is strongly enforced before the witness gives testimony before the court, as the proceedings could influence and direct a witness’s testimony, and even after taking the stand, witnesses are generally barred from sitting in the courtroom, in the event the individual is called to give additional testimony.

Victims of the crime

If an individual or entity, other than the U.S. government, was harmed by the defendant’s alleged actions, the victim is permitted to attend the trial. Under the Victim’s Rights Clarification Act of 1997, a judge cannot bar a victim from attending trial merely because the victim might be called to testify. Rather, the judge must have reason to believe the victim’s testimony would be influenced by the court proceedings and have evidence or information to support this determination.

Steps in a Federal Criminal Trial

There are two main stages of any criminal trial. The guilt stage determines if a defendant is guilty or innocent, while the sentencing stage determines the criminal punishment for a guilty defendant. Within both of these stages of a criminal trial, there are several steps that take place.

These are the steps in the guilt stage of a federal criminal trial:

  1. The prosecutor gives an opening statement
  2. The defense has the option to make an opening statement or reserve the opening statement for the start of the defendant’s “case-in-chief.” Reserving an opening statement allows the prosecutor to immediately start giving evidence.
  3. The prosecutor presents the government’s case in chief; this includes physical evidence, witness testimony, expert testimony, and other forms of evidence.
  4. The prosecutor brings the government’s case to a close by “resting.”
  5. A federal defense lawyer presents the defendant’s case to the court using physical evidence, witness testimony, expert testimony, and other forms of evidence.
  6. Both sides are given the opportunity to cross-examine any witnesses put on the stand.
  7. The prosecution and defense are given an opportunity to make a final statement to the court and jury, called a closing argument. After closing arguments, the jury is given instructions and required to deliberate.

Legal Assistance in a Criminal Trial

The representation of a federal defense lawyer in a criminal trial is necessary. There are specific rules and procedural requirements that dictate what is allowed in a federal criminal court. Some examples include:

  • Closing arguments (only references to evidence presented in the courtroom);
  • Objections to witness testimony or motions by the prosecutor; and
  • When it is acceptable to approach the jury or judge’s bench.

What Is a Lawyer’s Role in the Courtroom?

While an essential part of your lawyer’s role is understanding the specific procedures of a criminal trial, the responsibilities and expectations of a defense lawyer extend much further. In the courtroom, a federal defense lawyer should:

  • Make an opening statement that lays out the basis for the defendant’s case and reasons for defense. The opening statement should preview the evidence your lawyer will present in court and give the jury an overview of your arguments.
  • Observe the evidence presented by the federal government and takes notes of weaknesses and new areas to create reasonable doubt in the case.
  • Protect your constitutional right to a fair trial by objecting when the federal prosecutor has ignored or violated the rules of evidence or procedure during the trial.
  • Cross-examine any witnesses for the prosecution.
  • Question witnesses, call and establish the qualifications of an expert witness, and move any physical evidence into the court record.
  • Protect and uphold all witnesses for the defense through objections during the federal government’s cross-examination of defense witnesses.
  • Give a closing argument to the court that recalls the evidence presented and the strengths of your case, including a call for the jury to find that the prosecution’s burden of proof, beyond a reasonable doubt, wasn’t met.

Of course, as these procedural steps are unfolding in a federal criminal trial, a defense lawyer is offering certain advice, counsel, and representation behind the scenes. You can rely on your defense lawyer to set the overall strategy presented in court, offer avenues for emotional and mental support during a trial, arrange meetings and check-ins throughout the course of the trial, and discuss next steps in the trial procedure with you along the way.

Federal Rules of Evidence – Rule 404

An Interview on with the Criminal Lawyer Groups Chief Paralegal

Alot of times we find ourselves in situations where we are either contacted by a law enforcement agencylaw firmor other potential individuals who are either under investigation or are being sued and are looking for the advice of counsel.   Sometimes we assess a matter and think that it’s only minor and can be resolved with a quick inexpensive resolution. 

The unfortunate part is that there are rules of evidence that allow the admission of prior bad acts to be considered by jurors in trying civil and federal criminal matters.  One of those provisions is the federal rules of evidence 404. 

Rule 404 

Under federal rules of evidence, Rule 404a defendant or victim may have to face their prior immoral or bad acts.  This means that uncharged crimes or improper conduct may be presented to the court in an effort for the opposing party (who could be a defense attorney or a prosecuting attorneyto prove: 

  • motive,
  • opportunity,
  • intent,
  • preparation 
  • plan,
  • knowledge,
  • identity,
  • absence of mistake or lack of accident. 

Federal Rule 404 is one of the highest litigated statutes in criminal law.  What happens is that the party seeking to admit evidence under Federal Rule 404 creates a trial within a trial. 

What Do You Mean By a “Trial Within a Trial?” 

For example, an individual was arrested and criminally charged for tax fraud based upon having filed false tax returns. 

The person is charged with individual counts for each tax return that is filed and, in the event that there’s an additional 50 tax returns that were not filed, (and the person was never charged or indicted) the government will move on their 404 to have the other false tax returns and filers become a part of the trap. 

Not only would the defendant then have to present a defense against the actual indicted charges, defense counsel is then stuck in a position of persuading the judge that these additional 50 tax returns that were never indicted should not be included as a part of the defendant’s trial. 

What Must the Judge Consider Regarding Federal Rule 404? 

When a judge is considering whether the evidence sought to be admitted on 404 is admissiblethe judge is supposed to take into account whether the probative value of the evidence outweighs the potential prejudice to the defendant.  

What Would Make the Probative Value of Evidence Outweigh the Potential Prejudice to Defendant? 

When completing the analysis of whether the proposed evidence to be admitted should be heard by a jury and whether it’s probable that the value outweighs its potential prejudice to a defendant judges begin the analysis from a position that 404 is an inclusionary statute as opposed to it being the exclusionary statue that it was intended to be.  

In sumwhat that means is that – in most cases – judges rule in favor of admitting all evidence against defendants. The only break from this inclusionary approach that judges have used to allow the emission of for evidence can be found in the Seventh CircuitThird Circuit and Forth circuits of the United States federal court system 

In the remaining circuits from 1-9 you will find it common for a defendant to face unrelateduncharged criminal conduct or allegations before a jury.  However, this evidence is not allowed to be used to prove a propensity to commit the crime that is alleged. 


A good example of 404 in action that was put on public display just late last year (2019) in the Southern District of New York was a trial of rapper Tekashi 6ix9ine.  At trial, the rapper testified against his co-conspirators. 

During that trial there was testimony elicited regarding uncharged crimes, unrelated crimes and unrelated immoral or “bad acts allegedly committed by the defendants who went to trial. 

Under thwindstorm of allegations that were charged – topped with allegations that were uncharged – the defendant was supposed to have a fair trial where the jury could just assess the evidence related to the specific charge crimes.  (Crimes charged included racketeering, gang affiliation and drug trafficking among other allegations.) 

How Does An Attorney Deal with 404 Evidence?

In our experience, dealing with 404 evidence requests against defendant it is the defense attorney’s obligation to attempt to persuade a judge that: 

  1. the evidence is highly prejudicial and of little or no relevance or probative valueor 
  1. that the point that the government is allegedly admitting the evidence seeking to submit their evidence to support is not a point of contention that is being argued by the defense during the trial or that The Nexus between the defendant and the alleged uncharged criminal conduct or immoral acts or tangential at best. 

You find that there’s a number of components that factor in on a case by case basis when it relates to 404B.  However, components that are not helpful to helping in defending overcome potential 404B evidence is the fact that the alleged criminal or immoral conduct was committed shortly after the charge criminal conduct – that type of evidence is still admissible. 

Also admissible is evidence that under normal circumstances may be deemed stale.  For example, an allegation of something that allegedly occurred 10 years ago is generally not successful in combating potential 404B evidence. 

Due to the existence of laws such as 404 – where judges generallyin most circuitslean heavily towards admitting this type of highly prejudicial evidence against defendants in trials and creating trials within trials – the best advice is though none of us anticipate ever going to trial on criminal or civil matterit is always best if when we are confronted with potential criminal or civil liability that we seek the advice of counsel. 

It can be these minor things that seem quickly resolved five years ago that may prejudice a jury against us five years later in an unrelated trial and result in our conviction – though we may in fact be innocent.  

Contact Our Experienced Federal Defense Team

If you don’t present a strong and strategic defense and respect these rules of the federal court, you have a higher chance of conviction. With our legal assistance, you’ll be prepared to present the best possible case with your attorney. Contact us.