Federal Court Process

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

A federal criminal case moves through seven stages: investigation, pretrial, plea negotiation, trial, the presentence report, sentencing, and everything after sentencing. Each stage decides something specific, each is run by a different set of people, and each puts a different decision in front of you — and the deadlines that matter most are short, are triggered by events you may not notice, and are not the ones people expect.

This page is the map. It tells you where you are, what the stage you are in actually decides, roughly how long it takes and what governs the timing, and then sends you to the page that covers that stage in depth. It also does two things a stage page cannot: it sets out your constitutional rights across the whole case, amendment by amendment, in the federal versions that actually apply; and it explains how to work with a defense lawyer — what the relationship is, what is privileged and what is not, and which decisions in your case belong to you and nobody else.

Federal practice is its own system. It is not state practice with different letterhead. The prosecutor is an Assistant United States Attorney, not a district attorney. There is no bail schedule and, as a practical matter, no bail bondsman. There is no parole for offenses committed on or after 1 November 1987. The jury is twelve, and you cannot choose a judge-only trial without the government’s agreement. If you have been reading general criminal-law material and something below contradicts it, the difference is usually that the general material is describing a state court.

Nothing on this page predicts what will happen in any particular case, and nothing on it tells you that you qualify for anything. Timing varies by district, by judge, and by the complexity of the case. The figures below are what the rules and statutes say — ceilings, floors and defaults, most of which a judge can move.

The whole federal case in one table: stages, deadlines, and where each one is decided

This is the complete sequence, arrest to designation, with the deadline the rule actually sets and what starts the clock. Read the second column carefully: four different clocks run in the weeks after a verdict, and they are triggered by four different events. Most of these numbers are ceilings or defaults, not guarantees — where the rule says “at least,” “not to exceed,” “unless the court changes it,” or “to the extent practicable,” that language is part of the rule.

Stage	What happens, and what starts the clock	Typical timing or deadline	Rule or statute	Where we cover it in depth
Arrest → initial appearance	You are taken before a magistrate judge. The clock starts at the arrest.	“Without unnecessary delay” — no fixed number in the rule	Fed. R. Crim. P. 5(a)(1)(A)	Pretrial
Confession admissible despite presentment delay	Runs from the arrest or other detention.	6 hours (extendable where delay is reasonable given transport and distance)	18 U.S.C. § 3501(c)	Investigation
Detention hearing held	Held at the first appearance before the judicial officer, unless continued.	At the person’s first appearance, unless continued	18 U.S.C. § 3142(f)	Pretrial
Detention hearing continuance — defense	Runs from the defense motion to continue.	Not more than 5 days, excluding Saturdays, Sundays and legal holidays (absent good cause)	18 U.S.C. § 3142(f)	Pretrial
Detention hearing continuance — government	Runs from the government motion to continue.	Not more than 3 days, excluding Saturdays, Sundays and legal holidays (absent good cause)	18 U.S.C. § 3142(f)	Pretrial
Temporary detention (release, parole or immigration hold)	Runs from the order of temporary detention.	Not more than 10 days, excluding Saturdays, Sundays and holidays	18 U.S.C. § 3142(d)	Pretrial
Initial appearance → preliminary hearing, in custody	Runs from the initial appearance.	Not later than 14 days	Fed. R. Crim. P. 5.1(c)	Pretrial
Initial appearance → preliminary hearing, not in custody	Runs from the initial appearance.	Not later than 21 days	Fed. R. Crim. P. 5.1(c)	Pretrial
Arrest → indictment or information	Runs from arrest, or service of a summons, on the charge.	30 days, plus 30 more if no grand jury sat in the district in that period	18 U.S.C. § 3161(b)	Investigation
Grand jury vote needed to indict	The grand jury votes.	At least 12 of the 16–23 jurors	Fed. R. Crim. P. 6(a)(1), 6(f)	Investigation
Arraignment	Follows the filing of the indictment or information.	No deadline stated in the rule	Fed. R. Crim. P. 10	Pretrial
Pretrial motions	Set by the court’s scheduling order, or by the start of trial by default.	The deadline the court sets at or after arraignment; if it sets none, the start of trial	Fed. R. Crim. P. 12(c)(1)	Pretrial
Earliest permitted trial date	Runs from the date you first appear through counsel or waive counsel.	Not less than 30 days, unless the defendant consents in writing	18 U.S.C. § 3161(c)(2)	Trial
Charge → trial	Runs from the later of the filing (and unsealing) of the charge, or your first appearance before a judicial officer of the trial court.	70 days, less all delay excludable under § 3161(h)	18 U.S.C. § 3161(c)(1)	Trial
Retrial after mistrial or new-trial order	Runs from the date the action occasioning the retrial becomes final.	70 days	18 U.S.C. § 3161(e)	Trial
Retrial after reversal on appeal	Runs from the date the action occasioning the trial becomes final.	70 days, extendable to not more than 180 days	18 U.S.C. § 3161(e)	After sentencing
Government expert disclosure	Set by the court’s order or local rule.	The time the court sets, “sufficiently before trial to provide a fair opportunity for the defendant to meet the government’s evidence”	Fed. R. Crim. P. 16(a)(1)(G)(ii)	Pretrial
Jencks Act witness statements	Triggered by the witness’s direct examination.	After the witness testifies on direct examination — nothing is owed before	18 U.S.C. § 3500(a)–(b); Fed. R. Crim. P. 26.2(a)	Trial
Objection to jury instructions	Triggered by the court’s charge and the close of evidence.	Before the jury retires to deliberate	Fed. R. Crim. P. 30(d)	Trial
Judgment of acquittal, post-verdict	Runs from the later of the guilty verdict or discharge of the jury.	14 days	Fed. R. Crim. P. 29(c)(1)	Trial
New trial — grounds other than newly discovered evidence	Runs from the verdict or finding of guilty.	14 days	Fed. R. Crim. P. 33(b)(2)	Trial
New trial — newly discovered evidence	Runs from the verdict or finding of guilty.	3 years	Fed. R. Crim. P. 33(b)(1)	Trial
Presentence report to you, your lawyer and the government	Counts backwards from the sentencing date.	At least 35 days before sentencing, unless the defendant waives it	Fed. R. Crim. P. 32(e)(2)	Presentence report
Written objections to the presentence report	Runs from receipt of the presentence report.	Within 14 days	Fed. R. Crim. P. 32(f)(1)	Presentence report
Presentence report plus addendum to the court and parties	Counts backwards from the sentencing date.	At least 7 days before sentencing	Fed. R. Crim. P. 32(g)	Presentence report
Any Rule 32 time limit	The court’s own order.	Changeable by the court for good cause	Fed. R. Crim. P. 32(b)(2)	Presentence report
Correction of arithmetical, technical or other clear error	Runs from the oral announcement of the sentence.	14 days	Fed. R. Crim. P. 35(a), and Rule 35(c) for the trigger	After sentencing
Sentence reduction for post-sentencing substantial assistance	Runs from sentencing; requires a government motion.	1 year, on the government’s motion; later only on the three grounds in Rule 35(b)(2)	Fed. R. Crim. P. 35(b)	After sentencing
Notice of appeal — defendant	Runs from the later of entry of the judgment or order appealed, or the filing of the government’s notice.	14 days, filed in the district court	Fed. R. App. P. 4(b)(1)(A)	After sentencing
Notice of appeal — government	Runs from the later of entry of the judgment or order, or any defendant’s notice of appeal.	30 days, filed in the district court	Fed. R. App. P. 4(b)(1)(B)	After sentencing
Extension of the appeal period	Runs from expiration of the Rule 4(b) period.	Up to 30 additional days, on excusable neglect or good cause	Fed. R. App. P. 4(b)(4)	After sentencing
Motion under 28 U.S.C. § 2255	Runs from the latest of the four triggers in § 2255(f)(1)–(4).	1 year	28 U.S.C. § 2255(f)	After sentencing
Sentence commences	Triggered by being received in custody, or by self-surrender.	On the date received in custody for transport, or on voluntary arrival at the designated facility	18 U.S.C. § 3585(a)	After sentencing
Good conduct time	Accrues against each year of the sentence imposed.	Up to 54 days for each year of the sentence imposed by the court	18 U.S.C. § 3624(b)(1)	Good conduct time
First Step Act earned time credits	Earned by successful participation in programming or productive activities.	10 days per 30 days of successful participation; an additional 5 days per 30 for a prisoner assessed minimum or low risk over 2 consecutive assessments	18 U.S.C. § 3632(d)(4)(A)	First Step Act time credits
Prerelease custody (residential reentry center)	Applies to the final months of the term.	Not to exceed 12 months, to the extent practicable	18 U.S.C. § 3624(c)(1)	Halfway houses
Home confinement under § 3624(c)	Applies to the final portion of the term.	The shorter of 10 percent of the term or 6 months	18 U.S.C. § 3624(c)(2)	Home confinement
Supervised release advanced by First Step Act credits	Triggered by application of § 3632 time credits.	Up to 12 months earlier	18 U.S.C. § 3624(g)(3)	First Step Act

Three cautions apply to the whole table, and they are the difference between a useful table and a misleading one.

What starts the clock matters as much as the number. Four deadlines in the weeks after a verdict are all fourteen days, and they run from four different events. Rule 33 runs from the verdict. Rule 35(a) runs from the oral pronouncement of the sentence — Rule 35(c) says so in terms. Fed. R. App. P. 4(b) runs from entry of the judgment, which is normally some days after the hearing. And Rule 32(f) runs from receipt of the presentence report. Nobody misses a deadline because they cannot count to fourteen. People miss deadlines because they count from the wrong day.

Most of these are ceilings or defaults. The 35-, 14- and 7-day figures in Rule 32 are all subject to Rule 32(b)(2): “The court may, for good cause, change any time limits prescribed in this rule.” The twelve months of prerelease custody in § 3624(c)(1) is a maximum, doubly qualified — “to the extent practicable” and “a portion of.” Read the qualifier as part of the rule, because it is.

Nothing here is a prediction. The 70-day Speedy Trial Act limit is real, and § 3161(h) excludes a great deal from it — pretrial motions, competency proceedings, ends-of-justice continuances, co-defendant time. Federal cases routinely run well past a year without violating the Act. If someone has told you your trial will happen within seventy days of indictment, they have misread the statute.

The seven stages, and the decision you face at each one

Stage 1 — Investigation: does the government charge you at all?

What it decides: whether a federal prosecutor seeks an indictment, files an information, or closes the file. Who acts: federal agents (FBI, DEA, HSI, IRS-CI, OIG, Postal Inspectors) and an Assistant United States Attorney, with a grand jury issuing subpoenas. How long: there is no time limit on investigating. The Speedy Trial Act’s 30-day clock in § 3161(b) starts at arrest on the federal charge, not at the start of the investigation; how long the government may investigate is governed by the statute of limitations, not by the Act. Federal white-collar and conspiracy investigations commonly run for years before anyone is charged.

The decision you face: whether to speak to agents, whether to respond to a subpoena or a target letter yourself, and whether to hire counsel before you are charged. This is the stage with the largest gap between what a lawyer can do and what most people let one do. Everything you say in this window becomes evidence; there is no equivalent later stage in which to un-say it.

Go deeper: Investigation, and the pages on a federal target letter, a federal grand jury subpoena, and federal indictment.

Stage 2 — Pretrial: are you released, and what does the government have to give you?

What it decides: whether you are released or detained, what the charging document says, and what evidence you get. Who acts: a magistrate judge at the initial appearance under Rule 5, then the district judge. How long: the initial appearance happens “without unnecessary delay”; a preliminary hearing, if there is one, comes within 14 days in custody or 21 days out under Rule 5.1(c) — though most federal defendants never see one, because exception (2) in Rule 5.1(a) removes the hearing once a grand jury indicts, which usually happens inside that window.

The decision you face: whether to contest detention, whether to waive the preliminary hearing, and what to ask for in discovery. Federal release runs on conditions, not on a cash amount. Section 3142(b) directs release on personal recognizance or an unsecured appearance bond unless that will not reasonably assure appearance or will endanger others, and if it will not, the judge must impose “the least restrictive further condition, or combination of conditions,” that will. The statute also says flatly that “[t]he judicial officer may not impose a financial condition that results in the pretrial detention of the person.”

Go deeper: Pretrial.

Stage 3 — Plea agreements: do you resolve the case, and on what terms?

What it decides: whether there is a trial at all, what you plead to, and — depending on the type of agreement — how much the judge is bound. Who acts: you and your lawyer, the AUSA, and the court, which conducts the plea colloquy under Rule 11. How long: negotiation can begin before indictment and continue up to trial; the plea hearing itself is one court appearance.

The decision you face: whether to plead guilty. This is one of the four decisions that are yours alone, and the single most consequential choice most federal defendants make. The type of agreement matters more than the number in it. A Rule 11(c)(1)(B) agreement is a recommendation and, in the rule’s own words, “does not bind the court.” A Rule 11(c)(1)(C) agreement “binds the court once the court accepts the plea agreement” — and the court may defer accepting it until it has read the presentence report, or reject it, in which case you must be given the chance to withdraw the plea.

Go deeper: Plea agreements.

Stage 4 — Trial: does the government prove it beyond a reasonable doubt?

What it decides: guilt or acquittal, count by count. Who acts: a jury of twelve under Rule 23(b), the district judge, and both sets of lawyers. How long: trial may not begin sooner than 30 days after you first appear through counsel unless you consent in writing, and must begin within 70 days of the charge less excludable delay (§ 3161(c)). A federal trial itself may run from a couple of days to several months.

The decision you face: whether to testify — again, yours alone — and, before that, whether to waive the jury. Note the federal rule here, because it is different from many states: under Rule 23(a), you cannot elect a judge-only trial by yourself. It takes a written waiver by you, the government’s consent, and the court’s approval. The verdict must be unanimous (Rule 31(a)).

Go deeper: Trial, which also covers suppression motions and the Jencks Act.

Stage 5 — The presentence report: what facts follow you into sentencing and into prison?

What it decides: the factual record the judge sentences on, and — through Rule 32(i)(3)(C) — a document that travels with you to the Bureau of Prisons. Who acts: a United States Probation Officer, who interviews you, verifies your history, and calculates a proposed Guidelines range. How long: you get the report at least 35 days before sentencing; written objections are due within 14 days of receiving it; the report plus an addendum listing unresolved objections goes to the judge at least 7 days before sentencing.

The decision you face: what to object to, and in writing, on time. An undisputed portion of the report “may” be accepted by the court as a finding of fact under Rule 32(i)(3)(A). The rule’s phrase is “contained in or omitted from the report” — an objection can be that something is missing, which is how mitigation gets into the record.

Go deeper: Presentence report and PSR objections.

Stage 6 — Sentencing: what sentence does the judge impose, and why?

What it decides: the sentence — custody, supervised release, restitution, fines, and the special assessment. Who acts: the district judge, after hearing from your lawyer, from you personally, and from the government. How long: one hearing, usually a few months after a plea or verdict.

The decision you face: what to say in allocution, and what mitigation to put before the court. Under Rule 32(i)(4)(A) the judge must “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence” — that is allocution, and counsel speaking is not a substitute for it; the rule lists the two separately. The Guidelines are one factor of seven, listed fourth, in 18 U.S.C. § 3553(a), and the overriding instruction is the parsimony clause: “The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.”

Go deeper: Sentencing basics and the federal sentencing hearing.

Stage 7 — After sentencing: appeal, collateral attack, and custody

What it decides: whether the conviction or sentence is reviewed, and where and how the sentence is served. Who acts: the court of appeals, the sentencing court on a § 2255 motion, and the Bureau of Prisons on everything to do with custody. How long: the notice of appeal is due 14 days after entry of the judgment, filed in the district court (Fed. R. App. P. 4(b)(1)(A)). A § 2255 motion carries a one-year limitation running from the latest of four dates (§ 2255(f)).

The decision you face: whether to appeal — the fourth decision that is yours alone — and you face it immediately. Tell your lawyer, in writing, that you want to appeal. Do not wait to decide whether the appeal is a good idea; the notice preserves the right, and the merits get sorted out afterwards.

Go deeper: After sentencing, federal appeals, and § 2255 motions.

Your constitutional rights in a federal case

The first ten amendments to the Constitution are the source of most of what protects a person in a criminal case. Four of them do the heavy lifting: the Fourth, Fifth, Sixth and Eighth. Below is what each one actually says, what it gives you and at which stage, and — just as important — what it does not say. A great deal of harm is done by pages that state a constitutional right more broadly than the text supports and let a reader act on the overstatement.

The Fourth Amendment: searches, seizures, and warrants

The Fourth Amendment provides in full:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Two separate commands sit in that sentence. The first is a general prohibition on unreasonable searches and seizures. The second is a set of requirements for a warrant: probable cause, supported by oath or affirmation, and particularity — the warrant has to describe the place to be searched and the persons or things to be seized, not authorize a general rummage.

Notice what the text does not do. It does not define what counts as a “search” or a “seizure.” It does not define “probable cause.” And it does not specify a remedy — the exclusionary rule is not in the Amendment. In a federal criminal case, the practical route to a remedy is a pretrial motion to suppress, which Fed. R. Crim. P. 12(b)(3)(C) lists among the defenses that “must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.” Miss the motions deadline and the motion is untimely — though the court “may consider the defense, objection, or request if the party shows good cause.” That is a real risk and a real safety valve, and it is why the pretrial calendar matters so much.

There is no national number of days for pretrial motions. Under Rule 12(c)(1) the court “may, at the arraignment or as soon afterward as practicable, set a deadline”; and “[i]f the court does not set one, the deadline is the start of trial.” Any page telling you that you have thirty days to file pretrial motions in federal court is inventing a rule. Your judge’s scheduling order is the rule.

The Fourth Amendment also matters at the very front of a case, before any motion. A person arrested without a warrant is entitled to a prompt judicial determination of probable cause. In County of Riverside v. McLaughlin, 500 U.S. 44 (1991), the Supreme Court held that a jurisdiction providing that determination “within 48 hours of arrest will, as a general matter, comply with the promptness requirement.” Past 48 hours, “the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance,” and the Court was explicit that neither the convenience of consolidating pretrial proceedings nor “intervening weekends” qualifies. A hearing inside 48 hours can still be unconstitutional if the delay was “for the purpose of gathering additional evidence to justify the arrest,” motivated by ill will, or “delay for delay’s sake.”

Suppression itself is covered on the trial page, where it belongs; what matters here is knowing that the challenge exists and that it has a deadline.

The Fifth Amendment: the grand jury, silence, double jeopardy, and due process

The Fifth Amendment does four things that matter in a criminal case, and one that does not (the Takings Clause). Its text:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The grand jury. In federal court this is not theoretical. Fed. R. Crim. P. 7(a) requires that an offense punishable by death or by imprisonment for more than one year be prosecuted by indictment, criminal contempt excepted. The threshold is the statutory maximum, not the sentence anyone expects. A federal grand jury has 16 to 23 members and “may indict only if at least 12 jurors concur” (Rule 6(a)(1), 6(f)). You can give that up: under Rule 7(b) an offense punishable by more than a year “may be prosecuted by information if the defendant — in open court and after being advised of the nature of the charge and of the defendant’s rights — waives prosecution by indictment.” That waiver is the ordinary route into a negotiated pre-indictment plea, and it is your choice, made in open court, not something a prosecutor can do for you.

One point about grand jury secrecy that is stated backwards almost everywhere. Rule 6(e)(2) lists the people who “must not disclose a matter occurring before the grand jury” — grand jurors, interpreters, court reporters, recording-device operators, transcribers, government attorneys, and certain people to whom disclosure has been made. A witness is not on that list. The rule says in terms that “[n]o obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B).” If you are subpoenaed to a grand jury, you may tell your own lawyer what you were asked.

Silence. The privilege is that “[n]o person … shall be compelled in any Criminal Case to be a witness against himself.” At trial, the protection is strong and specific: in Griffin v. California, 380 U.S. 609 (1965), the Supreme Court held that the Fifth Amendment “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt,” because comment on the refusal to testify “is a penalty imposed by courts for exercising a constitutional privilege.”

Before trial, the picture is different in a way that has real consequences. Under Miranda v. Arizona, 384 U.S. 436 (1966), before custodial interrogation “the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed”; if he says he wants to remain silent “the interrogation must cease,” and if he says he wants a lawyer “the interrogation must cease until an attorney is present.” Miranda’s requirements survived a congressional attempt to displace them: Dickerson v. United States, 530 U.S. 428 (2000) held that “Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress.”

But Miranda applies to custodial interrogation. In a voluntary, non-custodial interview — the agent at your door, the request to “come in and talk” — a divided Supreme Court in Salinas v. Texas, 570 U.S. 178 (2013) allowed the prosecution to use the suspect’s silence, the plurality reasoning that a witness who “desires the protection of the privilege … must claim it” at the time, and that “[a] defendant normally does not invoke the privilege by remaining silent.” The practical lesson is not subtle: say the words. Silence is, in the Court’s phrase, “insolubly ambiguous.” “I am going to remain silent. I want a lawyer” is not rude and it is not an admission. It is the invocation.

Double jeopardy. “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The hard question is what counts as the “same offence,” and the federal test comes from Blockburger v. United States, 284 U.S. 299 (1932): “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” That is an elements test, not a facts test — which is why a single course of conduct can generate several federal counts that survive a double jeopardy challenge. Note too what is not double jeopardy: a hung jury. Rule 31(b)(3) says that where the jury cannot agree, “[t]he government may retry any defendant on any count on which the jury could not agree.”

Due process. The broadest of the four, and the source of the disclosure obligation that shapes every federal case. In Brady v. Maryland, 373 U.S. 83 (1963) the Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Giglio v. United States, 405 U.S. 150 (1972) brought impeachment material inside that rule: “[w]hen the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general rule” — and a promise made by one attorney in a prosecutor’s office “must be attributed, for these purposes, to the Government.” A cooperating witness’s deal is disclosable, and “the prosecutor did not know” is not an answer.

The Sixth Amendment: counsel, jury, confrontation, and compulsory process

The Sixth Amendment is the trial-rights amendment, and every clause of it is short enough to quote:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

Counsel. In a federal case this is not a courtesy. Johnson v. Zerbst, 304 U.S. 458 (1938) put it in jurisdictional terms: “The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.” A waiver has to be real — “an intentional relinquishment or abandonment of a known right or privilege” — and whether one occurred “must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”

The right attaches early. In Rothgery v. Gillespie County, 554 U.S. 191 (2008) the Supreme Court restated that “the right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty,” and held that attachment does not require a prosecutor to be aware of or involved in that proceeding. The Court explained the reason: “by the time a defendant is brought before a judicial officer, is informed of a formally lodged accusation, and has restrictions imposed on his liberty in aid of the prosecution, the State’s relationship with the defendant has become solidly adversarial.”

Attachment and appointment are not the same event, and it is worth being clear about that. As Justice Alito put it in concurrence, “the term ‘attachment’ signifies nothing more than the beginning of the defendant’s prosecution. It does not mark the beginning of a substantive entitlement to the assistance of counsel.” What the federal rules add is concrete: Fed. R. Crim. P. 44(a) provides that “[a] defendant who is unable to obtain counsel is entitled to have counsel appointed to represent the defendant at every stage of the proceeding from initial appearance through appeal, unless the defendant waives this right.”

The Sixth Amendment guarantee is a right to effective assistance, and the standard is the two-part test of Strickland v. Washington, 466 U.S. 668 (1984): the defendant “must show that counsel’s representation fell below an objective standard of reasonableness,” and separately “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” The Court also built in heavy deference: “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Ineffective-assistance claims are usually raised later, on § 2255, because the trial record rarely contains the facts they turn on. We cover the standard itself on our page on Strickland v. Washington.

Speedy trial. There are two distinct rights with this name and they are not the same. The statutory right is the Speedy Trial Act, 18 U.S.C. § 3161, with its 30-day charging limit and 70-day trial limit and its long list of excludable periods. The constitutional right is analyzed under Barker v. Wingo, 407 U.S. 514 (1972), which adopted “a balancing test, in which the conduct of both the prosecution and the defendant are weighed” and identified four factors: “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Length of delay is “to some extent a triggering mechanism”: until the delay is presumptively prejudicial, courts do not reach the other factors. Prejudice is measured against three interests — “to prevent oppressive pretrial incarceration,” “to minimize anxiety and concern of the accused,” and “to limit the possibility that the defense will be impaired” — of which the Court said the last “is the most serious.” Barker also warns why the claim is rarely granted: dismissal of the indictment “is the only possible remedy,” which makes courts cautious. A constitutional speedy-trial violation is one of the defenses Rule 12(b)(3)(A)(iii) requires to be raised by pretrial motion.

Public trial and jury. The jury clause has a federal shape worth stating plainly. Under Rule 23(b) “[a] jury consists of 12 persons unless this rule provides otherwise” — six-person criminal juries are a state phenomenon. Under Rule 31(a) “[t]he verdict must be unanimous.” And under Rule 23(a) a defendant entitled to a jury must be tried by one unless three things happen together: “(1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves.” In peremptory challenges the numbers are asymmetric: in a felony case “[t]he government has 6 peremptory challenges and the defendant or defendants jointly have 10” (Rule 24(b)). Co-defendants share the ten; they do not each get ten.

Notice of the accusation. The mechanism is the arraignment. Rule 10(a) requires that it “be conducted in open court” and consist of “ensuring that the defendant has a copy of the indictment or information,” reading it or stating the substance of the charge, “and then … asking the defendant to plead.”

Confrontation. Crawford v. Washington, 541 U.S. 36 (2004) reset this area: “Where testimonial evidence is at issue … the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” The Court declined to define “testimonial” exhaustively but said the term “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” The right is procedural, not a general reliability filter: the Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” And when the witness does appear and can be cross-examined, “the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”

Compulsory process. The right to “have compulsory process for obtaining witnesses in his favor” is exercised by subpoena. Under Fed. R. Crim. P. 17(a), “[t]he clerk must issue a blank subpoena — signed and sealed — to the party requesting it,” and a subpoena “may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates.” The provision most defendants have never heard of is Rule 17(b): “Upon a defendant’s ex parte application, the court must order that a subpoena be issued for a named witness if the defendant shows an inability to pay the witness’s fees and the necessity of the witness’s presence for an adequate defense,” and the costs and fees are then “paid in the same manner as those paid for witnesses the government subpoenas.” An inability to pay is not supposed to cost you a witness. Note the limit: Rule 17 cannot be used to get a witness’s prior statement — “Rule 26.2 governs the production of the statement.”

The Eighth Amendment: excessive bail, excessive fines, cruel and unusual punishment

The Eighth Amendment is one sentence:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

It does not define “excessive,” and it does not define “cruel and unusual.” In federal practice the bail clause matters less than people expect, because federal pretrial release is not a price. It is a set of conditions under 18 U.S.C. § 3142, and where the government seeks detention the fight is over whether “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community” — a finding as to safety that “shall be supported by clear and convincing evidence.” The judge weighs the four factors in § 3142(g): the nature and circumstances of the offense, the weight of the evidence, the history and characteristics of the person, and the nature and seriousness of the danger release would pose. Money appears only as one listed condition among many — § 3142(c)(1)(B)(xi) allows the court to require an agreement “to forfeit upon failing to appear as required, property of a sufficient unencumbered value, including money.”

The cruel-and-unusual clause does most of its everyday work after sentencing, in conditions of confinement and medical care inside the Bureau of Prisons. That is a different body of law from the one on this page, and we cover it on the prison side of the site rather than restating it here — see prisoner rights and what rights do prisoners have.

The presumption of innocence and proof beyond a reasonable doubt

These two are a single idea stated twice. The Supreme Court held in In re Winship, 397 U.S. 358 (1970) that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” The Court explained the relationship directly: the reasonable-doubt standard “provides concrete substance for the presumption of innocence — that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.'”

Two practical consequences follow. First, every element must be proved to that standard — not the case as a whole, but each fact necessary to constitute the offense. A defense that defeats one element defeats the count. Second, the burden never shifts. You do not have to prove innocence, explain anything, or produce a competing story. That is why a defense can consist entirely of cross-examination and a motion under Rule 29, which requires the court, on the defendant’s motion, to “enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.”

Working with your federal defense lawyer

An experienced federal defense lawyer is the difference between having rights and being able to use them. Knowing that you may decline to consent to a search is not the same as declining to consent to a search while four agents stand in your kitchen at six in the morning. Most of what follows is about how to make that relationship work.

What the relationship actually is

Your lawyer is the only participant in the case whose sole obligation is to you. The agents are building a case. The prosecutor represents the United States. The probation officer works for the court. The judge is meant to be neutral. Your lawyer is the one person in the room whose job is your interests, and the relationship is governed by duties of loyalty, confidentiality and competence that no other participant owes you.

What that looks like in a federal case, concretely: investigating the government’s version rather than accepting it; scrutinizing how the evidence was gathered and whether a suppression motion lies; standing between you and every request the government makes; developing a theory of defense; negotiating; and advising you on the decisions that are yours to make. In federal practice a great deal of that work happens before anyone sets foot in a courtroom — in the response to a subpoena, in the proffer that is or is not made, in the objections filed to a presentence report.

Your lawyer also has a role with your family. Family members are frightened, they want to help, and left to themselves they will make phone calls and send messages that end up in discovery. Routing that through counsel protects everyone.

Retained counsel, Federal Public Defenders, and CJA panel attorneys

Federal indigent defense is not “the public defender” in the loose sense people use for state court. It has a statutory structure, and the statute is the Criminal Justice Act, 18 U.S.C. § 3006A.

Every district operates under a plan that “[r]epresentation shall be provided for any financially eligible person who … is charged with a felony or a Class A misdemeanor,” and also for a juvenile alleged to have committed an act of delinquency, a person charged with a probation violation, a person charged with a supervised release violation or facing modification or revocation, a person subject to a mental condition hearing, a material witness in custody, “a person entitled to appointment of counsel under the sixth amendment to the Constitution,” and a person facing loss of liberty where federal law requires appointment. For a Class B or C misdemeanor, an infraction carrying possible confinement, or a motion under 28 U.S.C. §§ 2241, 2254 or 2255, the statute is discretionary: representation “may be provided” where the court “determines that the interests of justice so require.”

Two kinds of lawyer deliver that representation, and both are federal criminal specialists:

• A Federal Public Defender Organization, which under § 3006A(g)(2)(A) “shall consist of one or more full-time salaried attorneys,” supervised by a Federal Public Defender appointed by the court of appeals for a four-year term. Federal Defender lawyers are prohibited from private practice; federal criminal defense is all they do.
• CJA panel attorneys — private lawyers approved by the court and appointed case by case. The statute is emphatic that this is not a fallback: “Private attorneys shall be appointed in a substantial proportion of the cases.”

The appointment mechanics matter. “In every case in which a person entitled to representation … appears without counsel,” the magistrate judge or the court “shall advise the person that he has the right to be represented by counsel and that counsel will be appointed to represent him if he is financially unable to obtain counsel.” Unless you waive counsel, the court, “if satisfied after appropriate inquiry that the person is financially unable to obtain counsel, shall appoint counsel,” and that appointment “may be made retroactive to include any representation furnished pursuant to the plan prior to appointment.” Once appointed, the lawyer stays: representation runs “at every stage of the proceedings from his initial appearance before the United States magistrate judge or the court through appeal, including ancillary matters appropriate to the proceedings.”

Eligibility is not all-or-nothing, and this catches people out. If the court later “finds that the person is financially able to obtain counsel or to make partial payment for the representation, it may terminate the appointment of counsel or authorize payment … as the interests of justice may dictate.” The statute does not set an income threshold; it requires an “appropriate inquiry,” which is the district’s own financial affidavit and questioning.

Retained counsel is the other route. The trade-offs are real in both directions and worth talking about plainly with whoever you consult. What is not true is the folk belief that appointed counsel are not real lawyers. Federal Defender offices are among the most experienced criminal trial and appellate shops in the country, and CJA panels are vetted.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The question worth asking any federal defense lawyer, retained or appointed, is not “have you done cases like mine” but “what does the next ninety days look like, and what are you going to do in them.” A lawyer who can answer that concretely — which motions, which deadlines, what they need from you and by when — is a lawyer with a plan. Federal cases are lost in the calendar as often as in the courtroom.

Attorney–client privilege, and the four places it does not reach

Communications with your lawyer for the purpose of obtaining legal advice are privileged. In a federal criminal case, privilege is governed by federal common law: Fed. R. Evid. 501 provides that “[t]he common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege” unless the Constitution, a federal statute, or a rule prescribed by the Supreme Court says otherwise. The Supreme Court has explained the point of the privilege as being “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice” (Upjohn Co. v. United States, 449 U.S. 383 (1981)).

It is broad. It is not unlimited, and the four limits below are the ones that actually cost people.

1. It protects communications, not facts. Upjohn states this in terms: “The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.” As the Court quoted: “The client cannot be compelled to answer the question, ‘What did you say or write to the attorney?’ but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.” Telling your lawyer something does not make it unknowable.

2. It does not survive a third party. The privilege depends on confidentiality. A conversation a third party can hear — or is invited to join — is generally not confidential. This is not an abstraction if anyone in the case is in custody. Calls from a detention facility are recorded, and the phones are usually in the open. Unless you are on a line established for confidential attorney calls, treat everything as recorded and reviewed. Our page on attorney–client communications in the Federal Bureau of Prisons explains how legal mail and legal calls actually work inside, and it is worth reading before the first call rather than after.

3. There is a crime-fraud exception. In United States v. Zolin, 491 U.S. 554 (1989), the Court explained that the purpose of the exception “is to assure that the ‘seal of secrecy’ between lawyer and client does not extend to communications ‘made for the purpose of getting advice for the commission of a fraud’ or crime.” The line the Court drew is between past and future: the protection “ceas[es] to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing.” Telling your lawyer what you did is protected. Asking for help doing something is not. The threshold for a judge even to look at the material in camera is deliberately modest — “a showing of a factual basis adequate to support a good faith belief by a reasonable person” that review may reveal evidence establishing the exception.

4. You can waive it, sometimes without meaning to. Forwarding a lawyer’s email, discussing the advice with someone outside the relationship, or putting counsel’s advice in issue can waive the privilege as to that subject. One waiver is specific to this practice area and worth knowing in advance: filing a § 2255 motion claiming that your lawyer was ineffective generally opens up the communications relevant to that claim, because the lawyer has to be allowed to answer. We cover that on our page on attorney–client privilege waiver in a § 2255.

The four decisions that are yours alone

Most of what happens in a criminal case is your lawyer’s call. Which witnesses to cross-examine and how, which motions to file, what order to put on a defense, which issues to press on appeal — these are professional judgments, and the Supreme Court has been clear that they belong to counsel. In Jones v. Barnes, 463 U.S. 745 (1983), the Court held that an indigent defendant has no constitutional right “to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points,” and explained why: “[e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.”

But four decisions are not counsel’s to make. The same opinion identifies them: “the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.” The Court restated the same four in McCoy v. Louisiana, 584 U.S. 414 (2018): “The lawyer’s province is trial management, but some decisions are reserved for the client — including whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.”

The decision	Where it arises	What the authority says
Whether to plead guilty	Any time before verdict; the plea colloquy is Rule 11	Reserved to the client — Jones v. Barnes; McCoy. Rule 11(b)(2) requires the court to determine the plea “is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement)”
Whether to waive a jury	Before trial, under Rule 23(a)	Reserved to the client — but in federal court the waiver also needs the government’s consent and the court’s approval
Whether to testify	During the defense case	Reserved to the client — Jones v. Barnes; McCoy
Whether to appeal	Within 14 days of entry of judgment, Fed. R. App. P. 4(b)(1)(A)	Reserved to the client. In Garza v. Idaho, 586 U.S. 232 (2019) the Court said “the bare decision whether to appeal is ultimately the defendant’s, not counsel’s, to make”

McCoy pushed the principle one step further and it is worth knowing. Counsel may not concede guilt over the client’s express objection, even where counsel believes the concession is the client’s best chance: “when a client makes it plain that the objective of ‘his defence’ is to maintain innocence of the charged criminal acts and pursue an acquittal, his lawyer must abide by that objective and may not override it by conceding guilt.” Doing so is “error structural in kind,” meaning the defendant need not show prejudice. The Court was careful about the limits — the rule applies where the defendant has objected, not where a defendant is silent or unresponsive, and “[c]ounsel, in any case, must still develop a trial strategy and discuss it with her client, explaining why, in her view, conceding guilt would be the best option.”

The fourth decision has a hard deadline attached and it is the one people lose. Garza held that the presumption of prejudice for counsel’s failure to file a requested notice of appeal “applies regardless of whether the defendant has signed an appeal waiver,” because “no appeal waiver serves as an absolute bar to all appellate claims.” Garza is not a rule that appeal waivers do not matter; it applies where the defendant instructed counsel to file and counsel did not. The actionable version is short: if you want to appeal, say so, in writing, immediately, and keep a copy. See our page on what to do when a lawyer did not file the appeal.

You also have the right to make no use of a lawyer at all. Faretta v. California, 422 U.S. 806 (1975) held that a defendant “has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so,” reasoning that the Sixth Amendment “does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.” The Court also required that a defendant “be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open,'” and noted that a court may appoint standby counsel and may terminate self-representation “by a defendant who deliberately engages in serious and obstructionist misconduct.” In more than twenty years of federal practice we have never seen self-representation improve an outcome, and we say that as information, not advice about any particular case.

Joint representation, and why one lawyer for two defendants is a problem

If you are charged with someone else, the temptation to share a lawyer — often paid for by one of you — is strong and is usually a mistake. Federal law takes it seriously enough to give the judge an affirmative duty. Under Fed. R. Crim. P. 44(c), where co-defendants charged jointly are represented by the same counsel or by counsel associated in practice, “[t]he court must promptly inquire about the propriety of joint representation and must personally advise each defendant of the right to the effective assistance of counsel, including separate representation,” and “[u]nless there is good cause to believe that no conflict of interest is likely to arise, the court must take appropriate measures to protect each defendant’s right to counsel.”

That obligation is continuing, not a one-off box-tick: the rule’s notes say “the mere fact that a rule 44(c) inquiry was conducted in the early stages of the case does not relieve the court of all responsibility in this regard thereafter.” And a judge can override even a defendant’s stated preference, because “[t]he right to effective representation by counsel whose loyalty is undivided … must in some cases take precedence over all other considerations, including the expressed preference of the defendants concerned and their attorney.”

The reason is simple. The moment one co-defendant’s best move is to cooperate, or to argue that the other one ran the scheme, a shared lawyer cannot serve both. That moment usually arrives.

What to bring, and what to tell your lawyer

The first meeting is mostly your lawyer gathering information, and the value of the meeting depends almost entirely on how complete and how honest you are. Assume that most facts eventually come out and that a version which later collapses is worse than a bad fact known early.

Bring or be ready to give:

• Your full legal name, including middle names and any other names you have used; date and place of birth; Social Security number.
• Home and work addresses, all phone numbers, and an email address.
• Immigration status. This matters at every stage, and it is one of the fifteen things Rule 11(b)(1)(O) requires a court to tell a pleading defendant: that if convicted, “a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.”
• Your complete criminal history, including arrests that went nowhere, and how each case ended. Do not edit it. Criminal history drives the Guidelines calculation later, and probation will find what you leave out.
• Education, military service, and work history with a current employer phone number.
• Marital status, the ages of any children, and who depends on you.
• Recent hospitalisations, current medications, and any immediate medical or mental-health need. Expect to sign releases so your lawyer can start collecting records; this is also how the court, the marshals, and a facility get told about a medical situation.
• Every document you have already received from the government: a target letter, a subpoena, a search warrant and its inventory, an agent’s business card, a seizure notice, a bank or employer notice that records were requested.

Be ready to talk through:

• The day itself. Where you went, who you saw, what you did, whether you ate, slept or took your medication.
• The encounter with law enforcement. Did the agents have a warrant, and did you read it? At what point did you feel you were not free to leave? What restrictions were placed on your movement, and when? When were you told you were under arrest? Were you handcuffed or restrained?
• The aftermath. Were you interviewed? For how long? Who else was present? Did they take notes or record it? Did you sign anything, and what did it say? What did they ask, and what did you say — including anything you said that you now think was a mistake.
• Witnesses and evidence. Who was actually present, who heard about it second-hand, whether you have spoken to any of them, and your relationship to each.
• If searches are in play. Where you were when police contact began, whether you were in a home, a business, your own vehicle or someone else’s, whether officers presented a warrant, whether they asked permission, who witnessed it, and how far the search went.
• If it is a fraud or business case. Explain the business. Prosecutors often start from an incomplete picture of an industry, and what looks anomalous from outside is frequently ordinary practice. The more concretely you can show a legitimate business, the better your lawyer can frame it.
• If restitution may be in play. In a non-violent loss case, whether and how you could make victims whole is a live strategic question from day one, not something to raise the week before sentencing.

Candor is not a moral point; it is a tactical one. Your lawyer builds suppression motions, plea strategy and sentencing mitigation on what you say. A defense built on an incomplete account fails at the worst possible moment.

What your lawyer should tell you

The first meeting runs both ways. Before it ends you should have heard, at a minimum:

• What “remain silent” means from here on. Everything you say can be used. That includes conversations with friends, co-workers, employees and co-defendants — any of whom may be approached, pressured, or may already be cooperating — and it includes family members, who can be subpoenaed. If it feels impossible to say nothing, the workable line is to make it your lawyer’s rule rather than a personal refusal: “My lawyer has told me I can’t talk about the case. Call him.”
• What is privileged and what is not, including the jail-call problem described above.
• What to do if agents come back. If they have a warrant, do not physically obstruct the search; read the warrant, note what it authorizes, and call your lawyer. If they do not have a warrant, you do not have to consent to a search, and consent is one of the few things that cannot be undone. Either way, call counsel as soon as you reasonably can.
• The shape of the next ninety days — the charging decision or the arraignment, the motions deadline, the discovery schedule, what your lawyer needs from you and when.
• What your exposure looks like and how it will be assessed. Not a predicted sentence — nobody can give you one honestly — but which statutes are in play, whether any of them carry a mandatory minimum, and what drives the Guidelines calculation in a case like this.

Ask questions. If a term goes past you, stop and ask; our glossary of federal criminal terms exists for the same reason.

Do, and do not: a practical list for a federal case

The Constitution gives you rights. In many situations you have to assert a right or you lose it. This list is written for encounters with federal agents and for the weeks after one.

Do:

• Remain calm. Nothing good comes from an argument at the door.
• Answer identification questions. Name, date of birth, address. You will normally answer these at booking in any event, and refusing them creates problems without protecting anything — unless you have a specific reason to think an identification answer is itself incriminating, in which case say nothing and ask for a lawyer.
• Pay attention, and write it down afterwards. How many agents, what agency, names on the cards, what was said and in what order, what they took, whether they showed a warrant, what time it started and finished. Your lawyer will want this, and memory degrades fast.
• Say the words. “I do not want to answer questions. I want a lawyer.” Do not rely on silence to speak for you — Salinas is exactly the case about someone who did.
• Keep every document. The warrant, the inventory of what was seized, the subpoena, the target letter, the business card.
• Call a lawyer, immediately. Not after you have “cleared it up.” The clearing up is the problem.

Do not:

• Do not make small talk. The ride to the office and the wait in the interview room are part of the interview.
• Do not volunteer information. Corrections, clarifications and helpful context are all statements.
• Do not consent to a search. If they have a warrant, they do not need consent; if they do not have one, consent is the thing you cannot take back.
• Do not lie to a federal agent, and do not guess. Lying to a federal investigator is itself a federal crime, and a false statement can convert a case you would have won into a case you cannot. “I don’t know,” “I don’t remember,” and “I’m not going to answer questions without my lawyer” are all true and all safe. The same discipline applies under oath: see our page on perjury.
• Do not make any deal with agents or a prosecutor before you have counsel. You may be told the offer expires today and that cooperation is now or never. In most cases, information that has value keeps its value long enough for you to speak to a lawyer. Proffer sessions in particular have rules and consequences that need advice first — see proffer agreements.
• Do not discuss the case with anyone but your lawyer. Not co-defendants, not employees, not family. In a case with cooperating witnesses, the person you trust is sometimes the person wearing the recorder — and even where nobody is cooperating, family members can be subpoenaed and compelled to testify about what you told them.
• Do not destroy, delete, or “tidy up” anything. Obstruction charges are easier to prove than the underlying offense, they carry their own penalties, and they can add a two-level obstruction increase at sentencing.
• Do not post about it. Anything on a phone or a social account is discoverable and, in practice, discovered.

Where people get stuck in the federal court process

Waiting to hire a lawyer until charges are filed. The investigation stage is when the most is decidable — whether you are charged, with what, and whether a pre-indictment resolution is possible. By the time an indictment issues, the charging decision has been made and a grand jury has approved it.

Assuming federal is state with a different building. People arrive expecting a bail amount, a preliminary hearing, and parole. Federal release is conditions under § 3142; a preliminary hearing usually evaporates when the grand jury indicts inside the 14- or 21-day window (Rule 5.1(a)); and there is no parole for offenses committed on or after 1 November 1987. What replaced parole is a determinate sentence, a separate term of supervised release served after prison rather than instead of part of it, good conduct time under § 3624(b), and First Step Act earned time credits under § 3632(d)(4). The differences are set out in full on our page on federal versus state cases.

Treating the presentence interview as paperwork. It is not. An unrebutted statement in the report can be accepted as a finding of fact under Rule 32(i)(3)(A), and under Rule 32(i)(3)(C) the court’s determinations are appended to the copy that goes to the Bureau of Prisons — where they can affect custody classification, programming, and where you are designated.

Counting the appeal deadline from the sentencing hearing. It runs from entry of the judgment, which is normally some days later — but you cannot safely rely on that gap, because you may not know exactly when entry occurred. Tell counsel you want to appeal on the day you are sentenced.

Assuming a signed plea agreement fixed the sentence. Only a Rule 11(c)(1)(C) agreement binds the court, and only once the court accepts it. A (B) agreement is a recommendation that “does not bind the court,” and a defendant who signed one has no right to withdraw the plea because the judge went higher.

Not reading the waiver clauses. Rule 11(b)(1)(N) requires the court to explain “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Many federal plea agreements contain one. Understand its scope before you sign; see appeal waivers and collateral-attack waivers.

Getting help with a federal case

Elizabeth Franklin-Best, P.C. is a boutique federal criminal defense and appellate firm founded in 2019, with a national federal practice run on an intentionally small caseload. Elizabeth Franklin-Best has more than 20 years of federal and appellate criminal defense experience and is admitted to the U.S. Supreme Court and twelve of the thirteen U.S. Courts of Appeals — every regional circuit (1st–11th) plus the D.C. Circuit.

If you are at the beginning of a case, the useful next step is a conversation about where you actually are in the sequence above and what the next set of deadlines is. If you have already been sentenced, the pages on federal appeals and § 2255 motions explain the two doors that remain and the clocks attached to them. You can reach the firm at (843) 620-1100 or through the contact page.

This page is general information about federal criminal procedure. It is not legal advice, it does not create an attorney–client relationship, and it cannot account for the facts of any particular case.

Together they are recognized authorities on 28 U.S.C. § 2255 motions and federal post-conviction relief.

Frequently Asked Questions About the Federal Court Process

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026