Federal Pre-Trial Process | Pretrial Overview

Every minute counts when you are formally charged with a federal crime. The federal pre-trial process is the time between charging and trial. What happens during this period can have a significant impact on the outcome of your case. Continue reading to learn more about the pre-trial process, including pre-trial conferences, detention determinations, pre-trial hearings, and pre-trial motions.

Contact the Zoukis Consulting Group if you are charged with a federal crime. Our federal criminal defense lawyers can answer your questions and help you determine the best path forward.

Pre-Trial Process | Pretrial Conference

Pre-Trial Court Proceedings

Federal criminal proceedings start well before a case sees the inside of a courtroom. Typical pre-court proceedings include investigations, arrests, and formally lodging criminal charges against those accused of federal crimes. Below we discuss these federal pre-trial proceedings.

Federal Criminal Investigations

Numerous federal law enforcement agencies conduct criminal investigations. Their objective is to collect detailed information about criminal law violations and present it to the U.S. Attorney’s Office for charging determinations.

The most widely known federal law enforcement agencies include:

  • Federal Bureau of Investigation (FBI)
  • Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
  • Drug Enforcement Administration (DEA)
  • Homeland Security Investigations (HSI)
  • U.S. Immigration and Customs Enforcement (ICE)
  • Internal Revenue Service (IRS)

While individual federal law enforcement agencies independently conduct criminal investigations, it is not uncommon for these agencies to work in tandem or as part of a task force.

These agencies collect information and evidence to support search and arrest warrant applications. To secure either type of warrant, federal judges must determine probable probable cause exists. This requires law enforcement agencies to submit a warrant application and affidavit laying out the factual underpinnings supporting a probable cause determination.

Charging, Federal Indictments, and Grand Juries

Following the federal criminal investigation comes the determination of whether to charge the target with a crime. This process involves the U.S. Attorney’s Office reviewing available evidence to determine if they want to proceed.

Unlike in state criminal proceedings, federal prosecutors generally must secure a grand jury indictment before proceeding with formal charging. The grand jury determines if there is probable cause to charge targets with a crime formally.

Unlike a criminal trial jury, federal grand juries typically consist of 16 to 23 citizens. Their sole purpose is to determine if probable cause exists for the U.S. Attorney’s Office to proceed with charging a person with a crime. These proceedings are always secretive affairs, with all records sealed and generally unaccessible to external parties.

Unlike the American jury trial system, grand juries primarily work for federal prosecutors, with defense counsel not allowed to participate. While grand juries commonly bend to federal prosecutors’ whims, they are independent bodies empowered to call witnesses, subpoena records and other evidence, and reach their own conclusions.

If the federal grand jury believes there is probable cause that the target has committed a crime, they will return a true bill of indictment, allowing federal prosecutors to proceed to court. This typically triggers the U.S. Attorney’s Office to seek a warrant for the target’s arrest for pre-trial detention.

Arrest on Federal Charges

Most federal criminal arrests occur following the issuance of an arrest warrant. Federal magistrate judges weigh the evidence presented by law enforcement and grand jury proceedings to determine if probable cause exists to move forward with the arrest.

Federal criminal arrests tend to be jarring experiences. Unlike what many would expect, federal law enforcement agents often engage in considerable pomp and circumstance when arresting targets.

For example, it is not uncommon for FBI or DEA agents to employ SWAT teams when conducting arrests. This is true even for non-violent computer crimes. On the other hand, federal agents sometimes show a modicum of decorum by quietly conducting arrests. This determination is often up to the individual federal agents investigating the offense.

Federal Pre-Trial Proceedings: Post-Arrest

Federal pre-trial proceedings begin after arrest. In a nutshell, pre-trial means any court activity that occurs before trial. This process consists of several distinct stages:

  • Initial Hearing
  • Detention Hearing
  • Arraignment
  • Discovery
  • Plea Bargains

Initial Hearing

After indictment and arrest, federal criminal defendants participate in an initial hearing. This typically occurs while the defendant is in pre-trial detention and is one of many preliminary hearings. This pretrial hearing occurs either the day of or the day after arrest. This is the first formal hearing in the federal pre-trial process.

During the initial hearing, defendants appear before a magistrate judge. The judge informs defendants of the charges and their right to an attorney, whether retained or appointed. The Federal Public Defender’s Office represents defendants who cannot afford an attorney.

The magistrate judge also schedules the pre-trial detention hearing during the initial hearing. This hearing determines whether the defendant is remanded to custody or allowed pre-trial release.

Federal criminal cases can be dismissed at pre-trial hearings, but this is highly unusual. Typically, case dismissal occurs further into the pre-trial process.

Detention Hearing

Pre-trial detention hearings typically occur within 48 to 72 hours of the initial hearing. These hearings determine if defendants are detained pending trial or released under the supervision of a pretrial services officer. U.S. Probation is the sole pretrial services agency at the federal level.

Both federal prosecutors and defense lawyers present arguments during pre-trial detention hearings. Prosecutors typically seek detention in violent and high-profile cases or when defendants have extensive criminal histories or limited community ties. On the other hand, criminal defense attorneys almost always argue for pre-trial release, citing various justifications.

When judges grant pre-trial release, they always set release conditions. For example, defendants must report to a pre-trial services officer responsible for supervising them. Drug testing, geographic boundaries, periodic reports, and other restrictions are also commonly imposed.

In the federal criminal justice system, if a defendant is denied pretrial release, they are detained as they await trial. This pre-trial detention typically consists of detention in a county jail.


The arraignment hearing starts with the judge reading the charges against the defendant. The federal criminal defendant then formally enters a guilty or not guilty plea. Defendants commonly plead not guilty at this stage.

Upon a not-guilty plea, a trial date is scheduled. This triggers several critical case deadlines discussed below, including:

  • Discovery
  • Jury Selection
  • Pre-Trial Conferences
  • Trial


After arraignment, federal prosecutors must provide the defense with discovery. Discovery documents include all relevant evidence intended to be used by the prosecution at trial. For example, the government must turn over the following documentary information:

  • Statements by the defendant.
  • The defendant’s criminal record.
  • Reports, tests, and examinations.
  • Documents or documentation of physical evidence.
  • Lay, expert, and law enforcement witness lists.
  • Any other materials, investigation notes, witness statements, or expert reports intended for use at trial.

Critically, the prosecution must turn over all evidence, aggravating, mitigating, and neutral. The obligation to produce exculpatory evidence is enshrined in the United States Supreme Court case Brady v. Maryland. Relatedly, Giglio v. United States extends this obligation to any exculpatory information which undercuts the prosecution’s evidence or witnesses.

Plea Bargains

Most federal criminal defendants elect to plead guilty rather than argue their case at trial. According to U.S. Sentencing Commission data, approximately 97 percent of those charged with federal crimes enter a guilty plea. This amounts to a significant number of people.

While this is a profoundly personal decision, the plea bargaining process is relatively standardized. This is effectively a negotiation between the defense attorney and prosecutors. The objective for prosecutors is to settle cases for trial, while defense lawyers seek to secure the lowest possible sentence.

Plea bargains are compromises. In exchange for pleading guilty to a criminal offense, federal prosecutors offer certain concessions, for example:

  • Reduced sentences
  • Dropped charges
  • Agreements to not pursue specific sentencing enhancements

This agreement is formalized in a plea agreement for submission to the judge. While federal judges often accept plea agreements, it is essential to note that the judge is the final decision-maker. If the judge disagrees with prosecutors’ sentencing recommendations, they can disregard them and depart.

Whether to plead guilty or proceed to trial is entirely up to the defendant. Neither a prosecutor nor a defense attorney can force a defendant to plead guilty. But know that if someone pleads guilty, they will be convicted of a crime. And those convicted of federal crimes are typically sentenced to federal prison time.

Proceedings Before Trial

The case proceeds to trial if a plea agreement is not reached. This requires the defense attorney to plan the criminal trial, which typically consists of creating a trial notebook or plan for every case phase.

Several critical stages occur leading up to the trial. This section discusses the following pre-trial proceedings:

  • Pre-Trial Conference
  • Pre-Trial Motions
  • Jury Selection

Pre-Trial Conference

Pre-trial conferences are court hearings where both sides handle preliminary case matters. While defendants are typically present for these hearings, they do not take an active part. In this respect, the pretrial conference meaning is a hearing leading up to the trial.

During pre-trial conferences, judges meet with the prosecuting and defense attorneys to determine if the case will resolve through trial or plea bargain. Additionally, pre-trial conferences address the following trial-specific matters:

  • Agreed Case Statement
  • Witness Lists
  • Exhibit Lits
  • Motions in Limine
  • Voir Dire Questions
  • Jury Instructions

In summary, the pre-trial conference meaning is the court hearing where the trial process and procedures are discussed, and certain trial aspects are stipulated. This includes providing witness lists, proposed jury selection questions, and setting a timeline and deadlines leading up to trial.

Pre-Trial Motions

Pre-trial motions are court filings defense attorneys take to ensure defendants have a fair trial. They also can set the stage to minimize punishments should a defendant be found guilty at trial.

Here are several examples of pretrial motions defense attorneys submit: 

  • Motion to Dismiss
  • Motion to Suppress Evidence
  • Motion for Change of Venue

Defense attorneys file motions to dismiss, seeking charge dismissal due to a lack of evidence. Motions to suppress challenge specific evidence. For example, illegally obtained evidence or such evidence contained in police reports. Finally, motions for change of venue seek to change the trial’s location.

Jury Selection

Jury selection, also called voir dire, is the process through which an impartial jury is selected. Jury members are ordinary citizens without predetermined thoughts about the case.

The jury selection process consists of prosecutors and defense attorneys asking prospective jurors questions to determine if they can be impartial. If a prospective juror can’t be impartial, they are removed from the jury pool. Likewise, prosecutors and defense lawyers can strike a certain number of jurors without cause (known as a “peremptory challenge”).

While both sides have their interests, neither prosecution nor defense may discriminatorily strike jurors. For example, it is not permissible to strike jurors due to race, religion, or gender.

Once the jury is selected, the criminal case then proceeds to trial. While the jury is set, alternate jurors are typically present if a selected juror is removed from the jury or otherwise unavailable.

Your Source for Federal Pre-Trial Process Information

You must have a firm grasp of the federal pre-trial process if you are charged with a federal criminal offense. While most cases resolve in plea bargains, there is also the possibility of a federal criminal trial.

The above information serves as a guide to help you understand the federal pre-trial process and its various moving parts. But you have another vital resource at your disposal, too.

The Zoukis Consulting Group is here to help with your prison preparation, in-prison, and reentry needs. Our experienced team is here to answer all of your questions and be with you every step of the way.

Contact us today for a one-hour initial consultation!