II. The Charging of A Federal Criminal Case

• Jurisdiction: North Carolina

II. THE CHARGING OF A FEDERAL CRIMINAL CASE

The Federal Rules of Criminal Procedure establish the rules of practice in federal court. As in state court, local rules set forth additional procedures for each district, and some judges have additional rules for filings and deadlines, which must be adhered to as well.

Although there are a large number of federal misdemeanors,⁶ the vast majority of federal criminal prosecutions are based on alleged felony offenses. Unless the defendant waives this right, a felony must be charged in an indictment returned by a federal grand jury. Fed. R. Crim. P. 7(a). An indictment must (1) contain a plain, concise and definite written statement of the essential facts constituting the offense charged; (2) allege all essential elements of the offense; and (3) provide sufficient facts to allow the defendant to prepare a defense and allege the defense of double jeopardy. Fed. R. Crim. P. 7(c)(1). It is difficult to obtain pretrial dismissal of any indictment as long as it merely tracks the statutory language because there is no proceeding similar to summary judgment in federal criminal court. Moreover, pretrial challenges to indictments may result in the prosecutor obtaining a new or superseding indictment that fixes the problems alleged, as jeopardy will not have attached. Any motion alleging a defect in the indictment, other than a failure to invoke the court's jurisdiction or state an offense, has to be raised prior to trial. Fed. R. Crim. P. 12(b)(3).

A federal grand jury has "investigative" powers, meaning it can subpoena witnesses and documents and thereby compel testimony and the production of evidence. This power is generally used in economic crime cases, as opposed to violent crimes or small-scale drug crimes. Only federal prosecutors, one witness, a translator if necessary, a court reporter and the grand jurors may be in the grand jury room during the presentation of evidence. Fed. R. Crim. P. 6(d)(1). No judge presides, and there is no representative of the potential defendants or witnesses allowed in the room.⁷ If a witness has a lawyer, the lawyer must sit outside of the room, and a witness must leave the room to speak with his or her lawyer. The proceedings are also supposed to be secret (Fed. R. Crim. P. 6(e)), although the process of obtaining testimony and documentary evidence necessarily alerts people, and often the media, to the existence of the proceeding.

Potential defendants are often informed about an...