Volume 16ย of theย Encyclopedia of American Lawย (180-Volume)
VOLUME 16: FEDERAL RULES OF CRIMINAL PROCEDURE
From Arrest to Appeal
Introduction to Volume 16
The Federal Rules of Criminal Procedure govern criminal prosecutions in the United States district courts. They were adopted in 1946 and have been amended many times since. The Rules are designed to protect the rights of the accused while ensuring that the government can prosecute crimes efficiently. The Rules work alongside the Constitution, not in place of it. The Fourth, Fifth, and Sixth Amendments set minimum standards. The Rules often provide additional protections.
The Rules track the stages of a criminal case. Part One covers the beginning of the case: the complaint, the arrest warrant, the initial appearance, and bail. Part Two covers the preliminary hearing and the grand jury. Part Three covers pretrial discovery, motions, and plea bargaining. Part Four covers trial: jury selection, the order of proof, and jury instructions. Part Five covers sentencing. Part Six covers appeals and postโconviction relief. Part Seven covers special proceedings: juvenile delinquency, mental competency, and forfeiture.
The Rules are binding on the court and the parties. A violation of the Rules may be harmless error. But a violation that affects substantial rights requires reversal.
PART ONE: THE BEGINNING OF THE CASE
Chapter 1: The Complaint
A criminal case begins with a complaint. Rule 3. The complaint is a written statement of the essential facts constituting the offense charged. It must be made under oath before a magistrate judge.
The complaint serves two purposes. First, it provides the basis for an arrest warrant. Second, it provides the basis for a preliminary hearing. The complaint need not be as detailed as an indictment. It must state enough facts to establish probable cause.
Chapter 2: The Arrest Warrant
If the government wants to arrest a person before an indictment is returned, it must obtain an arrest warrant. Rule 4. The warrant must be based on probable cause. The magistrate judge must determine that there is probable cause to believe that an offense has been committed and that the defendant committed it.
The warrant must contain the defendantโs name (or a description if the name is unknown), the offense charged, and a command to arrest the defendant and bring the defendant to court.
A warrant may be issued on the basis of the complaint alone. The magistrate judge may also require the government to submit an affidavit or other evidence.
Rule 4 also provides for a summons instead of a warrant. A summons is a written order to appear in court. The court may issue a summons if there is reason to believe that the defendant will appear voluntarily.
Chapter 3: The Initial Appearance
Rule 5 requires that a defendant be brought before a magistrate judge without unnecessary delay. The purpose is to inform the defendant of the charges and the right to counsel. The initial appearance must take place within 48 hours of arrest.
At the initial appearance, the magistrate judge must:
- Inform the defendant of the complaint and the right to retain counsel.
- Inform the defendant of the right to a preliminary hearing.
- Inform the defendant of the right to remain silent.
- Set conditions of release or order detention.
The magistrate judge also appoints counsel for an indigent defendant.
Chapter 4: Bail and Detention
The Bail Reform Act of 1984 governs pretrial release in federal court. The Act is codified at 18 U.S.C. ยง 3141 et seq.
The default rule is release on personal recognizance. The court must order the release of a defendant on personal recognizance or unsecured bond unless the court determines that release would not reasonably assure the appearance of the defendant or the safety of the community.
If release on personal recognizance is not sufficient, the court may impose conditions: home detention, electronic monitoring, travel restrictions, drug testing, or other conditions.
The government may move for pretrial detention. The court may order detention if the government shows that no conditions will reasonably assure the appearance of the defendant or the safety of the community.
For certain offenses, there is a presumption of detention. These include:
- Crimes of violence.
- Offenses punishable by life imprisonment or death.
- Drug offenses punishable by 10 years or more.
- Felonies involving a minor victim.
- Felonies involving a firearm.
The defendant is entitled to a detention hearing. The government must prove that the defendant poses a danger to the community by clear and convincing evidence. The government must prove that the defendant is a flight risk by a preponderance of the evidence.
A detention order may be appealed to the district court (if the order was entered by a magistrate judge) or to the court of appeals.
PART TWO: THE PRELIMINARY HEARING AND THE GRAND JURY
Chapter 5: The Preliminary Hearing
Rule 5.1 provides for a preliminary hearing. The purpose is to determine whether there is probable cause to believe that the defendant committed an offense.
The defendant has a right to a preliminary hearing only if the defendant is charged by complaint (not by indictment). If the grand jury returns an indictment before the preliminary hearing, the hearing is cancelled.
At the preliminary hearing, the government must present evidence. The defendant may crossโexamine witnesses and present evidence. The defendant may not raise objections based on the admissibility of evidence. The rules of evidence do not apply.
The magistrate judge must find probable cause to bind the defendant over for trial. If the judge does not find probable cause, the complaint is dismissed. The government may present the case to a grand jury even after a dismissal.
Chapter 6: The Grand Jury
The Fifth Amendment requires that a felony prosecution be begun by indictment of a grand jury, unless the defendant waives the right. The grand jury is a body of 16 to 23 citizens. It sits in secret. It does not determine guilt or innocence. It determines only whether there is probable cause to believe that the defendant committed an offense.
The grand jury has broad powers. It may issue subpoenas for documents and testimony. It may compel witnesses to appear. It may grant immunity to compel testimony.
The prosecutor presents evidence to the grand jury. The defendant has no right to be present. The defendant has no right to present evidence. The grand jury may consider hearsay. It may consider evidence that would be inadmissible at trial.
If the grand jury finds probable cause, it returns an indictment. The indictment must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.
The government may also proceed by information. An information is a formal accusation filed by the prosecutor without a grand jury. An information may be used only for misdemeanors or for felonies when the defendant waives the right to an indictment.
PART THREE: PRETRIAL PROCEDURE
Chapter 7: Discovery
Rule 16 governs discovery in criminal cases. Discovery is more limited than in civil cases. The government has reciprocal discovery obligations.
The government must disclose to the defendant:
- Any oral, written, or recorded statement made by the defendant.
- The defendantโs prior criminal record.
- Documents and tangible objects that are material to the defense.
- Reports of physical or mental examinations and scientific tests.
- Expert witness testimony.
The defendant must disclose to the government:
- Documents and tangible objects that the defendant intends to use at trial.
- Reports of physical or mental examinations and scientific tests that the defendant intends to use at trial.
- Expert witness testimony.
Neither party is required to disclose work product. The government is not required to disclose the statements of its witnesses (except for expert witnesses).
Rule 16 also provides for discovery of electronically stored information. The rules of discovery apply to ESI.
Chapter 8: The Jencks Act
The Jencks Act, 18 U.S.C. ยง 3500, requires the government to produce statements of its witnesses after the witness has testified. The defendant is not entitled to the witnessโs statement before testimony.
A โstatementโ includes:
- A written statement made and signed by the witness.
- A substantially verbatim recording of the witnessโs oral statement.
- A report of a grand jury witness.
If the government fails to produce a statement after the witness testifies, the court may strike the witnessโs testimony or declare a mistrial.
Chapter 9: Brady and Giglio
The Constitution imposes additional discovery obligations. In Brady v. Maryland (1963) , the Court held that the government must disclose evidence that is favorable to the defendant and material to guilt or punishment. The duty extends to impeachment evidence.
In Giglio v. United States (1972) , the Court held that the government must disclose evidence that would impeach a government witness. This includes promises of leniency, plea agreements, and prior inconsistent statements.
A Brady violation occurs when:
- The evidence is favorable to the defendant (exculpatory or impeaching).
- The government suppressed the evidence (willfully or inadvertently).
- The evidence is material. A reasonable probability exists that the outcome would have been different if the evidence had been disclosed.
The governmentโs duty extends to evidence known to any member of the prosecution team, including law enforcement.
Chapter 10: Pretrial Motions
Rule 12 governs pretrial motions. The defendant may raise the following defenses and objections by pretrial motion:
- Defects in the institution of the prosecution.
- Defects in the indictment or information.
- Suppression of evidence.
- Severance of charges or defendants.
- Discovery.
A motion to suppress evidence must be made before trial. The failure to make a timely motion waives the issue.
The court may hold an evidentiary hearing on a pretrial motion. The hearing is limited to the issues raised in the motion.
Chapter 11: Plea Bargaining
Rule 11 governs pleas. Most federal criminal cases end in a plea agreement, not a trial. The parties negotiate an agreement. The defendant agrees to plead guilty. The government agrees to recommend a sentence, dismiss other charges, or take other action.
The court must determine that the plea is voluntary. The court must also determine that there is a factual basis for the plea.
The court must advise the defendant of the rights that the defendant is waiving: the right to a jury trial, the right to confront witnesses, and the privilege against selfโincrimination. The court must also advise the defendant of the maximum possible sentence.
The court is not bound by the plea agreement. The court may accept the agreement, reject it, or defer decision. If the court rejects the agreement, the defendant may withdraw the plea.
A guilty plea waives most appellate issues. The defendant may appeal only:
- The denial of a suppression motion that was preserved for appeal.
- The legality of the sentence.
- The voluntariness of the plea.
Chapter 12: The Rule 11 Hearing
Rule 11(c) requires the court to conduct a plea colloquy. The court must address the defendant personally. The court must ask:
- Whether the defendant understands the nature of the charge.
- Whether the defendant understands the maximum possible sentence.
- Whether the defendant understands the rights being waived.
- Whether the plea is voluntary.
- Whether there is a factual basis for the plea.
If the plea is not conditional, the defendant may not appeal the denial of a motion to suppress.
PART FOUR: TRIAL
Chapter 13: Jury Selection
Rule 24 governs jury selection in criminal cases. The process is similar to civil cases.
The court conducts voir dire. The court may ask questions. The parties may ask questions with the courtโs permission.
Each side has peremptory challenges. Rule 24(b) gives the government 6 peremptory challenges for a felony case. The defendant has 10 peremptory challenges. If there are multiple defendants, the court may allocate the challenges.
Peremptory challenges may not be used to discriminate on the basis of race. Batson v. Kentucky (1986). The same rule applies to gender discrimination. J.E.B. v. Alabama (1994).
Chapter 14: The Order of Trial
Rule 29.1 establishes the order of trial.
- Opening statements. The government goes first. The defendant may make an opening statement immediately after the government or after the government rests.
- Governmentโs case in chief. The government presents its evidence.
- Motion for judgment of acquittal. The defendant may move for a judgment of acquittal after the government rests.
- Defendantโs case. The defendant presents its evidence.
- Rebuttal and surrebuttal. The government may present rebuttal evidence. The defendant may present surrebuttal evidence.
- Closing arguments. The government argues first. The defendant argues second. The government may argue again in rebuttal.
- Jury instructions. The court instructs the jury on the law.
Chapter 15: Motion for Judgment of Acquittal
Rule 29 allows the defendant to move for a judgment of acquittal. The standard is the same as the standard for a directed verdict in a civil case. The court views the evidence in the light most favorable to the government. If a reasonable jury could find the defendant guilty, the motion must be denied.
The motion may be made at the close of the governmentโs case. It may be renewed at the close of all the evidence. It may be made after a guilty verdict.
If the court grants the motion after a guilty verdict, the court must enter a judgment of acquittal. The government may not appeal.
Chapter 16: Jury Instructions
Rule 30 governs jury instructions. The parties must submit proposed instructions. The court must give the parties an opportunity to object to the instructions.
The court must instruct the jury on the elements of the offense, the burden of proof, and the presumption of innocence. The court must also instruct the jury on any affirmative defense.
The court may not comment on the evidence. The court may not tell the jury how to decide the case.
Chapter 17: The Verdict
The jury must return a unanimous verdict. Rule 31. If the jury cannot agree, the court may declare a mistrial.
The jury may return a general verdict of guilty or not guilty. The jury may also return a special verdict. The jury may be required to make specific findings.
If the jury finds the defendant not guilty, the verdict is final. The government may not appeal.
If the jury finds the defendant guilty, the court must set a date for sentencing.
PART FIVE: SENTENCING
Chapter 18: The Presentence Report
Rule 32 requires the probation officer to prepare a presentence report. The report must contain:
- Information about the defendantโs history and characteristics.
- The advisory sentencing guidelines range.
- The factors that might warrant a sentence outside the guidelines.
- The financial condition of the defendant (for restitution and fines).
The presentence report is disclosed to the parties. The defendant may object to the report. The court must resolve any objections before sentencing.
Chapter 19: The Sentencing Hearing
Rule 32(i) governs the sentencing hearing. The court must:
- Verify that the defendant and counsel have read the presentence report.
- Give the defendant an opportunity to speak (allocution).
- Give the government an opportunity to speak.
- State in open court the reasons for the sentence.
The court may receive evidence on any factor relevant to sentencing. The rules of evidence do not apply.
Chapter 20: The Federal Sentencing Guidelines
The Sentencing Reform Act of 1984 created the United States Sentencing Commission. The Commission promulgated the Federal Sentencing Guidelines. The Guidelines were mandatory until United States v. Booker (2005) . In Booker, the Court held that the Guidelines are advisory. The court must consider the Guidelines, but the court is not bound by them.
The Guidelines provide a range for each offense. The range is based on:
- The base offense level.
- Specific offense characteristics (enhancements).
- The defendantโs criminal history category.
- Reductions for acceptance of responsibility.
The court may depart from the Guidelines if there is an aggravating or mitigating circumstance not adequately taken into account. The court may also impose a variance if the Guidelines range is greater than necessary to comply with the sentencing factors in 18 U.S.C. ยง 3553(a).
The ยง 3553(a) factors include:
- The nature and circumstances of the offense.
- The history and characteristics of the defendant.
- The need for the sentence to reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and provide the defendant with needed training or treatment.
The court must impose a sentence that is sufficient but not greater than necessary.
Chapter 21: Victim Rights
The Crime Victimsโ Rights Act, 18 U.S.C. ยง 3771, gives victims the right to:
- Be reasonably protected from the accused.
- Be notified of court proceedings.
- Attend court proceedings.
- Be heard at sentencing.
- Receive restitution.
The government must make a good faith effort to notify victims. The court may enforce the rights of victims.
Chapter 22: Restitution
The Mandatory Victims Restitution Act, 18 U.S.C. ยง 3663A, requires the court to order restitution for certain offenses:
- Crimes of violence.
- Property offenses (theft, fraud, embezzlement).
- Drug trafficking (to pay for medical treatment of victims).
The court must order restitution for the full amount of the victimโs loss. The defendantโs ability to pay is not a factor in determining the amount. The court may consider ability to pay in setting a payment schedule.
For other offenses, the court has discretion to order restitution under 18 U.S.C. ยง 3663.
PART SIX: APPEALS AND POSTโCONVICTION RELIEF
Chapter 23: Appeal by the Defendant
The defendant may appeal a final judgment of conviction. 28 U.S.C. ยง 1291. The notice of appeal must be filed within 14 days of the entry of the judgment.
The defendant may appeal:
- The conviction.
- The sentence (unless the sentence was imposed under a plea agreement waiving the right to appeal).
The standard of review is the same as in civil cases. Questions of law are reviewed de novo. Factual findings are reviewed for clear error. Discretionary decisions are reviewed for abuse of discretion.
Chapter 24: Appeal by the Government
The government may appeal in limited circumstances. 18 U.S.C. ยง 3731. The government may appeal:
- An order dismissing an indictment.
- An order granting a new trial.
- An order suppressing evidence (if the suppression is the sole basis for dismissal).
- An order arresting judgment.
- A sentence that is imposed in violation of law.
The government may not appeal an acquittal. The double jeopardy clause bars a retrial after an acquittal.
Chapter 25: Collateral Review (Section 2255)
A federal prisoner may collaterally attack the sentence under 28 U.S.C. ยง 2255. The motion must be filed in the district court. The prisoner must assert that:
- The sentence was imposed in violation of the Constitution or federal law.
- The court lacked jurisdiction.
- The sentence exceeded the maximum authorized by law.
- The sentence is otherwise subject to collateral attack.
The prisoner must raise any claims that could have been raised on direct appeal. Failure to do so results in procedural default. The prisoner must show cause for the default and actual prejudice.
The court must hold an evidentiary hearing unless the motion and the record show that the prisoner is not entitled to relief.
A prisoner may file only one ยง 2255 motion. A second or successive motion must be certified by the court of appeals.
Chapter 26: The Certificate of Appealability
A prisoner may not appeal the denial of a ยง 2255 motion without a certificate of appealability. 28 U.S.C. ยง 2253. The district court or the court of appeals must issue the certificate.
The certificate may issue only if the prisoner has made a substantial showing of the denial of a constitutional right. The prisoner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner.
PART SEVEN: SPECIAL PROCEEDINGS
Chapter 27: Juvenile Delinquency
Rule 20 governs proceedings against juveniles. A juvenile is a person under 18 years of age who is not subject to adult prosecution for the same offense.
The government may proceed against a juvenile only if:
- The juvenile consents to a waiver of the juvenile proceeding.
- The Attorney General certifies that the juvenile is not amenable to treatment through the juvenile system.
The juvenile proceeding is civil, not criminal. The juvenile is not entitled to a jury trial. The court hears the evidence. If the court finds that the juvenile committed the act, the court may order:
- Probation.
- Commitment to the custody of the Attorney General.
- Restitution.
A juvenile adjudication is not a conviction for most purposes.
Chapter 28: Mental Competency
Rule 12.2 governs mental competency proceedings. A defendant may not be tried if the defendant is incompetent. The test is whether the defendant has sufficient present ability to consult with counsel and a rational and factual understanding of the proceedings.
The court may order a mental examination on its own motion or on the motion of a party. The examiner must report to the court.
If the court finds the defendant incompetent, the court must commit the defendant to the custody of the Attorney General for treatment. The commitment may not exceed the maximum term of imprisonment for the offense.
A defendant who is restored to competency may be tried.
Chapter 29: Forfeiture
The government may seek forfeiture of property used in or derived from a criminal offense. Rule 32.2 governs forfeiture proceedings.
Forfeiture may be:
- Civil forfeiture (in rem). The action is against the property itself. The proceeding is civil, not criminal.
- Criminal forfeiture (in personam). The government must include a forfeiture allegation in the indictment. The forfeiture is part of the criminal sentence.
The government must give notice to any person with an interest in the property. A third party may petition the court to establish an interest in the property.
APPENDIX 1: GLOSSARY
Brady material โ Evidence that is favorable to the defendant and material to guilt or punishment. The government must disclose Brady material.
Certificate of appealability โ A certificate required for a prisoner to appeal the denial of a ยง 2255 motion. Requires a substantial showing of the denial of a constitutional right.
Criminal forfeiture โ Forfeiture as part of a criminal sentence. The government must include a forfeiture allegation in the indictment.
Grand jury โ A body of citizens that determines whether there is probable cause to charge a defendant with a crime. The grand jury sits in secret.
Indictment โ A formal accusation returned by a grand jury. Required for felonies unless the defendant waives the right.
Information โ A formal accusation filed by the prosecutor without a grand jury. Used for misdemeanors and for felonies when the defendant waives the right to an indictment.
Jencks Act โ A statute requiring the government to produce statements of its witnesses after the witness testifies.
Judgment of acquittal โ A judgment in a criminal case that the defendant is not guilty. The government may not appeal.
Plea colloquy โ The hearing in which the court accepts a guilty plea. The court must advise the defendant of the rights being waived.
Presentence report โ A report prepared by the probation officer containing information about the defendant and the advisory guidelines range.
Presumption of detention โ A presumption that the defendant should be detained before trial for certain offenses.
Procedural default โ The rule that a prisoner may not raise a claim in a ยง 2255 motion that could have been raised on direct appeal.
Restitution โ An order requiring the defendant to pay the victim for the loss caused by the offense.
Sentencing guidelines โ The advisory guidelines promulgated by the United States Sentencing Commission.
Section 2255 โ The statute that allows a federal prisoner to collaterally attack the sentence.
APPENDIX 2: SELECT BIBLIOGRAPHY
Bibas, Stephanos. โThe Supreme Court and the Federal Rules of Criminal Procedure.โ University of Pennsylvania Law Review 163 (2015): 1301.
Bowers, Josh. โThe Federal Rules of Criminal Procedure and the Problem of Sentencing.โ Harvard Law Review 128 (2015): 2033.
Chemerinsky, Erwin. Criminal Procedure: Doctrine, Doctrine, and Practice. 4th ed. Wolters Kluwer, 2019.
Dressler, Joshua. Understanding Criminal Procedure. 7th ed. Carolina Academic Press, 2018.
Dressler, Joshua. Criminal Procedure: Principles, Policies, and Perspectives. 7th ed. West Academic, 2020.
King, Nancy J., and Susan R. Klein. Federal Criminal Practice. 3d ed. West Academic, 2020.
LaFave, Wayne R., Jerold H. Israel, Nancy J. King, and Orin S. Kerr. Criminal Procedure. 5th ed. West Academic, 2018.
Marcus, Richard L., Martin H. Redish, and Edward F. Sherman. Civil Procedure: A Modern Approach. 7th ed. West Academic, 2017 (contains a chapter on criminal procedure).
Orfield, Lester B. The Federal Rules of Criminal Procedure. William S. Hein, 2007 (3 volumes).
Peters, Robert J. โThe Grand Jury and the Federal Rules of Criminal Procedure.โ American Criminal Law Review 42 (2005): 1231.
Reitz, Kevin R. โThe Federal Rules of Criminal Procedure and the Problem of Sentencing.โ University of Colorado Law Review 86 (2015): 1.
Richman, Daniel C. โThe Federal Rules of Criminal Procedure and the Problem of Discovery.โ Texas Law Review 93 (2015): 1515.
Stuntz, William J. โThe Uneasy Relationship Between Criminal Procedure and Criminal Justice.โ Yale Law Journal 107 (1997): 1.
Wright, Charles Alan. Federal Practice and Procedure (Criminal). West Academic, 2019 (4 volumes).
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