The path to trial for a criminal charge varies depending on the law the defendant allegedly violated. Typically, violating a federal law results in federal charges, while violating a state law results in state charges, although some offenses may result in both.
White-collar offenses violate federal law, and a person facing these types of charges may experience some of the following procedures during the pretrial process.
One or many federal agencies may have a role in investigating a possible offense. For example, the FBI investigates corporate fraud, but these other agencies may also participate or provide assistance:
- The U.S. Securities and Exchange Commission
- The Commodity Futures Trading Commission
- The IRS
- The U.S. Postal Inspection Service
- The Department of Labor
- The Financial Industry Regulatory Authority
Often, federal investigators also work with state and local law enforcement departments and other agencies.
The authorities do not have to notify someone that they are conducting an investigation against him or her. Steps in building a case include interviewing witnesses, executing search warrants, obtaining records and documents, conducting surveillance and reviewing financial data. Agents may have to subpoena records and obtain search warrants in order to access some evidence.
A magistrate may issue a search warrant or a grand jury may indict a suspect and prompt an arrest. However, federal law enforcement officers do not have to obtain an arrest warrant from a judge before proceeding. Special agents may make an arrest as soon as the FBI has concluded probable cause exists indicating that the person is a suspect in the crime.
Initial appearance and arraignment
Without the arrest warrant or an indictment, the special agents must bring the suspect before a judge within 72 hours of the arrest. The judge then determines whether there is probable cause. If so, then the court tells the individual what the charges are, informs him or her of the right to legal representation and advises of the right to remain silent.
Depending on the charges, the defendant may not have to remain in jail while waiting for the trial. Generally, only those the prosecutor believes are a danger to the community are not eligible for release.
The defendant formally receives a copy of the charges and must enter a plea of guilty or not guilty to each charge. The plea may be the result of a bargain already reached between the defendant and the prosecution.
Discovery and motions
The defendant and the prosecution have the right to obtain information and materials relevant to the case from each other. Motions request actions from the court. Either party may file a motion to suppress or introduce specific evidence during the trial. Other common motions include requests for charge dismissal, disclosure of alibis and psychiatric evidence.
After these proceedings, the defendant may face a trial before a jury or a bench trial before a judge.