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In addition to the “Guide to Criminal Prosecutions in the United States” set forth below, http://usinfo.state.gov/usa/infousa, http://thomas.loc.gov/ and http://www.uscourts.gov/understand02/ provide general information about the United States and its legal system, including the courts.  The U.S. Department of State oversees the first site, InfoUSA; and the Administrative Office of the U.S. Courts maintains the second site on behalf of the federal judiciary.  InfoUSA also provides links to State resources.

                                                                             

 GUIDE TO CRIMINAL PROSECUTIONS IN THE UNITED STATES 

An Introduction to Practice and Procedure 

In the United States, both the federal government and the states have authority to prosecute criminal offenses.  The federal government and each state has its own criminal statutes, court system, prosecutors, and police agencies.  Whether a particular crime will be prosecuted by a state or by the federal government will depend on factors too numerous and complex to be addressed in this brief paper.[1] 

As a consequence of both law and practice, the crimes most frequently prosecuted by the federal government include drug trafficking offenses, organized crime, and financial crimes, large scale frauds and crimes in which there is a special federal interest such as crimes against federal officials, and frauds against the United States.  In addition, there are certain crimes that only the federal government may prosecute.  These include customs offenses, offenses involving federal tax matters, and crimes of espionage and treason.

The states prosecute most crimes against the person, such as murders and assaults, and many crimes against property, such as robberies and thefts.  Indeed, states prosecute a far greater number of crimes than does the federal government.[2] 

While the states have broad authority to prosecute many types of crimes, they may investigate and prosecute only criminal acts committed within their boundaries.  The power of the federal government, however, extends throughout the United States.  Therefore, the federal government is often better able to investigate and prosecute sophisticated and large-scale criminal activity. 

The Office of International Affairs (OIA), Criminal Division, U.S. Department of Justice, is responsible for all international extradition, as well as international legal assistance, for both state and federal prosecutors.  In that capacity, OIA supervises the representation of foreign governments’ extradition and evidence requests in U.S. courts. 

Although there are differences in criminal procedure among the states and between the states and the federal government, certain core principles of United States criminal law and practice apply equally to all state and federal investigations and prosecutions.  First, it is true throughout the United States that the investigation and prosecution of crime is the responsibility of the executive branch of government.   Prosecutors, investigating agents, and police officers are members of the executive branch, not the judicial branch.  In the United States, there is no concept of an investigating judge, as is found in a civil system. 

Therefore, the role of judges in the investigation of criminal offenses is limited.  However, certain actions during an investigation can be taken only upon the authorization of a judge.  Only a judge may issue a warrant to search for and seize evidence of crimes; only a judge may order the recording of telephone conversations; only a judge may take action to enforce a subpoena (an order that a witness give testimony or produce documents or other evidence in his or her possession under penalty of incarceration for refusal); and, except in limited circumstances, only a judge may issue a warrant for the arrest of an accused person.[3]

Whenever a prosecutor (or, in some instances, a police officer) determines that such a judicial act is needed in an investigation, he or she must make a formal request to the court and present facts or evidence that are legally sufficient to support the action requested.  A judge will issue the warrant or order requested only if he or she determines that there is a sufficient factual basis for it.  For example, in the case of a request for a search warrant, the court must determine that the evidence presented is sufficient to establish probable cause to believe that an offense has been committed and that evidence of that offense may be found at a specific place to be searched. 

Second, certain aspects of procedure in criminal cases are required under the Constitution of the United States.  These apply equally to state and federal prosecutions.  For example, a person accused of a serious offense has a right to be tried by a jury and to be represented by an attorney.  At trial, the defendant has a right to question persons giving testimony against him or her.[4]  Also, no person may be compelled to give testimony against himself or herself.[5]  Similarly, the Constitution requires that no warrant shall be issued except upon a determination that there is sufficient evidence to support a finding of “probable cause.”

Thus, a warrant for the arrest of a person may not be issued unless there is sufficient evidence to support a finding that it is more probable than not that a crime has been committed and that the person to be arrested committed that crime. 

I.          Authorities Involved in the Investigation, Prosecution, and Trial of Federal Crimes 

A.         The Department of Justice 

As noted above, the responsibility to investigate and prosecute crimes in the United States rests in the executive branch of government.  All federal prosecutors are part of the United States Department of Justice.  In addition, the investigating officers of Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA), the U.S. Marshals, and the criminal investigators of the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) are all employed by the Department of Justice,[6] and as Justice Department employees are overseen by the Attorney General. 

The prosecution of federal criminal cases in each of the U.S. District Courts is the responsibility of the U.S. Attorney for that District.  Each U.S. Attorney is appointed by the President and reports to the Attorney General.

There are 94 U.S. District Courts and 93 U.S. Attorneys.  The number of federal judges and prosecutors in each District varies widely, depending on the number of federal legal matters (both criminal and civil) in each District.  For example, U.S. Attorney’s Office for the Southern District of New York (Manhattan) has more Assistant U.S. Attorneys than the U.S. Attorney’s Office for the District of Connecticut. 

Attorneys from the Criminal Division of the Department of Justice in Washington, D.C., may also handle prosecutions throughout the United States, but the chief federal prosecutors are the 93 U.S. Attorneys, and the attorneys whom they supervise, the Assistant U.S. Attorneys. 

B.                  The Federal Judiciary 

There are three levels of federal courts and federal judges empowered to hear civilian criminal cases.  Once appointed, all federal judges, except U.S. Magistrate Judges, may continue to serve as judges throughout their lives.  The U.S. Constitution provides for the lifetime tenure of U.S. judges. 

1.            The United States District Courts 

At the first level of the federal judiciary are the 94 U.S. District Courts.  The judges in the district courts are either U.S. Magistrate Judges (the lowest level of federal judges) or U.S. District Court Judges.  All trials of federal criminal cases take place in the U.S. District Courts.  

Certain minor offenses may be tried before a U.S. Magistrate Judge.  Otherwise, all federal criminal trials are conducted by a single U.S. District Judge.  At trial, the judges rule on all questions of law and evidence.  If there is no jury, they also determine whether the evidence is sufficient to convict.  The sentencing of convicted persons is also the responsibility of the judges at the District Court level. 

The power of the District Judges is greater than that of the Magistrate Judges, and, in many instances, District Court judges determine what actions the Magistrates may perform.  For example, all extradition hearings occur in the District Courts, but the rules established by the District Court Judges will determine whether the extradition hearing may be held before a Magistrate rather than a District Judge.

In addition to conducting trials, the judges of the District Court have authority to issue warrants of arrest and warrants for search and seizure, to grant provisional liberty of a person accused of crime, and to rule on all legal matters prior to trial. 

2.  The United States Courts of Appeals 

At the next level are the U.S. Courts of Appeals, also called the Circuit Courts of Appeals.  There are thirteen Circuit Courts of Appeals.[7]  Each of the twelve Circuit courts that hears appeals from criminal cases has jurisdiction over a particular geographic area called a “Circuit.”[8]  Each Circuit Court hears appeals from the District Courts within its area.  For example, the Second Circuit Court of Appeals hears appeals from decisions of the various District Courts in the States of Connecticut, New York, and Vermont. 

Persons convicted of federal crimes have a right to appeal to the Circuit Court having jurisdiction.[9]  The Circuit Courts, however, will generally give great deference to the evidentiary (factual) findings at trial and will not conduct a broad review of the evidence.  They will conduct a more extensive review of decisions of law, rather than findings of fact.  The prosecutor’s ability to appeal is very limited.  For example, the prosecutor may not appeal a judgment of acquittal.

Appeals in the Circuit Courts are heard by a panel of three Appellate Court judges.  In very rare circumstances, the decision of the three-judge panel may be reviewed by all the judges for the Circuit.  At the appellate level, the attorneys for the prosecution and defense submit documents to the court outlining the law applicable to the facts of the case and the reasons why the court should find in their favor.  The court then generally hears the “argument” or oral presentation of each attorney, and will ask him or her questions regarding the case.  The court then considers the case and renders a decision.[10]  Generally, this decision is written, and will explain the court’s reasons for the decision. 

3.  The United States Supreme Court 

The Supreme Court is composed of nine judges.  Except in unusual circumstances, the Supreme Court acts as an appellate court, reviewing the decisions of the U.S. Courts of Appeals and the Supreme Courts of the various states.  Decisions of the Supreme Court are not subject to further appeal.  In criminal cases, there is generally no right to appeal to the Supreme Court.  Instead, the person seeking review by the Supreme Court must file an application for review with the Court, explaining why the legal issue in his or her case is important enough for the court to consider.[11]  Only in a few cases does the Court accept a petition for review.  The Supreme Court has not reviewed an extradition case in more than fifty years.

II.          Procedure in Federal Criminal Cases 

A.                  The Investigation and Bringing of Formal Charges 

When one of the federal investigative agencies believes that it has evidence of a violation of United States law, the investigative agents will present their findings to the Office of the U.S. Attorney in their district.  One of the Assistant U.S. Attorneys will review the case and question the agent about it in detail to determine whether the evidence shows that there is probable cause to believe a crime has been committed. 

If the evidence is not sufficient to establish probable cause, the Assistant U.S. Attorney (AUSA) may ask the agents to continue their investigation, in the alternative, he or she may decide that the evidence should be presented to a grand jury and that the grand jury should continue the investigation of the case. 

If the AUSA determines that there is probable cause, he or she will present the evidence to the grand jury and ask that they vote on a proposed criminal charge.  This charge is called an indictment.  However, in some instances, there is insufficient time to present the case to the grand jury because of an urgent need to arrest the person believed to have committed the offense. 

In these instances, the AUSA will ask a judge to issue an arrest warrant based on a sworn statement called a complaint, which sets out the essential facts of the offense charged.  The complaint, or sworn statements filed with the complaint, must also set out evidence sufficient to establish probable cause to believe that the specific crime charged was committed by the person charged with that crime.  If, after a careful review, the judge determines that there is sufficient evidence to meet the probable cause standard, the judge will issue a warrant for the arrest of that person.  If a person is arrested pursuant to this procedure, the AUSA must thereafter present the case to the grand jury and obtain an indictment.

A grand jury consists of between 16 to 23 citizens who have the duty, after reviewing the evidence, to vote on a proposed criminal charge.  Generally, the grand jury hears evidence only from the government.  A target of an investigation (i.e., a person on whom the investigation is focused) may not be subpoenaed before a grand jury but may volunteer testimony before the grand jury.  This seldom occurs. 

In order for a person to be indicted, at least 12 members of the grand jury must find that there is probable cause to believe that the person or persons to be charged committed the crime or crimes to be charged.  While the grand jury is deliberating on whether to return an indictment, i.e., to issue an indictment, the prosecutor and the agent, court reporter, and everyone else must remain outside the grand jury room. 

Persons accused of crimes punishable by more than one year’s imprisonment have a Constitutional right to be indicted by a grand jury.[12]  The grand jury does not determine the guilt or innocence of the defendant.  That can be done only at trial. 

A federal prosecutor does not have the authority to issue a subpoena ordering a person to give testimony or to produce evidence in his or her possession.  The grand jury has the authority to issue such subpoenas, and it therefore has substantial investigative powers.  In practice, the AUSA or other federal prosecutor usually issues subpoenas in the name of the grand jury.  However, the grand jury can subpoena additional witnesses of its own volition. 

When a witness is subpoenaed before the grand jury, the AUSA generally asks the questions although in many instances the grand jurors also question witnesses.  A witness before a grand jury, like a witness at a trial, may not be compelled to give evidence that would tend to show that he or she has committed a criminal offense.  As discussed above, this right is referred to as the Fifth Amendment privilege or the privilege against self-incrimination.

Grand jury proceedings are recorded verbatim by a stenographer and are secret.  It is a crime for a prosecutor or a member of the grand jury to discuss grand jury proceedings in public.  Also, a prosecutor may not disclose grand jury information to another prosecutor or investigating officer, unless that prosecutor or officer is also involved in the same criminal investigation.  Information gathered by a grand jury may be disclosed only upon the order of a federal court. Such permission is rarely given.  Of course, evidence obtained by the grand jury may be used later at trial, if the grand jury formally indicts one or more persons for a criminal offense.[13] 

In complex crimes such as most bank frauds, the involvement of a grand jury from the beginning is essential to an effective investigation.  In such cases, the prosecutor and investigator will work very closely together from the start of the investigation. 

B.  The Arrest of the Defendant

In the federal system, accused persons are usually arrested after a grand jury formally charges them with a crime. (As noted above, a judge may issue an arrest warrant before indictment upon the filing of a complaint setting forth sufficient evidence to establish probable cause.)  Generally, the AUSA will apply to the court for the issuance of a warrant of arrest for the person named in the indictment.[14]  Depending on a number of factors, the defendant may, after arrest, be released on bail (provisional liberty or conditional release) pending trial or may remain in prison. These factors include the seriousness of the crime, the criminal history of the accused, and the likelihood that he or she will become a fugitive.  A judge determines whether a defendant is to remain in prison or is to be released, and, if released, on what conditions. These conditions may include a requirement that the defendant, or someone acting on the defendants behalf, pledge money or other property that will be forfeited if the defendant fails to appear for trial. 

Soon after the defendant is arrested, he or she will be brought before a judge.  The judge will inform the defendant of the charges against him or her and ask whether the defendant pleads guilty or not guilty to the charges.  This proceeding is called the arraignment. 

C.  The Trial of the Defendant 

Under the U.S. Constitution, a person accused of all but very minor offenses has a right to be tried by a jury.  This is a trial jury, which is sometimes called a “petit jury.”  Trial juries in criminal cases are composed of 12 citizens, who must all agree on the defendant’s guilt in order to convict.  At trial, the prosecution must prove “beyond a reasonable doubt” that the defendant committed the crime or crimes charged. The defendant has no obligation, to testify or to call any witnesses on his or her behalf.[15]  However, a defendant who chooses to testify is placed under oath like any other witness and may be prosecuted like any other witness for perjury. 

At a jury trial, the jury determines whether the evidence against the defendant is sufficient for conviction.  The jurors must base their determination only on the evidence presented at trial.  If they reach the personal conviction that a defendant committed a crime as charged, but determine that the prosecution’s evidence does not prove guilt beyond a reasonable doubt, the jury must acquit. 

The judge presides over the trial and rules on all issues of law, including whether evidence is admissible (i.e., whether it can be presented to the jury for use in determining whether or not the defendant is guilty as charged).  The judge also instructs the jury on the legal principles it is to apply in deciding whether the defendant is guilty or not.

A defendant may waive his or her right to a jury trial.  The judge will then function as the “trier of fact” and determine whether the evidence presented is sufficient to find the defendant guilty beyond a reasonable doubt. 

A trial the judge may, on occasion, question a witness. However, the questioning of witnesses is primarily the responsibility of the prosecutor and the defense attorney.  They do most if not all of the questioning. 

A court reporter makes a verbatim record of everything said at trial by the witnesses, prosecutor, defense counsel, and judge.  This includes everything said at so-called bench or sidebar conferences in which the prosecutor and defense lawyer argue points of law, e.g., whether a given piece of evidence is admissible, before the judge but out of the hearing of the jury. 

If a defendant is found guilty, it is the responsibility of the judge to impose the sentence.  A defendant found guilty following a trial may appeal his or her conviction to the U.S. Court of Appeal for the circuit that includes the U.S. District Court in which the defendant was convicted.  If the defendant is acquitted, the prosecution may not appeal.  In certain circumstances, the defendant may also appeal the sentence imposed.  The prosecution and defense must designate the portions of the verbatim trial record and items of evidence that they wish the appellate court to consider in deciding the appeal.  No new evidence may be presented on appeal. 

1.         Declining Prosecution

One of the most significant aspects of the American legal system is the wide discretion that American prosecutors have in criminal matters. For example, a federal prosecutor may decline to prosecute an offense because he or she finds it not significant enough to merit prosecution in federal court.  For instance, the quantity of drugs involved or the loss to a victim may be relatively small.  The investigating agents may then present their evidence to a state prosecutor (assuming the offense is one that may be prosecuted in state court), where, again, the state prosecutor has discretion to prosecute the offense or to decline prosecution.  Similarly, the federal prosecutor may decline prosecution of a minor offense if he or she considers that there is an acceptable alternative to prosecution, such as an agreement by the defendant to compensate the victim of the offense. 

Defendants charged with minor, non-violent crimes may be eligible for pre-trial diversion into a program that usually includes making restitution to the victim.  If the defendant completes the program successfully, he or she will not be prosecuted and may avoid a criminal record. 

Another instance in which a prosecutor may decline to bring charges or ask the grand jury to return an indictment is where, although there is enough evidence to obtain a persons arrest, (that is, probable cause), the prosecutor knows that enough additional evidence to convict the person at trial will be unavailable. In such circumstances, the prosecutor is not obligated to seek an arrest warrant.  In fact, if a prosecutor did bring charges or obtain a grand jury indictment and have a defendant arrested under those circumstances, this could be viewed as an abuse of the prosecutor’s discretion. 

2.         Plea Agreements

Most criminal cases in the United States are concluded prior to any trial or even during trial by the defendant’s entering a plea of guilty.  Often, these guilty pleas are the result of negotiations between the prosecutor and the defense attorney. This process is called plea bargaining.  The agreement is called a plea agreement or plea bargain.  In a plea agreement, the defendant, generally through his or her attorney, agrees to plead guilty to some or all of the charges against him or her in return for certain actions by the prosecutor.  The prosecutor may agree to dismiss one or more of the charges, or may agree either to make a recommendation to the judge about the sentence to be imposed or not to oppose a sentence suggested by the defense counsel.[16]  The prosecutor’s agreement binds the United States.  As part of a plea agreement, the defendant may also agree to give truthful testimony about crimes of which he or she has knowledge.  Therefore, a prosecutor may use the plea agreement to obtain testimony of a minor criminal that is necessary to convict a more significant criminal. 

A guilty plea must be made before a judge.  A court reporter makes a verbatim record of everything said in the proceeding.  Before the judge will accept the guilty plea, he or she will question the defendant in open court to make sure that the defendant understands his or her right to plead “not guilty” and to demand a trial; that the defendant is pleading guilty voluntarily; that the defendant understands the terms of any plea agreement and the consequences of the guilty plea; that the defendant has not been subject to coercion or improper promises on the part of the prosecutor; and that there is a factual basis for the plea. If the judge is not satisfied by the defendant’s responses to the questions, the judge will reject the defendant’s guilty plea. 

3.         Grants of Immunity 

Obtaining evidence necessary to convict persons involved in organized criminal groups is particularly difficult.  The secretive nature of these groups and their powers of intimidation make it very difficult for the prosecutor to obtain necessary testimony against the groups leaders.  Witnesses outside the group are often afraid to testify.  Persons within the group are generally not only unwilling to testify, but also may assert their Fifth Amendment privilege against self-incrimination and refuse to testify about any crimes in which they were involved.  The special powers of U.S. prosecutors to “immunize” witnesses often allows them to obtain testimony that is critical to these cases. 

First, the prosecutor may determine that the cooperation or expected testimony of a minor figure will be especially significant, and that the importance of that person’s testimony or cooperation outweighs the need to prosecute the person for minor criminal involvement.  In these cases, the prosecutor may agree not to prosecute the person for the crimes about which he or she is to testify or to cooperate, e.g., by providing information and investigative leads.  Thus, the prosecutor can grant immunity from prosecution for particular crimes.

Second, the prosecutor may determine that a narrower grant of immunity is appropriate.  This narrower immunity, called “use” immunity, is designed to overcome a witness’s assertion of the privilege against self-incrimination.  In these cases, the prosecutor asks the court to compel the witness to testify, and the witness is assured that this testimony (and any information derived from that testimony) may not be used in a prosecution against him or her.  This type of immunity is controlled by a statute passed by the Congress specifically to address the problems of obtaining evidence in organized crime cases.  A prosecutor may still prosecute a person granted this second type of immunity, as long as the evidence against the person does not use or derive from the testimony that the person has been ordered to give. 

IV.        American Judges, Prosecutors, and Defense Lawyers:  Members of a Single Legal Profession 

A.             Qualifications 

The highest court of each of the 50 states and the District of Columbia establishes the qualifications for practicing law in the courts of that jurisdiction.  Practically all states require prospective lawyers to have completed a four-year college or university degree in subjects of the candidate’s choice, plus three years of law school leading to the Juris Doctor degree. Although many prospective lawyers study government (political science) as undergraduates, no particular course of undergraduate study is required. 

To be admitted to practice law in a state or the District of Columbia, a person must then be acceptable to the ethics committee of that jurisdiction and must pass a comprehensive examination on general U.S. law, including Constitutional law; legal ethics; and the jurisdiction’s law and procedure. 

Examinations for the first two topics are multiple-choice tests that are administered on a national basis by a private testing agency and are scored by machine.  However, each jurisdiction decides what it will consider as a passing grade on the multi-state tests.  Each jurisdiction makes up and grades its own essay examination on its substantive law and its criminal and civil procedure. 

Those who pass the examinations for a jurisdiction and who are considered to have character appropriate to the practice of law are admitted to practice before its courts.  They must apply separately to practice before the appropriate U.S. District Court and the appropriate Circuit Court of Appeals.  An additional examination is not normally required in order to practice before these federal courts.  Many American lawyers belong to the bars of more than one state.  Many states have agreed among themselves to admit one another’s lawyers on a reciprocal basis if a lawyer has practiced a certain number of years, generally five, and is of fit character. 

B.             Terminology 

When a person has been admitted to a bar, he or she is a member of that bar and is therefore called a lawyer or an attorney.  In the United States, the terms mean the same thing.  “Esquire” after the name of an American means that the person is a lawyer.  The use of “Esquire” for this purpose is informal but widespread.  The terms “counsel” or “counsellor at law” are also used for attorneys.  Again, these simply mean that a person is an attorney. 

C.         Career Paths 

American attorneys may engage in the private practice of law, meaning that they are available to represent anyone who wishes to retain them.  Private practitioners may or may not represent persons accused of crime, i.e., they may or may not act as defense counsel.  Attorneys may also be employed by a city, state, or the federal government in any one of a number of jobs requiring knowledge of law.  Prosecutors in the United States are always attorneys and are always city, state, or federal employees. 

Attorneys who start out in private practice may later become employed by one or another governmental office, including employment as prosecutors.  Prosecutors may later leave government service and go into private practice, where they may act as defense attorneys. 

D.           The Judiciary 

Judges are chosen both from among those who have been in the private practice of law for a number of years and from among experienced prosecutors and, sometimes, lawyers in government service who are not prosecutors.  They may also be chosen from the faculty of law schools.

State court judges are often elected and serve for limited terms.  Federal judges and judges of the courts of the District of Columbia are appointed by the President with the advice and consent of the U.S. Senate.  Senators nominate judicial candidates for the federal courts in their states. Federal judges are appointed for life.  Federal judges rarely leave the bench and return to (or go into) private practice. 

The American Bar Association (ABA), a private national association of lawyers which includes private practitioners, government attorneys (including prosecutors), and judges among its members, rates nominees for federal judgeships.  Although the ABA’s ratings are unofficial, the U.S. Senate would almost never confirm a nominee whom the ABA regarded as unqualified. 

The Federal Judicial Center in Washington, D.C., conducts short training courses for new federal judges.  There is also training center in Reno, Nevada, open to state court judges from any state. 

Justices of the U.S. Supreme Court, interestingly, need not be lawyers.  However, in practice they always are.

[1] The bases for federal criminal jurisdiction are particularly complex, and are unique to the legal system of the United States.  For example, certain federal crimes require the involvement or use of the U.S. mails, telephone or wire communications, or travel or transportation between the states before they can be prosecuted in federal court.  The peculiar nature of these jurisdictional elements is recognized in many, modern extradition treaties, by providing that the existence or nonexistence of these elements is not to be considered in determining whether a crime would be punishable in, for example, Mexico and the United States.

[2] The combination of federal and state legal systems is a function of our federal system of government.

[3] In the federal system, a clerk of the court may issue a warrant of arrest if there is already an indictment charging a person with a criminal offense.  As discussed more fully below, an indictment is a finding by a grand jury that there is probable cause to believe that a crime has been committed and that a certain person committed it. Under United States law, an arrest warrant may be issued only after a finding of probable cause.  Since the indictment itself is sufficient to establish probable cause, a warrant of arrest following indictment generally does not require an additional finding of probable cause by a judge.

[4] This right is called the right of confrontation. It is guaranteed by the Sixth Amendment to the U.S. Constitution.

[5] This right is referred to as the privilege against self-incrimination, or the Fifth Amendment privilege, since it is guaranteed by the Fifth Amendment to the Constitution. Any person may assert this right.  The person need not be formally accused of  a crime.

[6] Other federal investigating officers are employed by other Departments, and investigate matters within the special jurisdiction of their Departments.  For example, officers of the Secret Service (which investigates counterfeiting), the Bureau of Customs and Immigration Enforcement, and Border Patrol are all employed by the U.S. Department of Homeland Security.  The U.S. Treasury Department, Internal Revenue Service, employees law enforcement officers to investigate tax crimes.

[7] These are the U.S. Courts of Appeals for the First through Eleventh Circuits, the Court of Appeals for the District of Columbia (Washington, D.C.), and the Court of Appeals for the Federal Circuit. The jurisdiction of the “Federal Circuit” does not extend to criminal matters.

[8] In the last century, federal judges would in fact make a circuit, or travel about within the geographic area, to conduct trials and hearings. Even today, the Courts of Appeals will meet in different cities within their Circuits. For example, the Court of Appeals for the Ninth Circuit may conduct hearings in Alaska, California, or Hawaii.

[9] Persons found extraditable do not have a right of appeal to the Circuit Courts.  They may appeal only by petitioning for a writ of habeas corpus. Such a petition is in effect a claim that the person’s custody is unlawful. The scope of review in such cases is very limited. The petition must first be made to the District Court. If the District Court denies the petition, the Circuit Court may review the District Court’s decision.

[10] A court’s decision is often referred to as its “opinion.” Many, though not all, opinions are published in various sets of printed reports generally issued by private law publishing companies.  Judges generally select the opinions they want published.  Commercial services also provide computerized access to decisions of state and federal courts.  Current decisions, including those of the U.S. Supreme Court, are now available free of charge on the Internet from a combination of public and private sources.

[11] This application is called a petition for a “writ of certiorari.”

[12] A person may waive his or her right to indictment by a grand jury. Anyone waiving this right is charged in a document called an “information.”

[13] Witnesses who testify before a grand jury will generally be called to testify again at trial, where the defendant or the defendants’ lawyer may cross-examine them to test the credibility of their testimony.  This is because the accused person has a right to confront and question all witnesses against him or her in a trial open to the public.  Thus, a witness’s testimony before the grand jury is ordinarily not used at trial to determine whether the defendant is guilty as charged unless the witness changes his or her testimony at trial or becomes unavailable for trial.

[14] The warrant of arrest simply specifies the crime(s) charged and orders the arrest of the person accused of the crime(s).  The warrant of arrest is not the charging document.  The charging document, which accuses the defendant of the crime(s), is the indictment, complaint, or information.

[15] In fact, the prosecutor is forbidden even to comment on the defendant’s failure to testify, and the judge instructs the jury that it may not regard the defendant’s silence as evidence of guilt.

[16] A judge need not follow the recommendation of the prosecutor regarding sentencing.  The judge will therefore warn the defendant of this prior to accepting the guilty plea, so that there is no misunderstanding about the force of the prosecutor’s recommendation.  (In contrast, the prosecutor’s decision to dismiss certain charges is binding on the court.)