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NYC Criminal Defense Attorney

State vs Federal Criminal Procedure


New York Federal vs State Criminal Cases

The United States has a patchwork of criminal laws that often overlap in that they proscribe the same thing. For example, when you commit a state level offense such as a grand larceny where you buy something with someone else’s credit card, the State of New York could prosecute you for grand larceny and the federal government could also prosecute for fraud or other related offenses.

There are may similarities but some differences between the New York State and federal criminal process.

Federal jurisdiction happens when the offense occurred on federal property or committed against a federal agent, you cross state lines during commission of offense or the offense involved interstate commerce, or it is a federally defined offense. For example, if you are accused of being drunk and disorderly on the streets of New York City, you may get prosecuted in New York State court for disorderly conduct but if you get drunk and disorderly in a commercial airliner flying over New York City, you could be arrested by federal agents and prosecuted in New York federal court.

Federal prosecutions are longer and in more depth. Federal investigators tend to have greater resources than their state counterparts. Also, states tend to arrest first and then build a case whereas federal prosecutors will build the case and then arrest or indict. For example, an NYPD officer may see someone doing something that, based on that officer’s training, constitutes a crime. The officer, believing he/she has probable cause, makes an arrest. The Manhattan District Attorney’s Office might later indict the person who was arrested. Federal cases often work very differently. A federal prosecutor may start an investigation into someone, build a case, bring it to a federal grand jury, and obtain an indictment all before arresting the person.

The Fifth amendment of the U.S. Constitution says all federal felonies must be brought by a grand jury. This same requirement is not extended to the states however many states use a similar process. New York’s state system is very similar to the federal system this way. In New York, prosecutors must generally go to a grand jury for an indictment.

A grand jury decides whether there is probable cause that a crime was committed and that the person named on the indictment is the person who committed it. Probable cause is a reasonable basis to believe a crime was committed. This is different than proof beyond a reasonable doubt. For example, if a person walks into Chase Manhattan bank wearing a ski mask, there may be probable cause to make an arrest however merely wearing a ski mask in a bank without more may not be proof beyond a reasonable doubt of an attempted bank robbery.

A Federal grand jury needs at least 16 to 23 people and they need more than 12 concurring votes to indict. Everyone except grand jury witnesses must keep the fact of the proceedings secret. Witnesses can be subpoenaed, they can invoke the fifth amendment, can have attorneys sit outside room, and witnesses can take notes. In New York State courts, your attorney can accompany you inside the grand jury and give you advice which is a crucial difference from federal grand juries.

It has been said that a grand jury could indict him sandwich (Judge Wachtler, NY Court of Appeals). This means, basically, that it is very easy for a prosecutor to obtain an indictment. This could be due to the fact that grand juries can hear hearsay testimony, don’t have to find proof beyond a reasonable doubt has been met, or that prosecutors can cherry-pick by bringing only the strongest cases to a grand jury.

After a grand jury has heard the evidence, there can be an indictment, no indictment, discharge or expiration without action, submission of report to court. A defendant can move to dismiss indictment based on defects in the grand jury in both New York State and federal court.

The 5th amendment grand jury requirement does not apply to states but about 50% of states use similar mechanism including New York, other states use things like preliminary hearing. Federal prosecutors can also use preliminary hearing in lieu of grand jury but will typically go for grand jury.

In 1984 federal bail reform act reduced reliance on cash bail and made bail determinations based on risk of flight or danger to community. If you’re not facing a mandatory minimum, you’ll probably get bail. Others face pretrial detention. Prior to first appearance in New York federal court, pretrial services will interview and prepare report that the magistrate can consider and make a bail determination at the first appearance. This must be done within five days of initial appearance - you have right to counsel during detention hearing, right to testify, present witnesses, present other evidence, but the ordinary federal rules of evidence do not apply to this evidence.

Discovery. Generally, discovery is the evidence and information that the prosecutor has against you. FRCRP 16a covers pretrial discovery rules. At your initial appearance, you will be given a timetable for disclosures. Under the Jenkins act, federal prosecutors must produce recorded statements of witnesses regarding the subject matter of their testimony. There is also a continuing duty to disclose so discovery may be continuously provided while the case is pending.

Jury selection. Generally, jury selection is the process of picking jurors just prior to trial that will be fair and impartial to the accused. The 6th amendment of the U.S. Constitution provides right to trial by jury. Concept of 12 unanimous jury conviction is actually not in constitution but goes back to number of apostles of Jesus Christ. In federal system, at least 6 need to be on jury and unanimous to convict. Generally, and federal system judge will ask questions of jurors, not Attorneys but Attorneys can send questions to judge for the judge to ask of prospective jurors.

Post conviction. After conviction, federal defendant will be interviewed by probation officer who will prepare presentence report. Each side will have opportunity to respond and submit arguments for departures and variances unless prohibited by plea agreement. Most federal cases result in guilty plea. This is 97% of the time so presentencing arguments are a critical stage. About 3% of the time it is after trial.