Federal Criminal Charges (Federal vs State Prosecution)

How a federal criminal case differs from a state one: the grand jury indictment, pretrial release, advisory sentencing guidelines, and the possibility of being charged by both.

Looking for a lawyer rather than a definition? Skip to the state-by-state list of Criminal Law Federal law firms.

What it means

Most crimes are prosecuted by the states. A case becomes federal when the conduct violates a federal statute, for example drug trafficking across state lines, fraud using the mail or wires, federal firearms offenses, or crimes on federal property, and a United States Attorney's office decides to charge it. Federal and state governments are separate sovereigns, so the same conduct can be prosecuted by both without violating the protection against double jeopardy (Gamble v. United States, 587 U.S. 678 (2019)).

A federal felony must be charged by a grand jury indictment unless the defendant waives it (U.S. Const. amend. V; Fed. R. Crim. P. 7(a)). Federal investigations often run for a long time before any charge, and a person may first learn of one through a subpoena, a search warrant or a target letter telling them they are a putative defendant (Justice Manual § 9-11.151). Lying to a federal agent during an investigation is a separate crime in itself (18 U.S.C. § 1001), even when the underlying conduct is never charged. After arrest, release or detention pending trial is decided under the Bail Reform Act (18 U.S.C. § 3142).

Sentencing is where federal cases differ most. The judge must consider the factors listed in 18 U.S.C. § 3553(a) and calculate the range under the Federal Sentencing Guidelines. The Guidelines are advisory rather than mandatory (United States v. Booker, 543 U.S. 220 (2005)), but many offenses carry statutory mandatory minimum sentences that a judge cannot go below. There is no parole in the federal system for offenses committed after the Sentencing Reform Act took effect, so the sentence imposed is close to the time served, reduced only by limited credit for good conduct and certain programs.

Where this comes from

When people hire a lawyer for this

Get a lawyer who practices in federal court at the first sign of an investigation: a visit or call from a federal agent, a grand jury subpoena, a search, or a target letter. Do not talk to agents without counsel, because a statement can become evidence or a separate false-statement charge. Early representation matters more federally than in most state cases, since charging decisions, cooperation and plea terms are often settled before an indictment is ever filed.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

Find Criminal Law Federal law firms in your state

Choose your state to see Criminal Law Federal law firms in the city where we list the most; your city may be under “other cities”, A to Z.

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  • and 7 more with fewer listed firms
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Related terms

Other entries in the same area of law, each written from the same primary sources.

• ArraignmentThe first court appearance in a criminal case, where the charges are read and a plea is entered.
• Bail and Pretrial ReleaseThe decision about whether someone stays in custody while their case is pending - which is about appearance and safety, not about guilt.
• Bench Warrant and Failure to AppearThe arrest warrant a judge issues from the bench when a defendant misses a court date or violates a court order - what it authorizes, the separate failure-to-appear charge and bond forfeiture that often follow, and how a person clears one by surrendering on their own terms rather than being picked up.
• Criminal RestitutionThe order, entered at sentencing, requiring a defendant to repay the victim's losses caused by the offense - what losses it covers, how it differs from a fine and from a civil judgment, the payment schedule and enforcement, and why it survives bankruptcy and the end of the sentence.
• Criminal Traffic Offenses (Reckless Driving, Suspended License, Hit and Run)The driving offenses that are crimes rather than tickets, which carry a criminal record, possible jail and license consequences, and so are defended like any other criminal charge.
• Domestic Violence ChargesCriminal charges for violence or threats against a family or household member or partner, which bring consequences beyond the sentence, including a federal firearms ban.
• Double JeopardyThe constitutional bar on being tried twice for the same offense after an acquittal or conviction, or punished twice for it - when jeopardy attaches, what counts as the "same offense", the mistrial and appeal exceptions, and why a state and the federal government may each prosecute the same act.
• Drug Crime Charges (Possession and Distribution)How drug charges are structured: possession versus intent to distribute, drug schedules and quantity, state versus federal prosecution, and the search questions that often decide the case.
• Expungement and Record SealingCourt processes that erase or restrict access to a criminal record, available only in defined circumstances that vary by state.
• Felony and MisdemeanorThe basic division of criminal offenses by seriousness - which drives the procedure, the possible sentence, and the consequences that outlast it.
• Grand Jury and IndictmentA closed proceeding in which citizens decide whether there is enough evidence to charge someone - not whether they are guilty.
• Miranda RightsThe warning police must give before questioning someone in custody - and the reason a missing warning suppresses a statement rather than ending a case.
• Motion to Suppress (Exclusionary Rule)The pretrial request to keep evidence out of a criminal trial because it was obtained in violation of the Constitution - an unlawful search, an involuntary or un-warned confession, a suggestive identification - the hearing it triggers, the "fruit of the poisonous tree" rule, and the exceptions that let evidence in anyway.
• Plea BargainAn agreement resolving a criminal case by guilty plea, usually in exchange for reduced charges or a sentencing concession.
• Preliminary HearingAn early court hearing at which a judge decides whether there is enough evidence for a case to proceed - the defense's first real look at it.
• Pretrial Diversion and Deferred AdjudicationThe programs that let an eligible defendant avoid a conviction by completing conditions - treatment, classes, community service, restitution - after which the charge is dismissed; the difference between diversion before a plea and deferred adjudication after one, and what each does to the record.
• Probable CauseThe level of justification the Fourth Amendment requires before police may arrest someone or search a place - more than a hunch, and less than proof.
• Probation and Parole ViolationWhat happens when someone under supervision is said to have broken its conditions - a proceeding with fewer protections than the trial that preceded it.
• Right to a Speedy TrialThe constitutional guarantee that a criminal case be brought to trial without unreasonable delay, and the statutes in the federal system and most states that put a clock on it - what starts the clock, what stops it, why a defendant's own motions extend it, and the remedy of dismissal when it runs out.
• Right to Counsel and the Public DefenderThe Sixth Amendment right to a lawyer in a criminal case, including one paid for by the state if the defendant cannot afford one.
• Search WarrantA judge's written authorization to search a specified place for specified things - and the exceptions that let police search without one are broad.
• Self-Defense and JustificationThe defense that a use of force was lawful because it was necessary to protect oneself or another from imminent unlawful force - the reasonableness and proportionality requirements, the duty-to-retreat and stand-your-ground split among the states, the castle doctrine, and who bears the burden once the defense is raised.
• Sentencing and EnhancementsHow a criminal sentence is decided after a plea or verdict - the statutory range, the guidelines or presumptive scheme the jurisdiction uses, the enhancements for prior convictions, weapons, victims and quantities that raise it, the presentence report, and the constitutional rule that any fact raising the maximum must be found by a jury.
• Sex Crime Charges and Sex Offender RegistrationCriminal charges for sexual offenses, which carry consequences beyond the sentence, chiefly sex offender registration under state law and the federal SORNA framework.
• White-Collar Fraud Charges (Mail, Wire and Securities Fraud)Federal fraud crimes built on a scheme to obtain money or property by deception, and the investigation rules that matter before any charge is filed.

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