How to Hire and Work With a Federal Criminal Defense Lawyer

People who are the subjects of federal criminal investigations or who are facing federal criminal charges will benefit from being represented by a qualified criminal defense lawyer.

Although the same general principles apply to hiring a federal criminal defense lawyer as apply to hiring any other criminal lawyer, any person hiring a lawyer to assist with federal criminal charges or grand jury proceedings should retain a lawyer who has significant experience with the federal system.

Hiring a Federal Criminal Defense Lawyer

To put it in simple terms, lawyers either understand the unique and complicated elements of the federal criminal justice system or they do not. If you are being prosecuted in federal court, you should make sure that your criminal defense lawyer, or at least one of the lawyers who will be participating in your defense team, has extensive experience with the defense of federal criminal charges.

Although many federal criminal defense lawyers can provide defense services for a broad range of criminal charges, defendants facing very serious charges or specialized charges should consider retaining a specialist. For example, cases that involve national security, RICO allegations, securities fraud or a potential death sentence are best handled by a specialist.

Federal criminal defense tends to be very expensive. You will be paying for a lawyer who has specialized federal experience - so be sure that you get what you are paying for.

The Federal Criminal System

The federal criminal system is in many ways like the criminal justice systems employed by the states, but it has some very significant differences.

  • A United States Attorney's office, the office responsible for prosecuting federal criminal charges, normally has significantly more time and resources to direct to any given prosecution than would a state prosecutor.

  • Federal prosecutors usually have better academic credentials than state prosecutors.

  • Unlike state prosecutors, federal prosecutors often enjoy a great deal of latitude in selecting the cases they wish to prosecute through the federal courts, meaning that they may focus on cases that are particularly strong or that the find particularly interesting.

Save for crimes that occur on federal land, criminal cases that fall exclusively to the jurisdiction of a federal prosecutor tend to involve criminal activity that crosses state lines, and the cases are more likely than a state prosecution to be legally and factually complex. As a consequence, federal criminal defense often involves cases that are more difficult to defend than even a similar charge filed in state court, and the cost of defense is often very high.

Each federal jurisdiction maintains a Federal Defender's office that can provide legal representation to indigent defendants.

Federal Criminal Investigations

If you are contacted by the federal authorities in relation to a criminal investigation, you should:

  • Attempt to determine is if you are being contacted as a potential witness or as a suspect; and

  • Determine what statements you can safely make to the authorities without potentially falling into a trap, such as being charged with lying to federal agents.

Consider for example the case of Martha Stewart, who was determined not to be guilty of any direct criminal wrongdoing but nonetheless spent time in prison for making false statements to federal investigators.

A federal criminal defense lawyer can help you assess the nature and purpose of the investigation, and why you are being approached by federal investigators. Although you should expect that your lawyer will instruct you to provide honest answers to any questions from the federal authorities, your lawyer may be able to guide you around any potential traps or pitfalls that may arise during questioning.

When appropriate,

  • A federal criminal defense lawyer may be present during any questioning, and act as an intermediary between you and the investigating authorities or advise you to exercise your Fifth Amendment privilege against self-incrimination.

  • A federal defense lawyer may be able to work out a deal where you will cooperate with the investigation, in return for more favorable treatment when the investigation is concluded.

  • A federal defense lawyer may also be able to secure a letter of declination, through which the U.S. attorney formally declines to prosecute you in relation to a particular offense or investigation.

In some cases it may be possible for the attorney to work out a deal through which a defendant receives immunity in exchange for cooperating with the prosecution, and thereby avoids a criminal conviction.

Grand Jury Testimony

When a person receives a subpoena to testify before a grand jury, it is not always apparent whether the person is being subpoenaed as a witness or as a potential target for indictment.

As with a criminal investigation, a federal criminal defense lawyer can help a grand jury witness determine the likely purpose of the subpoena, how to avoid potential traps and pitfalls when providing testimony, or when to "take the fifth" - that is, whether to decline to answer questions and to instead assert the Fifth Amendment right against self-incrimination.

A defense lawyer may also be able to work out a deal for immunity,

  • Absolute or Transactional Immunity: An agreement that the defendant will not be prosecuted, usually in exchange for cooperation with the prosecution of the case;

  • Use and Derivative Use Immunity: An agreement that testimony given within a specified context will not be used to prosecute the defendant in subsequent proceedings, except for a perjury prosecution relating to the testimony. However, independently obtained evidence may still be used to support prosecution.

Once a witness has been granted immunity for grand jury testimony, the witness may not assert the Fifth Amendment as a basis for refusing to answer questions.

Federal Criminal Proceedings

It is helpful during federal criminal proceedings to be represented by a lawyer who is familiar with the federal rules of evidence, federal rules of criminal procedure, trial procedure, and the federal court system in general.

  • The lawyer should also be familiar with federal sentencing procedures, and with federal court rulings that affect sentencing.

  • It helps to have a defense lawyer who is familiar with the U.S. Attorney's office that is handling the case, and ideally is also familiar with the federal investigative agency that spearheaded the investigation.

The sentence that a defendant will receive under the federal sentencing guidelines depends upon the scoring of those guidelines, a process in which the prosecutor has considerable discretion to raise or lower the point score.

Defense lawyers who understand federal sentencing are better positioned to negotiate plea bargains and sentences that are advantageous to their clients. An attorney who practices in federal court only on occasion may be a highly skilled criminal defense lawyer, but that does not mean that the lawyer is a highly skilled federal defense lawyer

Copyright © 2000 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Apr 13, 2018.