How Do Federal And State Procedures Compare?
Interviewer: What else is different about the process? Are there different rules of evidence? Do you have to handle it differently as someone’s lawyer?
Paul: Well, because the federal system generally relies on grand jury indictment, in many of these cases counsel will not have the opportunity for a preliminary hearing. We do not get to be present for the grand jury proceeding, and we do not get to cross examine the officers called by the U.S. Attorney. So when you have a client appearing in federal court pursuant to grand jury indictment, you will not have the opportunity to question those officers like you would at the state level at a preliminary hearing.
At the state level – at least in Kansas – the prosecutor can proceed with an indictment. However, in Johnson County, you can count on one hand the number of times the prosecutor has decided to proceed with an indictment, rather than an evidentiary preliminary hearing.
In 99% of felony cases at the state level, we have the opportunity for a preliminary hearing where the judge will make the probable cause determination. That gives defense counsel the opportunity to cross examine any witnesses called by the prosecutor.
The Rules of Evidence are largely consistent. The Kansas rules of evidence are very consistent with the federal rules of evidence.
Interviewer: Are you allowed, at any time, to question the agents who talk to your client?
Paul: As counsel, one of your obligations is to attempt to contact and question anyone called as a witness. Agents are not obligated to answer my questions or speak to me.
Interviewer: What is your experience with agents?
Paul: I reach out to the agent to say, “Look. Can I ask you a few questions about your investigation?” Within some number of days or a couple of weeks of my contact with the agent, supplemental discovery comes out.
The agent prepares a full narrative report: “On this day, I was contacted by the defendant’s lawyer, Paul D. Cramm. These are the questions Mr. Cramm asked. These are the answers I provided.”
They will provide a narrative report that they hand to the U.S. Attorney. There is not really a problem with that. You just need to know that every contact you have with these agents is going to be documented and made part of the case file.
Interviewer: How do you find out what the government has against your client? How do you do discovery if they are not obligated to give you anything? Or, are they?
Paul: What they are obligated to give you and what they do in fact give you, well there may be a little bit of a difference there. If a prosecutor wanted to be extremely aggressive with you, they could follow the discovery rules to the letter of the law. There is a relatively short list of documents that the prosecutor is obligated to produce.
In the District of Kansas and the Western District of Missouri, our U.S. Attorney’s office is relatively liberal and generous with defense counsel. We get essentially all of the narrative reports prepared by all the agents involved in the case. Only if something particularly sensitive that they would not produce comes into play, then we would not have the document.
But our U.S. Attorney’s office is, again, very liberal and very generous. So we do have the opportunity to have relatively free access to the government’s evidence before we make a decision about how to resolve the case.
Interviewer: Do you feel that you have a much higher hill to get over in defending these cases, because there is a lot of evidence and the rules are a little different. Or, is it not too much of a problem?
Paul: I think it is a significantly more serious place to practice law. By and large, your cases will result from much longer and much more extensive investigation. The amount of discovery you will get from the U.S. Attorney, in any one of these federal cases, is exponentially greater than the discovery in most state cases.
So you will spend an enormous amount of time pouring over the discovery. There is a lot of evidence in the case, before they proceed to indictment. So by and large, these cases are much more complex, far more time consuming for counsel, and a much greater sentencing risk for the client.
Interviewer: Are these cases a lot more expensive to work on because they take more time and effort?
Paul: They are. Federal work is more technical, more demanding and far more time consuming. So these cases tend to be more expensive if for no other reason than based on time commitment and resource availability.
Based on that, the fee will be far greater to provide zealous and ethical representation in a federal case than in a comparatively smaller state case.
Interviewer: How long do these cases take compared to state cases? Are they longer or shorter?
Paul: At the front end of these cases, the U.S. Attorney and the court try to establish a relatively prompt calendar of deadlines for production of discovery, review of discovery, filing of pre-trial motions and argument of motions. They want to get that case on a trial docket. So, they do try to keep the cases moving along pretty quickly.
The reason they do that is to make sure that if the case is continued, it is continued at the request of defense and they do not face any speedy trial challenges down the road. They want the defense to ask for additional time or delays in the case.
Certainly, if you have a case that involves a dozen or two dozen co-defendants, that type of case will be set on a much more extended schedule. Some of those cases will take 12 to 18 months, from the time of your client’s first appearance to the time you appear for a sentencing hearing following plea negotiations.
“The Importance of Aggressive Federal Criminal Defense”.
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