Steps of a Federal Prosecutor's Job

A “federal prosecutor” plays a very important role in the criminal justice system. They are attorneys who represent the Federal government in a court of law and attempt to prove that a person or company committed a crime. In doing so, each prosecutor must always remember that he/she is a representative of the court and must behave fairly and provide justice to the country's citizens.

Sometimes, depending on the size of the state, it may be divided into several different areas, or “districts”, with one presidentially appointed United States Attorney for each. The United States Attorney has other attorneys who assist them in prosecuting cases.

These other attorneys, are called “Assistant United States Attorneys” (“AUSAs”) and they are not presidentially appointed. The Assistant United States Attorney’s main job is to present a set of facts to a judge or jury in a court of law and attempt to prove that an individual or company committed a crime. In order to do this, they rely on many people to get their job done—some collect information, interview people about crimes, or simply help them in court.

To give you a better understanding of the work of the Federal prosecutor, the Department of Justice uses facts from a case in Chicago, Illinois, several years ago. Throughout the story, there are definitions of legal terms and descriptions of the prosecutor’s role in each step of the criminal justice system process.

Often, prosecutors are called immediately after a crime and consulted about what should be done. One of the first things the Assistant United States Attorney does is contact an “investigating agency,” so that an investigator can be assigned to the case to assist in obtaining information about a person, place, or events related to the crime. In the Federal Government, there are agencies that employ investigators to collect and provide information to prosecutors. You may already know some of the agencies, such as: the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA),the Bureau of Alcohol, Tobacco and Firearms (ATF),and the United States Secret Service (USSS), to name a few.

The investigators at these agencies explain what happened at the scene of a crime and who may have seen it, and help prosecutors understand the details of the case. The prosecutor may work with just one agency but, many times, several investigating agencies are involved.

Remember our prosecutor? At this point, after the neighborhood boys were arrested, the prosecutor got a phone call asking whether there was a “case” against them. A “case” is simply a group of facts to show that a person may have committed a crime.

After the phone call, our prosecutor called an investigating agency involved in civil rights violations. “Civil rights” include things like the right to vote, the right to be happy, and the right to live in any part of town and attend any school, regardless of your nationality, gender, or appearance. The investigating agency assigned an investigator to the case who specializes in these types of cases. To seek out the truth and search for information relating to the crime, the investigator talked to the parents of the neighborhood boys, visited their school to talk to their teachers, and spoke with as many people as possible in order to create a clear picture of what happened for the prosecutor. The prosecutor may even choose to talk to some of the same people that the investigator talked to, just to make sure he has the best understanding of exactly what happened.

After the prosecutor determines that there is a case, he uses all the statements and information he has to determine if the Government has a “strong case”—one in which all the facts lead to a specific person or persons who committed the crime. In our case, the facts lead the prosecutor to believe that the neighborhood boys beat the lost boys because they didn’t want the boys in their neighborhood. However, before the prosecutor made that conclusion, he looked at both direct and circumstantial evidence. “Direct evidence/testimony” is information provided by a witness who saw or heard the beating, or is a videotape or audiotape of someone committing a crime. In our case, the direct evidence was the statements by the lost boys who said that the neighborhood boys beat them for no reason. Additionally, a four-year old girl who watched the beating from her grandmother’s window overlooking the street, also would testify that she watched the neighborhood boys beat the other two for no reason.

The second type of evidence is “circumstantial evidence”—statement(s) or information obtained indirectly or not based on first-hand experience by a person. Circumstantial evidence includes people’s impressions about an event that happened which they didn’t see. For example, if you went to bed at night and there was no snow on the ground but you awoke to snow, while you didn’t actually see it snowing, you assume that it snowed while you slept.

After the prosecutor studies the information from investigators and the information he gathers from talking with the individuals involved, he decides whether to “charge” or “indict” the case. When a person is charged or indicted, he is given formal notice that it is believed that he committed a crime. The indictment contains information that helps the person understand the crime he committed.

In our case, the neighborhood boys were charged with beating the lost boys in violation of their civil rights. Once charged, the neighborhood boys became the “defendants” in the case.

Sometimes, a prosecutor will present the evidence to an impartial group of citizens, called “Grand Jurors.” Witnesses may be called to testify, evidence shown to the Grand Jury and a simplified outline of the case presented to the Grand Jury members. What the Grand Jury does is listen to the prosectuor. The members then meet secretly and vote on whether they believe that enough evidence exists to charge the person with a crime. A Grand Jury also has the option of telling the prosecutor that the evidence and witnesses that he/she presented was insufficient to trigger an appearance of a crime, and as a result “no indictment” would come from the Grand Jury. All proceedings and statements made before a Grand Jury are sealed, meaning that only the people in the room have knowledge about who said what about whom. The Grand Jury is a constitutional requirement, (meaning it is written in our constitution) that exists so that a group of citizens, who do not know the defendant, the judge, the prosecutor or anyone else in the room can make an unbias decision as to the existence of enough evidence to charge a defendant with a crime.

After the defendant is charged, he can either hire an attorney or choose to be represented by an attorney provided by the Government—a “public defender”—at no charge. The defendant’s attorney is referred to as the “defense attorney”. He assists the defendant in understanding the law and the facts of the case, and represents the “charged person” just as the prosecutor will represent the Government.

Venue

The location where the trial is held is called the “venue,” and Federal cases are tried in “United States District Courts”. There are more than 100 District Courts in the United States. See if you can find the one closest to your neighborhood.

Either the same day or the day after a defendant is arrested and charged, he is brought before a "magistrate judge" for an initial hearing on the case. At that time, the defendant learns more about his rights and the charges against him, arrangements are made for his attorney, and the judge decides if the defendant will be held in prison or released until the trial.

In many cases, the law allows the defendant to be released from prison before a trial if he promises or guarantees to come to court when told. This promise or guarantee is called “bail.” Before the judge makes the decision whether to offer bail, he may hold a hearing to determine how long the defendant has lived in the area; if he has family close by; if he has ever been arrested before and, if so, if he has appeared in court as told; and, finally, if he has threatened any witnesses in the case. The judge also considers the defendant’s potential danger to the community.

If the defendant cannot “post bail” —or pay the money—then the judge orders him to stay in prison until after the trial. After the judge decides where the defendant will be before trial, the prosecutor’s substantial work begins.

Not only do prosecutors give advice but, more importantly, they try to prove a defendant’s guilt in a court of law. When a case goes to trial, the prosecutor’s goal is to convince the jury—a group of citizens—that the defendant committed a crime and should be punished.

Before a prosecutor begins a trial, there are many weeks or months of work to be done. The “pre-trial” stage of a case can be compared to homework!

The prosecutor has to become familiar with the facts of the crime, talk to the witnesses, study the evidence, anticipate problems that could arise during trial, and develop a strategy.

The prosecutor may even practice certain statements he will say during trial. This is called “moot court.”

One of the first steps in preparing for trial is talking to witnesses who could be called to testify in court. As we’ve discussed earlier, a “witness” is a person who saw or heard the crime take place or may have important information about the crime or the defendant. In our case, the witnesses are the two boys who were beaten and the young girl who watched the beating. The boys are also the victims of the crime.

A lay witness—the most common type—is a person who watched certain events and describes what he/she saw.

An expert witness is a specialist—someone who is educated in a certain area. He testifies with respect to his specialty area only.

A character witness is someone who knew the victim, the defendant, or other people involved in the case.

In our case, the expert witness was a doctor who described the injuries suffered by the boys who were beaten and testified that their injuries were similar to those of a person beaten with a baseball bat.

Character witnesses usually don’t see the crime take place but they can be very helpful in a case because they know the personality of the defendant or victim, or what type of person the defendant or victim was before the crime. In our case, the prosecutor called character witnesses to testify that the neighborhood boys were known as bad kids and bullies.

To avoid surprises at trial and to determine which of the witnesses he/she will call to testify, the prosecutor talks to each witness to find out what he/she may say during trial. These conversations will help the prosecutor decide whom he/she will call as a witness in court.

Another important part of trial preparation is reading every report written about the case. Based on information in the reports and the information from witnesses, the prosecutor determines the facts of the case.

Prosecutors must also provide the defendant copies of materials and evidence that the prosecution intends to use at trial. This process is called “Discovery,” and continues from the time the case begins to the time of trial. A prosecutor has a continuing obligation to provide the defendant documents/information which may reflect upon his/her case. A failure of the prosecutor to do so, can expose the prosecutor to fines/sanctions by the court.

When the prosecutor has a strong case with many witnesses who are willing to testify against the defendant, the Government may offer the defendant a “plea agreement” to avoid trial and give the defendant the option of admitting his guilt.

A defendant may only plead guilty if he/she actually committed the crime and admits to doing so in open court before the judge. When the defendant admits to the crime, he/she also agrees to be found guilty and punished or “sentenced” by the “judge” presiding over the court—the only person authorized to impose a sentence.

One of the last steps a prosecutor takes before trial is to respond to, or file “Motions in Limine”. A “motion” is an application to the court made by the prosecutor or defense attorney, requesting that the court make a decision before the trial begins. The motion can affect the trial, courtroom, defendants, evidence, or testimony.

In our case, the prosecutors brought Motions in Limine to get permission to obtain school disciplinary records of the neighborhood boys and to move the trial to a later date. The defense attorney made a motion requesting that the court exclude pieces of evidence or certain people from testifying against the defendant.

After many weeks or months of these preliminary tasks, the prosecutor is ready for the most important part of his job: the “trial”. The trial is a structured process where the facts of a case are presented to a jury in a court of law and they decide if the defendant is guilty or not guilty. During trial, the prosecutor uses witnesses and evidence to prove to the jury that the defendant committed the crime(s), and the defendant, represented by an attorney, also tells his side of the story using witnesses and evidence. In our case, the prosecutor tried to convince the jury that the neighborhood boys beat the lost boys in violation of their civil rights.

In a trial, the judge—the impartial person in charge of the trial—decides if and when certain procedures can be used or what evidence can be shown to the jury. A judge is similar to a referee in a game, he’s not there to play for one side or the other but to make sure the entire process is played fairly.

One of the first things a prosecutor and defense attorney must agree on when they arrive in court the day of trial are the jurors on the case. “Jurors” are selected by both sides to listen to the facts of the case and to determine if the defendant committed the crime. Twelve jurors are selected randomly from voter registration records of people living in the area around the courthouse. The jurors don’t know the prosecutor, the defendant, the defense attorney, or anyone involved in the case.

The process by which jurors are requested to come to the courthouse to try a case is called “Venire,” and the actual jury selection process is referred to as “Voir Dire”. When selecting the jury, the prosecutor and defense attorney must avoid discriminating against any group of people. For example, the judge will not allow them to select only men or only women. A jury should represent all types of people, races, and cultures."Opening statements" allow the prosecutor and the defense attorney to briefly tell their account of the events. These statements usually are short, like an outline, and don’t involve witnesses or evidence. The prosecutor makes an opening statement first because the Government has the burden of proving that the defendant committed the crime. Following opening statements, the prosecutor begins “direct examination” of his first witness. This is the prosecutor’s initial step in attempting to prove the case, and it can last from a few minutes to several days. During direct examination, the prosecutor can introduce evidence such as a weapon or something from the crime scene. [Example of a direct testimony transcript]In our case, the first witness was one of the boys who was beaten and, during his testimony, the bat that was used to hurt him was introduced as evidence. “Introducing” the bat at trial as evidence establishes a direct link from the crime scene, were the bat was used, to the courtroom. This ensures that the evidence that a prosecutor uses to prove a defendant’s guilt is the same evidence that was used to committ the crime.Following the prosecutor’s examination of a witness, the defense attorney has an opportunity to cross examine or ask questions to the same witness. The purpose of "cross examination" is to create doubt as to the testimony of the witness. The defense attorney often tries to show that the witness could not have seen the crime as he testified, perhaps for example, because he wasn’t wearing his glasses, he was too far away, or he covered his eyes. [Example of a cross examination transcript]

After the defense attorney cross examines the witness, the prosecutor asks the witness final questions to clarify any confusing testimony for the jury. This is called “redirect examination”. Once the process of direct examination, cross examination, and redirect of all the witnesses is complete, the prosecutor “rests” his case. At this time, the prosecutor usually feels confident that the witnesses’ testimonies and the evidence presented will prove the case. After the prosecutor rests, no more witnesses can be called to the stand or evidence introduced by the government.

Then it is the defense attorney’s opportunity to explain to the jury the defendant’s story, using his witnesses and evidence. The defense also has the option of not having the defendant testify. There is no burden upon the defendant to prove that he is innocent. It is the government's burden to prove the defendant committed the crime as detailed in the indictment. The fact that a defendant did not testify may not be considered by the jury as proof that the defendant committed the crime. If the defense does not put on any evidence, the jury cannot assume that the defendant is guilty simply because he/she did not put on a defense. The decision to put on a defense is solely up to the defendant and his/her attorney. However, often the defense will present its own\version of the case.

During direct or cross examination, either attorney can make an “objection” by explaining to the judge the reason for the objection. For example, a prosecutor or defense attorney may object to the wide range of the direct examination because it is beyond the knowledge of the witness, or the attorney may be arguing with the witness rather than asking questions, or the witness may be talking about things irrelevant to the case. An objection is an attorney's way of complaining to the judge that the other side’s attorney is not following the rules of the court.

The judge decides the outcome of an objection, sometimes after allowing attorneys on both sides to comment before making a ruling. The judge either “sustains” the objection so that the action stops, or he “overrules” the objection and allows the action to continue.

These steps are repeated until all of the prosecutor’s witnesses have testified. Then, after the prosecutor rests his case, the defense attorney begins the same direct examination of his own witnesses, with the above roles reversed, until all the defense’s witnesses have testified.

After the defense’s direct testimony and cross examination by the prosecutor of all the witnesses, the defense rests, and the prosecutor and defense attorney prepare for “closing arguments”.

Closing arguments are the final opportunity for the prosecutor and the defense attorney to talk to the jury. These arguments allow both attorneys to summarize the testimony and evidence, and ask the jury to return a verdict of guilty or not guilty, which is what the defense attorney will ask. Following the closing arguments, the judge “charges the jury”, or informs them of the appropriate law and of what they must do to reach a verdict. [Sample jury instructions]Then the jury goes into “deliberation”, the process of deciding whether a defendent is guilty or not guilty. During deliberation, no one associated with the trial can contact the jury. If the jury has a question on the law, they must write a note to the judge, which he/she will read in court with all parties present. The jury members must make a decision on the guilt of the defendant as a group before they tell anyone who is not on the jury. This process can last as little as an hour or as long as several weeks. After they reach an agreement on a verdict, they notify the judge.

Everyone is present in court for the “reading of the verdict”.

If the defendant is found “guilty”, a Marshal handcuffs the defendant and escorts him/her to prison. The United States Marshals Service is present during trial to protect the judge and prosecutors from potential harm.

If the defendant is found “not guilty”, he/she is usually free to go home.

If the jury reaches a “guilty” verdict, the defendant is “convicted” of the crime. A few weeks after the defendant is found guilty, he returns to court to be “sentenced”, or told by the judge how much time he will serve in prison.

When this occurs, the judge often takes into account the feelings of the victims and how they were affected by the crime.

Even after a defendant is found guilty, he can “appeal” the sentence if he believes he was treated unfairly during trial. An appeal is not another trial but an opportunity for the defendant to try to prove that something was not originally handled correctly at trial. Often, an appeal is handled by a different prosecutor than the one who tried the original case.

An appeal is not heard by the same judge who heard the trial. On each appeal, three circuit court judges review the case and the reasons why the defendant believes that something was done wrong at trial, then the three judges render a decision on the appeal and inform all parties in the case. The United States is divided into 13 Circuit Court regions with “Circuit Court Judges;” it is one of these judges who presides over an appeal.

Even after an appeal is decided by a Circuit Court Judge, a defendant can still appeal that decision, all the way to the "United States Supreme Court" in Washington, D.C.

As you can see, the steps in a prosecutor’s job can only be accomplished with the assistance of many people and the hard work of the prosecutor. A typical case involves the efforts of hundreds of individuals before the verdict is reached. All these individuals play very important roles in the administration of justice—keeping criminals off the street and our communities safe for everyone.

The main point about the role of a federal prosecutor is that with each case, the prosecutor
tries very hard to do what is both morally and legally right to ensure that justice is served.