Actus Reus:

Every crime requires the government to prove two basic things: first that the defendant committed a physical act that is a constituent element of a crime and secondly that the defendant acted with criminal intent. Actus reus is Latin for “guilty act.” A good example of demonstrating the meaning of actus reus can be found in the context of a “driving under the influence” or “DUI” crime. In order to be found guilty of a such a crime, the government has to show a person operated a motor vehicle while under the influence. If a person did not commit the physical act (actus reus) of “driving” a vehicle, there can be no DUI crime.


An arraignment is a court hearing that occurs before a United States Magistrate Judge in which a person accused of a crime pleads “guilty” or “not guilty” to the crime charged. The arraignment occurs either the same day or the next day (but within 48 hours) after a person is arrested or allowed to self-surrender. The arraignment always occurs at the same time as the initial appearance hearing. And in most cases, the arraignment and initial appearance hearings occur at the same time as the pre-trial detention hearing. In other words, it is common for all three hearings to occur at the same time.


When a person is charged with a federal crime, the first major issue to be decided by a court is whether the person should be detained pending trial. Sometimes the federal government will not argue for detention in which case bail never comes into play. However, if the government believes a person is a flight risk, it might ask the court to impose bail. The decision to impose bail rests solely with the court.

Bail is a simply an assurance by the Defendant, who puts up cash or some other thing of value as collateral, for his or her appearance at future court hearings and trial. Many times, bail is satisfied through posting a bond. A bond is simply a contract between the defendant, the government and a co-signor making a guarantee to the government on behalf of the defendant. If the defendant violates his conditions of release, the government can exonerate the bond and make the co-signer financially liable for it. Many federal jurisdictions have done away with the concept of bail and instead a judge will simply decide whether to detain a defendant or release him on his own recognizance.

Bill of Rights:

The Bill of Rights are the first 10 Amendments to the United States Constitution. They were passed to limit government power and give individuals greater rights such as the right to free speech, practice religion and bear arms. The most important of these Amendments for purposes of criminal law are the Fifth, Sixth and Eighth Amendments.

Civil Jury:

The right to a civil jury is guaranteed by the Seventh Amendment of the Constitution. Federal Rule of Civil Procedure 48 requires a federal civil jury to have at least 6 members but no more than 12. As in a criminal case, a federal civil jury’s verdict must also be unanimous. In most civil cases, the standard of proof for one side to win is “preponderance of the evidence.” This means where one party is suing another party, to win it only needs to have 51% of the evidence in its favor.


A criminal complaint is a document that spells out the charges against a defendant in a criminal case. It is always accompanied by an oath by a federal officer that describes the criminal conduct so that probable cause can be established. While a criminal complaint can start a prosecution, if the case involves a felony offense, then an indictment must be sought and obtained before a federal prosecution can proceed. Complaints are used when law enforcement needs to make a quick arrest and get a case started. They are generally only employed when something imminent is about to happen and the government needs to arrest someone quickly.

Criminal Jury:

The right to a jury trial in criminal cases is guaranteed by the Sixth Amendment of the Constitution. In federal criminal cases, 12 people (each must be a citizen) sit on the jury. The verdict must be unanimous. The standard of proof by which the government must win a conviction is under the “beyond a reasonable doubt” standard. This is the highest standard in the law. Thus, no one can be found guilty of a crime unless the government can convince the jury that the person is guilty “beyond a reasonable doubt.”

Detention Hearing:

Once a person is arrested or charged with a federal crime, the biggest immediate issue is whether he will be detained pending trial. There are only two reasons for detaining a person before trial: either he poses a danger to the community or is a flight risk. At this hearing, the court will apply the factors under the Bail Reform Act of 1984 to determine whether to detain or release a person. The detention hearing generally occurs on the same day and at the same time as the initial appearance hearing. However, a defendant can request a continuance of the hearing of up to five days to prepare for it. In deciding whether to detain a defendant before trial or let them be free, a judge will consider the person’s prior criminal record, the nature of the charges he is facing, his ties to the community and his employment.


When the government prosecutes a person, the person has the legal right to know what evidence the government is relying upon and to have that evidence before trial in order to properly defend himself. This evidence related to the criminal charges is called “discovery.” Federal Rule of Criminal Procedure 16 governs discovery in federal criminal cases.

District Court Judge:

A district court judge is a federal judge that presides in the United Magistrate Judge: A United States Magistrate Judge is a federal judge that assists the District Court Judges with handling cases by deciding pretrial detention issues and, in some cases, pretrial motions.

Eighth Amendment:

The Eighth Amendment of the Constitution prohibits excessive bail, fines or unusual/cruel punishment. Thus, a unduly long prison sentence or a very high bail can give rise to Eighth Amendment issues. The best way to think about the Eighth Amendment is that the “punishment must fit the crime.”

Federal Public Defender:

The Federal Public Defender is an individual appointed by the federal courts to oversee a staff of attorneys (called Assistant Federal Public Defenders) that represent indigent defendants who cannot otherwise afford private counsel.

Federal Rules of Criminal Procedure:

The Federal Rules of Criminal Procedure are rules that govern all criminal proceedings occurring in federal courts throughout the United States. They apply in every federal criminal case and in every federal court.

Fourth Amendment:

In most criminal cases, there is a significant focus on the Fourth Amendment because this amendment limits how the government can collect evidence. It cannot be the product of a legally unreasonable search and seizure. Thus, often defense attorneys will file a motion to suppress certain evidence if the government violated the Fourth Amendment.

Fifth Amendment:

The Fifth Amendment one of the most important parts of the Constitution when it comes to criminal law. Among other things, this amendment provides that a person does not have to answer questions by the police without a lawyer present because it guarantees the right to be free from self-incrimination.

Grand Jury:

A grand jury is an investigative body of citizens that gather for approximately a year and hear evidence in criminal cases and decide if the government has provided enough evidence to justify the prosecution of a person. The grand jury does not decide the guilt or innocence of the target of its investigation. Rather, it simply decides if there is probable cause for the government to move forward and prosecute a person.

A grand jury must be comprised of between 16-23 people. At least 16 jurors must approve the government’s request to prosecute a person. The government will draft up a document called an indictment [internal link] and present it to the grand jury for approval. The indictment is simply a document that provides notice to a defendant of the charges being brought against him. If the grand jury approves the indictment, that’s called a “true bill.”


An indictment is a document that sets forth criminal charges against a person and which was submitted to a grand jury for approval before being filed in court. The indictment is not “evidence” of anything except the charges being brought by the government. It is the document that starts a federal criminal case.


An information is similar to a criminal complaint except it is submitted to a United States Magistrate Judge for approval. It is a charging document that sets out the charges against a person and establishes (or at least its supposed to) probable cause for the charges. Like a complaint, an information can start a criminal case but if the charges involve felony offenses, the prosecution can only proceed if an indictment is obtained from a grand jury.

Initial Appearance:

The initial appearance hearing is when a person accused of a federal crime appears in court and is advised of his rights (including right to counsel) and has the charges read to him (unless he waives the reading) by a United States Magistrate Judge This hearing always occurs at the same time as the arraignment.

Mens Rea:

Every crime requires the government to prove two basic things: first that the defendant committed a physical act that is a constituent element of a crime and secondly that the defendant acted with criminal intent. Mens rea is Latin for “guilty mind.” Simply stated, mens rea is the intention or knowledge or wrongdoing that constitutes part of a crime. For example, the government cannot prosecute a person for fraud without showing an intent to defraud. Otherwise there is no crime.


Probation is a substitute for imprisonment. For example, instead of sentencing a defendant to incarceration in a prison, a federal judge can order home confinement or that defendant serve a portion of his sentence in a half-way house.

Probable Cause:

“Probable cause” is a legal standard governing law enforcement’s ability to conduct a criminal investigation or make an arrest. It is the evidence needed to justify the belief that a crime has been committed and that the person sought to be arrested committed it. The term comes directly from the Fourth Amendment of the Constitution and is intended to be a limitation on police power.

Sentencing Guidelines:

The sentencing guidelines are a set of guidelines established by the United States Sentencing Commission to help guide federal judges in imposing a criminal sentence. They used to be mandatory but the Supreme Court ruled in a landmark case, United States v. Booker, that they are not binding on a federal court.

Sixth Amendment:

The Sixth Amendment of the Constitution guarantees the right to a jury trial in criminal cases. It also guarantees the right to a lawyer and a speedy trial.

Speedy Trial Act:

The Speedy Trial Act of 1974 is a federal law that guarantees each defendant in a federal criminal case the right to a speedy trial. This law was passed to cut down on delays in federal cases. Thus, under this law a defendant has the right to have his case heard by a jury within 70-days following his initial appearance.

Supervised Release:

Supervised release follows a term of incarceration. The concept of supervised release is, as the name would imply, a condition the court can impose upon a defendant following their release from prison where he is supervised for a period of up to 3 years by a probation officer. Supervised release replaced parole in 1987 as a means of supervising a defendant’s reentry into society. Both probation and supervised release are administered by United States Probation and Pretrial Services Office.

True Bill:

This is a term used to describe when a grand jury approves the indictment of a defendant upon finding that there is sufficient probable cause to support the matter proceeding to prosecution. Thus, when you hear the phrase “the grand jury returned a true bill” all that means is that the grand jury approved the indictment presented to it by the federal prosecutor.

United States Attorney:

The United States Attorney is the chief federal prosecutor for a particular judicial district. The United States Attorney is a Presidentially appointed officer subject to confirmation by the United States Senate’s Judiciary Committee. The staff attorneys that work in the United States Attorney’s Offices across the United States are called Assistant United States Attorneys. Basically, they are federal prosecutors. Each United States Attorney’s Office is a component of the United States Department of Justice.


Venue is simply the judicial district that is the most proper and convenient place for a person to be prosecuted in a case. If criminal acts were committed in Nebraska, then the proper venue for a federal case would be in the federal court in Nebraska, not New York.