107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

THE ROLE OF THE PROSECUTOR IN THE AMERICAN
FEDERAL CRIMINAL JUSTICE SYSTEM
Nora M. Manella*
I. AN OVERVIEW OF PREINDICTMENT, INDICTMENT AND
TRIAL PROCEEDINGS
A. Pre-indictment Proceedings
Prior to the return of an indictment by aFederal Grand Jury, a defendant may bearraigned and held pursuant to the filingof a criminal complaint issued by a UnitedStates Magistrate Judge. The complaint isa statement of the essential facts
constituting the charge. It must be
supported by an affidavit sworn to underoath by a federal law enforcement officer.
The affidavit must set forth facts toestablish “probable cause;” that is,reasonable cause to believe that a crime
has been committed and that the defendantcommitted the crime. The affidavit mustbe sufficiently detailed to establish thesource of the officer’s information and thereliability of the information.
A complaint may be issued by aMagistrate Judge before or after adefendant has been arrested. If thecomplaint is issued before the defendant
has been arrested, the Magistrate Judgealso issues an arrest warrant authorizing
the arrest of the defendant. A federal officer
may arrest a defendant for any federal
offense pursuant to an arrest warrant
issued by a Magistrate Judge. The officer
may also arrest a defendant for a felony
offense without an arrest warrant if theofficer has probable cause to believe thedefendant committed the felony offense.
However, the officer may arrest adefendant for a misdemeanor offense* United States Attorney Central District ofCalifornia, United States.

without a warrant only if the misdemeanor
offense was committed in the officer’s
presence.
A defendant who has been arrested fora federal offense must be arraigned before
the nearest Magistrate Judge without
unnecessary delay, usually the same day
as the arrest and no more than 48 hours
after the arrest. At the initial arraignment,
the defendant is informed by theMagistrate Judge of the charges and of hisor her right to counsel. If the defendant isunable to afford counsel, the Magistrate
Judge appoints counsel paid by thegovernment to represent the defendant.
At the initial appearance, the Magistrate
Judge sets bail for the defendant’s releasefrom custody while the criminal
proceedings are pending. The Magistrate
Judge determines the amount of bailnecessary to secure the defendant’s
appearance at future court appearances,including trial and sentencing if the
defendant is convicted, taking into
consideration the danger to the community
and the likelihood the defendant will
return to court if released. The Magistrate
Judge can order the defendant to post an
appearance bond—which is a promise by
the defendant to pay a specified amount if
he or she fails to appear in court—or asecured bond, which is cash or property
that may be forfeited to the government if
the defendant fails to appear. A defendant
may be detained pending criminal
proceedings, if the Magistrate Judgedetermines that no amount of money orother conditions can assure the defendant’s
return to court or can adequately protect
the safety of the community if the
defendant is at large.

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A defendant is entitled to a preliminary
hearing before a Magistrate Judge todetermine if there is probable cause tocontinue to charge the defendant. The
preliminary hearing must be held within
1 0 d a y s o f t h e d e f e n d a n t ’s i n i t i a larraignment if the defendant is still incustody, or within 20 days if the defendant
has posted bail and been released from
custody. The defendant is not entitled to apreliminary hearing if an indictment isreturned by a grand jury prior to the dateset for the preliminary hearing. Because
under the Fifth Amendment of the UnitedStates Constitution, all serious federal
crimes must be charged by an indictment.
Indictments are almost always returned
prior to the date set for the preliminary
hearing. As a result, preliminary hearings
are rarely held in federal court.

Sentencing Guidelines that the judge
determines to be appropriate. Sentencing
bargaining may also result in a firm
agreement by the government and thedefendant as to what the appropriate
sentence should be. In this circumstance,
the judge must either impose the agreedupon sentence or reject the plea agreement
entirely. Finally, sentencing bargaining
may result in an agreement by the
defendant and the government regarding
certain factors relevant to sentencing—such as the defendant’s role in the offenseor the amount of the monetary loss—that
the judge will consider in determining theappropriate sentencing under the Federal
Sentencing Guidelines. The judge is not,however, required to agree to these factors
and may make his or her independent
determination of the sentencing factors.

B. Plea Bargaining
Under the Federal Rules of Criminal
Procedure, the government and thedefendant can engage in negotiations,sometimes referred to a “plea bargaining,”
to resolve criminal charges that may be
filed or are pending against the defendant.
The rules expressly prohibit the trial judge
from participating in these negotiations.
The rules permit the parties to negotiate
over the charges to which the defendant
will plead guilty, known as “charge
bargaining,” and the sentence that will be
imposed, referred to as “sentencing
bargaining.” Charge bargaining may
involve negotiations over what specificcharges the government will file, thereduction of pending charges to lesser
charges, or the dismissal of some of thepending charges. The defendant thenpleads guilty to the agreed upon charges.
Sentencing bargaining may result in anagreement by the government torecommend a particular sentence. This
recommendation is not, however, bindingon the judge, who may impose any lawful
sentence consistent with the Federal

C. Post-indictment Proceedings
1. Post-indictment Arraignment
Following an indictment, the defendantis arraigned before a United States District
Judge. At the arraignment, the defendant
enters a plea, usually “Not Guilty” unlessthere is a pre-indictment plea bargain
whereby the defendant has agreed to plead
guilty. The judge also appoints counsel paid
for by the government if the defendant is
not already represented by counsel andcannot afford counsel. The judge also sets
the case for trial, usually within 70 days ofthe earlier of the date of the indictment or
the defendant’s first appearance before ajudge. The judge may also set a schedule
for pre-trial motions.

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2. Pre-trial Motions
Prior to trial, the parties, usually the
defendant, may file certain motions seeking
relief from the judge. The defendant may
file a motion seeking discovery from thegovernment’s files, including informationthat tends to exculpate the defendant, any
statements the government contends thedefendant made about the offense,

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documents and items the government
intends to introduce into evidence at trial,
reports of examinations or tests thegovernment intends to introduce at trial,
information about the government’s expert
witnesses and informants, and statementsof the government’s witnesses. The
government may also file a motion seeking
reciprocal discovery of the defendant’s
evidence, including reports, names ofexperts, examination results, and witness
statements. The government may also
require the defendant to give notice of an
intention to offer an alibi defense, a defense
of insanity, or any other defense based upon
the defendant’s mental condition.
The defendant may also file motions
prior to trial seeking to have the indictment
dismissed. These include motions to
dismiss because the court lacks
jurisdiction, the indictment fails to allege
an offense, the prosecutors engaged in
misconduct before the grand jury, theprosecutors selected the defendant for
prosecution based upon an impermissible
reason, such as the defendant’s race,
religion, or ethnic origins, the prosecutor
filed the charges in retaliation for the
defendant’s exercise of a constitutionalright, the prosecutor waited too long before
filing the charges, or the court took too longto bring the case to trial after the defendant
was charged.
The defendant may also file motions
prior to trial seeking to have thegovernment’s evidence “suppressed,” thatis, to bar the government from introducing
certain evidence at the trial. Thus, adefendant may seek to suppress documents
and tangible items based upon an illegal
search or seizure, evidence obtained by anillegal wiretap, or the defendant’s
statements to a law enforcement officer if
the officer failed to advise the defendant of
his or her right to remain silent and to
consult with an attorney after beingarrested.

Both the government and the defendant
may file “in limine” motions prior to trial
seeking to preclude the other side fromintroducing certain evidence on the
grounds that it is not relevant, is unduly
prejudicial, or is otherwise inadmissible
under the Federal Rules of Evidence. The
government may seek to preclude a
defendant from offering evidence of“duress” unless the evidence to be offeredby the defense meets the legal standardsof a duress defense. A defendant may seek
to preclude introduction by thegovernment of the defendant’s priorcriminal convictions on the grounds thatsuch evidence would be unduly prejudicial.
3. Trial Proceedings
Every defendant has a right to a speedy
and public trial under the Sixth
Amendment to the United States
Constitution and the Federal Speedy Trial
Act. Based upon the length of the delay
between the filing of the charges and thestart of the trial, the reasons for the delay,
and the prejudice to the defendantresulting from the delay, the District Judge
may dismiss the charges against thedefendant with prejudice for a violation of
the Sixth Amendment’s right to a speedy
trial. The judge may also dismiss the
charges with or without prejudice under
the Speedy Trial Act if the trial is not held
within the earlier of 70 days from theindictment or the defendant’s initial
appearance, unless the court finds that thecase is complex, motions need to beresolved, or the attorneys need additionaltime to prepare for the trial.
The questioning of jurors to determine
if they are qualified to sit as jurors in aparticular case is known as “voir dire.” In
federal court, the judge usually conducts
the voir dire, although the judge may
permit the prosecutor and defense counsel
to question the jurors. Both the prosecution
and defense may challenge a prospective
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evidence that the juror is biased in favor of
one side or the other. Each side has anunlimited number of challenges for cause.
Each side also has a limited number of“peremptory” challenges which a party may
exercise to excuse a juror for any reason.
The reason need not be stated in open
court. However, no party may exercise aperemptory challenge to excuse a juror
based upon impermissible discrimination,such as the juror’s race, religion, national
origins, or gender.
The trial begins with the prosecutor
making an “opening statement”—asummary of what the prosecutor expects
the evidence to prove. The defense attorney
may also make an opening statement
following the prosecutor’s, or wait until theprosecution completes its case before
making an opening statement. The judge
commonly advises the jury that opening
statements are not evidence, but merely
the attorneys’ opportunity to summarize
what they expect the evidence will show.
The prosecution, which has the burdenof proving the defendant’s guilt beyond areasonable doubt, presents its case first.
The prosecution may present witnesses
with knowledge of the crime as well as
documents and tangible evidence. The
prosecution may also offer opinion
testimony from experts qualified in
specialized areas such as fingerprint
analysis and forensic accountants. The
prosecution may also offer statements
made by the defendant to law enforcement
officers, provided that the judge finds thatthe statements were voluntarily made after
the defendant had been advised of his or
her rights to remain silent and to consult
with an attorney. Each of the prosecution’s
witnesses is subject to cross-examinationby the defense attorney, who may seek toestablish that the witnesses are biased orhonestly mistaken, or may seek to elicit
f r o m t h e g o v e r n m e n t ’s w i t n e s s e s
information helpful to the defense.

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After the prosecution presents its
evidence, the defendant may offer evidenceon his or her behalf. However, thedefendant has no obligation to present
evidence or to testify at trial, and theprosecutor cannot comment to the jury on
the defendant’s failure to present evidenceor to testify. Following the defendant’spresentation of evidence, the prosecution
may offer additional evidence to rebut any
evidence offered by the defendant.
Following the presentation of theevidence, the prosecutor and defense
attorney give their “closing arguments”.
Because the prosecution has the burden of
proof, the prosecution gives an “opening
summation” before and a “rebuttal
argument” after the defense attorney’s
closing argument. Although closing
arguments, like opening statements, arenot evidence, both sides have greater
leeway in closing arguments to argue to thejury that the evidence previously
introduced in the trial supports theirrespective positions.
Following the lawyers’ closing
arguments, the judge instructs the jury on
the law, and the jury retires to deliberate
and render its verdict. Jury instructions
are submitted by the parties to the court,
and usually agreed upon before the judge
reads them to the jury. Any disputes as tothe applicable law are resolved by thejudge. For most federal offenses, there arestandard jury instructions explaining theelements of the offense, though parties
often submit instructions tailored to thefacts of a particular case to facilitate thejurors’ application of the law to those facts.
Any questions the jurors may have about
the meaning of the instructions are
directed to the judge. The role of the jury
is to decide the facts and to apply the law—as instructed by the judge—to those facts.
4. Jury’s Return of Verdicts
A jury’s guilty verdict in a federal
criminal trial must be unanimous, i.e., all107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
twelve jurors must agree that thedefendant is guilty of the crime charged
beyond a reasonable doubt. If even a single
juror is not convinced of the defendant’s
guilt, no guilty verdict can be returned.
Similarly, if only a single juror is convincedof the defendant’s guilt beyond a reasonable
doubt, but the remaining 11 jurors are not,no verdict may be returned. The failure ofa jury to reach a unanimous decision iscommonly called a “hung jury.” Where thejury fails to reach a unanimous verdict ofguilty or not guilty, the government may
retry the case.
If the defendant is acquitted at trial—i.e., all 12 jurors agree the government has
failed to prove the defendant’s guilt beyonda reasonable doubt—the defendant isreleased, and the government may notbring the same charges again. If the
defendant is found guilty by all 12 jurors,
he or she may appeal the conviction to the
U.S. Court of Appeals in the district where
the case was tried.
II. PROSECUTORIAL
DECISION-MAKING
A. Whom to Charge
1. Charging Individuals
Federal prosecutors seek to charge theleaders and organizers of criminal activity
whenever possible. Stated otherwise,
prosecutors seek to prosecute the ultimate
source of the criminal activity, whether it
is a corporate president who initiates orapproves fraudulent activity for the benefitof the corporation, or the head of a narcotics
manufacturing and distribution
organization. This fundamental principle
guides prosecutive decisions regarding
whom to charge, what to charge, and towhom to grant immunity.
In a corporate or business context,
federal prosecutors seek to identify andcharge managers who have knowledge ofthe criminal conduct and discretionary
authority over the subject matter of thecriminal conduct or supervisory

responsibility over the employees engaged
in the criminal conduct. Mere knowledgeof the illegal activity is not sufficient towarrant the filing of criminal charges; thecorporate officer must have either directed
the illegal activity or had the authority or
responsibility to prevent it. Ultimately,federal prosecutors seek to hold criminallyresponsible the highest level managers
with both knowledge of and authority overthe criminal conduct.
In pursuit of these managers,
prosecutors seek the cooperation of lower
level individuals or employees who haveknowledge of illegal activity or participate
in or carry out the criminal conduct. With
respect to these employees who havecriminal culpability, such cooperation
usually results from plea agreements or
grants of immunity from prosecution.
Lower-level employees who are prosecutedfor their criminal activities may enter intoplea agreements whereby they agree toplead guilty to certain charges andc o o p e r a t e w i t h t h e g o v e r n m e n t ’s
investigation in exchange for immunityfrom further prosecution or favorable
sentencing recommendations by theprosecutor. On occasion, the employee
agrees to cooperate in exchange for suchconsideration at sentencing after theemployee has been prosecuted andconvicted at trial.
Based upon the nature of the employee’s
knowledge and information about thecriminal conduct and the nature and scopeof his or her own criminal conduct,prosecutors may decide to provide theemployee with immunity rather than filecriminal charges against the employee. The
immunity can be in the form of anagreement not to prosecute the employee
for certain criminal conduct. Thisi m m u n i t y, w h i c h i s k n o w n a s“transactional immunity,” is generally
disfavored by federal prosecutors.
Accordingly, prosecutors usually provide
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the government from using the employee’s
statements against the employee if theemployee is ever prosecuted (“direct” use
immunity). Significantly, “use” immunity
also bars the prosecution from using theemployee’s statements to develop evidence
against the employee (“derivative” use
immunity). “Use” immunity does not,however, bar the prosecution fromintroducing the statements into evidence
against the employee if the employee isever prosecuted for making a false
statement or for perjury based upon the
immunized statement. Because the courts
have placed a high burden on theprosecution to prove that evidence against
a defendant who has received use
immunity was not derived, directly or
indirectly, from the defendant’s statements,“use” immunity is almost always
tantamount to “transactional” immunityf r o m p r o s e c u t i o n . F u r t h e r, s u c hlimitations on prosecutorial use of thestatements apply to any future prosecution,
not just one based upon the subject matterof the investigation that resulted in the“use” immunity. Accordingly, defense
attorneys almost always recommend that
their clients accept “use” immunity in lieu
of transactional immunity.
“Use” immunity can be provided
informally though a letter agreement orformally through a court order. Informal“use” immunity generally results fromnegotiations between the prosecutor andthe employee’s counsel, in which theemployee’s counsel initially “proffers”(orally or in writing) what the employees
could testify to if provided immunity. If
the prosecutor indicates a willingness toprovide immunity based upon the proffer,the prosecutor may then interview theemployee, subject to an agreement that theprosecutor will not directly use theinterview against the employee, before
deciding whether to enter into a letter
agreement providing for full use immunity.

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If a lower level employee is unwilling toaccept informal use immunity, theprosecutor can compel the employee totestify by obtaining statutory use
immunity. Title 18 of the United States
Code § 6001, et. seq., provides that theUnited States Attorney, with the approvalof the Assistant Attorney General in chargeof the Criminal Division of the Departmentof Justice, can obtain an order from aDistrict Court Judge compelling theemployee to testify. As a result of the“compulsion” order, the employee isafforded full use immunity (direct andderivative) for his or her testimony. If theemployee refuses to testify after having
been compelled by a court order, theemployee may be held in contempt by the
court. This may subject the employee to
imprisonment or a fine.
2. Charging Corporations
U n d e r f e d e r a l c r i m i n a l l a w, a
corporation may be held criminally liable
for any acts of its officers, employees, or
agents done in the course and scope of theiremployment that are for the benefit of thecorporation. Under this broad doctrine ofcorporate liability, the corporation may beheld liable even if the acts are contrary to
the corporation’s policies. For example, a
corporation may be held liable for theactions of an employee who illegally
disposes of hazardous waste that thecorporation must dispose of, even if thecorporation specifically requires its
employees to comply with all applicablelaws and regulations in disposing of thewaste. The theory is that the employee isintending to benefit the corporation
because the corporation needs to disposeof the waste.
In prosecuting a corporation, thegovernment need not prove that a single
corporate officer or agent had the required
knowledge and intent to violate the law.
Rather, the prosecution can rely on the“collective knowledge” of the officers and107TH INTERNATIONAL TRAINING COURSE
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employees. This collective knowledge
doctrine is useful when the corporate
responsibility is divided among several
individuals, such that no one individual has
knowledge of all the relevant facts and law.
For example, certain corporate employees
may be responsible for testing products
being supplied to the government, whileother employees may be responsible forcertifying to the government that all therequired tests were performed. If the latter
were unaware that the former had failed
to perform the required tests, they may
have falsely certified that the tests had
been performed, but lacked the knowledge
and intent to commit a criminal violation.
Similarly, if the former did not know thatcertifications would be made claiming thetests had been performed, they too would
lack the necessary knowledge and intent
to be guilty of a criminal offense. Under
these circumstances, no individual
employees would be criminally responsible,
but a criminal violation would nonethelesshave occurred when the employees of thecorporation submitted a certification to thegovernment falsely representing that therequired tests had been performed.
B. What to Charge
Federal prosecutors usually seek to filethe most serious readily provable charge
determined by the nature of the charge andthe sentencing range for the particularcharge. Prosecutors also seek to file charges
that encompass the scope of the defendant’s
criminal conduct. Thus, they include
multiple similar counts for identical orsimilar crimes committed by the defendant,such as multiple bank robbery charges fora series of robberies. They also include
different offenses based upon the same act
or transaction or series of acts ortransactions that are parts of a common
scheme or plan. For example, anindictment may include charges such as
securities fraud, money laundering, andfalse statements to an agency of thegovernment where defendants engaged ina scheme to defraud buyers of securities
based upon the filing of false reports with
the Securities and Exchange Commission.
Conspiracy charges are often filed toencompass the full scope of the criminal
activity where two or more individuals
agreed to commit offenses against theUnited States or to defraud the UnitedStates, and one or more of these individuals
committed an overt act in furtherance ofthe conspiracy. Prosecutors may also filecharges under the Racketeering Influenced
Corrupt Organizations (“RICO”) Act, 18
U.S.C. § 1961, et. seq., where thedefendants conducted the affairs of anenterprise—which may be either a formal
entity such as a corporation or an informal
association among individuals—through apattern of illegal activity. The illegal
activity may be violent crimes, narcotics
activity, or white collar crime, such as mailand wire fraud. Both conspiracy and RICO
charges enable prosecutors to include aseries of crimes in a single indictment.
C. Department of Justice Standards
and Procedures
Under United States Department ofJustice standards set forth in the UnitedStates Attorneys Manual, a federal
prosecutor must satisfy a two-part test
before seeking an indictment from a federal
grand jury. First, the prosecutor must
personally believe the defendant is guilty.
Second, the prosecutor must believe there
is a reasonable likelihood of obtaining aconviction at trial before an impartial jury.
Within the Department of Justice, theauthority for filing most criminal charges
rests with the United States Attorney’s
Office in each district. Certain kinds ofoffenses, however, require approval of thedivisions or sections in the Department
with primary responsibility for specificsubstantive areas. Thus, the Civil Rights,
Antitrust, Tax, and Lands and Natural
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RESOURCE MATERIAL SERIES No. 53
indictments in cases falling in thesesubstantive areas. Similarly, the Organized
Crime Section in the Criminal Divisionmust approve organized crime and RICO
cases, and the Public Integrity Sections
must be consulted regarding corruption
charges against elected public officials andelection crimes.
Within the United States Attorney’s
Offices, individual prosecutors are
responsible for recommending whatcharges to present to the grand jury. The
recommendations are reviewed andapproved (or on occasion disapproved) by
a committee of prosecutors and supervisory
attorneys. The prosecutive decision in mostcases rests with the Chief of the Criminal
Division in the U.S. Attorney’s Office. The
final prosecutive authority for all cases
filed by the office rests with the UnitedStates Attorney, though as a practicalmatter, he or she generally makes the final
decisions only in the most significant,controversial or difficult cases in the office.
III. PROSECUTORS’ USE OF THE
GRAND JURY IN CRIMINALINVESTIGATIONS
A. Composition and Purpose of theGrand Jury
In many respects, the grand jury is thecornerstone of federal criminal
investigations and federal criminal process.
A grand jury comprises 23 ordinary
citizens, selected at random, who sit for aterm of one year (although the term may
be extended). At least 16 members of the
grand jury must be present for the panel
to conduct business, and in order to return
an indictment, at least 12 members of the
grand jury must vote to indict.
The grand jury serves a dual function.
First, it serves to protect innocent citizens
from improper governmental action byhaving a panel of ordinary citizens
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committed and that the accused committed
the crime. The requirement that any
person accused of a felony be indicted by
the grand jury is set forth in the UnitedStates Constitution.
The grand jury serves a second, equallyimportant, function of investigating
whether crimes have been committed. The
United States Supreme Court hasrepeatedly noted that the law provides the
grand jury with broad powers in order tofulfill its investigatory function and “widelatitude’’ in exercising those powers.
To carry out its investigatory function,
the grand jury is provided with subpoena
power to compel the attendance of
witnesses and the production of documents
and records. The grand jury’s subpoena
power extends throughout the UnitedStates. In addition, the grand jury’s power
to investigate crimes is not restrained by
the same technical, procedural andevidentiary rules that govern the conductof criminal trials. Hence, in determining
whether there is probable cause to believea crime has been committed, the grand jury
may consider any evidence, regardless ofwhether that evidence may ultimately be
admissible at trial.
B. Interaction between Prosecutors
and the Grand Jury
The grand jury functions as a separate
entity, independent in large part from thecourt and the prosecution. This allows the
grand jury to render an independentjudgment as to whether an individual
should be indicted.
Nevertheless, federal prosecutors play
an integral role in the functioning of theg r a n d j u r y. F i r s t , i n a d d i t i o n t oinvestigating whether crimes haveoccurred, prosecutors serve as “legal
advisors” to the grand jury. In this capacity,
a prosecutor serves to explain and answer
questions pertaining to the law. For
example, a prosecutor is responsible foradvising the grand jury of the elements of

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any crimes under investigation by the
grand jury. Virtually all proceedings
occurring before the grand jury are
conducted by a prosecutor, including thequestioning of witnesses who appear before
the grand jury (although grand jurors are
permitted to ask questions themselves).
Prosecutors are also responsible fordrafting and presenting any indictment the
grand jury is asked to return. Thus, as apractical matter, until a prosecutor has
concluded that there is probable cause toindict an individual, the grand jury will not
be presented with an indictment. In short,although the grand jury is an independent
entity, to carry out its investigative
function, it works closely with government
prosecutors and law enforcement
investigators charged with serving
subpoenas issued by the grand jury.
Because of the unique, and often close,
relationship between prosecutors and the
grand jury, courts have admonishedprosecutors to remember that the object of
any investigation is to see that justice isdone. Likewise, the U.S. Department ofJustice has issued regulations designed toensure that prosecutors treat the grandjury as an independent body and to further
ensure that prosecutors do nothing thatwould improperly inflame or influence thegrand jury.
C. Grand Jury Secrecy
Federal law mandates that grand jury
proceedings be conducted in secret. To
ensure the secrecy of grand jury
proceedings, federal law prohibits
prosecutors, as well as grand jurors, fromdisclosing any matters occurring before thegrand jury.1
The Supreme Court has articulated anumber of reasons for requiring that grandjury proceedings be conducted in secret,1

Under certain limited circumstances, prosecutors
may obtain court orders allowing disclosure of
grand jury proceedings as directed by a court.

including: (1) to prevent the escape of those
whose indictment may be contemplated;(2) to ensure the utmost freedom to the
grand jury in its deliberations by
preventing persons under investigation or
their representatives from importuning the
grand jurors; (3) to prevent subornation of
perjury or tampering with witnesses who
may testify before the grand jury and later
appear at trial of those indicted by it; (4)to encourage free and untrammeleddisclosures by persons who haveinformation concerning the commission ofcrimes; (5) to protect the target of a grandjury investigation who is ultimately
exonerated from disclosure of the fact thathe or she was under investigation; and (6)to protect the target of a grand jury
investigation from the expense of standing
trial where there is insufficient evidenceof guilt. Taken together, the rationales for
grand jury secrecy reflect a balance
between ensuring that the grand jury
obtains all possible evidence, while at thesame time protecting innocent citizens.
D. Grand Jury Subpoena PowerThe grand jury’s principal power lies in
its subpoena authority, i.e., the ability tocompel the attendance of witnesses and the
production of documents and records. Thispower is quite broad, and includes theability to require a target of aninvestigation to provide nontestimonial
evidence, such as fingerprint andhandwriting exemplars to assist the grandjury in determining whether a suspect has
committed the crime under investigation.
The grand jury’s ability to subpoena
records and compel witness testimony isparticularly vital to the proactive
investigation of more complicated economic
crimes. Most evidence in long-term
investigations is obtained through theissuance of grand jury subpoenas. This istrue for several reasons. First, the grandjury need not obtain court approval to issue
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require court approval and some showing
to justify a belief that the documents sought
are evidence of a crime and will be locatedat the premises to be searched. Second,much documentary evidence is obtained
from innocent third parties who are notsuspected of criminal wrongdoing andshould be protected from the inevitabledisruption occasioned by a search forrecords. For example, bank records thatwould permit the tracing of funds obtained
and/or laundered by a target are virtuallyalways obtained through the issuance ofgrand jury subpoenas, absent some reason
to believe that the bank or its officials arein collusion with the target of theinvestigation.
E. Bases for Refusing to Comply
with Grand Jury Subpoenas
In most instances, there is no basis toresist the production of records to the grandjury or to refuse to testify before the grandjury. The most notable exception, theprivilege against self-incrimination, isrooted in the Fifth Amendment of theUnited States Constitution, which provides
that no individual may “be compelled inany criminal case to be a witness against
himself.” Thus, an individual may refuse
to testify before the grand jury if he/shehonestly and truly believes that his/heranswers would incriminate him/her or
could lead to evidence of a crime for which
he/she may be prosecuted. Because theprivilege against self-incrimination iscontained in the Fifth Amendment of the
U.S. Constitution, invoking the privilege
is commonly referred to as “taking theFifth.”
An individual may also refuse to produce
records in response to a grand jury
subpoena if he/she can demonstrate thatthe “act of producing” the documents would
be tantamount to testifying against
himself/herself. However, the Supreme
Court has determined that the act ofproviding handwriting samples or146

fingerprint exemplars is not “testimonial”
in nature, and, therefore, does not run afoulof the prohibition against compelling an
individual to testify against himself/
herself.
F. Prosecutors’ Enforcement ofGrand Jury Subpoenas
If the recipient of a subpoena refuses tocomply, a prosecutor has two options. First,
if the prosecutor believes the individual’srefusal to comply is proper because of avalid privilege, such as the privilege
against self-incrimination, the prosecutor
may, nevertheless, seek to compel
compliance with the subpoena by seeking
an order granting the recipient immunity.
Federal law provides that the government
may seek an order compelling a witness totestify or produce records notwithstanding
a valid privilege, provided the government
agrees not to prosecute the individual for
any crimes about which the witness isforced to testify. The authority to immunize
a witness is a powerful tool available toprosecutors to assist them in investigating
and prosecuting crimes. However, grantsof immunity are sought sparingly, and only
after careful consideration of a number offactors, including whether there is any
alternative means available to obtain theevidence sought.
If the prosecutor does not believe thewitness’s refusal to comply with a subpoena
is premised on a valid privilege, he/she maythen apply to a court for an ordercompelling compliance. At that time, therecipient of the subpoena bears the burdenof proving that he/she has a valid basis forrefusing to comply with the subpoena. If
the court orders the recipient to comply
with the subpoena, and the recipient fails
to do so, he/she may be held in contempt of
court. A contempt citation carries penalties
separate and apart from any crime underinvestigation by the grand jury. These
penalties may include monetary fines andincarceration.

107TH INTERNATIONAL TRAINING COURSE
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IV. SEARCH AND SEIZURE:
WHAT EVERY PROSECUTORMUST KNOW
A. Overview of the Fourth
Amendment
The Fourth Amendment, like the Fifth
Amendment mentioned above, is part of theBill of Rights, the first ten amendments to
the United States Constitution. Following
the American Revolution, the newly
independent colonies were determined toprotect citizens against infringements of
their individual rights. Thus, the First
Amendment guaranteed citizens the
freedom of speech, the freedom of assembly,
and the freedom of religion. The Fourth
Amendment guaranteed citizens freedom
from indiscriminate searches and seizures
by government agents.
The Fourth Amendment contains twobasic requirements. The first is aprohibition against “unreasonable”
searches and seizures. The second is therequirement that any warrant authorizing
a search or seizure of persons or property
be based upon “probable cause.” In the caseof a search, this has generally beeninterpreted to mean probable cause tobelieve evidence of a crime is to be foundat the location to be searched. In the caseof an arrest or seizure, this has generally
been interpreted to mean probable cause
to believe the person has committed acrime.
B. The Warrant Requirement
Though in practice many searches andseizures are conducted without a warrant,
in the absence of one of the recognizedexceptions to the warrant requirement (seeinfra), a search or seizure must be
authorized by a warrant issued by aMagistrate Judge, based on adetermination that probable cause exists
to support the issuance of the warrant.
The failure to secure a warrant in theabsence of any recognized exception to thewarrant requirement will lead to the
suppression, or exclusion, or any evidence
obtained as the result of the unlawful
search or seizure. This is commonly known
as the “Exclusionary Rule.” In contrast,
evidence seized pursuant to a warrant thatis later found to be defective may still be
admissible, if a District Judge determinesthat officers acted in good faith in relying
on the issuance of the warrant. This is
known as the “good faith” exception to the
Exclusionary Rule.
As noted above, even a warrant issued
by a Magistrate may be found invalid.
Common reasons for invalidating search
warrants include a judicial determinationthat the warrant was overbroad or lacked
specificity in naming the items to be
searched for. A warrant may also be
invalidated if the information upon which
the Magistrate found probable cause wasso old, or “stale” as to make the Magistrate’s
reliance on the information unreasonable.
Finally, if it can be shown that the warrant
was based on misinformation intentionallysupplied by law enforcement officers, the“good faith” exception will not apply andthe evidence will be excluded from trial.
Customarily, a warrant is obtained by afederal law enforcement agent, who swears
out an affidavit, written in the first person,
describing the information he/she is awareof and how he/she became aware of it. A
federal prosecutor reviews the warrant toensure the facts and sources meet the legal
requirements for securing a warrant. The
Magistrate reviews the affidavit todetermine whether, in the Magistrate’s
judgment, the facts alleged in thecomplaint provide the requisite “probablecause.” If so, the Magistrate issues thewarrant to search the location and seize
the items specified in the warrant or toarrest the person named.
C. Warrantless Searches
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RESOURCE MATERIAL SERIES No. 53
cases by hundreds of federal courts haveattempted to resolve recurring issues ofsearch and seizure law by delineating thescope of Fourth Amendment protections
and articulating the circumstances inwhich, despite the absence of a warrant, asearch or seizure may nevertheless comply
w i t h t h e F o u r t h A m e n d m e n t ’s“reasonableness” requirement. In
assessing the validity of a warrantless
search, courts have attempted to balance
the highly valued privacy rights ofindividuals with the legitimate needs of law
enforcement authorities to investigate,
expose and prevent criminal activity. The
following ten areas have been judiciallyrecognized as exceptions to the warrant
requirement of the Fourth Amendment.
1. Investigatory Detention of a
PersonThis exception permits a “brief
detention,” based upon reasonably
articulable suspicion (general hunches are
insufficient) of criminal activity. This
reasonable suspicion should be based upon
the officer’s personal observations or upon
the collective knowledge of several officers.
The detention must be reasonable in scopeand conducted for a legitimate
investigatory purpose.
Example: Police briefly detain a woman
with red hair, wearing a green dinner dress
and a white fur coat moments after thathearing a police broadcast that a tall redheaded woman in a green dress has juststolen a white fur coat from a store in themall. The detention is lawful.
2. Investigatory Detention of
Property
An investigatory detention of property
is subject to the same constraints as thedetention of a person: the detention mustbe brief and reasonably related to alegitimate investigation.
Example: A passenger on a bus iswaiting to have his luggage removed. As

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it is being lowered to the ground, the bag
falls to the cement. A fine white powder isvisible on the ground directly beneath thebag. Detectives may pick up the bag anddetain it briefly to allow a drug dog to sniff
the bag for the odor of narcotics.
3. Search Incident to Valid Arrest
Following a lawful arrest, officers may
conduct a complete search of the defendant.
As long as probable cause exists for thearrest, no additional probable cause isneeded for the search. The post-arrest
search must be conducted within areasonably short time of the arrest itself
in order to be found “incident” to the arrest.
The search is not limited to a pat-down forweapons and may include any areas within
the defendant’s control.
Example: A defendant is arrested on astate arrest warrant for failing to appear
in court for a traffic violation. The arresting
officers conduct a search of the defendant’s
pockets and locate 10 counterfeit $100 bills.
The counterfeit bills are admissible in atrial for possession of counterfeit currency,
because they were seized during a search
incident to lawful arrest.
4. Seizure of Items in Plain View
In certain situations, evidence in plain
view may be seized without the necessityof obtaining a search warrant. The
incriminating character of the evidence
must be readily apparent, and the officer
may not improperly place himself in aposition to make the observation. In
addition to plain view, courts have also
applied the doctrine to the senses of smell,feel and hearing.
Example: Police officers respond to acomplaint of loud music and disorderly
conduct. They knock on the door to theapartment. As the door is opened, they see
a stack of blank credit cards and a machineused to imprint bogus credit cards. The
officers may enter the apartment and seize
the evidence.

107TH INTERNATIONAL TRAINING COURSE
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Example: Coast Guard officers board aboat headed for a U.S. port in order todetermine that the boat’s paperwork is inorder. Once on board, the officers smell astrong odor of marijuana emanating fromthe hold. The officers may “follow theirnoses” to the source of the smell.
The marijuana may be introduced attrial charging the ship’s crew withattempted narcotics importation because
the evidence of the illegal drugs—the odorof it—was readily apparent.
5. Exigent Circumstances
A warrantless search and seizure may
be justified when exigent circumstances
exist. In order to conduct a search based
upon exigent circumstances, the officers
must possess probable cause to search, andat least one of the following additional
factors must be present:a. evidence is in imminent danger ofdestruction;b. officers’ safety or the safety of the
public is threatened;c. the suspect is likely to flee; ord. the police are in hot pursuit of afleeing fugitive.
In determining whether an exigency
existed, courts will examine the totality ofcircumstances at the time immediately
preceding the search. Courts will not allow
the officers to create the exigency whichallows them to conduct the search.
Example: An art theft suspect is tracked
to his hideaway, a warehouse in downtown.
Officers look through the windows and see
the suspect loading identifiably stolen
pictures into a truck. They may enter andseize both the suspect and the stolen
property.
Example: A bank robber flees the bankand is identified by a series of eyewitnesses
as he runs several blocks before leaping afence to the backyard of a residence.
Officers may enter the backyard of theprivate residence to apprehend the fleeing

suspect and search the area for evidenceof the robbery.
6. Consent Searches
Probable cause to search is not necessary
if a person having custody or control of thedwelling voluntarily consents to a search.
Courts will examine the totality ofcircumstances, including a person’s
knowledge of his/her right to refuse toconsent, the person’s age, intelligence andeducation, degree of cooperation with
police, attitude about the likelihood of
discovery of contraband, length ofdetention, nature of questioning, and theuse of coercive behavior to induce theconsent.
Example: Police arrive at the house ofa suspected drug dealer and knock on thedoor. The suspect’s wife answers the door,
holding an infant. The officers ask to search
the house and the wife refuses. The officers
then tell her that, if necessary, they will
get a warrant. They also tell her that they
think she is a drug dealer and they will
ensure that her baby is put in a foster home
after her conviction. They continue that, if
she cooperates and lets them search, they
will talk to the judge and help her keep
her baby. She relents and they find drugs
inside. Based on this scenario, the court
would likely suppress the evidence on thebasis that the wife did not voluntarily
consent to the search.
7. Vehicle Searches
Because of vehicles’ configuration andinherent mobility, courts have held that
there is a diminished expectation ofprivacy in the area of a vehicle.
Accordingly, the search of an automobile
requires only that there be probable cause
to believe evidence is contained within thevehicle.
Example: A traffic officer stops a car
after observing erratic driving. As heapproaches, the driver takes a plastic

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baggie with several small rocks and stuffs
it in between the seats.
The driver appears glassy-eyed anddisoriented. The officer reaches between
the seats and removes a bag of what
appears to be rock cocaine. The contrabandis admissible in a trial charging thedefendant with driving under the influenceand possessing narcotics.
8. Inventory Searches
After lawfully seizing an item, such as
an automobile, boat or piece of personal
property such as a wallet, police may
lawfully conduct an inventory of thecontents. This warrantless search ispermitted because it satisfies threelegitimate purposes: protection of theowner ’s property while it is in police
custody; protection of the police against
claims of lost or stolen property; andprotection of the police from potential
danger. An inventory search may not be
conducted solely for investigatory purposes.
Example: Police arrest a drunken
driver, who is taken to the station andbooked. The car is towed to the police
impound lot, where the contents areinventoried. Inside the trunk is a machinegun. The machine gun is seized and bullets
are compared with those taken from a
recent murder. They match. The gun will
be admissible because it was seized during
a lawful inventory search.
9. Border Searches
During a routine Customs search at aninternational border, no search warrant isrequired. The traveler and any
accompanying baggage are subject to a fulland complete inspection. Detention beyond
a routine Customs stop requires at least
reasonable suspicion of smuggling or otherwrongdoing.
Example: A passenger arrives on themidnight flight from a South Americancountry known to be a source of cocaine.
During routine questioning, the passenger

150

claims to be coming to the U.S. as part ofhis shoe-selling business, but can produce
no documents, samples, brochures ornames of business contacts he intends tomeet. He is nervous and perspiring.
Customs officials may refer him tosecondary inspection for further
questioning.
10. Abandoned Property
Warrantless searches and seizures ofabandoned property do not violate the
Fourth Amendment because there is no
reasonable expectation of privacy inabandoned property.
Example: A narcotics agent sees a
traveler retrieve a suitcase from a baggage
carousel and walk towards the exit. Whenhe sees a police officer enter the area, hedrops the suitcase and goes into a
restroom. When the traveler emerges fromthe restroom, he ignores the suitcase andruns out the door. A later examination of
the bag reveals no name or address tag.
The luggage is subsequently opened andfound to contain 10 pounds of heroin. The
narcotics would be admissible in a trial
because the suspect abandoned thesuitcase and its contents.
D. Prosecutorial Expertise in
Search and Seizure Issues
As the above discussion demonstrates,
the ability to defeat a challenge to thevalidity of a search—with or without awarrant—is crucial to a prosecutor’s ability
to introduce what may be dispositive
evidence of the defendant’s guilt. In somecases, the search or seizure will have takenplace before the prosecutor becomesinvolved. In such cases, the prosecutor’sfamiliarity with controlling case authority
will enable him/her to determine whether
the search can be defended.
In many cases, however, the prosecutor
is involved in an investigation at theearliest stages, when a decision to seek asearch warrant is made. In these107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
instances, it is critical for the prosecutor toknow what pitfalls to avoid to ensure awarrant will pass judicial scrutiny after the
search has been conducted. A prosecutor
must be able to make an informed decision
whether the evidence marshalled by law
enforcement agents will be sufficient toobtain a warrant or to defeat a challenge
to the sufficiency of any warrant obtained.
A prosecutor must also be sufficiently
familiar with search and seizure law toadvise law enforcement authorities of what
additional information, if any, must be
obtained to ensure the warrant will passconstitutional muster.

V. PROSECUTORS’ USE OFWIRETAPS AND OTHER
ELECTRONIC SURVEILLANCE
A. Legal Requirements for Wiretaps
and Electronic Surveillance
Law enforcement has a wide range oftools available to conduct electronic
surveillance of criminal activity. The term
“electronic surveillance” includes
techniques ranging from wiretaps to mobile
tracking devices. Because electronic
surveillance is highly intrusive, there arestatutory as well as constitutional limits
on such surveillance.
Wiretaps include live interceptions ofwire communications (telephones, cordlesstelephones, cellular telephones, andelectronic pagers), oral communications(uttered in a location where there is an
expectation of privacy), and electronic
communications (for example, facsimile
machines and digital pagers).
Because of the highly intrusive natureof wiretaps, Congress enacted a statutory
scheme requiring an application by agovernment lawyer, supported by a factual
affidavit of a law enforcement officer, andan order by a Federal District Court Judge,
to obtain a wiretap. In addition, except for
digital pagers, all such applications must

be approved by a high-level official of theUnited States Department of Justice. The
affidavit must establish the following: (1)probable cause to believe an individual iscommitting, or is about to commit, astatutorily enumerated offense; (2)probable cause to believe the particularcommunications concerning that offense
will be obtained through such interception;(3) a showing that normal investigative
procedures have been tried and have failed,
or appear to be unlikely to succeed if triedor to be too dangerous (also known as“necessity”); and (4) probable cause tobelieve that the facilities or location where
the communications are to be intercepted
are being used, or are about to be used, inconnection with the commission of thespecified offense. There is a 30-day
maximum interception period, plus
extensions, for each wiretap order, and theorder must provide that the interception
be conducted in a manner to minimize theinterception of communications not subject
to interception (“minimization”).
The wiretap statute does not include
silent video surveillance. Such video
surveillance is regulated by the Fourth
Amendment to the United States
Constitution, which prohibits
unreasonable searches and seizures. If thevideo camera is in a location where there
is no expectation of privacy (normally
exterior premises), no court authorizationis required to videotape activities withinview of the camera. If the camera is
directed to view an area where there is an
expectation of privacy, such as behindclosed curtains, over a fence, or in a roomof a residence, a search warrant isrequired. There must be a showing ofprobable cause, necessity, a particular
description of the activity to be videotaped,
and a statement of the offense to which it
relates. The 30-day interception period andminimization requirements apply.
Similarly, mobile tracking devices(“transponders” or “beepers”) used to follow

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a vehicle or package are not regulated by
wiretap provisions, but by the Fourth
Amendment. There is no privacy right inone’s location on the high seas, in public
airspace, or on a public road where avehicle or package may be transported.
Accordingly, government agents may use
a transponder without a court order.
However, if a vehicle or package goes inside
an area which carries a legitimate
expectation of privacy, or surreptitious
entry is necessary to retrieve it, a court
order signed by a Magistrate is necessary.
Other commonly used types of electronic
surveillance are pen registers and trap andtrace devices. A pen register is a device
which records or decodes electronic (orother) impulses which identify the numbers
dialed or transmitted on a telephone line.
A trap and trace device is a device which
captures the incoming electronic (or other)
impulses which identify the originating
number of an instrument (normally atelephone) from which a wire or electronic
communication was transmitted. A pen
register or trap and trace order can beobtained upon an ex parte application to a
Magistrate Judge, with a certification to
the court that the information likely to beobtained is relevant to an ongoing criminal
investigation.
B. Electronic Surveillance
Authorized by Consent of a Party
Not all intrusive electronic surveillanceneed be authorized in advance by a court.
Under federal law, when one party consents
to have a conversation or meeting
monitored, it may be audiotaped orvideotaped, regardless of the fact that otherparties do not know they are being taped.
Prosecutors often rely on such consensual
recordings.
Thus, is it not uncommon to record
phone conversations between a confidential
informant and the target of aninvestigation when the former is working
for the government and the latter is152

unaware of that fact. Similarly, when
undercover law enforcement agents set up
a “sting” operation in a hotel room,
warehouse, or other location that has been
wired to videotape and record meetings andconversations, undisclosed videotaping
may take place with the consent of the law
enforcement officers, even though thecriminals doing business with theundercover officers are unaware of thehidden cameras, and unaware that theirconversations are being recorded.
However, such electronic taping can takeplace only when law enforcement agentsor informants working for the government
are present in the room and thus
“consenting” to the electronic monitoring.
C. Prosecutors’ Role in Securingand Monitoring Electronic
Surveillance
In any type of electronic surveillance forwhich court approval is necessary,prosecutors are intimately involved in theprocess of obtaining the court order,
monitoring the surveillance, and reportingto the court on the results of thesurveillance. Indeed, in order to obtain acourt order authorizing a wiretap, a federal
prosecutor must obtain the approval of an
Assistant Attorney General in the
Department of Justice.
While the affidavit setting forth therequirements outlined above is signed by
the law enforcement agent, the prosecutor
is intimately involved in the drafting of theapplication, and it is the prosecutor who
signs the application submitted to theDistrict Court Judge. It is also theprosecutor who must report to the court
every ten days on the results of the wiretap
and must ensure that interceptions arebeing properly “minimized.” Finally, it is
the prosecutor who must apply to the court
for additional extensions of the wiretap
authorization order by demonstrating thatthe evidence obtained to date warrants
continued interceptions.

107TH INTERNATIONAL TRAINING COURSE
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VI. PROSECUTORS’ OBLIGATIONTO PROVIDE DISCOVERY
A. The Premise of Discovery in
Criminal Cases
Discovery is based on the premise thatpre-trial disclosure of evidence contributes
to the accuracy and efficiency of criminal
trials by avoiding unfair surprise andencouraging pre-trial resolution ofimportant issues. The American criminal
justice is an adversarial system, but certain
concepts of fairness override the idea thateach advocate is obligated solely to its own
cause. For example, prosecutors arecharged with seeking the truth, not justwinning a conviction. In order to advancethe pursuit of truth and fairness, courts
and the Congress have developed
disclosure requirements, called “discovery.”In the discovery process, the defendant iseffectively given access to much of theevidence the government intends to use toprove the defendant’s guilt.
Thegovernment is not expected to win its casethrough surprise, and the defendant is
expected to have ample opportunity tochallenge the evidence the government
intends to present against him/her.
In addition to ensuring fairness by
avoiding surprise, pre-trial disclosure ofevidence can simplify or eliminate trials bypermitting pretrial resolution of theadmissibility of evidence, and by prompting
guilty pleas in cases with very strong
evidence. Disclosure of evidence may
persuade a defendant to enter a guilty plea
upon the realization that he cannot
effectively defend against the government’scase. Similarly, a pretrial ruling thatcertain evidence provided in discovery is
or is not admissible will assist both thegovernment and the defense in assessing
the relative strengths and weaknesses of
their respective cases. Suppression ofevidence to be offered by the government
may result in dismissal of the charges
entirely, or a plea bargain to lesser charges.

Conversely the trial court’s rejection of adefendant’s challenge to the admissibilityof evidence may prompt a guilty plea thatwill save the court and the public the costof a trial whose outcome appears obvious
to both parties.
B. Prosecutors’ Obligation to
Provide Discovery
The prosecutor, as the government’s
representative, is responsible for what is
known by all members of the prosecution
team, including law enforcement officers
and the agencies for which they work.
Whether or not evidence is actually
revealed to the individual prosecutor, thegovernment is obligated to turn overdiscoverable evidence. With such a broad
scope of responsibility, the prosecutor may
accept the reports of law enforcement
officers or undertake personally to review
the files of any officer or agency
participating in the investigation of thecase, including personnel files of theofficers.
Discovery concerns all evidence which
the government intends to use in its casein-chief or which is favorable to the defense,
either because it might exculpate thedefendant or because it might lead to theimpeachment of a government witness.
This includes evidence of relevant
statements made by the defendant whether
before or after arrest. Documents or otherobjects of tangible evidence must be madeaccessible to the defense if they will be usedin the government’s case-in-chief or if they
concern a defense. The results of any tests
or examinations of evidence, such as thecomparison of fingerprints or handwriting,the review of accounting procedures, or the
results of DNA testing must be disclosed.
In addition, the identity of any expert who
will testify to the tests and the conclusions
reached by such expert must be provided
the defense.

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C. When Discovery Begins
Although there is no general
constitutional right to discovery in criminal
proceedings, the Supreme Court hasestablished rules for the disclosure ofcertain types of evidence based on the
defendant’s right to due process found in
the Fifth Amendment. The due processprotection of the right to a fair trial has
been interpreted to require similarprotections in pre-trial proceedings, suchas suppression hearings, and in post-trial
proceedings, such as sentencings. Suchrights do not apply before criminal charges
have been made in the form of a complaint,
indictment or information. Formal charges
are generally recognized as the beginningof criminal proceedings and the point at
w h i c h t h e g o v e r n m e n t ’s d i s c o v e r yobligations begin.

unfair surprise to the government. In order
to allow the government a fair opportunity
to prepare to respond to defenses of alibi
or insanity, the Federal Rules of Criminal
Procedure require the defense to give noticeof an intention to assert such a defense
and of the witnesses who will testify insupport of that defense. Such notice ismade meaningful by the disclosure of thenames of witnesses and the substance of
their testimony.
In contrast to compelled disclosure, adefendant may agree to reveal some or all
evidence as part of an exchange with theprosecution. For example, in lengthy andcomplex cases, the government may offer
to make some or all of its disclosures by aspecific date in advance of trial, if the
defense also commits to disclose its
evidence before trial.

D. When Discovery Ends
The obligation to give discovery
continues through trial. For example, thegovernment must give the defense any
statements made by witnesses called by thegovernment as soon as the witness has
testified on direct examination. In practice,prosecutors often turn over suchstatements before the trial, in order toavoid the loss of time which would result
from delaying the trial to permit defense
counsel to review the material before crossexamining the witness.
Even after a trial or guilty plea, thegovernment must disclose evidence whichfavors the defense if that evidence
undermines confidence in the conviction.
The prosecutor, no less than the court itself,
is responsible for ensuring that noconviction is obtained on false, improper,
or insufficient evidence.

F. Court Supervision of Discovery
The court has authority to control
discovery by denying, restricting, ordeferring any discovery based on therequest of either the government or the
defense, as long as the request is supported
by sufficient good cause. The request canbe made without disclosure to the opposing
party, if the court permits. The judge’s
decision may include any appropriate
order, but the entire submission must bepreserved so that it can be reviewed by a
Court of Appeals.
Judges frequently become involved in
enforcing discovery requirements. If one
party demonstrates that the other has
violated its discovery obligations, the court
has the power to compel the discovery or
to preclude use at trial of the withheld
evidence. Some judges issue standardizedorders for the government to provide
discovery within a specified schedule, toconfer with the defense about disputed
discovery matters, and to then report inwriting and in person to the court. Even
judges who do not maintain such a practicealso have to resolve disputed discovery

E. Discovery from the DefendantBecause of the privilege against selfincrimination, the defendant cannot becompelled to disclose his defense. Certain
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107TH INTERNATIONAL TRAINING COURSE
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matters. Occasionally, the defense willcontend that the government isdeliberately withholding discoverable
material or that the government has notundertaken a thorough enough review ofthe evidence. When the parties cannot
agree, that contention is presented to thecourt for decision.
The government, in answering
allegations concerning its compliance withdiscovery requirements, may respond inopen court, in a publicly filed pleading, or
ex parte and in camera (that is, without
notice to the defense, for the judge toconsider exclusively) or under seal (that is,a matter of record with the court that is
not accessible to the public, but is accessible
to the defense), depending upon thesensitivity of the subject. For example, thedefense may wish to know the identity of aconfidential informant, but the government
may assert its privilege not to reveal theidentity of informants who merely supplied
information, as opposed to those who dealt
directly with the defendant in anundercover capacity. In that case, thegovernment might submit a pleading ex
parte, in camera and under seal, in which
the informant is identified, the limits of theinformant’s participation in any charged
criminal conduct are detailed, and the court
is apprised of any reasons the informant
might have for fearing retaliation if his/her
identity were revealed to the defense. The
court will then have a full record on which
to decide whether the defense’s claims havemerit.
VII. FEDERAL SENTENCING
A. General Sentencing Procedures
and Provisions
Federal sentencing is governed both bystatutory provisions and by a body of rules
known as the “Sentencing Guidelines.” In
most instances, the federal statutes
defining particular violations of federal law
specify the maximum term of

imprisonment that the sentencing court
can impose following a defendant’s
conviction of that offense. On rare occasion,a statute might also provide for amandatory minimum term of
imprisonment. These minimum terms ofimprisonment are more common in thecontext of narcotics offenses and violent
felonies.
The sentencing guidelines establish asentencing range, in months, within which
the sentence must be imposed absent somelegal ground for departure upward or
downward from that range. The use of theterm “guidelines” is somewhat of a
misnomer; these provisions are mandatory
in nature.
The statutory penalty always “trumps”
the guidelines; in other words, whenever
the guideline range is more than thestatutory maximum or less than thestatutorily proscribed minimum sentence,the statutory penalty governs.
Federal sentencing can include some (orall) of the following penalties following thecommission of a crime:• Imprisonment: Required for mostfederal offenses under the sentencing
guidelines. Only minor offenses in thelowest guideline ranges are eligible forthe imposition of a term of
imprisonment in lieu of
imprisonment.
• Fines: Many federal sentences include
the payment of a monetary “fine” orpenalty to the federal government as
part of the overall punishment for thecommission of the crime.
• Restitution: In those instances where
the federal offense resulted inmonetary injury to a victim, thesentence will include mandatory
restitution repayments to theaggrieved victim.

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RESOURCE MATERIAL SERIES No. 53• Supervised Release and Probation:
Most federal sentences include
imposition of a term of either
supervised release (imposed when
prison time results) or probation (asubstitute for a term of imprisonment
for the more minor offenses). In short,these constitute periods during which
defendants are under the supervisionof the court and are required to abide
by various terms and conditions.
Violations of those terms can resultin additional sanctions.
B. The Sentencing Guidelines
1. Purposes and History
Underlying the Guidelines
The sentencing guidelines were enacted
to address three perceived deficiencies infederal sentencing practices. First, before
the guidelines, sentencing was left entirely
to the discretion of the judge, with noappellate review as long as the sentence
did not run afoul of the statutory penalty.
Not surprisingly, the sentence imposed
depended, in large part, on which judge
happened to be assigned the case. The
guidelines sought to reduce this disparity
by narrowing the possible sentencing range
for similar criminal conduct committed bysimilar defendants, thereby rendering
sentences more uniform and morepredictable. The guidelines further seek
proportionality in sentencing, by imposing“appropriately different sentences forcriminal conduct of different severity.”
Second, Congress sought to achieve“honesty” in federal sentencing. Before theguidelines, the sentence imposed by thejudge rarely turned out to be the sentence
the defendant served. Most defendants
became eligible for parole after serving onethird of their sentence, and almost all had
to be released after serving two-thirds.
Concurrently with the creation of theguidelines, Congress abolished the Parole
Commission, and declared that thesentence imposed was the sentence to be

156

served with minor reductions for good
behavior in prison. Thus, under the new
regime, defendants who receive full credit
for “good time” while incarcerated
nonetheless serve 85 percent of theguidelines sentence. There is no parole
under the guidelines.
Third, Congress felt that the prosecutor,
like the judge, had too much discretion preguidelines. The prosecutor conceivably
could charge one criminal act manydifferent ways and, in so doing, could makethe conduct appear comparatively more orless severe. In order to reduce the powerof the prosecutor, the guidelines sought tolink the punishment imposed to theunderlying criminal conduct, not simply
the counts of conviction.
As a result of these concerns, a uniquely
bipartisan Congressional effort adopted in1984 the Sentencing Reform Act(sometimes referred to as the “SRA”). The
SRA generally provided for thedevelopment of a federal sentencing
scheme that would further certain
enumerated purposes of criminal
punishment: deterrence, incapacitation,
just punishment, and rehabilitation.
To that end, the SRA delegated broad
authority to the Sentencing Commission(the “Commission”)—an independentagency composed of seven voting members,
at least three of whom must be federal
judges—to establish sentencing policies
and practices consistent with certain
statutory directives. The Commission was
also charged with periodic review andreform of the guidelines system over time.
The Commission’s initial guidelines were
submitted to Congress on April 13, 1987,
and after a prescribed period ofCongressional review, became effective on
November 1, 1987. Thereafter, theCommission promulgated a steady streamof yearly amendments to the guidelines,that take effect automatically absent
Congressional disapproval.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
The initial reaction to the guidelines was
mixed, at best. Hostility to the new
guidelines scheme resulted in a host of legal
challenges, including attacks on theconstitutionality of the Commission itself.
In 1989, the Supreme Court ended any
uncertainty regarding the constitutionalityof the guidelines, holding in Mistretta v.
United States, 488 U.S. 361 (1989), that thecomposition and duties of the Commission
did not violate the doctrine of separationof powers.
2. How the Guidelines Work
The guidelines are premised on thenotion that federal sentencing should
depend on two factors alone: the severityof the defendant’s overall criminal conduct(not simply the count or counts ofconviction) and the defendant’s criminal
past. In accordance with that approach,
the guidelines set forth a litany ofcomputations designed to determine: (a)the severity of the defendant’s criminal
conduct in the case in which he/she is to besentenced (the “offense level”), and (b) the
past criminal conduct of the defendant (the“criminal history category”). Those two
factors are then plotted on a chart todetermine a “sentencing range,” a range ofmonths within which the court must
impose a sentence absent a specific andappropriate basis for departing from therange. The intersection of the offense level(the vertical axis of the chart) and thecriminal history category (the horizontalaxis) determines the applicable guideline
range.
The guidelines employ what is referred
to as a “modified real offense” system ofsentencing. A defendant’s sentence is notcontingent on the offense of conviction
alone; a sentencing judge is empowered tolook at the totality of a defendant’s“relevant” criminal conduct. However, theoffense of conviction provides the starting
point for the calculus. The guidelines’
relevant conduct provision defines when

the court can consider conduct beyond thecount of conviction in determining thesentence.
It is well settled that facts at
sentencing—unlike facts at trial—need
only be proven by a preponderance of theevidence. Indeed, even conduct for which
a defendant has been acquitted can beconsidered at sentencing, if the court finds
proof of that conduct has been establishedby a preponderance of the evidence. The
court may consider at sentencing evidence
which does not comply with the Federal
Rules of Evidence and which is not subject
to confrontation, as long as the evidence
meets minimal standards of reliability.
Accordingly, sentencing hearings tend to be
more relaxed than trials, and generally do
not involve the presentation of witnesses.
Evidence is proffered, if at all, throughhearsay declarations.
3. Departures
The guidelines are designed toencompass almost all cases. Accordingly,
sentences outside the applicable guideline
range, known as “departures,” should berare.
In general, the court may depart fromthe guidelines if it finds “that there exists
an aggravating or mitigating circumstanceof a kind, or to a degree, not adequately
take into consideration by the Sentencing
Commission in formulating the guidelinesthat should result in a sentence different
from that described.” The guidelines
explain that departures are designed toaccount for cases outside the “heartland”
of the proscribed guidelines.
The most common departure basis arises
when a defendant cooperates withprosecutors in the investigation orprosecution of others. In those instances,the law empowers federal prosecutors toseek a reduction in sentence. The decision
to seek a sentencing reduction based on a
defendant’s assistance to law enforcement
rests solely with the prosecution.

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RESOURCE MATERIAL SERIES No. 53
VIII. PROSECUTORS’ ETHICALOBLIGATIONS
Federal prosecutors are entrusted withtremendous authority and responsibility,
often at a relatively young age. The
manner in which they exercise that
authority has significant implications forindividuals, institutions, and society atlarge. The decision to seek an indictment
against an individual or organization will
have far reaching consequences, regardlessof the ultimate outcome of any criminal
proceeding.
For all the limitations imposed bystatute, the Constitution, and rules ofcourt, it is a prosecutor’s recognition of theimportance of his/her role in the criminal
justice system and of the need to exercisethat role with the utmost integrity thatguarantees the fairness of the criminal
justice process. Unlike criminal defense
counsel, who are obligated to defend theguilty as vigorously as the innocent, federal
prosecutors have an independent
obligation to see justice is done.
At any stage of the proceedings, theprosecutor must be receptive to evidence
that may affect the reliability of witnessesor have a potential impact on the trier offact’s assessment of the defendant’s
probable guilt. Moreover, even before
making a decision to pursue criminal
charges, a prosecutor must examine all thefacts and circumstances to determine whatcharges, if any, best reflect the defendant’s
criminal behavior and its consequences.
Finally, at sentencing, a prosecutor’s roleis not to seek the heaviest possible penalty,
but to urge the court to impost a sentencethat best reflects the severity of the
defendant’s conduct, taking into accountthe nature of the offense, its consequences
to the victim(s), the defendant’s criminal
history, and the defendant’s cooperation
with government authorities.
Ultimately, a prosecutor’s credibility is
his/her most valuable currency. A good158

prosecutor knows that he/she must earn
the trust of the judge, the jury and opposing
counsel.
A prosecutor who overstates his/her case,strains to interpret a precedent in a waythat favors the government’s case, or
advocates unreasonable positions,squanders the precious commodity ofcredibility. When even one prosecutor loses
that trust, all prosecutors are tarnished in
the eyes of the court and the community.
Most citizens believe in their criminal
justice system because years of experience
have demonstrated that federal
prosecutors use their authority judiciously
and appropriately. Only by continuing toadhere to the highest standards of ethicalbehavior can prosecutors maintain that
hard-earned trust.