The differences between State and Federal criminal cases are not obvious. For example, bank robbery is Federal and drunk driving is State. However, if you get pulled over for drunk driving while on Federal property, it would be a Federal case as opposed to a State case.

Many narcotics cases can also be charged either by State or Federal authorities. For example, if the narcotics are bought and sold in the same state, the case is typically charged by the State. However, if narcotics are bought in one state and sold in another state, this is considered a conspiracy to transport and thus charged as a Federal case.

In most cases, the individual who is arrested will know where their case will be prosecuted. If they are arrested by federal authorities and taken to a federal detention center, the likelihood is that the case will be in federal court. If they are arrested by a local police department and taken to a city or county jail, they will most likely be prosecuted by the state.

Cases Usually Prosecuted in the State Courts:

  • Murder
  • Rape / Child molestation
  • Possession of controlled substances / Under the Influence
  • Domestic violence / Assault & battery
  • Robbery / Grand Theft / Shoplifting
  • Most misdemeanors

Cases Usually Prosecuted in the Federal Courts:

  • Smuggling controlled substances
  • Large quantity narcotic conspiracy cases
  • Bank robbery and bank fraud
  • Mail fraud / Theft from the mail
  • Bribery of public officials
  • Crimes committed on federal land
  • Crimes committed in one state with flight to another state

STATE vs. FEDERAL
Key Differences in the Early Stages of the Case

PROCEDURE AFTER BEING ARRESTED

  • Arrestee taken to jail
  • Arrestee photographed and fingerprinted
  • Arrestee allowed to make a telephone call

SETTING OF BAIL IN A STATE CASE

  • Bail is determined by a Bail Schedule.
  • Factors that cause the bail amount from the schedule to
    increase:
    • Prior record
    • History of appearances on other matters
    • Citizenship status
    • On parole or probation
  • Once bail has been set, the arrestee can either post the bail or remain in custody.
  • In court, the arrestee can ask the court for a bail reduction,
    which may or may not be granted.

SETTING OF BAIL IN A FEDERAL CASE

  • In a federal case, there is no Bail Schedule.
  • If arrested on a federal charge, the arrestee must be taken
    before a United States Magistrate for bail to be set. This
    appearance must be no later than the very next court day from
    the arrest, but is often the same day of the arrest.
  • At the courthouse, the arrestee is interviewed by a Pretrial
    Services Officer who will conduct an investigation into the
    arrestee's background, including employment, financial, family
    and community ties, and will make a recommendation to the
    Magistrate on the matter of bail. Facts about the case will not
    be discussed in the investigation.
  • Under the Federal Bail Reform Act, a person considered to be
    either a flight risk or a danger to the community can be detained with no bail.
  • Flight risk is commonly found in cases involving non-citizens,
    especially in large-scale narcotics cases.
    Danger to the community is commonly found in cases involving weapons, organized crime, gang-related activity or persons with an extensive criminal record.
  • If the Magistrate orders detention (no bail), the arrestee can
    appeal to a District Court Judge, which takes 2-3 days.

STATE vs. FEDERAL
Pre-Trial Stages

Although there are a number of significant procedural differences between state and federal cases, in the areas of trial preparation and plea negotiations, these differences are mostly cosmetic and not substantive.

STATE

  • In most states, after the arrest and before the trial, the accused has a right to a preliminary or probable cause hearing. At this hearing, the prosecution must produce sufficient evidence to create a reasonable suspicion that a felony was committed and that the accused committed it. If they do, the accused is "held to answer" for trial. Cases where the prosecution does not present sufficient evidence are dismissed.

FEDERAL

  • At the initial appearance before the Magistrate in federal court, a date will be set for a preliminary hearing, but, in practice, they are rarely held.
  • Between the time of the initial appearance and the
    preliminary hearing, the United States Attorney will
    present the case to the Grand Jury and will receive an indictment. Once the accused is indicted, the right to a preliminary hearing is negated and the case proceeds directly to the District Court for trial.

DISCOVERY

The biggest difference between the pre-trial proceedings in state and federal cases is "Pre-Trial Discovery." Discovery is the term used to describe the prosecution's obligation to provide all of its evidence to the defense, including police reports, witness statements, expert witness statements, investigation reports, evidence logs, laboratory test results, photographs and documents describing the charges.

STATE

  • In state court, discovery is required, by statute, at an early stage in the proceedings, long before the trial.

FEDERAL

  • In federal court, discovery is not required until much later in the case. Under the Federal Rules of Criminal Procedure, the prosecutor is not required to provide witness statements until after the witness has testified in the trial, a rule that seems quite unfair and is frowned on by many judges. Due to the attitude of many judges, there is a policy that the United States Attorney should provide "discovery" at an earlier time than required by the statute. A problem arises when a United States Attorney chooses to "play by the rules" and withhold discovery until the last minute. In such cases, a defense attorney will make motions to compel discovery at an early stage of the proceedings "to avoid delays once the trial has begun." This approach is usually successful in getting early discovery.

SENTENCING IN STATE AND FEDERAL COURT

The biggest difference between state and federal cases is sentencing after a conviction, either by plea or trial.

STATE

  • Even though there are a number of state crimes that
    carry mandatory/minimum sentences, such as murder, rape, kidnapping and large quantity narcotics cases, state law allows a judge the right to exercise discretion and sentence under the mandatory/minimum where "unusual circumstances" exist. This means that, either
    by way of a plea bargain or, even without the concurrence of the District Attorney, a state judge can impose a lenient sentence if they are persuaded that it is appropriate. It is the defense attorney who should bring mitigating circumstances to the attention of the sentencing judge.

FEDERAL

  • In federal court, both the United States Code and the Federal Sentencing Guidelines control sentencing. Under the Guidelines, a federal judge is required to sentence according to a formula, which is a combination of the offense of conviction and the defendant's criminal history. Once the offense of conviction and the prior record is determined, the judge uses a chart to determine the sentence that must be imposed. Since there are only a few ways to get a judge to depart from sentencing guidelines, it is important to be represented by an attorney who is thoroughly familiar with federal court procedures.

DISCLAIMER
The statement above is not legal advice! This statement is not intended to be a correct statement of law in your jurisdiction. This statement is intended to give you a very general understanding of what is involved in this type of crime. Please consult an attorney to find out what law applies in your jurisdiction.