By: Mark Diaz
Share This Post
Galveston Federal Criminal Attorney Discusses Federal and State Criminal Court
The Difference Between Federal Versus State Criminal Defense
Generally speaking, federal court and state court are just two completely different animals. Federal Court is very formal, very structured, and has specific rules to be followed. The calendar is established from the beginning. Charges are usually not fresh in federal court.
Most federal drug cases are the result of months, sometimes years of investigation, collecting evidence before they decide to finally put an end to someone’s criminal enterprise. Some people get caught at the border checkpoint, sometimes with human cargo, sometimes with drugs, and the feds were not watching them. It was just a lucky grab. Even in those situations, before that person is formally charged in federal court, there is an extensive investigation.
99% of the time, when I take on a federal case, the entire case, meaning discovery, police report, etc. everything is already done. I’m not waiting for anything. That’s in federal court. Once you are arrested in federal court, you’re very quickly brought in front of a magistrate to determine counsel status. Meaning, can you hire an attorney, are you asking for the public defender, or in multi-defendant cases, are you asking for the CJA panel attorney to be appointed?
Council Determination and Detention Hearing
Once the council determination is made, they will also very quickly set you for a detention hearing. In federal court, that is your one shot at being released on bond, so to speak. Bond is also different in federal court, and that often does not involve money, just a signature. There will be a bond amount, let’s say $20,000. You have to sign a document saying that you understand that you’re responsible for $20,000, and the reason the federal government does it that way is that if you decide to run, that federal judgment can haunt you forever, and they’ll get their money if it comes to that. Not a lot of people run on federal cases.
Once you have had your detention hearing, and this is true, whether or not you get bond, a trial schedule is set in your case. All the dates and deadlines are given to you upfront. Depending upon which federal court you’re in, you may be able to get some continuances from that. There are some courts where you cannot, although I guess COVID has changed that. Part of the reason for the quick schedule in the scheduling order is not just the speedy trial act, but it’s because as I’ve told you, in most of these cases, all the discoveries are ready as soon as you’re taken to court, so your attorney gets all the evidence against you, immediately.
In a state court, if you get arrested, you’ll get bond, then you’ll get an assigned court date. It’s not uncommon for us to go to the first court date, and not have anything, not even a police report. It’s not uncommon to wait months for videos, it’s not uncommon to wait months and months for lab results. These types of things don’t happen in federal court, it’s all done before you ever get to court. If you’re in jail in state court, at some point, you can have a Bond Reduction hearing if your bond is too high. You can file a writ of habeas corpus seeking a bond reduction, sometimes you can have more than one bite at the apple, depending upon the judge that you’re in front of.
Realistically now, especially with COVID, and the backlog of cases, you could end up in state court with cases being reset for a year, before it ever gets put on a trial docket. Some judges like to move their docket sooner than that. With big trial dockets, it can keep getting reset, because there are so many cases set for trial that you just don’t get reached. The federal system moves much more efficiently than that. Part of that is because you’re not having to seek resets for months and months waiting on evidence to come in.
With the state court, you can reset a case, and reset a case, and then eventually, you’ll have to go on the trial docket and get reached. Some of that time can be waiting for evidence. So in addition to the big differences in cases, because if you get stopped with less than a gram, that’s not going to be a federal case. The feds want big cases involving lots of drugs. So those investigations take a much longer time.
Oftentimes in federal court, what we’re dealing with are cases that are much more complex than a simple state case for possession of less than a gram. In federal cases, many times the drug cases involve drugs coming from across the border and going to various points in the United States. The government tracks the money coming back from various points in the United States, back across the border. There will be a lot of surveillance, a lot of wiretaps, cell phone conversations, just a lot of evidence to go through.
Federal Court is also much more formal. It’s sort of more like what you see on TV. After you get your detention hearing, the very next step is to arraign you, meaning have you enter a formal plea of not guilty. Then after you’ve entered your plea of not guilty, that’s when you’re given your trial schedule. The courtroom itself is much more formal. Before the federal court starts, you’ll be sitting in the courtroom. All of the sudden at some point you’ll hear a loud knock on a back door. Usually three knocks. Some judges instruct the person knocking, to make sure that they knock extremely loud. When you hear that knock, that means the judge is coming through that door and everyone needs to stand up. The judge comes in, is announced, the judge will give everyone permission to be seated, and then start calling cases.
Everything in federal court is on the record. If the judge calls a case, they will ask for counsel for each side, to introduce themselves for the record. Starting with the government. So, whoever the AUSA is handling the matter for the United States will state their name on the record. Then whoever the defense attorney is, will speak after. Then the proceedings will start, the judge dictates who talks when they talk, and so on. It’s very formal, but it’s also very nice because it is professional, most federal judges treat all parties very fairly, and very respectfully, there’s not usually a lot of fighting. Fighting as in the verbal exchange between the government and the defense attorney, the way that we sometimes do in state court. That’s because of the atmosphere, the need for professionalism, and you certainly don’t want to get dressed down by a federal judge.
So, we all try to maintain our decorum in the federal courtrooms, to that end. That’s not to say that we act like idiots in state court. I’ll give a good example, in state court on any given day, (pre covid) you could have 30 cases on a docket. Some judges will put two or three cases in the same time slot, and then decide which order to take the cases when they get there and read through what’s on the docket for the day. I’ve never had a case where there are 30 different defendants in a federal courtroom. There’s a small exception to that as I’m involved in a federal case right now with over 100 defendants. Very early on in that case, the judge required all attorneys and all defendants to be present in the courtroom. The judge has a very large courtroom, so it wasn’t crowded. That’s the most I’ve ever seen in a federal courtroom. Again, that was because it’s a case involving over 100 defendants, but generally speaking, when you have a time for federal court, you’re going to get that time.
In a state court, your court may start at 8:30, and you might not get out of there until 10:30. That generally doesn’t happen in federal court. I can’t think of a time that I’ve ever waited more than about 30 minutes past the set time, in a federal court. Of course, there have been cases where we’ll have multiple defendants being sentenced at the same time, so maybe I’m not speaking for the entire 30 minutes, but it is my case, it’s just not my defendant’s turn yet. That’s kind of a different situation, though. What I meant was in state court, cases are being handled individually. Depending upon what’s going on that day, you may have to listen to someone’s bond hearing, you may have any number of things come up that keep you in state court for a couple of hours that morning. That doesn’t happen in federal court.
Bonus Question- Can You Record Someone Without Telling Them And Then Use That In Court?
The simple answer is yes. In Texas, to record requires the consent of at least one of the parties and you as the recorder, give yourself consent to record. That allows you to record someone without telling them that you’re recording them. The question was, can I record them in my house, and then use that in court? I’m going to jump out on a limb here and say that’s probably some type of Family Law litigation that I don’t do, but the recording law is the recording law. Generally speaking, yes, you can record someone without their permission, because only one party’s permission is needed and you as the recorder, permit yourself.
Federal Criminal Defense Attorney In Galveston
Federal criminal defense attorney Mark Diaz in Galveston County has many years of experience defending criminal cases in both state and Federal court. Call (409) 515-6170 for a free initial consultation.