 Welcome to Introducing the Federal Courts, the Federal Judicial Center's orientation series for court employees. This is program two of the series, How Criminal Cases Move Through the District Courts. It's designed to help you become familiar with basic procedures involved in processing criminal cases in the federal district courts. This program has four parts. Part one, initial stages. Part two, pretrial proceedings. Part three, trials and guilty pleas. And part four, sentencing and post-judgment proceedings. Part one, initial stages. I'm Bruce Clark. Welcome to your new job and to the federal courts. I'm standing here in the clerk's office for our district court. The clerk's office plays a vital role in the processing of criminal cases through the federal courts. Generally speaking, the clerk's office assists the court in seeing to it that criminal cases proceed through the federal system in a timely and orderly fashion. We also assist the parties in following the district court's administrative and procedural rules and see to it that information about specific criminal cases is made available to those who need it. These responsibilities are quite important in a system as busy as the federal court system. During the past few years, for example, over 40,000 criminal cases per year have been processed through our federal courts. In addition, the clerk's office itself works within a much wider and very complex adversary system for the resolution of criminal cases. In order to perform your job in the clerk's office effectively, you'll have to become familiar with how that adversary system works and with terms commonly used by the people who work in it. Let me show you what I mean. Hello, Ann. Hi, Jack. How's everything in the public defender's office? Just fine. I want to introduce you to a new attorney in our office. This is Alita Herrero. Alita, this is Ann Callis. Pleased to meet you. I'm very glad to meet you, too. I wanted to introduce Alita to you and also have her see how the clerk's office is set up. So I was wondering if I could take a look at the file of one of my cases, United States versus Clark. All right. What's the case number? Oh, let's see. It was filed this year, 1228. It should be a pretty thick file. I filed two suppression motions in the case. Has your client been indicted by the grand jury? He sure has. What judge has been assigned to the case for trial? Judge Scott. And has a trial date been set yet? Trial is set for November 15th. Wow, that's coming up pretty soon. Well, under the Speedy Trial Act, the, here it is, United States versus Clark. Thank you. See, Mr. Lee's client was detained pre-trial under the bail reform act, which makes the case a priority case for trial under the Speedy Trial Act. I told you Ann knows what she's talking about. She does. I see you do have some motions in there. There's a motion to suppress some oral statements, which the DEA agent says my client made at the time of the arrest. The motion also alleges that my client's arrest was made without probable cause. So the drugs should be suppressed as fruit of an illegal arrest, right? That's right. And of course the government is contesting the defense motions. So the prosecutor's responses to Mr. Lee's motions are also in the file. Who is the prosecutor on this case? Assistant US Attorney Johnson. Oh, sure. She started with the US Attorney's Office around the same time you started with the public defender, right? That's right. When will the magistrate hear the suppression motions? With the magistrate, I thought that the case was assigned to Judge Scott. Well, magistrates are allowed to hear motions to suppress if the judge handling the case authorizes them. So it depends on how the particular judge handles his cases. Judge Scott's practice is to authorize a magistrate to conduct hearings on motions to suppress. I see. If the magistrate denies the motions, we have ten days to file any objections with Judge Scott. See, the magistrate gives his report and recommendations in the case to Judge Scott. But the judge reviews the magistrate's recommendations, considers the defendant's objections, and enters a final order. Now, most judges don't. As you can see, to do your job well in the clerk's office, you must become familiar with the roles that different people play in the federal criminal process. What is the role of a federal public defender? War and Assistant United States Attorney. What is the difference between a federal judge and a federal magistrate? You'll also have to learn what happens as a criminal case makes its way through the system. What exactly is an indictment or a motion to suppress evidence? In order to understand these matters, you will also have to get to know the rules that govern the system, including certain provisions of the United States Constitution and the federal rules of criminal procedure. And of course, it will help to have a grasp of statutes that are commonly referred to. Like the Bail Reform Act and the Speedy Trial Act, which our clerk just mentioned to the new public defender. Obviously, it will take some time for you to absorb all this information and learn how to apply it in your own courthouse. This video program is designed to assist you in this process by giving you an overview of our federal criminal court system. We hope that providing you with such an overview will help you master the portions of the process you will be responsible for. Each video cassette in this program comes with a set of written materials, and each set of materials includes an outline of the script for that cassette. It also includes a glossary of terms and several other documents relating to the information covered in the script. When watching the video programs, you should have the outlines in front of you. The outlines follow the programs very carefully. If you're viewing this by yourself and you want to take some notes, you can stop the tape and do so in the space provided in the outline. You can take the outlines and the other materials with you, of course, and refer to them later to answer questions you may have. The first program in this series will introduce you to the major players in the federal criminal court system and the rules that govern their conduct. It will also discuss what a federal crime is and how federal crimes are investigated and reported. Other segments will cover preliminary procedures after an individual charged with a crime is arrested, pretrial and trial procedures, and sentencing and post-judgment matters. Throughout this program, we will be referring to the federal rules of criminal procedure. You might want to keep a copy of these rules handy as you view this video program. These rules govern procedures in all criminal cases in United States district courts, like federal rules of civil procedure, federal rules of criminal procedure are developed by the federal judiciary and take effect after review by Congress. The federal rules have the same force as any law passed by Congress. The federal rules of criminal procedure are designed to provide a comprehensive procedural guide for use in federal criminal cases, but the federal rules themselves recognize that some procedural matters are best addressed on a local basis. Thus, federal rule of criminal procedure 57 invites individual district courts to make local rules regulating more detailed procedural matters. For example, your district court may have its own rules of procedure governing the way the judge and the lawyers go about picking a jury, which lawyer gets to go first and things of that nature. In some courts, neither gets to go first. Rule 57 allows these matters to be covered by local rules of procedure rather than the federal rules. No local district court rule can be inconsistent with the federal rules of criminal procedure, however. Of course, while the federal rules govern procedural matters in federal criminal cases, they must, like all laws in our country, comply with the requirements of the United States Constitution to be valid. When the federal government accuses a person of committing a crime, that person is guaranteed certain rights under the Constitution. For example, the Constitution guarantees the accused the right to remain silent in the face of accusation by the government, the right to a jury trial, and the right to be represented by an attorney at all stages of the proceedings. Our system of criminal justice is what's known as an adversary system. The adversaries are the government and the defendant. Under the adversary system, the government must prove the charge it has brought beyond a reasonable doubt before the defendant can be convicted. The defendant is allowed to contest the government's evidence, present a defense to the charge, and seek acquittal. The jury decides the case by returning a verdict, finding the defendant guilty or not guilty of the charge. The theory of our system is that the truth is most likely to emerge if each side has a full opportunity to present its side of the case to the jury. In a rare case, if it's OK with the parties, the judge decides the case without a jury. That brings us to the role of the courts, which is to see to it that justice is administered fairly, that is, according to the Constitution, statutes, and rules of procedure that govern each case. Essentially, the judge sees to it that the opposing parties play fairly and by the rules. The judge also makes sure that the case moves through the system in a timely manner, so that justice is done, but not delayed. Most federal criminal trials are presided over by United States District Court judges. Under Article II of the Constitution, District Court judges are appointed by the president with the advice and consent of the Senate. But not all federal criminal proceedings are presided over by federal judges. As you will recall, the defense attorney filing his motion to suppress evidence asked the clerk whether the motion would be heard by a judge or a magistrate. Both judges and magistrates are judicial officers, but what's the difference between them? The basic differences are these. Judges are appointed by the president. They may hold their offices for life. And Congress may not reduce their pay. The Constitution includes these requirements so that judges will not be afraid of losing office or their salary for making unpopular decisions. By contrast, United States magistrates are judicial officers appointed by the judges of each United States District Court to help judges do their jobs. They serve an eight-year term. They're a full-time and part-time magistrates, and they perform a variety of tasks in civil and criminal cases. District courts can vary considerably in the ways in which they use magistrates. In criminal cases, magistrates are authorized by law to issue search warrants and arrest warrants, issue orders releasing or detaining defendants prior to trial, conduct trials of misdemeanors, that is, criminal offenses punishable by one year or less in prison, and conduct many other procedures under the federal rules of criminal procedure. In other words, Congress has listed a range of things that magistrates may do, but it's up to each district court to decide which things they'll do in that particular district. Magistrates can conduct misdemeanor trials with the consent of the defendant, but only federal judges may conduct trials of more serious criminal cases called felonies. Felony offenses carry a potential penalty of more than one year in prison, and only federal judges have the power to make final decisions on such crucial pretrial motions as motions to suppress evidence or motions to dismiss the case. While judges may conduct hearings on such important motions, they often assign magistrates to do so. When authorized to do so, the magistrate conducts the hearing on the motion to suppress or dismiss, and then submits a set of proposed findings of fact and recommendations to the judge. This set of proposed findings is commonly referred to as the magistrates' report and recommendations, or R and Rs. After getting, we say, being served with a copy of the magistrates' R and Rs, the parties have 10 days in which to file any objections. A judge then rules on the objections. In doing so, the judge may accept, reject, or modify the magistrates' R and Rs. In other words, if either party objects to the magistrates' findings in motions to suppress or dismiss, the judge handling the case will make the final rulings. So there are some limitations on the tasks that magistrates are allowed to perform in criminal cases. But overall, magistrates perform a substantial number of duties in both felony and misdemeanor cases. Next, let's discuss the definition of a federal crime. What is a federal crime and how does it differ from a violation of state law? Remember, our system of government assigns separate powers to federal and state governments. This means the federal criminal court system is separate from criminal court systems run by the states. Of course, it is true that both the states and the federal government have passed statutes punishing certain types of crimes, such as selling illegal drugs. So a person who sells illegal drugs can be prosecuted for that offense in either state or federal court. But it is important to remember that not every criminal act committed in the United States can be prosecuted in the federal court system. In fact, the great majority of criminal charges filed in this country involve violations of state laws. And a criminal law or statute passed by a given state legislature can only be enforced in that state. For example, a statute passed in New York state may only be enforced in New York. It does not apply in any other state or in the federal courts. On the other hand, federal criminal statutes, that is, criminal laws passed by Congress or national legislature, can only be enforced in federal courts. So there are separate state and federal criminal justice systems in our country. Violations of federal criminal statutes cannot be prosecuted in state courts. And violations of state criminal statutes cannot be prosecuted in the federal court system. This means that federal courts are courts of limited jurisdiction in criminal cases. Jurisdiction refers to the power or authority of a court to hear a certain type of case. We say that federal courts have limited jurisdiction because they can only hear those kinds of criminal offenses that Congress gives them the power to hear. Congress has defined most of the crimes that may be prosecuted in federal courts in Title 18 of the United States Code. Definitions of crimes may also be found in other statutes, such as Title 21 of the code, which defines offenses relating to illegal drugs. So when we speak of federal crimes, we refer to violations of criminal laws passed by Congress, which are prosecuted in the federal courts. But Congress cannot decide to make any crime at once to be a federal crime. To be a federal crime, what we call a crime against the United States, the criminal act must have some connection with the United States and not just with a particular state. Federal crimes fall into three general categories. These are, first, crimes which affect an area that the federal government has the power to regulate under the Constitution. Here, I'm talking about areas of national interest, such as banking practices, interstate commerce, or imports and exports. For example, a person charged with holding up a local grocery store would ordinarily be prosecuted for robbery in state court. Like the vast majority of crimes committed in this country, most robberies are prosecuted in state courts. But if a bank is robbed, the offense can be prosecuted as either a state or a federal offense. Why? Well, let's assume that the bank is a member of the Federal Reserve System, has its deposits insured by the Federal Deposit Insurance Corporation, an agency of the federal government, and is subject to federal regulations governing the banking industry. Robbery of money from that bank could have an effect on the national banking system, which Congress has the authority to regulate under the Constitution. Congress establishes national banks, bank depositories, and other financial agencies needed for the fiscal operation of the federal government. So while the crime of bank robbery can be prosecuted under state law in a state court, Congress also has the power to pass laws to protect the banks and other financial institutions which it regulates. And Congress has done so by passing a law which allows bank robbery to be prosecuted as a federal crime. A second type of crime which qualifies as a federal offense is that which affects an agency of the United States government, such as the post office or the internal revenue service. For example, let's consider the crime of destruction of property. Ordinarily, a person who intentionally destroys someone else's property would be prosecuted in state court. But a person who destroys United States mail or equipment belonging to the United States Postal Service commits a federal offense. So does a person who uses the US mail to promote a dishonest business. These offenses adversely affect the interests of a federal agency. So Congress has made them federal offenses. A third group of crimes that qualify as federal offenses are those which occur on property owned by the federal government. This time, let's use the offense of assault as an example. Assault cases involving civilians are ordinarily prosecuted in state courts. But if an assault occurs on federal property, for example, if one civilian assaults another while they are visiting a military base, the offense is treated as a federal offense and is prosecuted in federal court under the Assimilative Crimes Act. Notice that the defendant is prosecuted for the assault in federal court, even though there is no federal criminal law which applies to assaults between civilians. Under the Assimilative Crimes Act, Congress provided that the federal court should simply apply the law of the state in which the federal property is located, converting that law into a federal offense. So our assault defendant still ends up being prosecuted for a federal offense in a federal court. Notice that in each of our examples, there is a direct connection between the prohibited conduct and the United States government. That connection enables Congress to declare that the conduct is a federal criminal offense. Next, let's look at the steps that lead to the prosecution of a criminal case in federal court. Under our system, the judiciary is a separate branch of government, independent of the executive and legislative branches. Thus, the courts themselves have nothing to do with the decision whether to say a certain action robbing a bank say is a federal offense. That's for Congress to decide by passing appropriate legislation. And the courts do not decide whether to charge a person with committing a federal crime. The executive branch is responsible for investigating criminal conduct and deciding whether to file formal criminal charges. The president is charged with this executive branch function under our Constitution. The president exercises his power through the attorney general who heads the Justice Department. The Justice Department has been characterized as the largest law firm in the world. In addition to the attorney general, the president appoints a United States attorney to represent the United States in each of the 94 judicial districts. The United States attorney is the government's lawyer for each judicial district and has exclusive authority to represent the position of the United States in the federal courts of that district. The United States attorney also has the authority to hire enough assistant United States attorneys to handle the caseload of criminal cases in the district. It is the job of the United States attorney in each district to decide which alleged criminal conduct in the district should be prosecuted. But the task of investigating alleged criminal activity is not ordinarily performed by the United States attorney's office. Investigative tasks are performed instead by separate law enforcement agencies. The United States attorney's office reviews the evidence developed by these agencies and decides which cases are worthy of prosecution. Here are a few of the law enforcement agencies which investigate alleged federal crimes and develop evidence for the United States attorney's office. We'll start with the Federal Bureau of Investigation. The FBI, or Federal Bureau of Investigation, is a part of the Justice Department. The FBI has broad authority to investigate violations of the federal criminal law. The FBI investigates allegations of banking crimes, gambling offenses, white collar fraud, public corruption, interstate transportation of stolen property, election offenses, and civil rights violations. The DEA, or Drug Enforcement Administration, is also part of the Justice Department. The DEA is the law enforcement agency of the United States government with primary responsibility for investigating narcotics cases. The Bureau of Alcohol, Tobacco, and Firearms, AT&F, is part of the Treasury Department. It investigates violations of federal gun laws, arson cases, cases involving the illegal use of explosives, and cases involving the illegal production of alcoholic beverages. The Secret Service is also part of the Treasury Department. In addition to protecting the president and other public officials, the Secret Service investigates alleged violations of federal currency laws, such as counterfeiting and theft of government checks. The CID, or Criminal Investigation Division of the Internal Revenue Service, investigates violations of the criminal tax laws. And federal postal inspectors of the United States Postal Service investigate offenses involving the use of the mails. Agents from these and other agencies investigate alleged federal crimes occurring within their jurisdiction. If they conclude from their investigation that a federal crime may have occurred, they then recommend to the appropriate United States Attorney's Office that the case be prosecuted. However, the decision, whether or not to actually file criminal charges against an individual or an organization, is not made by the agent who investigated the case. That decision is made by the United States Attorney's Office after prosecutors from that office review the case. Let's see how an investigative agency works together with the United States Attorney's Office to develop evidence, make arrests, and initiate formal criminal charges against a suspect. We'll use a typical drug case to illustrate this process. We'll refer to this hypothetical case throughout our program, tracking the case as it makes its way through each phase of the federal criminal court system. Let us suppose that Ralph Brown, an agent of the Drug Enforcement Administration, has been conducting an investigation into alleged drug trafficking in the Centerville section of the city. Working undercover, Brown approaches two people sitting in a van parked in a secluded area. Brown asks them if they have any cocaine for sale. The passenger turns and says something to the driver, but Brown cannot hear what she says. Then the passenger, later identified as Angela Smith, gets out of the van. Smith negotiates an agreement with Brown as they walk into a clearing. Brown then buys 540 grams of cocaine from Smith. After Brown makes the purchase, he leaves the area where he bought the drugs from Smith. Brown then uses a radio to broadcast descriptions of Smith and the driver of the van to a DEA arrest team waiting nearby. The van leaves the scene as the arrest team moves in and detains Smith. Meanwhile, Brown conducts a field test to ensure that the substance he received from Smith was really cocaine. After Brown identifies Smith as the person who sold the cocaine to him, Smith is placed under arrest and advised of her right to remain silent. A search of Smith after her arrest reveals she is in possession of special pre-marked DEA money, which Brown gave her in exchange for the cocaine. At this point, you may be wondering why DEA agents rather than state or local law enforcement officers are involved in this case. First of all, Congress has passed laws making it a federal crime to possess or sell illegal drugs. And as you know, federal crimes are investigated by federal law enforcement agencies. But you may be saying illegal drug activity is already regulated on the state and local level in our country. Why has Congress also passed laws making it illegal to possess or sell drugs? Congress did so because it found that a majority of the illegal drug traffic in this country flows through interstate commerce. For example, illegal drugs may be imported into the country through one state, sold in a second state, and used in a third state. The drugs may move from state to state by car, train, airplane, and many other means of transportation. As the drugs move throughout the country, they affect interstate commerce by endangering people and property in many different states. And the commerce clause of the Constitution gives Congress the power to regulate illegal activity having a bad effect upon commerce between the states. So Congress exercised its power under the commerce clause to pass laws outlawing the possession and sale of illegal drugs. These laws are collected in Title 21 of the United States Code at Section 841. The statute calls these illegal drugs controlled substances, a term you may hear frequently in court. Of course, under our federal system, laws making drug-related activity illegal can also be passed and enforced at the state and local level. But as we've seen, illegal drug activity which surfaces in any one state usually involves several other states as well. For this reason, the commerce clause also allows Congress to regulate illegal drug activity occurring on a purely local or intrastate basis. This means that federal drug laws can be applied to illegal drug activity which takes place in only one state, city, or town. Usually, however, federal agents, like those from the DEA, are called into investigate larger and more widespread illegal drug activity. And that's what happened in our hypothetical case. Federal agents investigating the illegal activities of a widespread drug ring learned that large quantities of drugs were being sold by ring members near the scene of Smith's arrest. The DEA then set up an undercover drug operation hoping to arrest street sellers like Angela Smith. The DEA hopes that arrestees like Smith, who are at the lowest level in drug ring activities, might then be persuaded to identify higher-ups in the ring. Let's return now to the facts of our hypothetical case. Suppose that while in custody, Smith volunteers some information to Agent Brown. I never should have gotten involved with this guy, Jones. I never should have listened to him. You settle down. Look, you should talk to Michael Jones, the one in the van. He's the one who gave me the drugs that I sold you. Michael Jones, huh? Later, Agent Brown runs Jones's name through the computer and learns that he has prior convictions for grand theft and assault with a dangerous weapon. Brown next obtains a photograph of Jones from the DEA files. Looking at the photo, he recognizes Jones as the driver of the van. Then, while other DEA agents continue to work on the potential case against Jones, Agent Brown sees to it that Smith is brought to the office of the US Marshal for processing. Brown then heads for the United States Attorney's Office to help an assistant US attorney prepare Smith's case for court. This is because Rule 5 of the federal rules of criminal procedure requires that an officer making an arrest without a warrant take the arrested person before the nearest available federal magistrate without unnecessary delay for what is called the initial appearance. Rule 5 of the federal rules also requires that when a person is arrested without a warrant, a complaint shall be filed against him when he is brought before a magistrate. The complaint, as defined in Rule 3, is a written statement of the essential facts of the charge defense. Rule 4 requires that an affidavit be filed with the complaint, alleging that there is probable cause to believe a crime has been committed and that the defendant, in this case, Angela Smith, has committed it. An affidavit is a sworn statement. And probable cause is the legal standard which must be met to justify an arrest. You'll hear the term probable cause a lot. To say that a judge has found probable cause to believe a crime was committed is not the same as saying that the judge is certain a crime was committed. It just means that the judge thinks there is a reasonable belief that a crime has been committed and that the person who has been arrested committed it. The probable cause standard requires that arresting officers have a reasonable belief after considering all the information known to them that a crime has been committed and that the person they are arresting committed the crime. Prior to Smith's initial appearance in court, Agent Brown met with an assistant United States attorney to discuss the facts of the case against Smith and provide the assistant with enough information to draft the complaint. Hi. I'm AUSA Rhonda Johnson. Agent Ralph Brown, pleased to meet you. Have a seat. I don't think I've seen you around, are you new? Well, Smith's case is my first undercover buy in Boston. You're off to a good start. Thanks. I've read your reports in the case. They look fine to me. It looks like a valid arrest and a strong case. You don't have any doubt about the identification, do you? None whatsoever. Smith was the seller. Good. We'll proceed with the case then and file a complaint. Good. I've also got a lead on the guy who was driving the van. His name is Michael Jones. And he's got two prior convictions, grand theft and assault with a dangerous weapon. Let's get a warrant on him and pick him up. We'll get to him later. Right now, I've got to prepare a complaint against Smith. Your affidavit will have to be filed along with the complaint. I haven't finished writing that yet. I wanted to get right to work on this Jones case. Well, the complaint has to be backed up by an affidavit. And we don't have a lot of time. Why don't you finish drafting the affidavit while I can prepare the complaint? OK. I'm a little new with this. Exactly how much information do I need to put in the affidavit? The affidavit has to have enough information to lead the magistrate to conclude that there's probable cause to believe Angela Smith distributed the cocaine. Well, that's what she's going to be charged with in the complaint, right? Distribution of cocaine. Right. The complaint will charge a violation of 21 USC 841A1, which makes it unlawful to intentionally distribute a controlled substance like cocaine. Well, if that's what we're going to say in the complaint, then how come we have to say it again in the affidavit? I would really like to get moving on the Jones case, you know? I know. But the complaint and the affidavit are two different things. The complaint only describes very basic facts of the offense the government says was committed. It gives the name and position of the person making the accusation, you, and the name and address of the defendant. So the affidavit is necessary to supplement the facts in the complaint and provide the magistrate with enough reliable factual information to, hopefully, support a finding of probable cause. OK. I'll crank out an affidavit. Just bothers me that Jones is probably out there selling more drugs on the street while I'm stuck here doing paperwork. I know how you feel, but take your time on this. There's more at stake here than paperwork. You've arrested Smith. I take it you'd like formal criminal charges filed against her today. You bet I would. Well, without a proper affidavit, the magistrate won't even sign the complaint. No criminal charges will be lodged against Smith, and we might as well all go home. Smiths sure will. But if we provide affidavit with enough reliable facts to show probable cause, then she'll be held pending her initial appearance before the magistrate, right? Right. Yeah, it's all coming back to me. I've got this in training, and that's when the magistrate will determine bail, right? That's correct, and at that point, I'll ask that Smith be detained without bond. OK, now I've got it. Why don't I write up a draft affidavit and then bring it back to you to look it over? Fine. Let's get moving on this, though. I've got to prepare the affidavit and the complaint before they finish processing the defendant. Once they're done, we'll take a look at that case against Jones. OK, thanks a lot. Copies of the complaint and affidavit in our hypothetical case, United States versus Angela Smith, are included in your written materials. You might want to look them over at this point. After Smith is processed by the US Marshals, she'll be taken to a holding cell to await her initial appearance before the magistrate. While in the cell, Smith will be interviewed by a pretrial services officer. Pretrial services officers, or in some districts, probation officers assigned to exercise pretrial services responsibilities, assist the court by collecting and verifying information about criminal defendants like Smith. First, the officer interviews the defendant, obtaining information about her personal history and financial status. This includes information relating to the defendant's family, employment status, and ties to the community. The officer then verifies the information volunteered by the defendant and checks with law enforcement agencies to see if the defendant has a criminal record. The officer incorporates this information in a report that goes to a magistrate. The magistrate uses the pretrial services report at the initial appearance when deciding bail issues, that is, issues relating to whether the defendant should be released or detained pending trial. Copies of the pretrial services report also go to counsel for the defendant and the assistant United States Attorney handling the case for their use at the bail hearing. Because of the restricted purpose of the interview, none of the information revealed to the pretrial services officer can be used against the defendant on the issue of guilt in any later court proceeding. If the defendant is later found guilty, however, the information given in the interview is made available to probation officers for sentencing purposes and may affect the defendant's sentence. Thus, before interviewing the defendant, the pretrial services officer advises the defendant of the different ways in which the information provided may be used at sentencing. The officer also advises the defendant that there is no obligation to answer any of the interview questions before speaking with an attorney. Pretrial services officers interviewing defendants often use a form found in your materials entitled, Notice to Defendants, to advise defendants of their interview options. After speaking with an attorney, some defendants refuse to be interviewed. Pretrial services officers also ask defendants whether they wish to retain an attorney or have an attorney appointed by the court to represent them. Of course, defendants who wish to hire an attorney and have the money to do so may retain any attorney they choose. But what if the defendant wants to be represented by a lawyer but cannot afford to hire one? Okay. Do you wanna hire a lawyer or? I can't hire an attorney. Okay. I can't afford it. Can't they appoint me one? Sure. If the court finds that you are unable to afford an attorney, the court will appoint one for you. Then you don't have to pay the lawyer fees. Is that what you'd like the court to appoint you a lawyer? Yes. As long as it's free. Okay. I just need you to fill out this financial affidavit and then you'll swear to it that all the information is true. The court will review it and if you qualify will appoint you a court attorney. Okay. First you need to fill out. The defendant must complete the financial affidavit form in order to have an attorney appointed to represent her. A copy of a financial affidavit form is included in your written materials. The pretrial services officer then gives the affidavit to a magistrate who reviews it and decides whether or not the defendant qualifies for court appointed counsel. If the defendant qualifies for court appointed counsel, the magistrate will appoint counsel to represent the defendant under the Criminal Justice Act, 18 U.S. Code Section 3006A. The Sixth Amendment to the Constitution guarantees persons accused of most crimes the right to be represented by an attorney. The Criminal Justice Act implements this guarantee in the federal courts by providing legal counsel to represent defendants who don't have enough money to hire attorneys for criminal cases. The act calls for the appointment by the court of defense counsel in felony and misdemeanor cases and in a variety of other situations in which the accused may be incarcerated if convicted. Cases in which lawyers are appointed under the act are often called CJA cases. The Criminal Justice Act allows United States district courts to set up different plans for appointing lawyers for indigent defendants. In each district, the act requires the appointment of panel attorneys in private practice to a substantial number of cases. These attorneys are selected from a group or panel of attorneys previously approved by the district court. In qualifying districts, the Criminal Justice Act also allows for the representation of indigent defendants by a defender organization. In these districts, both private attorneys and attorneys working for the defender organization are appointed to represent indigent defendants. There are two kinds of defender organizations under the act, federal public defenders, and community defender organizations. A community defender organization is a nonprofit defense counsel service organized by a group of attorneys in private practice. The attorneys who work for the community defender organization must already be authorized by the district court to act as counsel in CJA cases. By contrast, each public defender office is run by a federal public defender, the defense equivalent of the United States attorney for that district. But the public defender is not appointed by the justice department. He or she is appointed by the courts themselves. Like the US attorney, the federal public defender is allowed to hire assistants or staff attorneys. Let's assume that the magistrate finds that Smith is financially unable to hire counsel and appoints attorney Jack Lee from the public defender's office to represent her under the Criminal Justice Act. Upon learning of his appointment, Lee heads for the cell block to interview Smith. Mr. Smith. Yeah, Mr. Lee. Hi, my name is Jack Lee. I'm an attorney with a federal public defender and I've been appointed to represent you in your case. Here's my card. I see. Who appointed you? I've been appointed by one of the magistrates in this courthouse. The magistrate that appointed me did so under the Criminal Justice Act, a law that provides you with a lawyer when you can't afford to hire one. Now, I'm a magistrate. That's like a judge, right? That's right. Well, I mean, I'm more glad that the judge appointed you and all, but I have a question. How can you work for me if you work for the judge? Well, that's a good question, Ms. Smith. My answer is this. Like all lawyers, I have to follow certain legal and ethical rules in my dealings with the court. And it's true that the court has appointed me as your attorney in this case. But I don't work for that judge and I don't work for the court. So who do you work for? I work for the Federal Public Defender. What's that? It's an organization of lawyer separate from the court. It's like a law firm full of lawyers who specialize in defending criminal cases. Well, I just hope that you do the same thing defending my case that a private lawyer would. I will. And just like a lawyer in private practice, my job is to protect your legal rights and make sure you get the best possible results in your case. But if you make the judge angry, won't he fire you? Look, Ms. Smith, the bottom line is this. When the judge appointed me to defend you in this case, he knew that like any defense lawyer, paid or appointed, my job is to give you the best legal representation I can. And that's what I intend to do. OK. I feel a little bit better. For while there, I was thinking I might represent myself. They let you do that, don't they? Yes, they do. That is, the court will let you represent yourself if it finds that you have freely chosen to waive your right to counsel. A defendant who represents himself or herself is said to proceed pro se. Pro se is Latin for himself. A defendant has a right to proceed pro se in a criminal case as long as he or she waives the right to counsel. A waiver is the act of intentionally and voluntarily giving up a known right. A defendant who waives the right to counsel and goes pro se handles all matters relating to the case. That is, the defendant represents himself or herself not only a trial, but during all pretrial matters as well. Defendant Smith decides that she would like to be represented by attorney Lee. So she does not proceed pro se. If Smith had decided to go pro se, however, she would be shown handling all those matters handled by attorney Lee throughout the rest of this video program. OK. I want you to represent me. I mean, you're a train lawyer. You sound like you know what you're doing. But if I tell you about my case, don't you have to go tell the judge or the DA? No. In fact, I'm not allowed to tell people anything I've learned from you that might be harmful in your interests. The law recognizes that it's important for you to tell me exactly what happened in the case so I can represent you well. And I don't suppose you'd feel confident in telling me what happened if you thought that I was going to turn around and tell the court and the DA everything you said. So I can't do that. My obligation is to keep the information you tell me about the case confidential, just between you and me. So I can tell you what happened in my case. Yeah. But don't talk to anyone else about it, all right? I gotcha. All right. Now let's talk about bail. From the information that I received, it said. Now that Angela Smith has spoken with her attorney, the stage is set for her initial appearance before the magistrate. We'll see what happens at an initial appearance in the next segment of this video program. We'll also discuss such pretrial matters as the preliminary examination, indictment by a grand jury, arraignment, discovery, and motions practice, all in the context of our hypothetical drug case. It should be easier for you to understand these pretrial matters now that you've been introduced to the major components of the adversary system in federal criminal cases.