TAG

Criminal process

Federal investigation, charging, and sentencing procedure.

CRIM-03 · 01

The Grand Jury: Subpoenas, Witness Status, and What Secrecy Actually Covers

7 MIN · CRIM

A grand jury subpoena is the first visible step in an investigation that has usually been running for months. This brief explains what it compels, what it does not, and the sequence that follows.

Federal Rule of Criminal Procedure 6 governs the grand jury, and its secrecy obligation binds prosecutors, jurors, and court staff — not witnesses.
Recipients should establish immediately whether they are a witness, a subject, or a target, because the three call for different responses.
A company has no privilege against self-incrimination, and its records custodian generally cannot refuse to produce on personal Fifth Amendment grounds.

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CRIM-04 · 02

Miranda and Custodial Interrogation: Custody, Interrogation, Waiver, and Invocation

8 MIN · CRIM

Miranda applies only where custody and interrogation overlap. This brief separates the two elements, explains what a valid waiver looks like, and identifies what a violation does and does not achieve.

Warnings are required only when a person is both in custody and subject to interrogation; either element alone does not trigger the rule.
Custody is an objective test asking whether a reasonable person would feel free to end the encounter and leave, not what the officer intended.
The Supreme Court held in Berghuis v. Thompkins (2010) that silence is not an invocation and that a suspect must speak up unambiguously.

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CRIM-05 · 03

Federal Sentencing: The Guidelines Calculation, Departures, and Variances

7 MIN · CRIM

Federal sentencing runs in two stages — a guideline range that must be calculated correctly, then a statutory judgment that can move well away from it. This brief separates the two.

Since Booker in 2005 the guidelines are advisory, but a court must still calculate the range correctly before deciding anything else.
After the calculation, the court applies the sentencing factors in 18 U.S.C. section 3553(a) and must explain the sentence it chooses.
A departure moves within the guidelines' own framework; a variance moves outside it based on the statutory factors. Appellate treatment differs.

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CRIM-07 · 04

Federal Criminal Appeals: Preservation, Standards of Review, and the Fourteen-Day Clock

8 MIN · CRIM

An appeal is largely won or lost in the trial court. This brief explains what the record has to contain, which standard of review each issue attracts, and the deadlines that end the discussion.

Federal Rule of Appellate Procedure 4(b) gives a criminal defendant fourteen days from entry of judgment to file the notice of appeal.
Issues raised and ruled on below get ordinary review; issues raised for the first time on appeal get plain-error review, which is far harder.
An appeal reviews the record made at trial. Facts, arguments, and evidence not in that record cannot be added later.

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