A Journalist’s Guide to the
Federal Courts
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS
This page is intentionally blank.
A
Journalist’s Guide
to the
Federal Courts
Administrative Ofce of the United States Courts
Thurgood Marshall Federal Judiciary Building
Washington D.C. 20544
www.uscourts.gov
This page intentionally blank.
i
A Journalist’s Guide to the Federal Courts
Introduction 1
Federal Court: Media Basics 2
Media Access in Brief 2
Recording and Broadcasting 4
Electronic Devices 5
Courthouse Contacts 6
Judges 6
Clerk of Court’s Oce 7
Lawyers 7
Jurors 8
Other District Court Personnel 9
Accessing Court Documents 11
Online Access 11
Older Documents 12
User Fees 12
Sealed Documents and Closed Hearings 13
District Courts 15
Reporting on Criminal Cases 15
Investigations and Related Documents 15
Grand Juries and Indictments 16
Felony Preliminary Proceedings 17
Criminal Complaints and Informations 18
Pretrial Motions 19
Guilty Pleas 19
Covering Criminal Trials 20
The Jury 20
Opening Statements 22
Witnesses 22
Exhibits, Transcripts, and Courtroom Audio 22
Motion to Acquit 24
Closing Arguments 24
Jury Instructions, Deliberations, and the Verdict 25
Contents
ii
Post-Verdict Interviews 26
Non-Capital Sentencing 26
Death Penalty Sentencing 27
Covering Civil Cases 27
Filing the Complaint 28
The Plaintiff’s Claim 28
The Defendant’s Answer 29
Pretrial Proceedings 30
Ending a Case Without a Trial 31
Summary Judgment 31
Settlements 31
Civil Trials 31
Appellate Courts and Cases 33
Appellate Court Sources and Resources 34
The Appeals Process 35
Appeals Raising Constitutional Issues 36
Death Penalty Appeals 36
Three-Judge Panels 36
Bankruptcy Courts and Cases 38
Accessing Bankruptcy Records 38
Bankruptcy Process 39
Bankruptcy Appeals 40
Judges and Judicial Administration 41
Federal Judges 41
Federal Court Organization 43
Judicial Administration 44
Circuit Judicial Councils 44
Chief Judges 45
Judicial Disciplinary Process 45
Other Judiciary Entities 47
Criminal Justice Act Defense System (Court-Appointed Counsel) 47
Who Provides Court-Appointed Counsel 48
How CJA Cases Are Funded 48
The CJA and Death Penalty Cases 49
Probation and Pretrial Services Ocers 50
Central Violations Bureau 52
Helpful Online Resources 53
1
Introduction
Federal judges and the journalists
who cover them share an important
goal: They want the public to
receive accurate and understandable
information about the federal courts
and their work.
The media perform an important
and constitutionally protected role by
informing and educating the public.
The media also serve a time-honored
role as the public’s watchdog over
government institutions, including the
courts. Likewise, courts uphold many
of the legal protections that enable
journalists to perform their jobs. A Journalist’s Guide to the Federal Courts is intended
to assist reporters who cover appellate, district, and bankruptcy courts – the cases,
the people, and the process. It also offers basic information for journalists writing
about the federal court system as a whole. The guide does not discuss the Supreme
Court of the United States. Go to the Supreme Court website (https://www.
supremecourt.gov/) for helpful resources.
The Guide is intended to help working reporters perform their professional duties;
it is not a comprehensive overview of the federal courts. The U.S. Courts website
offers additional online resources about the federal Judiciary (http://www.uscourts.
gov/about-federal-courts).
The Guide does not constitute a statement of Judicial Conference policy and is
not binding on any federal court or its judges or employees. Individual courts have
varied approaches to media relations. Journalists should familiarize themselves with
the customs, practices, and rules of the courts they cover.
In addition to this Guide, you may consult www.uscourts.gov and the Office of
Public Affairs at the Administrative Office of the U.S. Courts, (202) 502-2600.
Search for specific court location and website information using the Court Locator
(http://www.uscourts.gov/court-locator).
Introduction
2
Federal Court: Media Basics
Federal courts are public institutions, and with rare exceptions, members of the
media and public can enter any courthouse and courtroom. However, whether you’re
reporting about a high-prole case or the federal courthouse is part of your beat, the
Judiciary has distinct dierences from the other branches of the federal government,
which often aect a reporter’s experience. Here are some notable dierences:
• Legal terms. Reporters don’t need a law degree to cover the federal courts,
but it is essential to understand and be able to translate legal jargon and
procedures for readers or viewers. When in doubt, check the Glossary of
Legal Terms (http://www.uscourts.gov/glossary).
• Each court is unique. While some rules and statutes govern all federal courts,
circuits and districts have substantial autonomy to determine local rules and
practices. Understanding the rules will inform your coverage and ease your
newsgathering.
• Impartiality. Federal judges adhere to strict ethics guidelines and recuse
themselves from cases that constitute a conict of interest or in which their
impartiality might reasonably be questioned. Cases are assigned to judges
randomly in appellate, district, and bankruptcy courts to ensure fairness and
integrity.
• Ocial proceedings, not interviews. In keeping with ethics rules, federal
judges do not grant interviews about active cases. Judges “speak” through
comments made in open court or through written decisions. Reporters must
rely on the ocial case proceedings as their primary information source.
MEDIA ACCESS IN BRIEF
Journalists have the same access to courthouses and court records as other members
of the public. is access is governed by a mix of federal laws, federal judicial policy,
and circuit or district courts’ local rules and practices.
Court documents. Most documents are led electronically in appellate, district, and
bankruptcy courts, and are available through the Public Access to Court Electronic
Records service, better known as PACER (www.pacer.gov). PACER documents
also can be read at no cost from a public terminal in the clerks’ oces. A list of
Federal Court:
Media Basics
3
A Journalist’s Guide to the Federal Courts
documents not available to the public can be found at Accessing
Court Documents on page 11.
Interviews. Judges, court sta, and jurors may not discuss active cases.
e clerk’s oce usually is a court’s designated point of contact with
the media.
Courthouse security. Members of the public must pass through a
metal detector and agree to any additional requested screening by
court security ocers to enter a federal courthouse. Some courts
permit expedited entry of reporters with recognized credentials. e
clerk of court can tell you if this is available.
Courtroom access. Most court proceedings are open to the public on
a rst come, rst served basis. When in doubt, consult with the clerk’s
oce before a trial or hearing to learn whether there are special media
arrangements, such as reserved courtroom seating or a separate media
room.
Closed sessions. Certain proceedings are always closed to the public
and media. By rule, only a witness, attorneys for the government,
and a court reporter may be present when a grand jury sits, and jury
deliberations and attorney-client meetings also occur in private.
ese rules are designed to protect the integrity of the process and
preserve the right to a fair and impartial trial. Proceedings that deal
with classied information, trade secrets, and ongoing investigations
often are closed. Judges also may meet privately with the attorneys in
chambers.
Most pretrial hearings are open to the public, but either party may
le motions asking the judge to close certain proceedings. Media
organizations may choose to le an opposing motion when this occurs.
O limit areas. Journalists should not cross from the public gallery
into the well of the courtroom, which is generally marked by a
short rail, without permission from the judge or a court employee.
roughout the courthouse, journalists should obey posted restrictions
and instructions from court security ocers. Failure to obey
courthouse rules may result in sanctions.
Journalists
should not
cross from the
public gallery
into the well of
the courtroom,
which is
generally
marked by
a short rail,
without
permission
from the judge
or a court
employee.
4
Federal Court: Media Basics
RECORDING AND BROADCASTING
e use of cameras in federal courtrooms is governed by the Judicial Conference of
the United States and Federal Rules of Criminal Procedure. Find the full history
of Judiciary policy on cameras at http://www.uscourts.gov/about-federal-courts/
cameras-courts.
In specic instances, such as investitures, naturalizations, or other ceremonial
proceedings, a judge may permit the public and media to take photographs and
conduct video and audio recording inside a courthouse. And by local rule, the Second
and Ninth Circuit Courts of Appeals will consider media requests to record or
broadcast an appellate proceeding. Guidelines are available at the Second (http://
www.ca2.uscourts.gov/media_information.html) and Ninth Circuit (https://www.
ca9.uscourts.gov/news_media/) websites.
Outside these limited exceptions, the media may not photograph, videotape, or
record live federal court proceedings.
Courts of appeals may provide audio or video recordings of appellate hearings, and
rules are available on each circuit’s website. e Ninth Circuit website provides live,
streaming video of oral arguments.
In addition, three district courts in the Ninth Circuit – the District Court for the
Northern District of California, the District Court of Guam, and the District Court
for the Western District of Washington – provide court-recorded video of some civil
trials. ese videos, authorized by Judicial Conference policy, can be seen at Cameras
in Courts (http://www.uscourts.gov/about-federal-courts/cameras-courts).
5
A Journalist’s Guide to the Federal Courts
Some district and bankruptcy court proceedings use audio recording
instead of a court reporter, and those recordings are available to the
public for a fee (See Exhibits, Transcripts, and Courtroom Audio
on page 22). A judge also may permit courtroom video and audio
recording for security purposes, and for other purposes of judicial
administration, but these recordings are not available to the public.
It is important to note that the prohibition on recording includes
the use of cell phones and other personal electronic devices, even
in courthouses where the public is permitted to carry such devices.
Journalists must not record or photograph trial-related activity, either
in the courtroom or in areas where closed-circuit audio or video is
available. Violation of this rule can result in signicant court sanctions.
Under local rules, courts may specify areas away from the courtroom
where cameras can be used for interviews and TV reports. ese areas
usually are outside the courthouse, on or just outside federal court
property.
ELECTRONIC DEVICES
Circuits and districts set local rules on whether the public and media
may bring portable electronic communication devices (such as cell
phones, laptops, and tablets) into their courthouses, and where and
whether such devices may be used. For guidance on personal electronic
devices, consult the local court’s rules or administrative/standing
orders on its website, or contact the clerk’s oce.
Even if a court generally permits electronic devices, individual judges
still may prohibit them inside courtrooms. Judges also may limit the
applications that may be used on such devices. For example, even if
devices are permitted by court rules, a judge may prohibit live blogging
or use of social media applications inside the courtroom.
Even in courts
that permit cell
phones and
other electronic
devices, trial-
related activity
may not be
recorded.
6
Courthouse Contacts
Only a few federal courts have public information ocers (PIOs) who interact with
the news media on a daily basis. Absent a PIO, media interested in district court
cases should contact the clerk of court or division manager (or district executive in
those courts that have such a position). ese employees either can help directly or
can refer reporters to the court’s designated media contact.
While these court employees will assist media regarding access and process, they are
not a substitute for covering a hearing. Ethical restrictions and the sheer quantity of
cases prevent court sta from giving reporters substantive updates about courtroom
proceedings.
In cases before a court of appeals, media should start with the circuit executive or
clerk of court. Bankruptcy case inquiries should be directed to the bankruptcy court
clerk.
In many instances, answers to reporter questions can be found on court websites,
through electronic case les in PACER, or at www.uscourts.gov.
JUDGES
Journalists are likely to encounter four categories of federal judges. District court
judges, who oversee most federal trials, and court of appeals judges, who hear
appellate cases in panels, are appointed for life under Article III of the Constitution.
ey often are referred to as “Article III judges.” Magistrate judges handle many
district court pretrial proceedings, while bankruptcy judges exclusively handle
bankruptcy cases. Magistrate and bankruptcy judges have xed terms but may be
reappointed. See Judges and Judicial Administration on page 41.
Under the Code of Conduct for United States Judges (http://www.uscourts.gov/
judges-judgeships/code-conduct-united-states-judges), all judges must “avoid public
comment on the merits of pending or impending actions” in cases before them or
on appeal. Don’t call judges, or their judicial assistants and law clerks, with questions
about a case.
Many judges participate in bar association programs and other public events, and
you may introduce yourself in such settings. Some judges also will talk informally to
Courthouse
Contacts
7
A Journalist’s Guide to the Federal Courts
journalists about non-case-related matters. If you are new to covering
a federal court, it is appropriate to call a judge’s chambers and ask
whether you can drop by to introduce yourself. Proles of newly
appointed judges, new chief judges, and stories about courthouse
projects and innovations are not uncommon. Judges may talk with
reporters for these types of stories, but they are not obligated to do
so. Some federal judges also may discuss procedural aspects of a case,
while others decline to be interviewed by journalists on virtually any
topic. Biographical information on many judges can be found on a
court’s website. Brief biographies of every Article III judge can be
found at https://www.fjc.gov/history/judges.
To learn more about federal judges, see Judges and Judicial
Administration on page 41.
CLERK OF COURT’S OFFICE
e clerk of court’s oce (or “clerk’s oce”) performs a wide range
of administrative duties, including management of the ow of cases.
As the court’s ocial custodian of the record, the clerk can assist
members of the public and media accessing court records. e clerk
also is responsible for providing courtroom deputy clerks, who support
judges in the courtroom.
e clerk of court, or his or her sta, is an excellent source for routine
procedural information, but not for questions of substance or law.
Clerks also do not interpret documents or courtroom proceedings.
LAWYERS
For questions of legal substance, start with the lawyers in the case.
e media are free to request interviews with prosecutors and
defense lawyers, during or after a trial. However, the attorneys have
no obligation to speak with the media, and in fact may decline to do
so because of ethical or strategic considerations. e same is true of
plainti ’s and defense counsel in a civil case.
If the attorneys trying the case decline to talk with you, you may call
lawyers who have handled similar cases, or professors at a local law
school.
Federal prosecutors. A U.S. attorney’s oce (http://www.usdoj.gov/
usao/offices/index.html), which is the local prosecutor’s oce for the
For questions
of legal
substance,
start with the
lawyers in the
case. If they
won’t talk, call
lawyers who
have handled
similar cases,
or professors
at a local law
school.
8
Courthouse Contacts
U.S. Department of Justice, tries major criminal cases in district court.
is function is part of the executive branch, not the judicial branch.
e U.S. attorney, who runs the oce, is nominated by the President
and conrmed by the U.S. Senate for a four-year term.
Assistant U.S. attorneys ordinarily serve as the government’s lawyers
in criminal and civil cases. In criminal cases, they often are joined
at the courtroom’s counsel table by the lead law enforcement agent
who investigated the case. Assistant U.S. attorneys sometimes are
assisted by counsel from other federal agencies if the case involves an
investigation begun by those agencies.
Defense counsel. e right to counsel for criminal defendants is
guaranteed by the Sixth Amendment of the Constitution. When a
criminal defendant cannot aord a lawyer, the court will appoint either
a federal public defender, who is a full-time government lawyer, or a
Criminal Justice Act (CJA) panel attorney. Panel attorneys are private
lawyers who receive an hourly fee from funds Congress provides the
Judiciary for this purpose. About 90 percent of defendants in federal
court are represented by court-appointed lawyers. Learn more about
the federal defender and CJA system at http://www.uscourts.gov/
services-forms/defender-services.
e defense almost always sits at the table farthest from the jury box.
Unless they choose to represent themselves, criminal defendants who
can aord it are represented by private counsel.
Attorneys in civil cases. ere is no constitutional right to counsel in
civil cases. In most civil cases that do not involve a government entity,
the parties will engage private counsel, although a litigant may be
self-represented. Some clerks will, at the direction of the court, assist a
litigant in securing counsel who might take a case pro bono (without
charging a fee).
JURORS
U.S. citizens 18 years or older may qualify to serve on a federal court
jury. Judges and attorneys use a process called voir dire to select the
jurors who will participate in a case. Typically, 12 jurors are selected
for criminal cases and six to eight jurors for civil cases. Jury selection is
generally open to media.
In criminal
cases, the
defense almost
always sits
at the table
farthest from
the jury box.
9
A Journalist’s Guide to the Federal Courts
During the selection process and trial, jurors usually are identied by
number and not name. Jurors are strictly prohibited from discussing
cases that are in progress, and you should not contact them, their
families, or their close friends. You also should not speak about
an active case if you know you are in a juror’s presence. Improper
interaction with a juror can result in his or her dismissal from a panel.
It also can lead to a mistrial, and a judge may choose to impose court
sanctions against the responsible journalist.
Unless otherwise ordered by the court, once a trial concludes, you
are permitted to speak with jurors, should they choose to do so. e
release of juror names is governed by each court’s jury plan, which is
available either on the court’s website or upon written request. Further,
by law, a court’s chief judge may seal jurors’ identities even after a case
concludes.
In high-prole cases, judges may have court security personnel escort
jurors out of the courthouse to protect them from media attention.
You may request, through your contact person in the clerk’s oce, that
the judge ask jurors who are willing to speak to the media to meet at
a specied location inside or outside the courthouse after the trial has
concluded. at gives journalists the access they want, while providing
a controlled environment in which the jurors may feel comfortable.
However, jurors have no obligation to speak with the media.
OTHER DISTRICT COURT PERSONNEL
Numerous other personnel are present in courtroom proceedings,
although they do not have an ocial role in answering media
questions.
Courtroom deputy clerks generally sit in front of the judge’s bench or
to the side. In addition to maintaining case les, the courtroom deputy
clerk calls cases at the beginning of a hearing, swears in witnesses
during trials, and receives exhibits introduced into evidence during a
trial.
Law clerks work for judges, assisting them with legal research and
writing. A law clerk performs most of his or her work in the judge’s
chambers but also may sit near the bench during court proceedings.
Ethical restrictions prohibit law clerks from disclosing any condential
information or commenting on pending actions. It is not unusual for
judges to prohibit their law clerks from talking with the media.
Ethical
restrictions
prohibit law
clerks from
disclosing any
condential
information or
commenting
on pending
actions.
10
Courthouse Contacts
Court reporters are responsible for recording transcripts of proceedings. ey
typically do so by using a stenographic machine, or by speaking into an audio
recording hood, which looks like a mask. ey typically are court employees, and are
paid a salary for recording hearings and trials and providing transcripts to the judge
and clerk of court. Court reporters sit in front of the judge, facing the attorneys.
Information on how to obtain transcripts is available in Exhibits, Transcripts, and
Courtroom Audio on page 22.
In cases that use audio recording instead of court reporters, electronic court recorder
operators oversee the electronic sound recording equipment and create electronic log
notes of proceedings.
Court-appointed interpreters, under the Court Interpreters Act, are present
in criminal and civil cases instituted by the United States for defendants and
witnesses who speak only or primarily a language other than English. Sign language
interpreters also are appointed in such cases when hearing-impaired defendants
or witnesses cannot fully understand proceedings or communicate with counsel or
the judge. A judge also may appoint a sign language interpreter in proceedings not
initiated by the federal government.
Security personnel of two types typically are present in a federal courthouse,
although neither is employed by the federal Judiciary:
• Deputy U.S. marshals are responsible for the custody and transportation
of prisoners and the safety of witnesses, jurors, and the judge. Two or more
deputy marshals are present whenever a detained criminal defendant is
in the courtroom. e deputies usually wear business attire during court
proceedings.
• Court security ocers are responsible for the public’s safety in the
courthouse. Also known as CSOs, they sta the metal detectors, and at least
one CSO generally is present at every civil and bankruptcy hearing. CSOs
are contract employees and dress in blue blazers and gray pants.
Deputy marshals and CSOs report to a United States marshal (http://www.
usdoj.gov/marshals), who oversees the security of the district court, as well as that
district’s Witness Protection Program and the apprehension of federal fugitives. e
President appoints, and the Senate conrms, a U.S. marshal for each federal court
district. Marshals report to the U.S. attorney general.
11
Accessing Court Documents
ONLINE ACCESS
Most documents in federal courts - appellate, district, and
bankruptcy - are led electronically, using a system called Case
Management/Electronic Case Files (http://www.uscourts.gov/
courtrecords/electronic-filing-cmecf) (CM/ECF). e media and
public may view most lings found in this system via the Public
Access to Court Electronic Records service, better known as PACER.
Reporters who cover courts should consider establishing a PACER
account and becoming familiar with the system. Users can open an
account and receive technical support at www.pacer.gov.
Documents not available to the public are discussed in Sealed
Documents and Closed Hearings on page 13. Even in public
court documents, however, some information is not available. Federal
rules require that anyone ling a federal court document must redact
certain personal information in the interest of privacy, including Social
Security or taxpayer identication numbers, dates of birth, names of
minor children, nancial account information, and in criminal cases,
home addresses.
Once case information has been led or updated in the CM/ECF
system, that information is immediately available through PACER.
Some courts provide free automatic case notication through Really
Simple Syndication (RSS) feeds or through read-only CM/ECF
access. In courts where RSS is available (https://www.pacer.gov/
psco/cgi-bin/links.pl), PACER users can opt to receive automatic
notication of case activity, summarized text, and links to the
document and docket report.
For cases that draw substantial media and public interest, some
courts have created special sections of their websites, called “Cases
of Interest” or “Notable Cases,” where docket entries, court orders,
and sometimes, trial exhibits may be posted. Some courts also use an
email/text alert service during high-prole cases, to alert reporters to
major lings and other information.
Accessing Court
Documents
The vast
majority of
documents in
federal courts -
appellate,
district, and
bankruptcy -
are led
electronically.
The media and
public may
view most of
these lings.
12
Accessing Court Documents
OLDER DOCUMENTS
Most documents and docket sheets for cases that opened before 1999 are in
paper format and therefore may not be available online. Paper les on closed cases
eventually are transferred to the National Archives and Records Administration
(NARA), or they are destroyed in accordance with a records retention schedule
approved by both the Judicial Conference of the United States and NARA.
Any search for older paper documents should begin by contacting the court where
the case was led. As a secondary source, such documents may be available from
NARA.
USER FEES
User fees are charged to access documents in PACER, and the current fee structure
is available at Electronic Public Access Fee Schedule (http://www.uscourts.gov/
services-forms/fees/electronic-public-access-fee-schedule). Fees are billed quarterly,
and all fees are waived if the bill does not exceed a specied limit in a billing quarter.
Written opinions are published on court websites and are available for free on
PACER. Many courts also publish free, text-searchable opinions on the Federal
Digital System, or FDsys (https://www.gpo.gov/fdsys/browse/collection.action?colle
ctionCode=USCOURTS), operated by the U.S. Government Publishing Oce.
13
A Journalist’s Guide to the Federal Courts
Electronic records can be viewed in the clerk of court’s oce for free,
as can any paper records that have not been destroyed or transferred to
the National Archives. But per-page fees are charged for printing or
copying court documents in the clerk’s oce.
SEALED DOCUMENTS AND CLOSED HEARINGS
Some documents are not ordinarily available to the public. As noted
in Privacy Policy for Electronic Case Files (http://www.uscourts.
gov/rules-policies/judiciary-policies/privacy-policy-electronic-case-
files), these include unexecuted summonses or warrants; pretrial bail
and presentence reports; juvenile records; documents containing
information about jurors; and various lings, such as expenditure
records, that might reveal the defense strategies of court-appointed
lawyers.
In certain circumstances, judges have the authority to seal additional
documents or to close hearings that ordinarily would be public.
Reasons can include protecting victims and cooperating informants,
and avoiding the release of information that might compromise an
ongoing criminal investigation or a defendant’s due process rights.
Some examples:
• Courts sometimes seal documents that contain sensitive
material, such as classied information aecting national
security or information involving trade secrets.
• Criminal case documents and hearing transcripts are
sometimes sealed to protect cooperating witnesses from
retaliation.
• e Federal Rules of Civil Procedure provide for protective
orders during discovery to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense.
• Bankruptcy court records are public, but under the Federal
Rules of Bankruptcy Procedure, the court may withhold
certain commercial information, any “scandalous or defamatory
matter,” or information that may create an undue risk of
identity theft or other injury.
Generally, when a party to a case moves to seal a document or to close
a hearing, a record of the motion can be found in PACER. As noted
When a party
to a case
moves to seal a
document or to
close a hearing,
a record of the
motion can
be found in
PACER. Media
organizations
sometimes
le motions
opposing such
requests.
14
Accessing Court Documents
in Media Access in Brief on page 2, media organizations sometimes le motions
opposing such requests.
Civil litigants may ask judges to issue a protective order forbidding parties from
disclosing any information or materials gathered during discovery. Deposition
records often remain in the custody of the lawyers, and the media do not have a
right of access to discovery materials not led with the court.
When a civil case is settled, that fact is usually apparent from the public record.
However, the terms of settlement and any discovery records may remain
condential.
e Federal Judicial Center provides comprehensive explanations of these issues in
two downloadable booklets: Sealing Court Records and Proceedings: A Pocket Guide
(https://www.fjc.gov/content/sealing-court-records-and-proceedings-pocket-
guide-0) and Confidential Discovery: A Pocket Guide on Protective Orders (https://
www.fjc.gov/content/confidential-discovery-pocket-guide-protective-orders-0).
15
District Courts
e United States district courts are the trial courts of the federal
court system. Within limits set by Congress and the Constitution,
district courts have jurisdiction to hear nearly all categories of federal
civil and criminal cases.
e vast majority of all civil and criminal cases are led in state courts.
Sometimes a case can be led under similar statutes in either state or
federal court.
ere are 94 federal judicial districts. All but three of these districts
have lifetime-appointed Article III judges. Judges serve 10-year terms
in three territorial districts: the U.S. Virgin Islands, Guam, and the
Northern Mariana Islands.
Find a list of all federal court districts at and their geographical
boundaries at https://www.law.cornell.edu/uscode/text/28/part-I/
chapter-5.
REPORTING ON CRIMINAL CASES
Criminal cases involve an allegation by the government that an
individual or entity violated the criminal laws of the United States.
Read additional information about criminal cases at http://www.
uscourts.gov/about-federal-courts/types-cases/criminal-cases. Except
where noted in Sealed Documents and Closed Hearings on page
13, and in Older Documents on page 12, criminal case records
are available in PACER.
Investigations and Related Documents
Although a defendant may be arrested during the commission of a
crime, most criminal cases that attract media attention begin with a
federal investigation. Generally, this involves the U.S. attorney’s oce
in coordination with a law enforcement agency, such as the FBI, the
Drug Enforcement Administration, or the Securities and Exchange
Commission.
District
Courts
There are 94
federal judicial
districts. All
but three of
these districts
have lifetime-
appointed
Article III
judges.
16
District Courts
Most investigations remain condential, with prosecutors and
investigators presenting evidence in closed session to a grand jury. A
magistrate judge or district judge may authorize search warrants, also
in closed hearings. Warrant applications remain sealed until after a
search is conducted - and sometimes until after an arrest is made or an
investigation is closed.
Courthouse beat reporters may nd it useful to review unsealed
warrants regularly, as the application documents can provide an early
window into the facts of a criminal investigation. In particular, a
supporting adavit - written by the lead law enforcement agent to
supply the judge with evidence of probable cause - oers a detailed
account of the allegations. e one-page warrant application includes
information about the defendant.
Clerk’s oces maintain search warrant applications in widely varied
ways. Ask local courthouse sta for the easiest way to review these
documents routinely. However, some courts do not keep them at all,
instead returning them to the U.S. attorney’s oce.
Grand Juries and Indictments
In most felony cases, prosecutors present evidence to a grand jury.
Grand juries are composed of 16 to 23 citizens, who hear a wide
range of criminal cases and decide whether there is evidence to justify
indictments sought by federal prosecutors. Grand juries are seated for
up to 18-month terms, but their service can be extended an additional
six months if needed by an order from a district judge.
Extensive information on grand juries is available in the Handbook
for Federal Grand Jurors (http://www.uscourts.gov/sites/default/files/
grand-handbook.pdf). Grand juries are formally supervised by a
district judge, often the chief judge, but for all practical purposes, they
function from day to day under the auspices of the U.S. attorney’s
oce. Only prosecutors present evidence before a grand jury, and
neither the accused nor his or her lawyer is present when a grand jury
meets.
To return an indictment, a minimum of 12 members of a grand jury
must nd probable cause. Grand jurors are prohibited from discussing
case-related information with the media or others.
Grand jury indictments are returned to the district court – usually to
a magistrate judge – in a closed court hearing, and often are sealed
Indictments
describe
the crimes
allegedly
committed by
defendants.
They are a road
map to what
the prosecution
intends to
prove at trial.
17
A Journalist’s Guide to the Federal Courts
until after an arrest is made. Indictments list the oenses allegedly
committed by defendants and describe the facts supporting those
allegations. An indictment is a road map to what the prosecution
intends to prove at trial.
Felony Preliminary Proceedings
e defendant’s arrest, when it follows a felony indictment, begins
a series of three preliminary proceedings in open court. ey are the
initial appearance, the detention hearing, and the arraignment. e
rst two always are before a magistrate judge.
e initial appearance must take place “without unnecessary delay,”
under Rule 5 (https://www.law.cornell.edu/rules/frcrmp/rule_5) of
the Federal Rules of Criminal Procedure (http://www.uscourts.gov/
rules-policies/current-rules-practice-procedure), and it typically occurs
within hours of an arrest. e defendant is advised of the charges, his
or her rights are explained by the judge, and counsel is appointed if
the defendant cannot aord a lawyer.
e prosecutor also is asked whether the government will seek to
detain a defendant pending trial. If the answer is no, the magistrate
judge will determine any conditions of release and order the defendant
freed. If the prosecution seeks to hold the defendant, a detention
hearing will be scheduled for three days after the initial appearance, in
accordance with the Bail Reform Act of 1984.
e detention hearing determines whether the accused must be held
in jail until trial. Prior to the hearing, a pretrial services ocer les a
report with the judge, based on interviews with the defendant, family
members, and others who have relevant information.
e report, which recommends whether the defendant should be
released and under what conditions, is not public, and it is not binding
on the magistrate judge. But if the judge releases a defendant pending
trial, the conditions of release are listed in a court order, which is
public.
During the detention hearing, both sides may present evidence and
cross-examine the other side’s witnesses.
Federal law requires that individuals be released on personal
recognizance or unsecured appearance bond (that is, without putting
up any money or other asset as security) unless, under the Bail
Under the Bail
Reform Act,
a defendant
must be
released
unless there
is a serious
ight risk or
danger to the
community.
18
District Courts
Reform Act, the judge determines “that such release will not reasonably assure the
appearance of the person as required or will endanger the safety of any other person
or the community.”
If the judge determines that a person presents a ight risk or a danger to the
community, the judge still may order release subject to certain restrictions, such as
requiring a secured bond, forfeiture of passport, electronic monitoring, or home
connement. e Bail Reform Act requires that a judge choose “the least restrictive”
conditions that protect the community and ensure the defendant’s appearance in
court.
Under certain circumstances, a judge is to presume that a defendant cannot be
released safely. ese include cases that involve an act of terrorism, federal drug
oenses carrying a penalty of 10 years or more in prison, possession of a rearm
during a crime of violence or drug tracking crime, or certain oenses involving
minors. e accused may present evidence at the detention hearing to rebut the
presumption that detention is necessary.
Once a magistrate judge has ordered the detention or release of a defendant, either
party can obtain a review of that decision by a district judge. Detention orders also
may be appealed to the court of appeals after a district judge’s ruling.
e arraignment is a formal reading of the charges. In response, the accused is
expected to enter a plea of guilty or not guilty. At this time, the accused may request
a jury trial or a bench trial before a judge. Some judges also schedule the trial date
and dates for motion hearings at the arraignment.
Criminal Complaints and Informations
A defendant can be arrested without an indictment. When an arrest is made during
the alleged commission of a crime, the lead investigator submits a written criminal
complaint.
In addition, a federal prosecutor may, without going to the grand jury, le charges
in a document called a “criminal information.” An information sets forth the same
kinds of allegations and facts that would be contained in an indictment.
When there is no indictment, one additional early proceeding is required: the
preliminary examination hearing, in which the prosecution must convince a judge
that there is probable cause to proceed with the case. A defendant may choose to
waive the preliminary examination hearing. If the judge nds probable cause, or if
the defendant waives the hearing, the judge will require the defendant to appear for
further proceedings.
19
A Journalist’s Guide to the Federal Courts
Pretrial Motions
e prosecution and defense often le pretrial motions, asking the
judge to decide specic issues before the trial begins. Certain motions
must be made before trial or the issue will be deemed waived.
Some common pretrial motions that may be led by the defense:
• Motions to dismiss the charges
• Motions for access to the prosecution’s evidence
• Motions to suppress certain pieces of evidence, for instance
evidence found as a result of a search that may have violated
the individual’s Fourth Amendment rights
• Motions to relocate the trial through a change of venue,
claiming, for instance, that pretrial publicity in the local news
media will make it impossible to select an impartial jury in the
original venue
• Competency motions asking a judge to postpone the trial
on the grounds that a defendant is not able to understand
the proceedings or to assist in his or her defense - essential
elements of a fair trial. If such a motion is granted, all trial
activity ceases, and there is no determination of guilt or
innocence. A trial may occur at a later date if the defendant’s
legal competence is restored through medical or other
treatment
is phase of a case is known as motion practice. A judge may
decide motions based purely on written briefs, or set a hearing if
oral argument of the issues or evidence from witnesses will aid in a
decision.
Guilty Pleas
Nearly 90 percent of federal criminal cases are resolved by a guilty
plea. Many of these cases involve a plea agreement: e defendant
pleads guilty and forgoes a trial in exchange for the prosecutor’s
dropping some charges and/or recommending a more lenient
sentence. During the plea bargaining process, prosecutors often
require defendants to waive the right to appeal a conviction.
Ultimately, a judge must approve the terms of a plea agreement.
Two documents are led with the court at the plea hearing: the plea
agreement, outlining the specic charges to which the defendant
Judges must
approve
the terms
of any plea
agreement.
Before
accepting a
guilty plea, the
judge must be
satised that
it is voluntary
and legally
appropriate.
20
District Courts
pleads guilty, and a statement of facts describing what the defendant admits to
doing. Both generally are available only after the hearing has concluded.
During the hearing, the judge will conduct a plea colloquy in which the defendant is
informed of the nature of the charges to which he or she is pleading guilty and the
rights that are being waived. Before accepting the plea, the judge must be satised
that a guilty plea is voluntary and legally appropriate.
If the defendant pleads guilty, a sentencing hearing is scheduled. If he or she does
not plead guilty, the case will proceed to trial.
COVERING CRIMINAL TRIALS
The Jury
e right to a trial by jury in federal criminal cases is guaranteed by the Sixth
Amendment to the Constitution.
Extensive background on juries (http://www.uscourts.gov/services-forms/jury-
service) is available. In addition, most district courts post a jury plan on their
websites, which explains how potential jurors are selected from the community, as
well as the court’s policy on whether and when to release jurors’ names.
By law, the courts seek to empanel juries that are a “fair cross-section” of the
community. is starts with a “jury wheel,” a traditional term that dates to when
prospective jurors’ names were drawn from a revolving container. Today, the jury
wheel is an automated database lled with names randomly selected from a
source list or source lists, for use in further random selection of possible jurors for
qualication and summoning. e number of names included in a court’s jury wheel
is proportional to the number of registered voters in each county comprising the
district or jury division within the district.
During jury selection, often called voir dire, the judge, the lawyers, or both will
question prospective jurors about their backgrounds, and potential biases that
may hinder their ability to be impartial. In federal court, often only the judge will
question potential jurors; counsel can request that specic questions be asked.
Voir dire is critical to ensuring an impartial jury. Prospective jurors may be struck
from the panel in two ways. Lawyers may exercise a “challenge for cause,” claiming
the juror cannot be impartial. If the judge agrees, the potential juror is excused.
Lawyers also may exercise “peremptory challenges,” allowing them to remove jurors
without stating a reason. e number of available peremptory challenges varies by
case type, pursuant to statute and the Federal Rules of Criminal Procedure (http://
www.uscourts.gov/rules-policies/current-rules-practice-procedure).
21
A Journalist’s Guide to the Federal Courts
During voir dire, a party may object to another party’s exercise of a
peremptory challenge on grounds that the party tried to exclude a
potential juror based on race, ethnicity, or gender. Such objections are
known as “Batson challenges,” referring to Batson v. Kentucky, a 1986
Supreme Court decision that ruled such exclusions unconstitutional.
Unless the parties agree otherwise, the jury consists of 12 persons.
e court may impanel up to six alternates to replace any jurors who
become disqualied or otherwise are unable to perform their duties.
In death penalty and other complex cases, jury selection can take
as long as several weeks. In some courts, judges handling a high-
prole trial will have hundreds or, in rare instances, even thousands
of potential jurors ll out an extensive questionnaire. A manageable
number of eligible jurors are then called in each day to be questioned
individually.
On the nal day of jury selection, the qualied pool of jurors is
called in to the courtroom, and both sides exercise their peremptory
challenges until the jury is seated. In capital cases, each side is allowed
a greater number of peremptory challenges, in accordance with the
Federal Rules of Criminal Procedure (http://www.uscourts.gov/rules-
policies/current-rules-practice-procedure).
For exceptional cases, a judge may decide there is a need to sequester
a jury - that is, keep all jurors in the court’s protection until the trial
concludes.
As noted in Jurors on page 8, journalists should not contact a juror
before a case is concluded. Even where a court permits the release of
jurors’ names after the trial, a judge may order that jurors in a specic
case remain anonymous.
Juror payment amounts are set by federal statute, and current rates
are available at Juror Pay (http://www.uscourts.gov/services-forms/
jury-service/juror-pay). Jurors also are reimbursed for reasonable
transportation expenses and parking fees, and a judge may authorize
an additional $10 a day if a proceeding lasts more than 10 days.
Federal law does not require an employer to pay jurors during a trial,
but the Jury Act forbids any employer from ring, intimidating, or
coercing any permanent employee because of his or her federal jury
service.
In death
penalty and
other complex
cases, jury
selection can
take several
weeks.
22
District Courts
Defense
counsel are
not obligated
to speak to the
jury or present
evidence, since
the defendant
is presumed
innocent.
Opening Statements
At the beginning of a criminal trial, lawyers are limited to telling the
jury what they believe the evidence will show. us, this is an opening
statement, not an argument.
Prosecutors go rst because they bear the burden of proving beyond
a reasonable doubt that the defendant committed the oense(s) he or
she has been charged with. Defense counsel are not obligated to make
an opening statement or present any evidence, since the defendant is
presumed innocent. Defense counsel may choose to make an opening
statement at the conclusion of the initial set of prosecution witnesses,
as opposed to at the start of trial. Reporters usually want to be present
for opening statements. Not only do they hear a road map of the case
the lawyers intend to present, but they often can get quotes that are
useful to their coverage.
Witnesses
Some individual judges or local rules of court require the prosecution
to le a list of potential witnesses prior to trial, along with a list
of exhibits that may be entered into evidence. Reporters may ask
the clerk of court’s oce before the trial whether either list will be
available to the public.
Prosecution witnesses take the stand rst. Each will be asked
questions by the prosecutor and can be cross-examined by the defense
lawyer. If a witness is cross-examined, the prosecution is permitted
a “redirect,” asking the witness only questions related to the topics
discussed during cross-examination.
You may speak to witnesses after they are excused by the court, unless
the judge indicates the witness is subject to recall to the stand later
in the trial. e witness, however, is not obligated to answer your
questions, and often may be advised by counsel not to do so.
Exhibits, Transcripts, and Courtroom Audio
Trial exhibits that are admitted into evidence become part of the
public record. Subject to logistical considerations, they usually are
available through the clerk of court’s oce to inspect and copy. You
also can request a copy of an exhibit from the party that introduced
it. In some courts this is necessary, because parties retain custody of
exhibits even after they have been introduced into evidence.
23
A Journalist’s Guide to the Federal Courts
In high-prole cases, courts may work with the parties to make extra copies of
exhibits that the news media can review, or the court may decide to post exhibits on
its website. e presiding judge has some discretion in this area, so he or she might
deny public access to certain evidence until after the conclusion of the trial.
Transcripts of courtroom proceedings are not produced unless ordered by a party, a
member of the public, or the court. However, by statute, every session of the court is
recorded in some format.
Written transcripts are produced by a court reporter or transcriber. As noted in
the Federal Court Reporting Program (http://www.uscourts.gov/services-forms/
federal-court-reporting-program) webpage, under Judicial Conference policy these
transcripts are not available on PACER until 90 days after they are delivered to the
clerk’s oce.
During this 90-day period, transcripts are available at the clerk’s oce for inspection
only, or may be purchased from the court reporter or transcriber. e maximum per-
page fee is set by the Judicial Conference, and each district sets a local rate subject
to that maximum. A few courts have special exceptions to set their transcript rates
higher.
After the 90-day period, transcripts can be viewed, downloaded, or printed for 10
cents per page on PACER. Additionally, the transcript is available for inspection
24
District Courts
and copying in the clerk’s oce under the same terms and conditions as any other
ocial public document in the case le.
In most bankruptcy cases, and also in some district court cases (especially
proceedings involving magistrate judges), the ocial record is kept through digital
audio recordings. When this is the case, under Judicial Conference policy, the
presiding judge may choose to make a copy of the recordings available through
PACER.
Copies of such digital audio recordings also may be purchased from the clerk’s
oce. e current rate is available in the miscellaneous fee schedules for district
courts (http://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-
fee-schedule) and for bankruptcy courts (http://www.uscourts.gov/services-forms/
fees/bankruptcy-court-miscellaneous-fee-schedule), which are set by the Judicial
Conference. Courts may make these recordings available via tape, CD, email, and/or
digital download. When a court reporter is employed to create a transcript, there is
no public entitlement to the reporter’s personal backup recording.
Motion to Acquit
After the prosecution’s last initial witness, the defense often makes a Rule 29
motion. Named after Federal Rule of Criminal Procedure 29, the motion asks the
judge to acquit the defendant because the prosecution’s evidence is insucient
to sustain a conviction. is motion also may be made after the conclusion of
testimony by defense witnesses.
ese motions are not granted often, but when they are, the defendant goes free. e
prosecution cannot appeal such a ruling and the defendant cannot be tried again in
federal court on the same charges because of the constitutional protection against
“double jeopardy.” If, however, the judge grants a Rule 29 motion after the jury
reaches a guilty verdict, prosecutors can then appeal the judge’s acquittal.
Closing Arguments
Unlike during the opening statement, prosecutors and defense lawyers are permitted
to make an argument after the completion of testimony. at is, they may marshal
facts in an attempt to prove or disprove the government’s allegations.
e prosecution goes rst, followed by the defense and a rebuttal by the prosecution.
Because the prosecution has the burden of proof, it gets the nal word. Reporters
will want to be present for this portion of the trial.
25
A Journalist’s Guide to the Federal Courts
Jury Instructions, Deliberations, and the Verdict
Before deliberations, the judge will give the jury its nal instructions,
a step that can have enormous impact on the verdict. Both sides
may request in writing that specic language be included in the
instructions. Once the judge nalizes proposed instructions, both
sides review them in advance. Any objections must be submitted on
the record before the jury begins deliberation. While jury instructions
typically are given in open court and can be tedious to listen to, they
spell out the matters the jurors are to consider and those they are not.
In complex or high-prole cases, reporters may nd it useful to be
present.
Jury deliberations are private; nobody other than the jurors may
be present during this process. Jurors have two responsibilities: to
determine the facts based on the evidence presented during the trial
and to apply the relevant law that the judge provides during the jury
instructions. During deliberations, the jurors may have questions
about the evidence or the instructions. If they do, they give a note to
the deputy marshal or the appropriate person designated by the court,
who takes it to the judge. e judge then calls the lawyers back into
court to discuss what the answer to the note should be, calls the jurors
back into the courtroom, and gives them the answer, provided it does
not deal with issues outside the scope of the case or require the judge
to interpret the facts for the jurors.
Criminal juries must reach a unanimous verdict of guilty “beyond a
reasonable doubt” or not guilty. After thorough deliberation, the jury
may report to the judge that it is deadlocked and unable to reach a
verdict. At this point, the judge may give the jury what is known as
the Allen charge. Named after an 1896 U.S. Supreme Court case,
the Allen charge urges jurors to reconsider their positions, as well as
those of other jurors, and resume their deliberations in an eort to
reach a verdict. If they attempt to do so but still report that they are
deadlocked, the judge may declare a mistrial.
In most federal courthouses, once a jury has reached a verdict, it
is announced as soon as all the lawyers can get to the courtroom.
Reporters may have as little as 15 minutes’ warning. Inquire before the
trial how members of the media will be notied when a verdict has
been reached. Reporters will want to be present for the reading of the
verdict.
Jury
instructions can
have enormous
impact on
the verdict.
Prosecutors
and defense
counsel each
may ask the
judge to
include specic
language.
26
District Courts
Post-Verdict Interviews
Any media interviews must be arranged directly with lawyers and their clients. In
high-prole cases, some type of media availability is common for prosecutors and
defense lawyers, in or near court property, once a trial is completed. Rules regarding
cameras are set by the court. You also are free to speak to jurors after the verdict is
read. As noted in Jurors on page 8, they are not obligated to grant interviews.
Similarly, lawyers and their clients are free to determine whether they wish to talk
with the media or not.
Non-Capital Sentencing
Whether there is a plea agreement or a trial that ends with a conviction, sentencing
is generally scheduled for a later date. e court’s probation oce prepares a
presentence investigation report on circumstances that may help the judge in
determining a sentence. e report is based on conversations with the defendant
and his or her family and friends, victims and their families, and others with relevant
information. It is always led under seal and accessible only to the judge, prosecutor,
and defense counsel.
Since 1987, sentencing in federal court has been governed by the U.S. Sentencing
Guidelines. ey are set by the U.S. Sentencing Commission (http://www.ussc.
gov), an independent agency in the judicial branch, created by Congress to make
sentencing more consistent and proportionate. In January 2005, the Supreme
Court ruled that the guidelines are merely advisory. Judges are urged to consider
27
A Journalist’s Guide to the Federal Courts
the guidelines but can depart from the guideline ranges, so long as the
sentence is reasonable and does not exceed the maximum term set by
statute for a particular crime.
e presentence report makes a recommendation based on how
the guidelines rate the seriousness of the oense and on the
defendant’s criminal history. e judge is not required to follow the
recommendations of the probation oce or the parties, but if the judge
rejects a sentence agreed to by the defense and prosecution, a defendant
may withdraw a guilty plea. During the sentencing hearing, defendants
are given a chance to tell the court anything they believe the judge
should consider before the sentence is imposed.
Death Penalty Sentencing
When a capital crime may have been committed, federal prosecutors
must receive written authorization from the attorney general before
they can seek the death penalty. Federal law provides for a two-part, or
bifurcated, trial in a death penalty case. If a defendant is found guilty
of a crime punishable by death, the same jury that convicted him or
her will determine the sentence. During a second phase of the trial,
known as the penalty phase, both sides can present witnesses and
evidence. e prosecution presents aggravating circumstances to justify
the death penalty, while the defense presents mitigating circumstances
that support a sentence less than death. e jury has only two choices:
execution or life in prison.
Death penalty cases are fairly rare in federal courts. When they do
occur, a defendant is given two lawyers, including one who has specic
expertise in capital trials, as well other resources to support the defense.
Access to evidence presented in the death penalty phase is the same as
in other proceedings. See Exhibits, Transcripts, and Courtroom Audio
on page 22.
COVERING CIVIL CASES
Civil cases also are tried in district court. ey begin when a plainti –
the party seeking relief from an alleged wrong – les a complaint. e
plainti can be an individual, organization, business, or governmental
body. Allegations involve violations of civil laws and the Constitution,
not criminal laws.
Sentencing
guidelines
are advisory.
Judges may
impose
a shorter
or longer
sentence, so
long as it is
reasonable
and does not
exceed the
maximum
prison term set
by statute.
28
District Courts
Except as noted in Sealed Documents and Closed Hearings on page
12, the complaint and virtually all related lings in civil cases are
available through PACER. Read more background on civil cases at
http://www.uscourts.gov/about-federal-courts/types-cases/civil-cases.
Filing the Complaint
Federal courts are authorized to hear only civil cases that involve one
or more of the following:
• Questions regarding the Constitution
• Questions of federal law (as opposed to state law)
• A dispute among residents of dierent states with an amount
in controversy of more than $75,000
• e U.S. government – including its agencies – as a plainti or
defendant
A plainti must inform defendants about a complaint led against
them. is is called service of process.
Generally, a lawsuit must be led in the jurisdiction where the
defendant resides or where the claim arose. In cases based on diversity
of citizenship (when the plainti and defendant are residents of
dierent states), the lawsuit may be led in the jurisdiction where the
plainti or defendant resides.
The Plainti’s Claim
e complaint states the claim that the plainti is making – why the
plainti believes he or she is entitled to relief. And it states the kind
of relief sought. ere are three principal forms of relief that a jury or
judge can provide:
• Declaratory judgment. e court determines the rights of
parties without ordering that anything be done or awarding
monetary damages.
• Injunction. A court order requires the defendant to do a
specic act or prohibits a defendant from doing a specic act.
In emergencies, a temporary restraining order (TRO) can be
issued without notifying the adverse party of the lawsuit. A
TRO can last no more than 14 days and is meant to preserve
the status quo until there is a hearing on the moving party’s
Federal courts
hear civil
cases that
involve federal
laws or the
Constitution.
They also settle
disputes in
which the U.S.
government is
a party.
29
A Journalist’s Guide to the Federal Courts
application for a preliminary injunction. A preliminary
injunction is similar to a TRO, except that the adverse party
must receive notice before the preliminary injunction is
issued. e preliminary injunction (sometimes informally
called a temporary injunction) stays in eect until a hearing
can be held, or sometimes until after a trial. If the plainti is
successful at trial, a permanent injunction is issued. Unlike
TROs, there is no limitation on the duration of a preliminary
injunction.
• Monetary relief. e two most common types of monetary
relief are compensatory and punitive damages.
Compensatory damages are intended to compensate the plainti
for an injury or loss. Special damages are a subset of compensatory
damages; they represent the direct costs of the wrongdoing, such as
hospital bills or wages lost during treatment. General damages are also
the result of wrongdoing, but are subjective in amount, such as awards
for the plainti ’s pain and suering, or for mental anguish. ere are
also cases in which the defendant committed a wrong but the plainti
suered almost no harm; nominal damages, such as an award of $1,
might be made in such cases.
Punitive damages generally are available only if authorized by statute.
ey are awarded to punish the defendant and serve as a warning to
others to refrain from similar conduct. Treble damages are a variation
of punitive damages – triple the amount of the plainti ’s actual losses.
Some contracts anticipate a possible breach of the agreement and
stipulate how much will be awarded in the event a party reneges on
the deal; awards in these cases are called liquidated damages.
The Defendant’s Answer
Under federal rules, defendants generally have 21 days to le an
answer after they are served with a complaint; the U.S. government
has 60 or 90 days, depending on whether it has waived service. In
other types of cases, such as those involving the Social Security Act or
the Freedom of Information Act, other response deadlines apply.
Although most defenses to a complaint must be stated in the answer, a
defendant can move to dismiss the complaint before ling an answer.
Motions to dismiss typically make one or more of these arguments:
Punitive
damages
generally must
be authorized
by statute. They
are awarded
to punish the
defendant and
warn others
to refrain from
similar conduct.
30
District Courts
Journalists
do not have a
right to attend
depositions,
which are not
conducted in
open court or
in the presence
of a judge.
Evidence
exchanged
during
discovery is not
a part of the
trial record.
• e court lacks the authority or jurisdiction to decide the case
or to compel a defendant to appear.
• Service of process was defective.
• e complaint fails to state a claim that the law will recognize
as enforceable.
• e plainti lacks standing, which means he or she is unable
to show a connection to and harm from the matter that is
the subject of the lawsuit. is can include failing to prove a
distinct injury alleged to have resulted from a law or action.
Pretrial Proceedings
After the defendant has led an answer or a motion to dismiss the
complaint, the judge holds a pretrial conference, sometimes referred
to as a case management conference. A schedule for discovery is
generally set at this conference, and a trial date is sometimes also
scheduled.
Often in civil cases, parties le motions disputing whether a party is
entitled to receive certain kinds of information before trial. Parties
also may le a motion for summary judgment, which asks the judge
to determine some or all of the issues in the case based on the
information the parties present in briefs. ese motions are in the case
le. When either party les a pretrial motion, the judge may choose
to hold a hearing. However, if the judge believes the motion contains
sucient information to decide an issue, no hearing is held.
Discovery may include documents, physical evidence, and other
information relevant to the lawsuit. Discovery also may include
statements obtained in depositions, a process in which persons
involved in the dispute or with expertise relevant to the case are placed
under oath and asked questions by the attorneys for both sides, much
as they would be if they were on the witness stand in court. is
testimony sometimes may be introduced as evidence during the trial.
Journalists do not have a right to attend depositions. ey are not
conducted in open court or in the presence of a judge. Evidence
exchanged during discovery is not a part of the trial record.
A nal pretrial hearing is held following the completion of discovery.
is conference enables the judge and parties to understand exactly
what issues will be important at the trial, and to work out possible
solutions to problems before the trial. e judge usually requires that
31
A Journalist’s Guide to the Federal Courts
the parties submit a pretrial order, in which the plainti and defendant
provide the substantive and procedural framework for their respective
cases as they expect to present them in trial.
Ending a Case Without a Trial
e overwhelming majority of civil cases are resolved prior to trial -
either through judicial order (for example, when the judge grants a
dispositive motion led by one of the parties) or through a settlement
between the parties.
Summary Judgment
A motion for summary judgment can be led by the plainti or
defendant at any time after the defendant’s answer, and often is led
after discovery. Such motions ask a judge to decide all, or portions, of a
case on two grounds: (1) that there are no disputes of fact that require
a trial, and (2) that the law clearly favors a specic decision.
e parties’ briefs typically include the motion for summary judgment,
the opposing party’s response, and a reply from the party that
introduced the motion. If the judge grants the motion in whole, the
case is over and judgment will be entered in favor of the party who
moved for summary judgment. If the judge denies summary judgment,
the entire case can go to trial. If the judge grants the motion in part,
only those issues that remain in dispute will be tried.
Settlements
e parties also may resolve their dispute by settlement, with or
without court intervention. Parties frequently discuss settling their
case during the nal pretrial phase, and it is not uncommon for judges
to strongly encourage them to resolve the dispute before trial. Cases
can be settled during trial, including during jury deliberation.
e fact that a case was settled often is not a matter of public record.
In many settlements, pieces of evidence, the terms of the settlement,
and any monetary award may remain unavailable to the public. More
information on this topic is available in Sealed Documents and Closed
Hearings on page 13.
Civil Trials
In civil trials, both the plainti and the defendant have the
constitutional right to a jury trial. Civil juries consist of no fewer
Judges often
encourage
parties to
resolve their
dispute before
trial. Cases
can be settled
during trial,
including
during jury
deliberation.
32
District Courts
than six and no more than 12 members, not including alternate jurors. All verdicts
must be unanimous, unless the parties agree otherwise – an option not available in
criminal cases. e plainti ’s lawyer goes rst in opening statements, followed by
defense counsel, and the plainti ’s witnesses appear rst.
Once the plainti ’s last witness has testied, the defendant may make a motion for
a “directed verdict,” which is similar to a Rule 29 motion in a criminal case. is
motion claims that the plainti has failed to prove one or more essential elements,
and therefore the defendant is entitled to judgment in his or her favor as a matter of
law.
As with criminal cases, lawyers for both sides may present closing arguments.
In a jury trial, the judge will instruct jurors on the relevant laws to apply in their
deliberations. ese are parts of a trial that a journalist will want to attend.
Unlike criminal juries, which can nd a defendant guilty only if the evidence is
“beyond a reasonable doubt,” the standard for civil juries is a “preponderance of the
evidence” – meaning that it is more likely than not that the plainti ’s claims have
been proven to be true.
33
Appellate Courts and Cases
The vast
majority
of courts
of appeals
decisions are
nal, and they
are binding on
lower courts
within the
same circuit.
Appellate Courts
and Cases
e nation’s 94 federal judicial districts are organized into 12 regional
circuits, each of which has a court of appeals. ese courts hear appeals
from the district courts located within their circuits, as well as appeals
from decisions of federal administrative agencies and some original
proceedings led directly with the courts of appeals.
In addition, federal appellate courts hear cases that originated in state
courts when they involve claims that a state or local law or action
violates rights guaranteed under the U.S. Constitution. One important
category is habeas corpus cases, which allege improper incarceration
and form the basis of federal appeals of death penalties imposed by
state courts.
Federal courts of appeals routinely handle more than 50,000 cases
each year. Ten percent or fewer of those decisions are appealed to the
Supreme Court, which in turn hears oral arguments in fewer than 100
cases annually. us, the vast majority of courts of appeals decisions
are nal, and they are binding on lower courts within the same circuit.
A 13th appellate panel, the Court of Appeals for the Federal Circuit,
is a unique court. It is based in Washington, D.C., and has nationwide
jurisdiction to hear appeals in specialized cases. e court hears
appeals from the U.S. Court of International Trade, the U.S. Court
of Federal Claims, and the U.S. Patent and Trademark Oce. It
exclusively hears certain types of cases appealed from the district
courts, primarily those involving patent laws.
Download a map of the 12 regional circuits (http://www.uscourts.
gov/sites/default/files/u.s._federal_courts_circuit_map_1.pdf). Read
additional information about federal appellate courts at http://www.
uscourts.gov/about-federal-courts/court-role-and-structure/about-us-
courts-appeals.
34
Appellate Courts and Cases
APPELLATE COURT SOURCES AND RESOURCES
From a journalist’s perspective, there are similarities between courts of appeals and
district courts. For instance, both have clerks of court, whose sta manages the ow
of cases through the court, maintains court records, and handles other administrative
duties.
However, there are notable dierences. Each circuit has a circuit executive who
works closely with the chief judge to coordinate a wide range of administrative
matters.
An important inquiry early in any journalist’s dealings with a federal court of
appeals is to identify the person or persons within the court authorized to talk to
the news media. Most courts of appeals do not have a public information ocer, but
most have designated a specic person to interact with the media. at can be the
circuit executive, clerk of court, or some other sta member.
Oral arguments are open to the public. For information about digital recordings of
oral arguments, audio or video, consult the court of appeals website.
Decisions, opinions, orders, and court calendars are available on courts of appeals
websites, and also via PACER. Free, text-searchable opinions are available at FDsys
(https://www.gpo.gov/fdsys/browse/collection.action?collectionCode=USCOUR
TS).
35
A Journalist’s Guide to the Federal Courts
The losing
party usually
may appeal
a trial court
decision.
Similarly,
decisions made
by most federal
administrative
agencies are
subject to
review by
a court of
appeals.
THE APPEALS PROCESS
e losing party usually has the right to appeal a federal trial court
decision to a court of appeals. Similarly, decisions made by most federal
administrative agencies are subject to review by a court of appeals.
Parties who contest decisions made in certain federal agencies – for
example, disputes over Social Security benets – may be required to
seek review rst in a district court rather than go directly to an appeals
court.
In a civil case, either side may appeal the judgment, whether it results
from a jury verdict or bench trial. Parties that settle a civil case
relinquish their right to appeal.
In a criminal case, the defendant may appeal a conviction based on
a guilty verdict, but the government may not appeal if a defendant is
found not guilty. Either side in a criminal case may appeal a sentence
that is imposed after a guilty verdict by arguing that the sentence
violates the law, reects an incorrect application of the sentencing
guidelines, or improperly departs from the sentencing guidelines.
When defendants plead guilty, they generally give up their right to
appeal, except for claims they may have relating to their sentencing.
If the dissatised party in a district court case plans an appeal, the
rst step usually is to le a notice of appeal in the district court, which
informs the court of appeals and other parties.
A litigant who les an appeal of district court decision is known as an
appellant. e term petitioner is used for a litigant who les an appeal
from an administrative agency or who appeals an original proceeding.
e appellant (petitioner) bears the burden of showing that the trial
court or administrative agency made a legal error that aected the
district court’s decision.
e court of appeals makes its decision based solely on the trial court’s
or agency’s case record. e court of appeals does not receive additional
evidence or hear witnesses. e court of appeals may review the
factual ndings made by the trial court or agency, but generally may
overturn a decision on factual grounds only if the ndings were “clearly
erroneous.”
36
Appellate Courts and Cases
Constitutional
cases include
some of
the most
contentious
matters
considered
by the federal
Judiciary.
Appeals on
hot-button
issues are likely
to attract broad
media interest.
APPEALS RAISING CONSTITUTIONAL ISSUES
U.S. appellate courts have jurisdiction over cases that allege violations
of federal constitutional rights, regardless of whether the alleged
violations involve federal, state, or local governments. us, appeals
based on constitutional grounds permit federal court review of state
and local laws, practices, and court rulings, not just direct appeals of
federal cases.
Constitutional cases include some of the most contentious issues
considered by the federal Judiciary - freedom of speech and religion,
the right to bear arms, search and seizure, right to counsel, and equal
protection under the law, just to name a few. On certain hot-button
issues, such appeals are likely to attract broad media interest.
DEATH PENALTY APPEALS
Federal appellate courts also hear habeas corpus appeals involving
death penalties issued by state courts, as well as by federal courts.
e substantive and procedural requirements for seeking federal
habeas relief are largely governed by the Antiterrorism and Eective
Death Penalty Act (AEDPA) and federal court decisions interpreting
AEDPA. Despite signicant legal barriers to obtaining federal habeas
review under AEDPA, prisoners sentenced to death in state and
federal courts almost always seek federal habeas corpus relief.
In these proceedings, a state prisoner (under 28 U.S.C. § 2254 at
https://www.law.cornell.edu/uscode/text/28/2254) or a federal
prisoner (under 28 U.S.C. § 2255 at https://www.law.cornell.edu/
uscode/text/28/2255) asks a federal court to vacate or set aside his or
her death sentence, alleging errors under the law.
THREEJUDGE PANELS
Appeals normally are decided by randomly assigned three-judge
panels. e creation and scheduling of panels, and the assignment of
specic cases to those panels, is handled by either the clerk of court’s
oce or the circuit executive’s oce. Regional court of appeals rules
determine when the names of the judges on a panel are made public.
Judges play no role in panel assignments.
37
A Journalist’s Guide to the Federal Courts
More than
80 percent of
federal appeals
are decided
solely on the
basis of written
briefs.
e appealing party, called the appellant, presents legal arguments to
the panel in a written brief, seeking to convince the judges that the
trial court or administrative agency committed substantial error and
that the trial court’s decision should therefore be reversed. e party
who prevailed in the trial court, known as the appellee (or respondent
for administrative agency appeals), argues in a reply brief that the trial
court was correct or that any error made was not signicant enough to
aect the outcome.
More than 80 percent of federal appeals are decided solely on the
basis of written briefs. Less than a quarter of all appeals are decided
following oral argument, in which both sides discuss the legal
principles in the dispute. Each side is given a specied amount of
time, which varies by circuit, to present its case. Judges may interrupt
to ask questions. ese arguments are open to the public.
Sometime after the submission of briefs or after oral argument,
the appellate panel will issue a decision, usually accompanied by an
opinion explaining its rationale. A decision may be reached by a 3-0
or 2-1 vote. A decision will take into account and apply any relevant
precedents - similar cases already decided by that court or by the
Supreme Court. Written opinions are posted on a court’s internet site.
e panel’s decision concludes a case unless one of these actions
happens:
• e judges send the case back to the trial court for additional
proceedings (that is, remand the case)
• e court determines on its own that the matter should be
reheard because of a potential conict with a prior decision
• A party seeks a rehearing before the appellate panel
• A party seeks review before the full appeals court (called an en
banc session) or
• A party seeks review in the Supreme Court
38
Bankruptcy Courts and Cases
Bankruptcy
laws give
debtors a
“fresh start,” by
relieving them
of most debts,
and provide an
opportunity to
repay creditors
in an orderly
manner.
Bankruptcy Courts
and Cases
Federal courts have exclusive jurisdiction over bankruptcy cases. e
primary purposes of the federal bankruptcy laws are to give a debtor,
either a person or a business, a “fresh start” by relieving the debtor of
most debts, and to give the debtor the opportunity to repay creditors
in an orderly manner. A debtor may le bankruptcy under one of
several chapters of the Bankruptcy Code, Title 11 of the United States
Code.
ere are 90 U.S. bankruptcy courts, which, by statute, are units of the
U.S. district courts. Like district courts, bankruptcy courts have their
own local rules, available on their websites. Bankruptcy Basics (http://
www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics)
oers a good explanation of bankruptcy law and bankruptcy court
proceedings.
Learn more about the bankruptcy process at http://www.uscourts.gov/
services-forms/bankruptcy.
ACCESSING BANKRUPTCY RECORDS
Bankruptcy court proceedings are open to the public except in an
extraordinary circumstance, such as when the judge is considering a
matter under seal. Documents led in connection with a bankruptcy
case are public (unless sealed) and can be viewed through PACER
(www.pacer.gov) or at the bankruptcy clerk’s oce. Bankruptcy courts
generally have their own clerks. In high-prole cases, the court may
designate a public information ocer.
Bankruptcy judges are authorized to use either contract court
reporters (who are not employees of the court) or electronic sound
recording equipment.
Most bankruptcy judges use digital audio recording as the method of
making the ocial court record. For information on how to obtain
copies of such recordings, see Exhibits, Transcripts, and Courtroom
Audio on page 22.
39
A Journalist’s Guide to the Federal Courts
Unlike district court cases, telephone and video court conferences are common in
bankruptcy proceedings. is is because creditors and other interested parties are
likely to be in many dierent locations, making it costly and impractical to assemble
everyone in one court for what can sometimes be short proceedings.
It is important to note, however, that Judicial Conference policy does not grant
journalists access to these telephone and video conferences. Such transmissions of a
live court proceeding are authorized for purposes of judicial administration and are
available only for parties in a case and their lawyers.
BANKRUPTCY PROCESS
Most bankruptcy cases – more than 95 percent – are led by consumers, as
opposed to businesses. Bankruptcy generally provides two options: liquidation or
reorganization.
CHAPTERS OF THE BANKRUPTCY CODE
Chapter Description
Chapter 7
Provides that non-exempt assets to be liquidated and
proceeds distributed to creditors
Chapter 9
Covers local governments and instrumentalities
Chapter 11
Allows businesses to reorganize and continue operating. Also
available to individuals whose debts exceed statutory limits for
ling under Chapter 13
Chapter 12
Covers family farmers and shermen
Chapter 13
Provides that debtors with regular income retain assets and
obtain court-conrmed plans to pay off their creditors
Chapter 15
Applies to foreign corporations and individuals
Liquidation means selling a debtor’s assets, if there are any available, to pay creditors.
Chapter 7 of the Bankruptcy Code is designed for this purpose, and is by far
the most common form of bankruptcy. A petition can be led by a business or
individual. When a Chapter 7 case is led, a trustee is appointed by the U.S. Trustee,
a Justice Department entity, to administer the estate. Most cases led under Chapter
7, however, are “no assets” cases, in which the debtor does not have assets available
for distribution to creditors.
40
Bankruptcy Courts and Cases
In all
bankruptcy
cases, a
meeting of
creditors
must be held.
The debtor
is required
to attend
and answer
questions
regarding
the his or her
nancial aairs.
Reorganization involves obtaining a bankruptcy judge’s approval of
a plan for repayment over time of all or a portion of the debts owed
to creditors. Chapters 11, 12, and 13 govern the reorganization of a
debtor’s nancial aairs. In Chapter 12 and 13 cases, the presiding
judge must approve the repayment plan. In Chapter 11 cases, which
are frequently led by corporations or other business entities, the
plan of reorganization must be voted on by creditors and approved
by the bankruptcy judge. Chapter 12 is a reorganization of assets for
individual family farmers or shermen. After Chapter 7, Chapter 13
cases are the most commonly led bankruptcy cases.
In all cases, no matter what chapter a case is led under, a meeting of
creditors must be held. e debtor is required to attend this meeting,
during which the trustee and creditors may ask questions regarding
the debtor’s nancial aairs and the extent of the debtor’s holdings.
e case trustee, not a bankruptcy judge, presides over this hearing.
Chapter 9 of the Bankruptcy Code provides protection for nancially
distressed municipalities from creditors while a plan for adjusting
debts is negotiated.
ere are several types of bankruptcy proceedings that may interest
journalists. e rst is a hearing on rst-day orders, which often is
held in Chapter 11 cases. At this type of hearing, a bankruptcy judge
is asked to approve important matters that determine how the debtor
will operate while the case is pending.
Another proceeding of interest is the hearing on the conrmation of
a Chapter 11 debtor’s plan of reorganization. During this hearing, the
debtor’s lawyer seeks the judge’s approval of the plan, and creditors
have a chance to present their objections. Still another proceeding of
interest is an adversary proceeding hearing – something of a mini-
trial involving a particular issue related to the main bankruptcy case.
For example, adversary proceedings can request injunctions, address
environmental issues, and allege possible fraud by the debtor.
BANKRUPTCY APPEALS
A bankruptcy judge’s rulings can be appealed to the district court
or, in certain circuits, to a bankruptcy appellate panel. Further
appeals to a court of appeals and the Supreme Court are available. If
certain statutory requirements are met, the court of appeals also has
jurisdiction to authorize a direct appeal from a bankruptcy judge’s
ruling to the court of appeals.
41
Judges and Judicial Administration
FEDERAL JUDGES
Article III of the Constitution governs the appointment, tenure, and payment of
Supreme Court justices, and federal circuit and district judges. ese judges, often
referred to as “Article III judges,” are nominated by the President and conrmed
by the U.S. Senate. Article III states that these judges “hold their oce during
good behavior,” which means they have a lifetime appointment, except under very
limited circumstances. Article III judges can be removed from oce only through
impeachment by the House of Representatives and conviction by the Senate. e
Constitution also provides that judges’ salaries cannot be reduced while they are in
oce. Article III judicial salaries are not aected by geography or length of tenure.
All appellate judges receive the same salary, no matter where they serve. e same is
true for district court judges.
Find brief biographies of all Article III judges (http://www.fjc.gov/history/home.
nsf/page/judges.html) since the nation’s founding.
Bankruptcy judges are judicial ocers of the district court who preside exclusively
over bankruptcy proceedings. ey are not Article III judges and are not appointed
by the President. ey are appointed to renewable 14-year terms by a majority of the
judges of the U.S. Court of Appeals for their circuit.
e bankruptcy judge appointment process (https://www.law.cornell.edu/uscode/
text/28/152) is set by Judicial Conference policy, in accordance with the Bankruptcy
Amendments and Federal Judgeship Act. Unlike Article III judges, bankruptcy
judges must meet eligibility criteria, including being a member of the bar in good
standing. Circuits may appoint a merit selection panel, consisting of judges and
other legal professionals, to review and recommend candidates for appointment.
Bankruptcy judges receive the same annual salary, no matter where they serve or
how many years they have served.
Magistrate judges also are not Article III judges. By federal statute, they are
appointed by a majority of the U.S. district judges in each judicial district for a
renewable term of eight years. In addition, there are a small number of part-time
magistrate judges who serve four-year terms.
Judges and Judicial
Administration
42
Judges and Judicial Administration
e job title is magistrate judge, not magistrate.
Like bankruptcy judges, magistrate judges must meet specied
eligibility criteria, including at least ve years as a member in good
standing of a state’s or territory’s highest court bar. ey also must
be vetted by a merit selection panel that consists of lawyers and non-
lawyers from the community.
e precise duties of magistrate judges vary somewhat from district
to district, but some duties are common to all courts. Magistrate
judges authorize search and arrest warrants, and they hear preliminary
matters in felony criminal cases, such as conducting probable cause
hearings and deciding whether to set bail or order pretrial detention.
As a result, a magistrate judge is usually the rst federal judicial ocer
a defendant sees following arrest or indictment.
Magistrate judges hear cases involving petty oenses committed on
federal lands, but felony trials are heard only by district judges.
In most districts, magistrate judges handle pretrial motions and
hearings in civil cases. While most civil cases are tried by district
judges, magistrate judges also may preside over civil trials if all parties
consent.
Like other federal judges, all magistrate judges are paid the same
salary, regardless of where they serve or their years of service.
Bankruptcy
and magistrate
judges take
oce only after
they are vetted
by selection
panels and
show that they
meet specied
professional
credentials.
43
A Journalist’s Guide to the Federal Courts
Senior judges are Article III judges who have met age and service requirements
set by federal statute. Judges are eligible (but not required) to take senior status if
they are at least 65 years old and have served at least 15 years on the bench, or any
combination of age and years of service that equals 80. Regardless of age, judges
must serve at least 10 years to qualify for senior status.
Senior judges continue to draw their salary but may choose to handle a reduced
caseload. ey are required to handle at least one-fourth of the caseload, or other
duties, of an active judge to qualify for future salary increases. By taking senior
status, even if maintaining a full caseload, a judge creates a vacancy on the court, to
be lled by the nomination and conrmation process.
Because there is no mandatory retirement age for Article III judges, there is no
requirement that they take senior status. Many continue to carry heavy workloads,
and senior judges handle about 20 percent of the total district and appellate
caseload.
Visiting judges, like senior judges, can help a court stay on top of its caseload.
Visiting judges have long provided signicant assistance to courts they visit. Federal
law provides that Article III judges may sit by designation and assignment in
any other federal court having a need for their services. ey provide temporary
assistance not only when a court’s own judges must disqualify themselves, but also
to help meet the caseload needs arising from vacancies, lack of sucient judgeships,
specic emergencies, and other workload imbalances.
Circuit chief judges must authorize intracircuit assignments, which allow judges to
sit with another court within their circuit, and the Chief Justice of the U.S. Supreme
Court must authorize intercircuit assignments, which allow a judge to sit in a circuit
other than his or her home circuit.
FEDERAL COURT ORGANIZATION
e federal Judiciary was established by Article III of the Constitution, and the
organization of district and appellate courts is set out in Title 28 of the United
States Code (https://www.law.cornell.edu/uscode/text/28).
In addition, federal judges and lawyers who practice in federal court follow the
Federal Rules of Criminal Procedure, Federal Rules of Civil Procedure, Federal
Rules of Bankruptcy Procedure, and Federal Rules of Evidence, which establish the
general procedural requirements for litigating cases in federal courts. e rules are
available at Current Rules of Practice & Procedure (http://www.uscourts.gov/rules-
policies/current-rules-practice-procedure).
44
Judges and Judicial Administration
But federal courts have considerable autonomy. Each appellate, district, and
bankruptcy court has its own set of local rules, addressing procedural matters not
uniformly governed by federal statute, Judicial Conference policy, or the Federal
Rules of Procedure. In some jurisdictions, individual judges also have a set of rules
that govern cases in their courtrooms. Local rules and individual judges’ rules are
posted on court websites.
JUDICIAL ADMINISTRATION
e Judiciary is a separate and independent branch of government. By statute,
national Judiciary administrative policies are set by the Judicial Conference of
the United States, which is made up of 26 judges, with the Chief Justice of the
Supreme Court presiding. e
Judicial Conference meets twice
a year. e meetings are not open
to the public, but proceedings of
the meetings are published and a
news release is issued following
each session. Find these resources
at http://www.uscourts.gov/
about-federal-courts/governance-
judicial-conference/about-judicial-
conference.
e Administrative Oce of the
U.S. Courts, located in Washington,
D.C., is the national administrative
arm of the Judiciary, providing a
broad array of professional, administrative, and program support services to judges
and court sta. e Administrative Oce’s Public Aairs Oce, (202) 502-2600,
is a central point of contact for the news media. e Federal Judicial Center (www.
fjc.gov), also located in Washington, is the Judiciary’s research and education agency
(http://www.uscourts.gov/about-federal-courts/judicial-administration).
e Supreme Court has its own public information and administrative oces. e
PIO number is (202) 479-3050. Learn more about judicial administration at (http://
www.uscourts.gov/about-federal-courts/judicial-administration).
CIRCUIT JUDICIAL COUNCILS
Every circuit has a circuit judicial council, which has a number of responsibilities
relating to circuit-wide policies. e relevant statute provides the council with
authority to “make all necessary and appropriate orders for the eective and
45
A Journalist’s Guide to the Federal Courts
expeditious administration of justice within its circuit.” In addition to
the chief judge, the council consists of an equal number of appellate
and district judges. Read more details about the circuit judicial
councils (http://www.uscourts.gov/about-federal-courts/governance-
judicial-conference).
CHIEF JUDGES
All appellate and district courts have chief judges. As provided by
statute, the position is held by the longest-serving active judge from
among those judges who are 64 years old or younger, have served
for one year or more on the federal bench, and have not previously
served as chief judge. e chief judge serves for a term of seven
years or to age 70, whichever comes rst, and handles budgetary and
administrative matters that do not require the attention of all the
judges. ese include oversight of the senior court sta.
Chief judges can be good contacts for journalists, since they often
serve as spokespeople for their courts regarding administrative matters.
Chief judges of courts of appeals have some additional authorities
specied by statute. For example, to ensure the smooth and timely
administration of cases, they may temporarily reassign district or
appellate judges to other courts within a circuit, or ask the Chief
Justice to authorize the use of visiting judges from other circuits.
JUDICIAL DISCIPLINARY PROCESS
By federal statute, any person can le a complaint alleging that a judge
has engaged in “conduct prejudicial to the eective and expeditious
administration of the business of the courts,” or that a mental or
physical disability makes a judge “unable to discharge all the duties” of
being a judge. Learn more about the Judicial Conduct and Disability
process (http://www.uscourts.gov/judges-judgeships/judicial-conduct-
disability), including the rules relating to conduct and disability
complaints, a graphical overview of the process, and frequently asked
questions. In addition, every U.S. court website has a complaint
form and additional information on how to le a complaint in that
particular circuit. e complaint process is not for people who are
dissatised with a particular judge’s decision.
Any person
may le a
complaint
alleging judicial
misconduct
or disability.
Dissatisfaction
with a judge’s
decision is
not grounds
for such a
complaint.
46
Judges and Judicial Administration
e chief judge of a circuit receives any misconduct complaints involving judges in
his or her circuit, conducts a preliminary review, and may dismiss the complaint if it
lacks grounds for further action. Either the complainant or the aected judge may
appeal the chief judge’s order to the circuit judicial council.
e chief judge also may appoint a special committee of judges to investigate the
allegations and submit a report, including any recommendations, to the circuit
judicial council. e council has a number of options, including dismissing the
complaint or concluding that the judge who was the subject of the complaint already
has taken corrective action.
While it is not common, the council can take disciplinary action, including private
or public censure or reprimand, and temporary withholding of cases from the judge.
If the council concludes that the judge engaged in conduct that might constitute
grounds for impeachment, the council must refer the complaint to the Judicial
Conference. Under certain circumstances, a judge may submit a petition for review
to the Judicial Conference Committee on Judicial Conduct and Disability. is
committee reviews council orders for errors of law, clear errors of fact, or abuse of
discretion.
If the Judicial Conference nds possible grounds for impeachment, it submits a
report to the House of Representatives. Only Congress has the authority to remove
an Article III judge. is is done through a vote of impeachment by the House, and
a trial and conviction by the Senate. As of September 2017, only 15 federal judges
have been impeached, and only eight have been convicted. ree others resigned
before completion of impeachment proceedings. A summary of federal judicial
impeachments (https://www.fjc.gov/history/judges/impeachments-federal-judges) is
available at the Federal Judicial Center’s website.
By law and the related rules for judicial misconduct and disability complaints,
consideration of a complaint is condential. When nal action has been taken on a
complaint and it is no longer subject to review, courts of appeals place orders entered
by the chief judge and the judicial council on the circuit court’s website.
e Committee on Judicial Conduct and Disability similarly publishes all orders
constituting nal action on a complaint. e committee’s orders are available at
Judicial Conduct and Disability Orders (http://www.uscourts.gov/rules-policies/
judiciary-policies/ethics-policies/code-conduct-judicial-employees/judicial-conduct-
disability-opinions).
Statistics relating to judicial misconduct complaints can be found in Table 10 and
Table S-22 (http://www.uscourts.gov/statistics-reports/complaints-against-judges-
judicial-business-2017) of the annual Judicial Business report.
47
Other Judiciary Entities
CRIMINAL JUSTICE ACT DEFENSE SYSTEM
COURTAPPOINTED COUNSEL
Most federal criminal defendants, including those who are employed
at the time of their arrest, cannot aord the cost of paying for a
criminal defense lawyer. Nearly 90 percent of federal defendants are
represented by court-appointed lawyers, through Judiciary funding
under the Criminal Justice Act (CJA).
Public representation ensures that all criminal defendants, regardless
of their means, receive their right to counsel under the Sixth
Amendment. It also protects the integrity of the proceedings, by
creating a robust adversarial setting and holding the government to its
burden of proof. Indirectly, the guarantee of a vigorous legal defense
buttresses public condence in the delivery of equal justice under the
law.
Information about the federal defender system is available in the
Guide to Judiciary Policy, Chapter 7 (http://www.uscourts.gov/
rules-policies/judiciary-policies/criminal-justice-act-cja-guidelines),
and the Criminal Justice Act, 18 U.S.C. § 3006A. Each district court
is required by federal statute to formulate a district-wide plan for
implementing the CJA; most CJA plans are available online.
Some key points:
• All criminal defendants charged with a felony or Class A
misdemeanor are eligible for a court-appointed lawyer if their
“net nancial resources and income are insucient to obtain
qualied counsel.”
• By statute, eligible defendants “shall be represented at every
stage of the proceedings,” from an initial appearance before the
magistrate judge through appeal.
• e judge determines a defendant’s eligibility for appointed
counsel. Depending on a court’s CJA plan, either the judge or
Other Judiciary
Entities
Nearly 90
percent
of federal
defendants are
represented
by court-
appointed
lawyers, under
the Criminal
Justice Act.
48
Other Judiciary Entities
a separate administrator selects the lawyer. e defendant does
not choose his or her attorney.
• In addition to counsel, the CJA pays for necessary defense
resources, such as investigators and experts. In some cases, a
defendant can aord to hire a lawyer, but requires the court to
provide other professionals and services needed to support a
defense.
• A defendant may waive the right to counsel and conduct his
or her own defense. Even then, the court may appoint standby
counsel, who will observe the case and step in as counsel if
requested by the defendant. is protects the integrity of the
proceedings and helps prevent legal errors that might disrupt
the case.
Who Provides Court-Appointed Counsel
e federal defense system functions as a hybrid system with two
types of lawyers: full-time salaried defenders, and private attorneys
who are appointed by the court to represent defendants at a set hourly
rate.
Nearly every court district has a federal defender organization, a
federal entity that acts as a counterpart to the local U.S. attorney’s
oce. It is led by a chief defender and staed by attorneys,
investigators, paralegals, and support personnel. In some districts, full-
time defenders work for community defender organizations, which are
nonprot organizations that receive grants from the federal Judiciary
to defend those who cannot aord a lawyer.
e private lawyers, called panel attorneys, are available to handle CJA
cases in which the local defender’s oce has a conict of interest (for
example, multi-defendant cases) or when the oce’s existing caseload
prevents it from accepting more appointments.
How CJA Cases Are Funded
Federal defender organizations receive individual budgets to fund their
operations, including employee salaries. Specic case expenditures,
such as expert fees, are funded from the oce budget. In cases that
require an unusually costly defense, such as a death penalty trial or
other complex litigation, additional money can be provided by the
Administrative Oce of the U.S. Courts, which, along with the
Judicial Conference Committee on Defender Services, oversees the
national budget for the CJA program.
Federal public
defenders
are salaried
government
employees.
Panel attorneys
are private
lawyers who
are appointed
to specic
cases and paid
an hourly rate.
49
A Journalist’s Guide to the Federal Courts
Unlike federal defenders, panel attorneys are paid an hourly rate for CJA work.
Hourly rates, which are set by the Judicial Conference of the United States within
statutory limits established by Congress, are available at the Judiciary’s CJA
Guidelines, § 230 (http://www.uscourts.gov/rules-policies/judiciary-policies/cja-
guidelines/chapter-2-ss-230-compensation-and-expenses) (non-capital) and § 630
(http://www.uscourts.gov/rules-policies/judiciary-policies/cja-guidelines/chapter-6-
ss-630-compensation-appointed-counsel)(capital).
Also unlike federal defenders, panel attorneys must have their compensation and
expenses approved by the court. In addition, before obtaining other services, such
as those of an investigator or expert witness, panel attorneys must get authorization
from the presiding judge.
Defense costs in a specic case are not available to the public, or even to the
prosecution, during the case, including any appeals. When a judge must authorize
defense expenditures, such requests are made ex parte, with only defense counsel
present.
Defense expenditures remain condential because disclosure could compromise the
defense by revealing legal strategy. Disclosure also may compromise the attorney-
client privilege and other protections. e public or media may ask the presiding
judge to lift a seal on defense-related expenditures—but only after all judicial
proceedings are concluded, including appeals. In practice, most costs related to
a trial, including money spent on the criminal investigation and prosecution, are
unavailable to the public.
The CJA and Death Penalty Cases
Federal death penalty prosecutions are large-scale cases that are costly to prosecute,
investigate, and defend.
Because of their complexity and potential severity, death penalty trials have special
provisions for court-appointed counsel, which are spelled out in Volume 7, Chapter
6, of the CJA Guidelines (http://www.uscourts.gov/rules-policies/judiciary-policies/
criminal-justice-act-cja-guidelines). ese include the following:
• e appointment of two lawyers, “at least one of whom is experienced in and
knowledgeable about the defense of death penalty cases.” Attorneys versed in
death penalty defense also are known as “learned counsel.” If necessary for
adequate representation, more than two attorneys may be appointed.
• A higher rate of hourly compensation, which is available in the CJA
Guidelines at § 630 (http://www.uscourts.gov/rules-policies/judiciary-
policies/cja-guidelines/chapter-6-ss-630-compensation-appointed-counsel),
Compensation of Appointed Counsel in Capital Cases.
50
Other Judiciary Entities
In addition to death penalty trials, other capital representation in the federal
courts includes post-conviction proceedings, in which an individual who has been
sentenced to death, either in state or federal court, is seeking to vacate or set aside
his or her death sentence. ese are often referred to as “habeas corpus” proceedings,
and the individual seeking relief is referred to as the petitioner. Financially eligible
persons are entitled to the appointment of one or more qualied attorneys in these
capital habeas proceedings.
PROBATION AND PRETRIAL SERVICES OFFICERS
Probation and pretrial ocers are federal law enforcement ocers who help protect
the community by investigating and supervising federal defendants and oenders.
ey play a critical role,
serving as the “eyes and
ears” of the federal courts
by providing critical
pretrial, presentence,
and post-conviction
reports to judges. ey
also supervise defendants
awaiting trial and
people returning to
the community after
incarceration.
Key parts of an
individual’s community
supervision process are not public. Pretrial and presentence reports are directed
solely to the judge and the parties, and are not public. A supervision ocer’s
case les also are not public. Court orders setting out terms of supervised release
generally are reected in the judgment forms, which are available through PACER.
Media inquiries regarding specic cases or supervision ocers should begin with
the local probation or pretrial services chief. Local oces can be found through the
Court Locator (http://www.uscourts.gov/court-locator). Inquiries about policies or
procedure at the national level should be directed to the Administrative Oce of
the U.S. Courts’ Oce of Public Aairs (http://www.uscourts.gov/contact-us).
Probation and pretrial services ocers make up nearly one-quarter of the Judiciary’s
workforce, and they are organized by court district. Every district has a probation
chief, and some also have a separate pretrial services chief. e chiefs report directly
to a district court’s chief judge.
51
A Journalist’s Guide to the Federal Courts
Pretrial services and probation ocers play many distinct roles
throughout the judicial process:
• Pretrial services and presentence investigations. Following
an arrest or indictment, pretrial services ocers investigate
defendants’ backgrounds, to help judges set bail and terms
of pretrial release. e pretrial report recommends whether
to release or detain the defendant before trial, and addresses
whether the defendant is likely to stay out of trouble and
return to court as required.
Probation ocers prepare a presentence investigation report,
which recommends sentencing options under the federal
sentencing guidelines, addresses the oense’s impact on the
victim, and determines the oender’s ability to pay nes and
restitution. It also recommends release conditions, by which
the court can govern an oender’s movement and behavior in
the community, as well as any rehabilitative programming that
an oender may need.
Although probation and pretrial services ocers make
recommendations to the court, judges make nal decisions
governing bail, sentencing, and supervised release, after
receiving feedback from the prosecution and defense counsel.
• Community supervision. Pretrial services ocers supervise
defendants who have been released to the community pending
trial and sentencing. Probation ocers supervise persons
sentenced to probation and post-incarceration oenders who
are returning to the community.
Supervision consists of monitoring oenders’ behavior in the
community, enforcing court-ordered restrictions on behavior,
and providing interventions authorized by the court.
Monitoring is the process of collecting information about
the behaviors and activities of an oender to ensure that
conditions of supervision are being met. Monitoring is done
through phone calls and personal contact with people under
supervision; their family, friends, and associates; and other
agencies.
Individuals also are monitored through various supervision
tools, such as location and computer monitoring, law
enforcement notication systems, and investigative databases.
Post-
incarceration
oenders
who have left
prison are
supervised in
the community
by federal
probation
ocers.
52
Other Judiciary Entities
Restrictions are actions that limit an individual’s liberty and reduce the
likelihood of criminal behavior while under supervision. Restrictions may
include court-imposed limits on traveling, associating with certain people,
and consuming alcohol or controlled substances.
Interventions are programs and services that ocers provide to oenders
(or refer oenders to) that are designed to help oenders remain crime free.
ese include drug, mental health, and other counseling, and employment
and vocational services.
Read about the duties of probation and pretrial services ocers at http://www.
uscourts.gov/services-forms/probation-and-pretrial-services/probation-and-
pretrial-officers-and-officer and about community supervision, including location
monitoring, at http://www.uscourts.gov/services-forms/probation-and-pretrial-
services/probation-and-pretrial-services-supervision. Locate information about
probation and pretrial supervision caseloads at http://www.uscourts.gov/statistics-
reports/caseload-statistics-data-tables.
CENTRAL VIOLATIONS BUREAU
In addition to major criminal cases, federal courts also hear cases about minor
infractions that occur on federal land, such as military bases, park and forest land,
and federally operated hospitals. ese infractions can include trac violations,
vandalism, and possession of small amounts of drugs, and often result in court nes.
Hearings in these cases are handled by magistrate judges, and defendants often pay a
ne without appearing in court. Fines are collected and case records are maintained
by a national oce, the Central Violations Bureau (CVB), which is based in San
Antonio, Texas.
Reporters seeking CVB records should email media@ao.uscourts.gov. Under
Judiciary policy, CVB records are subject to a search fee, and an estimate will be
provided before the search is conducted. Records typically are limited to a copy of
the citation, including a statement of the facts, and a summary of ne payments.
As with other federal criminal records, CVB case records are redacted to remove
certain personally identifying information, such as street addresses and driver’s
license numbers.
Some courts also make CVB case records available via PACER.
53
Helpful Online Resources
Federal court websites: Every federal court has its own website, with court locations
and hours, local rules, access to PACER records, and other court information. Access
links to all court websites at http://www.uscourts.gov/about-federal-courts/federal-
courts-public/court-website-links.
e Supreme Court website, with court calendar and opinions, is at www.
supremecourt.gov.
e Judicial Conference of the United States sets policy for the federal Judiciary.
Find information about the Conference at http://www.uscourts.gov/about-federal-
courts/governance-judicial-conference/about-judicial-conference, including
membership and reports on its proceedings.
e Federal Judicial Center (www.fjc.gov) provides training and research for the
federal Judiciary. Its website includes
• a Judiciary history page (http://www.fjc.gov/history/home.nsf/page/judges.
html) and
• a biographical database of all Article III judges in U.S. history (https://www.
fjc.gov/history/judges).
Financial disclosure statements of federal judges and senior court personnel may
be sought through the Administrative Oce’s Financial Disclosure Committee
sta. e process is explained in the Judiciary’s disclosure request form (http://www.
uscourts.gov/forms/other-forms/financial-disclosure-report-request).
e United States Sentencing Commission establishes sentencing guidelines for the
federal criminal justice system. To learn more, see www.ussc.gov.
FDsys (https://www.gpo.gov/fdsys/browse/collection.action?collectionCode=US
COURTS), an online Government Publishing Oce service, has text-searchable
published opinions for all regional U.S. courts of appeals, and for some U.S. district
and bankruptcy courts.
Title 28 of the United States Code, which governs the federal courts, is available at
FDsys (https://www.gpo.gov/fdsys/browse/collection.action?collectionCode=USCO
URTS).
Helpful Online
Resources
54
Helpful Online Resources
e Judiciary website, www.uscourts.gov, has many resources:
• Email Updates (http://www.uscourts.gov/email-updates) includes a
subscription form to receive email updates about court news.
• Court Locator (http://www.uscourts.gov/court-locator) provides address
and contact information for all federal court units.
• Judiciary News (http://www.uscourts.gov/judiciary-news) has news articles
and video about the federal courts.
• About Federal Courts (http://www.uscourts.gov/about-federal-courts)
provides an overview of the federal Judiciary. More detailed descriptions
of the federal appellate and district courts are at Court Role and Structure,
which also includes the background paper “Understanding Federal Courts.”
• Judges & Judgeships (http://www.uscourts.gov/judges-judgeships) includes
information on judicial vacancies and emergencies, for the current and
previous years, as well as the Code of Conduct for U.S. Judges.
• Statistics & Reports (http://www.uscourts.gov/statistics-reports) includes
Judiciary data tables and access to Judiciary reports, which are described in
detail at Analysis & Reports.
• Rules & Policies (http://www.uscourts.gov/rules-policies) includes
information about Federal Rules of Procedure:
• About the Rulemaking Process (http://www.uscourts.gov/rules-
policies/about-rulemaking-process)
• Current Rules of Practice & Procedure (http://www.uscourts.gov/
rules-policies/current-rules-practice-procedure)
• Rules of Appellate Procedure
• Rules of Bankruptcy Procedure
• Rules of Civil Procedure
• Rules of Criminal Procedure
• Rules of Evidence
• Pending Rules and Forms Amendments (http://www.uscourts.gov/
rules-policies/pending-rules-and-forms-amendments)
• Proposed Amendments Published for Public Comment (http://www.
uscourts.gov/rules-policies/proposed-amendments-published-public-
comment)
55
A Journalist’s Guide to the Federal Courts
• Records and Archives of the Rules Committee (http://www.uscourts.
gov/rules-policies/records-and-archives-rules-committees)
• Educational Resources (http://www.uscourts.gov/about-federal-courts/
educational-resources) includes information about the courts, including
classroom-ready materials for teachers and students.
• A Glossary of Legal Terms (http://www.uscourts.gov/glossary) is available at
the bottom of each page of the Judiciary website.
Social Media. Federal courts sometimes maintain their own social media accounts
that are linked from individual court websites. e Administrative Oce of the U.S.
Courts maintains a presence in the following social media:
• YouTube (https://www.youtube.com/user/uscourts): e federal Judiciary’s
channel has videos produced by U.S. courts, the Federal Judicial Center, and
the United States Sentencing Commission.
• Twitter (https://twitter.com/uscourts): @uscourts is the ocial source for
news and information about the U.S. courts.
• LinkedIn (https://www.linkedin.com/company/us-courts/): is page
provides information about working for the federal Judiciary
ADMINISTRATIVE
OFFICE OF THE
UNITED STATES
COURTS
Thurgood Marshall
Federal Judiciary Building
Washington D.C. 20544
www.uscourts.gov
