The Differences between State and Federal Criminal Defense


State vs. Federal Criminal Charges

There are several differences exist between the state and federal criminal systems. While both systems include similar statutes, standards, and evidentiary rules, the practical application of these rules differs dramatically between the two systems.

1. Federal Cases are Broader in Scope

Federal cases often involve multiple defendants. In fact, it’s not uncommon to have anywhere between 10 and 50 defendants. State cases, on the other hand, typically involve one or two defendants. This is a massive consideration because the number of defendants dictates the tenor and tone of an investigation. When there are only a few defendants, then the risk of snitching is reduced. However, if many defendants are involved then some rationally assume that at least someone is going to cooperate with authorities. If that is the case, then the targeted defendant will feel a tremendous pressure to credibly cooperate. Thus, the right to silence is fatigued when multiple defendants are presented.

2. Federal Cases are Often Circumstantial

Circumstantial cases are often built upon the words of witnesses alone. In other words, no physical evidence is presented.

In the federal system, much of the evidence is simply established by targets who describe a crime long after it took place. For example, if Alan says Brett gave him 1 ounce of cocaine every week for 3 years between 2011 and 2014, then the federal sentence may be based upon the delivery of 156 ounces of cocaine. But what if Brett was only caught with 1 ounce and its only Alan who puts this kind of weight upon Brett? In the federal system it does not matter and Brett is accountable for 156 ounces. Under the U.S. Sentencing Guidelines the difference between 1 ounce and 156 ounces is massive.

In the state system, this gargantuan difference would not exist. However, in the federal system, this historical evidence is embraced, used, and relied upon.

3. Hearsay is Allowed in Many Stages of Federal Criminal Cases

In the state system, statements of co-defendants cannot support a conviction unless they are corroborated. In other words, there is a skepticism of evidence provided by persons subject to prosecution that is offered against other persons subject to the same prosecution. For example, if Alan is arrested for burglary of a 7-11 and then tells a police officer that he committed the burglary with his friend Brett, that statement alone would not justify the prosecution of Brett.

While the statements of codefendants are considered somewhat suspect in the state system, similar statements are embraced within the federal system. Under the federal rules of evidence, co-conspirator statements are an exception to the hearsay rule. Thus, take the same example as above. If Alan and Brett were accused of conspiring to burglarize the 7-11 then Alan’s uncorroborated statement that Brett committed the burglary would be admissible.

This raises a significant question regarding accuracy and fairness. What is Alan’s incentive when questioned by authorities. Well, it’s two-fold. 1) burn the other guy and 2) take the heat off himself. Obviously, it is better for Alan that Brett be painted as the ringleader or “true perpetrator.” This danger is the impetus for the state requirement of corroboration.

4. Federal Conspiracy Charges are Expansive

While both the state and federal systems prohibit criminal conspiracies, many federal cases allege conspiracy while very few state cases involve conspiracy.

An agreement to commit an illegal act is a conspiracy. For example, if two brothers agree to distribute methamphetamine to customers in the Dallas/Fort Worth area, they are said to have conspired to commit possession of controlled substances with intent to deliver. Conspiracy agreements are somewhat similar to, but legally distinct from, preparatory and inchoate offenses such as attempted assault. While both inchoate (which essentially means incomplete) offenses and conspiracy offenses involve crimes that have not been completed, they are distinct in significant ways. First, inchoate offenses can be committed by the actions and mental state of just one person. Second, perpetrators of inchoate offenses do not have to agree with others to commit an offense to be guilty. Additionally, conspiracy cases typically involve unique evidence and a much larger scope than other offenses.

4. Punishment Evidence in the Federal System Need Only be Proven by a Preponderance of Evidence

While both state and federal sentences involve generalized statutory ranges of punishment, each system approaches sentencing differently. First, in state systems, particularly Texas, sentencing proceedings are referred to as “punishment” proceedings. In the federal system, sentencing is sentencing. In the state system, all extraneous bad acts and criminal history must be proven beyond a reasonable doubt to the fact finder. On the other hand, in the federal system extraneous bad acts and criminal acts offered to increase punishment need only be established by a preponderance of the evidence, or over 50%. To be sure, the preponderance of evidence standard is far lower than a beyond a reasonable doubt standard.

This becomes extremely important in cases where prior bad acts of fraud are offered for two reasons. First, forensic accounting is generally not used to establish extraneous fraud evidence in the federal system because there is no need to reach a high burden that actually goes to the trouble of eliminating possible benign explanations for deposit and withdrawal history. Second, the federal system uses an expansive view of offense conduct describing many bad acts as part of “relevant conduct.”

6. Judge vs. Jury: The Main Sentencing Differences Between State and Federal Criminal Cases

In state cases in Texas, either a judge or a jury can decide a sentence. This is extremely rare nationwide. In the federal system however, only judges can impose a sentence. The only exception comes in death penalty cases. In those cases, a jury must find the facts necessary to issue a death sentence.