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What is the Difference Between Federal and State Criminal Prosecution?

Computer activist Aaron H. Swartz was indicted by a federal grand jury in July 2011 after allegedly downloading millions of academic journal archives via a laptop housed in a network closet in MIT. He was charged by Massachusetts state authorities with two counts of breaking and entering, one count of larceny over $250 and three counts of unauthorized access to a computer system. The federal charges included wire fraud, computer fraud, unlawfully obtaining information from a protected computer and recklessly damaging a protected computer.

In March the Commonwealth of Massachusetts dropped all six state charges. Cara O’Brien, a spokeswoman for the Middlesex District Attorney’s office explained, “in the interest of justice, we agreed to let the federal case have precedence… Many of the witnesses would have been the same in the two cases… and since the state case would have gone to trial first, witnesses’ testimony might compromise the federal case.”

This decision highlights the delicate balancing act and challenge faced by United States attorneys, state prosecutors and criminal defendants when the same actions lead to both federal and state prosecution. The majority of criminal cases are prosecuted by the State. Most federal crimes involve crimes committed on federal property and crimes involving illegal interstate activity such as mail fraud, drug trafficking and financial crimes.

Criminal cases involving federal laws can be tried only in federal court. There are different procedures and processes in the two court systems. For example there are different bail procedures and criteria and different sentencing guidelines. Another significant difference is in how discovery is conducted, with most state rules allowing for more immediate and liberal discovery.

A defense attorney representing a criminal defendant facing both federal and state charges will have to work with the U.S. Attorney and State District Attorney in plea negotiations and discovery scheduling. However, as demonstrated by the Middlesex District Attorney’s decision in the Swartz prosecution, there is often close coordination between the prosecuting attorneys so as to avoid conflicts.

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