When you are arrested on federal charges, one of the first things that will happen to you is that you will be taken in front of a federal magistrate judge for an “initial appearance.” If the government wants to keep you in jail until your trial, the prosecutor will ask the court to detain you – to keep you in jail. A detention hearing will then take place, usually immediately, but sometimes it is delayed for 3-5 days. The issue before the judge then becomes:
- whether you are a serious flight risk, and
- whether you are a danger to the community.
At the detention hearing, if the government is trying to show that you are a “flight risk” (that you’ll run and won’t come back for trial), then it must prove it by a “preponderance of the evidence.” If the government is trying to show that you are a danger to the community, then it must prove this by “clear and convincing” evidence. The rules of evidence do not apply at detention hearings, and so the judge can consider almost anything.
The government has the benefit of a presumption that you need to stay in jail in certain cases, including certain types of drug cases, certain types of firearms cases, terrorism cases, any crime involving a minor victim, and in certain cases where you have been previously convicted of a felony and the alleged offense was committed while on bail or within five years. You need to think of this presumption as a “head start” for the government, but this head start can be overcome by you and your attorney with any type of credible evidence, including the pretrial services report, cross-examination of government witnesses, documentary evidence that may be available, etc. This is where a good lawyer can help you.
The judge will consider the following factors when making the determination regarding letting you out:
- the nature and circumstances of the offense (in particular whether it is an offense which is violent or nonviolent in nature, or involves narcotics);
- the weight of the evidence against you;
- your history and characteristics, including your physical and mental condition, family ties, employment, financial resources, length of time in the community, community ties, past conduct history relating to drug or alcohol abuse, criminal history, record of court appearances; and whether, at the time of the current offense or arrest, you were on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal, state, or local law;
- the nature and seriousness of the danger to any person or to the community that would be posed by releasing you.
The judge can then do one of four things:
- Release you on your own recognizance or on an unsecured bond (where you won’t put up any money, but you will lose money if you don’t show back up);
- Release you on certain conditions – (get a job, stay in school, stay away from certain people, check in with pretrial services, submit to drug testing, ankle bracelets, etc.)
- Temporarily detain you until certain other things can happen (you get deported, your existing bond gets revoked, etc.); or
- Detain you until trial, or until conditions change enough to warrant reconsideration of the detention decision.
Statistically, if the government wants to detain you, you are likely to be detained. But, contrary to what some will tell you, it is not a foregone conclusion, and you should fight it almost every time. Why? Because a detention hearing usually happens very early in the case, and you and your attorney need to take every chance you can get to find out as much as possible as soon as possible. But, more importantly, it’s your freedom. Never, ever give up a chance to fight for your freedom.