What Is a Federal Bail Hearing?
There are a surprising number of intervening steps between arrest and federal trial. In fact, the federal criminal process can take months depending on the court’s docket and the need for more investigation into an offense.
A federal bail hearing determines where the defendant spends the time before trial – remanded to a federal prison or granted pretrial release. If a defendant is granted pretrial release, the bond amount is also determined at a federal bail hearing.
Order of Events from Arrest to Bail Hearing
After being arrested for a federal crime, the defendant is held in federal custody until arraignment. Depending on the location of the arrest, the defendant could be detained in federal prison, but more likely the 24 to 72 hours after arrest are spent closer to the federal courthouse – either in a county jail or in a holding cell run by the United States Marshals.
The first hearing after arrest is called arraignment. In the federal court system, arraignment is designated solely and specifically for the prosecutor to read the charges against the defendant in open court and the defendant to enter a plea. A federal bail hearing, also called a detention or bond hearing, follows.
Your bond hearing could be coupled with the arraignment, depending on the circumstances of your case. Otherwise, it will be scheduled for a similar time frame – within a few days of your arrest.
What Are the Criteria for Pretrial Release?
The criteria for pretrial release is determined by federal statute. Having explicit, statutory requirements, for pretrial release could sound limiting, but in actuality, the content of Section 3142 of the U.S. Code provides some leeway for a judge to grant pretrial release. This statute was implemented by the Bail Reform Act of 1984.
Requirements of Federal Law
Under Section 3142, the burden is on the federal prosecutor to show a reason for remanding the defendant to federal prison before trial. The option for pretrial release is only closed off for two reasons:
- The defendant is a flight risk; or
- The defendant is a danger to the community.
The totality of circumstances and events surrounding accusations of a crime is employed to allow a federal judge to make a decision on bail and pretrial release. This makes the evidence presented at this federal hearing very important.
Defendants as Flight Risks
A “flight risk” is a defendant that is likely to leave the state or country ahead of a criminal trial. There is a strong interest on the part of the government and federal judicial system to remand a flight risk to pretrial detention.
In recent years, articles and academic institutions have attempted to separate the risk of non-appearance for a criminal trial from the risk of flight. After all, while these two concepts are intertwined, a defendant could decide not to appear for court, while never fleeing the state or country.
Many, if not all, federal criminal defendants have the capability to simply not appear for their day in court. Far fewer defendants have the financial resources and ability to flee beyond the jurisdiction and accountability of the federal court system.
Therefore, when a federal judge is asked to consider a defendant as a flight risk, it is a question of both the desire and capability to flee. These considerations under Section 3142 takes into account whether or not the defendant has the financial resources, desire, and international contacts to disappear before future hearings.
Conversely, evidence that the defendant has close ties in the local community, obligations to family in the immediate area, stability in the form of a church or organizations, or business obligations in the area are arguments to grant pretrial release. Someone with a family, job, and home is seen as less likely to be a flight risk. It is the responsibility of a criminal defense lawyer to present evidence of these stabilizing factors.
Defendants as a Danger to the Community
Based on the facts and circumstances of a criminal case, the federal judge must also determine whether a defendant is a danger to the community. Under Section 3142, a judge must find that the defendant is not a danger to grant pretrial release.
In deciding whether or not a defendant is a danger to the community, influential evidence may include:
- The type of crime that was committed;
- The defendant’s mental, physical, and emotional condition;
- The defendant’s criminal history;
- The means and motivation for the crime;
- The strength of the evidence against the defendant; and
- Whether it was a violent crime or not.
There are several examples of famous defendants deemed too great a danger to the community to release prior to trial, but some of the strongest examples were mob bosses and gang leaders. Often, there was/is evidence these defendants would exact revenge on witnesses, commit other crimes, or oversaw heinous crimes that made pretrial detention necessary.
In other instances, it is possible to mitigate the defendant’s danger to the community. A federal judge is allowed to impose certain conditions for pretrial release that make the defendant far less dangerous to others.
What Are the Conditions for Pretrial Release?
Pretrial release is always predicated on the defendant’s ability or choice to post bail. Depending on the circumstances, the federal judge may set other conditions for pretrial release. These conditions are based on the evidence presented in a federal bail hearing.
Standard for Setting Conditions of Pretrial Release
The judicial determination on conditions for pretrial release is based on the specific facts of a case. There are significant leeway and judicial autonomy in crafting the exact requirements of pretrial release. The federal judge’s determination may include suggestions and arguments by the federal prosecutor and defense counsel.
Ultimately, the standard under federal law merely requires that a federal judge impose any reasonable conditions that reduce the risk of flight and keep the community safe.
For example, federal charges for trafficking illegal substances could lead a judge to restrict a defendant’s travel during pretrial release. In fact, restrictions on travel, turning over the defendant’s passport, and other steps to prevent flight or disappearance before trial are the most common conditions of pretrial release.
Examples of Conditions for Pretrial Release
The conditions of a defendant’s pretrial release may include:
- Cease or limit travel, in some cases travel may be limited to the state where the federal trial is taking place;
- Submitting to a drug or alcohol test regularly or upon request from the court;
- Secure and maintain employment;
- Enter a treatment facility for drugs, alcohol, or other addiction;
- Seek mental health counseling or treatment;
- Live under the authority and custody of a designated individual;
- Follow a specific curfew;
- Enter an educational program or continued learning course;
- Agree not to purchase or possess a firearm;
- Hand over a passport and other travel documents;
- Comply with regular check-ins by federal authorities;
- Undergo psychiatric evaluation; and
- Refrain from contacting the victim of a crime or the victim’s family members.
This list is a comprehensive look at the potential conditions of pretrial release, but a federal judge is provided some leeway for the specific conditions and rules in place for any individual defendant. Those conditions may include other reasonable requirements or requests, such as refraining from visiting a specific business or refraining from the use of alcohol.
Bail vs. a Bail Bond
What Is Bail?
Federal bail is the amount of money a defendant must pay in exchange for pretrial release. When granted pretrial release by a federal judge, the defendant is given the option to pay federal bail or not. Refusing to pay bail, whether out of choice or necessity means the defendant is remanded to detention until the criminal trial.
What Is a Bail Bond?
Bail is different from a bail bond. Most federal defendants are unable to pay the total amount of bail required by the federal court; these defendants are forced to take out a bail bond to secure their release from federal prison. A bail bond is provided through a surety company.
The surety company, commonly called a bail agent or bondsman, guarantees the amount of bail, and thus the defendant’s appearance in court. The defendant must also give the bail agent at least 10% of the federal bail amount before the surety company agrees to issue a bail bond. The remainder of the total bail is assured against the defendant’s collateral, such as personal property, bank accounts, and other assets. If the defendant doesn’t have enough assets for collateral, then family members and friends can stake their assets as additional collateral.
A bail bond isn’t free. In exchange for this guarantee, the defendant is forced to pay a premium and fees to the bail agent.
Process and Procedure of a Federal Bail Hearing
A federal bail hearing or pretrial release hearing does not occur in every federal criminal case. Although, today it would be the rare instance when a federal bail bond hearing does not occur. Why are federal bail bond hearings not mandatory in a federal case? The process is initiated by the filings and requests of the federal prosecutor. Here’s how.
The federal prosecutor is motivated to ensure the defendant appears for trial. The easiest way to ensure appearance in court is through detention. In the vast majority of cases, a federal prosecutor will file a motion for the detention of a defendant. This motion is typically made at a federal arraignment.
Once a federal prosecutor has moved for the detention of a defendant, the judge must rule on that demand. To uphold due process and make the best determination on whether pretrial detention is necessary, the judge must hear the defendant’s argument against pretrial detention. As explained above, this argument is made in a federal bail hearing.
In the Courtroom During a Federal Bail Hearing
The federal prosecutor, on behalf of the federal government, has the burden of persuading the judge that pretrial detention is necessary. This means it is up to the prosecutor to bring substantial evidence that a defendant is a flight risk or danger to the community. A federal defense attorney must only refute these arguments with contradictory evidence and facts.
As the party with the burden of persuasion, the federal prosecutor will present a case for pretrial detention first. This may include testimony from an FBI agent, witness, or physical evidence of the crime committed. There are no rules against hearsay, as are required in the later criminal trial, which allows the prosecutor to present a broader range of evidence to the judge.
The defendant’s lawyer is allowed to cross-examine the witnesses for the federal prosecutor.
Just as in a federal criminal trial, after presenting evidence, the prosecutor takes a seat, and the defendant is given an opportunity to offer evidence and arguments. The same rules apply, and the defendant can present testimony, including hearsay. Typically, the defendant does not speak or give any testimony during a pretrial release hearing but rather relies on his or her federal defense lawyer to make the arguments.
Once all evidence is presented in court, the judge is allowed time to deliberate. Most federal judge’s return a decision on pretrial release or detention swiftly. If the pretrial release is granted, then bail is determined by the judge. There can be some additional arguments and discussion over the amount of bail required for pretrial release.
Presenting Evidence at a Federal Bail Hearing
The federal prosecutor and federal defense lawyer are given the opportunity to present arguments at a bail or detainment hearing. In most instances, the federal prosecutor argues for the defendant to be remanded, which means held, in federal prison to await trial. The prosecutor may argue for a substantial bond, which better guarantees the defendant’s appearance at future hearings.
A federal defense lawyer is given the same opportunity to argue for pretrial release. This argument needs to be strategic, clear, and concise to appeal to a federal judge. To ensure you have the best chance of pretrial release, you need the best defense lawyer. A lawyer with prior experience in federal bail hearings and federal criminal cases is a huge asset when it’s time for these arguments to be made.
Why You Need a Federal Defense Lawyer for a Bail Hearing
If you are facing federal criminal charges, the federal bail hearing is one of the first and most intimidating legal procedures in your criminal case. It is beneficial to have a criminal defense lawyer familiar with the federal bail process on your side during this early hearing. Specifically, a federal defense lawyer will:
- Have in-depth knowledge of the federal laws setting the requirements and standards for bail;
- Fully understand the evidentiary requirements for bail and pretrial release;
- Match the federal prosecutor in terms of knowledge and strategic arguments;
- Be familiar with the proclivities and personalities of the federal court where your case is being heard;
- Give you a better understanding of the process as it unfolds and ensures you understand the outcome of a federal bail hearing;
- Know past decisions and determinations on bail and pretrial release made by the judge hearing your case;
- Arrange witnesses and collect other evidence to refute the prosecutor’s request for pretrial detention; and
- Help you mentally and emotionally prepare for the potential outcome of a federal bail hearing.
The determination of your federal bail hearing is significant. During this phase of a federal criminal trial, the judge is deciding if you spend the next several months at home with family, friends, and able to seek gainful employment or locked away in federal prison.
When Do I Contact a Federal Defense Lawyer?
Defendants often enter the criminal justice system thinking that a criminal trial is won or lost in a criminal trial. In actuality, every step of a criminal case makes it more or less likely that you will be acquitted of the charges. This includes a judge’s determination on bail and pretrial release.
If granted pretrial release it can aid your stress, uncertainty, and apprehension over the impending criminal trial, while in a federal prison mindset and desire to build a winning case can decrease. Therefore, it is incredibly important to make a strong argument for pretrial release, something that is far more likely with the support and skill of a federal defense attorney.
The earlier you can involve a criminal defense lawyer with prior experience in federal matters in your case, the better. It is acceptable and strategic to reach out to a federal defense lawyer when you learn of a federal investigation, are questioned by the FBI, or believe you will be arrested. A lawyer’s early involvement only improves your opportunities for fighting federal criminal charges.
If you haven’t contacted a federal defense lawyer before your arrest, you should do so prior to a federal bail hearing.
How Do I Find a Good Federal Defense Lawyer? Contact Us.
You want the best federal defense lawyer for your case. The internet and other resources have made this easier to do, but also widened the number of options available to you. The difficulty for many defendants today is evaluating federal defense lawyers to find one not just good, but great, for your case. Here are some criteria to keep in mind.
- Look for experience. The more experience a defense lawyer has in federal courts, the more capable that lawyer will be at setting strategy and building a case in your defense. More experience also equates to a better knowledge of the federal judges that may preside at your federal bail hearing and criminal trial.
- Look for a local lawyer. First, you will have constant contact and communication with your federal defense lawyer. As a case unfolds, it is imperative that you are able to have face-to-face conversations with your lawyer. Second, the case law in every federal district in the United States is different. You need a lawyer that knows the case law in the district where your case is heard.
- Look for specific areas of practice. Not only should your chosen federal defense lawyer have experience in federal courts, but also with the criminal charges you are facing. Handling prior criminal cases leads to a better understanding of the federal laws impacting your case, the successful arguments made on behalf of defendants, the tactics used by federal prosecutors, and best strategies for a case.
