What Should I Expect at my Detention Hearing in Federal Court?

What is a Detention Hearing? 

A detention hearing is an early proceeding in federal criminal proceedings to determine the defendant's custody status while the criminal case is pending.  The court reviews a pretrial services report and  evidence and hears testimony to decide whether there are any conditions of release that would reasonably assure that the defendant would appear at future court dates and that the community would be safe while the case is pending. Detention hearings in the Eastern District of North Carolina are handled by magistrate judges, and are usually scheduled within three days of a defendant's initial appearance.

Motion for Detention

The detention hearing is scheduled after the Asst. United States Attorney (AUSA) makes a verbal motion for detention. The AUSA should cite the basis for detention, and if adequate grounds are stated the court will order the defendant temporarily detained until the detention hearing can be held.

Detention Authority is Limited but Pretrial Detention is Common in Many Districts

The court's authority to detain a defendant is limited to certain cases and/or factual circumstances. The question of detention is addressed in 18 U.S.C. 3142, and 3142(g) contains factors for consideration considering the defendant's flight risk and/or danger to the community. Many federal criminal charges carry a rebuttable presumption that there are no conditions or combination of conditions that can reasonably assure the court of the safety of the community or that the defendant will not flee prosecution. Drug trafficking and gun possession cases, two very common criminal charges in federal court, both carry a presumption of detention.

Absent a presumption of detention it is the prosecution's burden to establish that the defendant (who of course enjoys the presumption of innocence) should be detained while the case is pending.

Pretrial Services Report in the Eastern District of North Carolina

United States Probation conducts a pretrial services investigation and creates a pretrial services report in the limited time between the defendant's initial appearance and the detention hearing. This should include an interview with the defendant, any family members identified by the defendant as a source of corroborating information, and potential third-party custodians. The interview of the defendant will include questions regarding mental health, employment, substance abuse, and identification of information sources.

The pretrial services report also contains a comprehensive look at the defendant's criminal history, including convictions and arrest. This is a valuable resource later in the case while the defendant evaluates possible prison exposure with their lawyer. The report will contain other biographical information about the defendant including possibly some life history, any gang affiliations (“security risk group”), the defendant's travel history and whether they have a passport, and financial resources.

Finally the pretrial services report will contain probation's assessment of the risks of defendant's nonappearance and danger to the community. The report lists various statutory factors the investigating probation officer believes support their conclusion. 

Presumption of Detention

In a case involving charges  with a presumption of detention, the defend has the burden to produce evidence that rebuts the presumption. This should be a relatively low burden. The most common way a defendant can rebut this presumption is through presentation of the testimony of a third party custodian who is willing to accept responsibility for the defendant's compliance with any pretrial conditions imposed by the client. These typically include abstaining from criminal activity and the use of illegal drugs, attendance at court hearings, seeking or maintaining employment, home detention or electronic monitoring, and similar conditions to reasonably assure the court regarding the twin concerns of flight risk and community safety.

What is a Third Party Custodian?

A third-party custodian (TPC) is often a family member or loved one who is willing to come to court and provide testimony regarding their awareness and acceptance of the obligations related to the role. Ideally, this would be someone who works in the home, or is retired or otherwise available to supervise the defendant's compliance with ordered conditions. This person should not have criminal history, although very old history or minor criminal history can be acceptable to the court. Testimony presented by the TPC focuses on their awareness of the circumstances, the seriousness of the situation, willingness to serve as TPC, the type of home they live in, assurances that the defendant would be welcome and have space in the home assurances that no firearms or illegal drugs are tolerated in the home, things of that nature.

A TPC can also be a useful conduit for conveying personal information regarding the defendant including medical conditions, employment history, character for trustworthiness and a variety of other information that might be helpful to reasonably assure the court that the defendant will neither be a danger to the community nor be a flight risk. The  TPC will be subject to cross-examination by the government regarding their testimony and their appropriateness for the role. It is safe to assume that the government knows more about the defendant than might be otherwise expected, and surprises abound in detention hearings. The AUSA may be equipped with information obtained through phone taps, surveillance video, cell phone data extraction, confidential informants and untold other sources. Often they use this information to try and establish that the proposed TPC is not a good candidate because they don't know the defendant as well as they thought (unaware of criminal activity, past missed opportunities to intervene in defendant's destructive behavior, etc.) or won't be helpful for other reasons.

A Detention Hearing Is an Opportunity for Creative Advocacy

The Rule of Evidence do not apply in criminal detention hearings in federal court. Once a defendant has overcome the burden of producing evidence rebutting a presumption (if one exists) then the prosecution has the burden of persuasion to show the court that the defendant should be detained. Different judges approach these hearings differently, but in my experience the common approach in a presumption case begins with the defendant presenting evidence to rebut the presumption, then the government presenting its own evidence. This typically comes in the form of the testimony of an involved or familiar federal agent or task force officer regarding the circumstances of the case.

A defendant can help their release cause by considering relevant statutory factors and how to effectively present to the court as much supportive information as possible. This can include information by way of proffer by the defendant's counsel- essentially their lawyer explaining to the court certain material facts that could be proven if necessary and time allowed. Often the judge is receptive to this type of information (of course unless it is very far-fetched) because of the efficiency engendered in not using multiple witnesses to properly present evidence,  the fact that evidence rules do not apply , and the difficulties involved in properly preparing such evidence on relatively short notice.

Pretrial Release can be Difficult but Is Not Impossible

A defendant seeking release on conditions while their federal criminal case is pending in the Eastern District of North Carolina may face an uphill battle. This is especially true if the charges carry a presumption that they will be detained. Creative advocacy and an experience lawyer who is well-prepared can help, but sometimes the defendant's criminal history and life circumstances make it nearly impossible. In such situations, it might be advisable to parlay a waiver of the detention hearing in exchange for good will or in the spirit of cooperation with the government's investigation. It is important to know when and how hard to fight!

The issue of pretrial detention should not be left to an attorney who is not experienced in handling federal criminal matters. I am available for consultation and representation in federal criminal matters. Initial consultations are always free on any criminal matter!