Federal Detention Hearings
Pursuant to the Bail Reform Act (18 U.S.C. §§ 3141–3150), the Federal Government can move to detain a defendant if the defendant is a danger to the community or a flight risk.
At the Initial Appearance the Government will typically announce whether they are seeking to detain the defendant without bond. The Federal Government routinely moves to detain defendants on significant drug cases, cases involving alleged violence and sex-related cases. The Government also routinely asks for detention when the defendant is not a United States Citizen.
If the Government requests detention, the Magistrate will typically reset the case several days in order to hold the Detention Hearing.
At the Detention Hearing, the Government has the burden of proof. However, Magistrates quite often tilt in favor of detention when the Government asks for it. At the Detention Hearing the Government typically calls one agent to summarize the evidence against the defendant. The agent oftentimes testifies as to what other agents have told him. At a Detention Hearing, I cross examine the agent in order to demonstrate weaknesses in the Government’s case. I also cross examine the agent in order to demonstrate that my client is not a danger to the community or a flight risk.
At a Detention Hearing, I also put on evidence in favor of my client. I can call witnesses to demonstrate that my client is not a danger to the community or a flight risk. Typically, I call family members, employers and close friends. At a Detention Hearing, I sometimes proceed by way of proffer. Rather than calling the witness to the stand I proffer (state on the record), what the witness would testify to if I called them to the witness stand. Sometimes I will use proffers because I do not want to subject my witnesses to cross examination by the Government.
At the conclusion of the Detention Hearing the Magistrate makes their ruling. They either deny the Government’s motion and release the defendant on conditions of bond, or grant the Government’s motion and order that the defendant be detained and held in custody while the case is pending.