The criminal justice system is not fair.  Even if you have come to fully appreciate the seriousness of what the government is charging you with, being processed and booked into jail is an extremely traumatic, dehumanizing and degrading experience.  You’ve already been made to feel like a criminal. 

Innocent until proven guilty? It sure doesn’t feel that way and it’s normal to feel scared, anxious and frustrated.  Don’t worry, all my clients come to me feeling that way at first.    If you are here today because you need more information about pretrial detention in federal criminal court, you need help from a criminal defense lawyer that understands the federal system and will fight to protect your rights, help you protect your good name and limit your exposure to harsh consequences.  We can help.  Get started by filling out our contact form or by calling our office, (305) 707-7345, to schedule your Free 4-Point Case Evaluation and Defense Strategy Session.

Why are they trying to keep me in here?

Perhaps the biggest mistake you can make when you’re being detained or have just been arrested is assuming that you are going to be released from custody.  While everyone is presumed innocent until proven guilty, the odds are stacked against you.  When it comes to matters of bond and pretrial release, there are certain cases where pretrial detention presumed to be the best option. What this means is that not everyone is going to get a bond and be released from jail while facing federal criminal charges.  The government can request pretrial detention under numerous circumstances. These are the factors that can trigger the prosecutor’s request to hold you in jail without bond:

  • Crime of Violence
  • Maximum penalty is life imprisonment or death
  • Drug offenses carrying maximum penalty of 10 years or more
  • Felony cases where the defendant has two previous convictions for crimes described in the categories above
  • Serious risk flight (meaning the defendant may attempt to flee/leave the jurisdiction to avoid prosecution)
  • Risk for obstruction of justice (tampering/interfering with witnesses, jurors, etc.)

What is Pretrial Detention?

The government will argue that you should be held in jail and denied bond if you are charged with one of the crimes listed above or if you fall into one of the above categories. Simply put, your request for pretrial release may be denied and you will not have the right to post bond. 

During the initial appearance the Assistant United States Attorney (the prosecutor) handling your case will announce that they are seeking pretrial detention. When the government asks the Court for you to be held without bond, or pretrial detention, you will have to sit in jail for a minimum of three (3) days.  Under the rules, the government may ask the Court for an extension of three (3) days for a detention hearing.  Your lawyer may ask for up to five (5) days in order to prepare.  Regardless of how many days are to pass before you can have your detention hearing, you are stuck sitting in jail until the Magistrate Judge decides whether you should be released on bond.

If the government moves for pretrial detention, the fact that the odds are stacked against you in Federal court becomes even more evident. Even if your attorney is ready for a detention hearing immediately, the government will still be able to request a three (3) day reset. 

While sitting in jail for any amount of time will feel like an eternity, you don’t have a lot of time to get ready for a detention hearing.  It is crucial to hire the best federal criminal defense lawyer you can afford and be sure that you making the choice to hire someone with whom you feel comfortable given their knowledge and experience in this area of law.  Now is not the time to hire the cheapest lawyer, the first lawyer that calls you back, or that buddy who is an attorney and happened to do your mom’s will or your brother’s divorce. 

We’d be happy to speak with you to discuss how we can help.  Get started with your Free 4-Point Case Evaluation and Defense Strategy Session by calling our office at (305) 707-7345.

What Happens at The Detention Hearing?

It is the prosecutor’s job to prove that you are either a danger to the community or pose a risk of flight (meaning that they fear you could leave the jurisdiction and avoid prosecution).  While it is the prosecutor’s burden to prove these factors, the government does not have to prove both factors to have a Magistrate Judge order that you remain in custody.

A detention hearing is more informal than a trial.  The Federal Rules of Evidence don’t apply . Also, that government does not need to present evidence or call witnesses.  However, it’s still the government’s burden to prove to the Court that there are no reasonable conditions under which you can be released that would reasonable assure the safety of the community and/or ensure your presence in court (not a flight risk).  At trial, the government must prove your guilt beyond a reasonable doubt.  Here, all they have to do in order to show that you are a danger to the community is give the Court “clear and convincing evidence,” (a lower standard).  When it comes to determining whether you are a flight risk, the prosecutor only needs to prove the fact to the Magistrate Judge by a preponderance of the evidence.

Your lawyer can cross-examine any witnesses the government calls during the detention hearing and they can also present defenses, witnesses and evidence on your behalf.   In addition, your attorney may also suggest conditions of release as a way of showing the Court that there is a way for you to be released without the fear that you will either flee or do harm to someone while you’re out and awaiting trial. Once the evidence has been presented and arguments have been heard, the Magistrate Judge will decide if you should be released, and if you are to be released, what conditions should apply.

The Magistrate Judge will consider the following factors when determining if you are eligible for release:

  • Nature and circumstances of the offense
  • The weight of the evidence against you
  • Your history and characteristics
    • Character: physical and mental condition, family ties, employment, financial resources, ties to the community, past conduct, criminal history, etc.
  • Whether at the time of the offense you were on probation, parole or bond and pending another criminal case, trial, sentencing or appeal.
  • Nature and seriousness of the danger to the community
  • Immigration status

Best-Case Scenario

If you are granted bond and/or ordered released pending trial, the best-case scenario would be on your personal recognizance or on an unsecured appearance bond. If the Court imposes any conditions, you must be sure to follow all the conditions imposed in order to guarantee that you are not thrown in jail while your case is still pending. 

Worst-Case Scenario

Here, the Magistrate Judge determines there is no way that they can reasonably assure your appearance in court and/or that releasing you will pose a danger to the community.  If this happens, it is likely that you will be denied bond and will have to sit in jail during your case.

If you are here today because you feel frustrated about a loved one being detained as a result of a criminal charge in federal court and it is disrupting your life, we should talk.  

Have You Been Charged With A Federal Crime?

If you've been charged with a federal crime you need to speak with an experienced federal crime attorney as soon as possible. Contact me online or call me at my Miami office directly at 305.707.7345.


Daniel Izquierdo
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Coral Gables defense lawyer helping clients accused of Federal Crimes, DUI, Domestic Violence & Sex Crimes.