Pretrial Release


SHORSTEIN, LASNETSKI, & GIHON
explains pretrial release in federal court.


When a person is arrested on a federal charge, they may be eligible for pretrial release.  This is a very different process than in Florida state court.  In Federal court,  you rarely have to pay a bond in order to get out of custody.  It is much more black and white.  The judge often will release you with a 3rd party custodian and a signature bond, or will detain you.
What will happen to me when I am arrested on a federal charge?

When a person is arrested on a federal charge, they are typically brought before a magistrate judge very quickly.  Federal Rule of Criminal Procedure 5 requires that a person arrested be brought before a magistrate judge without "unreasonable delay," for an initial appearance. 

What is an initial appearance?

An initial appearance is your first appearance in federal criminal court.  The purpose of an initial appearance is for the magistrate judge to advise you of:
  • the charges against you,
  • the right to retain an attorney or have an attorney appointed,
  • the circumstances of pretrial release,
  • the right to a preliminary hearing, and
  • the right to not make a statement. 

Will I be released at my initial appearance?

It depends.  At your initial appearance, the judge will ask the prosecution what their stance is on pretrial release.  If the prosecution agrees to your pretrial release and if the judge also agrees, you would probably be released with conditions.  If the prosecution seeks detention, you would either have the detention hearing immediately or the prosecutor or defense counsel can ask for a continuance. 

The prosecutor can request a 3 day continuance and the defense can ask for a 5 day continuance.  If the government is seeking detention and you or they ask for a continuance, you would probably be held in custody until the detention hearing was held.

Why would I want a continuance of the detention hearing?

You and your attorney will typically not be prepared for a detention hearing at the initial appearance.  At the detention hearing, your attorney may want to present a third party custodian and other witnesses or evidence to convince the judge that you should be released.  The initial appearance can happen within a very short time of your arrest, so the attorney wouldn't know the facts.  A short continuance could be the difference between detention throughout the case and release. 

Why would the prosecutor seek detention?

The more serious the case and/or the more serious your criminal history, the more likely the prosecution is to seek detention.  For some cases, there is a presumption for detention.  In cases involving narcotics where you are charged with a crime that has a maximum sentence of 10 years or more, cases where you are accused of using a gun during a crime of violence or a drug crime, or cases involving certain repeat offenders all come with a presumption that you will be detained throughout your criminal case.

What factors will the judge consider when deciding whether to release or detain me?

Under 18 U.S.C. Section 3142(g), the judge will consider the following factors in determining whether to release or detain you pending trial:
  • The nature and circumstances of the offense charged
  • The weight of the evidence
  • The history and characteristics of the person, including:
    • character
    • physical mental condition
    • family ties
    • employment
    • financial resources
    • length of residence in the community
    • community ties
    • past conduct
    • history relating to drug or alcohol abuse
    • criminal history
    • record concerning appearance at court proceedings
  • The nature and seriousness of the danger to any person or the community that release would pose.


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