For the Defense - Vol. 5, Issue 1 - 35

Detention Hearing
At the detention hearing before a magistrate judge,
the government and defense counsel can present
evidence and make argument, keeping in mind that
hearsay is admissible. At the hearing, a defendant has
the right to be represented by counsel, afforded an
opportunity to testify, to present witnesses, to crossexamine witnesses who appear at the hearing, and to
present information by proffer.25 The defense will have
the ability to demonstrate to the court the defendant's
ties to the community and that he/she is a not a
danger to the community.
Practice tip: Based on the nature of the charges,
it is important for defense counsel to (1) identify
the burden of proof and determine if there is a
rebuttable presumption and (2) be prepared to
discuss a defendant's background with supporting
documentation, if possible. Often, defense counsel
is not given much time to prepare for the initial
appearance; but, defense counsel can attempt to
have family members present in the courtroom,
obtain verifiable employment information, and
demonstrate that the defendant has a stable,
weapons-free residence with ties to the community.
Additionally, if a defendant has a passport, defense
counsel should be prepared to surrender it upon the
court's request.
Practice tip: "Having a client's friends/family present
in magistrate court for an initial appearance/
detention hearing is critical. It gives the judge a
better understanding of the client's ties to the
community, and it humanizes the client in the
judge's eyes. I've seen numerous detention hearings
where a judge was seriously considering detention,
but in light of strong family support - including
family members offering to secure the defendant's
release by putting up family property - the judge
instead imposed release conditions. This isn't always
possible, depending on the crime(s), the client, and
the timing of the hearing after an arrest; but, to the
extent possible, having a strong show of support in
the courtroom can greatly enhance the chances of
potential release with conditions versus detention."
James Petkun, Klehr Harrison Harvey Branzburg, LLP

Types of Pretrial Conditions
If a court decides to allow a defendant to be
released, there are many different conditions that may
be ordered. Conditions may vary depending on the
nature of the charge, a defendant's criminal history,
and his or her ties to the community. Some conditions
are standard, such as the defendant is not to commit
any new crimes during release; he/she is to reside at a
particular address with travel restrictions, no firearms,
and report as directed to pretrial services; and no

contact with co-defendants or witnesses. Some other
common examples include electronic monitoring or
curfew; substance abuse testing/treatment, mental
health treatment; and various bond types with or
without co-signer. If the court sets bail at a significant
amount of money, a defendant may, with the court's
permission, use real estate as collateral; bail bondsmen
are rarely used in federal court. In some circumstances,
a condition of release may require a defendant to
be placed under the supervision of a third-party
custodian.
Practice tip: If the defendant intends to use real
estate as collateral, defense counsel will need
to provide the clerk's office with supporting
documentation that verifies the value of the
property, i.e., deed, appraisal, mortgage statement,
lien search, tax receipt, etc. If the documentation is
not provided at the time of the initial appearance
and the court does not waive the requirements, the
documents will then need to be provided to the
clerk's office to verify the property at a later time.
While the property is being verified, the defendant
will remain in custody for an additional period of
time.

Challenging Pretrial Detention
The court is expressly authorized to reopen the
detention hearing of a defendant when material
information "that was not known to the movant at
the time of the [initial] hearing" comes to light.26
Where significantly changed circumstances raise a new
issue of law, and additional evidence is proffered, a
court has authority to reconsider its own order.27
If a defendant is not successful at magistrate court,
he/she can file a motion to revoke detention order to
the district court pursuant to Section 3145.28 When the
district court acts on a motion to revoke or amend a
magistrate's pretrial detention order, the court acts de
novo and makes an independent determination of the
proper pretrial detention or conditions for release.29
This will allow defense counsel an opportunity to
present additional information that was not available
at the initial appearance, provide a written submission
for the court's review, and thoroughly prepare for a
hearing. At the hearing, the defendant must present
some evidence to escape the presumption and
demonstrate that there are conditions of release that
will reasonably assure that he or she is not a flight risk
and not a danger to the community.

Conclusion
A key component to effectively representing
a defendant at a federal detention hearing is
understanding the procedure. Pretrial release allows
a defendant the ability to meaningfully assist counsel

Vol. 5, Issue 1 l For The Defense

35



For the Defense - Vol. 5, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 1

Contents
For the Defense - Vol. 5, Issue 1 - 1
For the Defense - Vol. 5, Issue 1 - 2
For the Defense - Vol. 5, Issue 1 - Contents
For the Defense - Vol. 5, Issue 1 - 4
For the Defense - Vol. 5, Issue 1 - 5
For the Defense - Vol. 5, Issue 1 - 6
For the Defense - Vol. 5, Issue 1 - 7
For the Defense - Vol. 5, Issue 1 - 8
For the Defense - Vol. 5, Issue 1 - 9
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For the Defense - Vol. 5, Issue 1 - 11
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For the Defense - Vol. 5, Issue 1 - 13
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For the Defense - Vol. 5, Issue 1 - 15
For the Defense - Vol. 5, Issue 1 - 16
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For the Defense - Vol. 5, Issue 1 - 18
For the Defense - Vol. 5, Issue 1 - 19
For the Defense - Vol. 5, Issue 1 - 20
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For the Defense - Vol. 5, Issue 1 - 22
For the Defense - Vol. 5, Issue 1 - 23
For the Defense - Vol. 5, Issue 1 - 24
For the Defense - Vol. 5, Issue 1 - 25
For the Defense - Vol. 5, Issue 1 - 26
For the Defense - Vol. 5, Issue 1 - 27
For the Defense - Vol. 5, Issue 1 - 28
For the Defense - Vol. 5, Issue 1 - 29
For the Defense - Vol. 5, Issue 1 - 30
For the Defense - Vol. 5, Issue 1 - 31
For the Defense - Vol. 5, Issue 1 - 32
For the Defense - Vol. 5, Issue 1 - 33
For the Defense - Vol. 5, Issue 1 - 34
For the Defense - Vol. 5, Issue 1 - 35
For the Defense - Vol. 5, Issue 1 - 36
For the Defense - Vol. 5, Issue 1 - 37
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For the Defense - Vol. 5, Issue 1 - 44
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