Federal Detention Hearings

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Fed Detention Hearing


Federal Detention Hearings

by Nick Mudd PLLC

Defined (18 U.S.C. 3141)

The 8th Amendment to the United States Constitution provides that, “excessive bail shall not be required…” The US Supreme Court has interpreted this to amendment to prohibit the imposition of excessive bail without creating a right to bail in criminal cases, but does not grant an absolute right to bail. Basically, a federal detention hearing is much like a bail hearing in state court. It’s a hearing at which the court determines whether to detain the defendant without bail. Your detention hearing will also usually be conducted by a magistrate judge. The magistrate judge will look at the U.S. Code to see what factors to consider in determining whether you should be held or released pending arraignment. Although there are many factors, the analysis comes down to three things


  • Does the judge believe that you will show up for future court appearances?
  • Does the judge believe that your release will present a danger to the community?
  • Does the government have a strong case against you?

The Bail Reform Act of 1984

Found in Title 18 of the US Code, pursuant to federal statute, a federal detention hearing is required in cases involving violence, including any offense where the maximum sentence is life imprisonment or death, or for certain drug offenses where a maximum sentence of ten years or more is prescribed. A hearing is required for certain defendants who have multiple convictions. One will also be held if it appears to involve a serious risk that the defendant will flee, or where it appears that the defendant will obstruct or attempt to obstruct justice or tamper with prospective witnesses or jurors. The detention hearing must be held promptly, preferably at the time of the defendant’s first appearance in court. If bail is denied, the court must issue a written order with findings of fact and a statement of the reasons for the detention.

Categories of Pretrial Release and Detention

Title 18 of the US Code, Section 3142 defines the categories of release and detention a defendant may be subject to. Specifically, it states “that upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall make a determination regarding bail status of the defendant, and shall enter an order designating a defendant’s custodial status” under one of four categories

  • Released on personal recognizance or upon execution of an unsecured appearance bond
  • Released on a condition of combination of conditions as defined by Section 3142(c);
  • Temporarily detained to permit revocation of conditional release, deportation, or exclusion under Section 3142(d); or
  • Detained pursuant to the provisions of Section 3142(e).

Timing of Federal Detention Hearing

Ideally, the hearing is supposed to take place immediately upon the defendant’s first appearance before the judicial officer. However, given the fact that a defendant may lack representation at this initial appearance, the detention hearing is not likely to go forward unless the court has made other arrangements for the defendant to be represented by counsel. Section 3142(f)(2) also permits a 3 day delay of the detention hearing upon the motion of the government attorney. A defendant may request a continuance of up to 5 days under this section, for good cause shown. Between the time the detention motion is filed and the actual detention hearing (up through the court’s ruling on the motion for detention), the defendant will remain in the custody of the United States Marshal’s Office. 18 U.S.C. § 3142(f)(2). A hearing may be reopened before or after the court’s ruling on a detention motion, at any time before trial if the judicial officer makes a factual finding that information exists that was not previously known at the time of the hearing and that the information is material on the issue of whether there are conditions of release that will reasonably assure the appearance of the defendant and the safety of any other person and the community. Keep in mind the following:

  • Detention hearings are informal and the evidence presented is not governed by the Federal Rules of Evidence
  • The government may proceed in a detention hearing by way of proffer

 Application of the Rebuttable Presumption

Title 18, USC, Section 3142(e) contains three categories of criminal offenses that give rise to a rebuttable presumption that “no condition or combination of conditions” will


  • “reasonably assure” the safety of any other person and the community if the defendant is released or
  • “reasonably assure” the appearance of the defendant as required and “reasonably assure” the safety of any other person and the community if the defendant is released. These three categories are
  1. A judicial officer finds that:
    1. The person convicted of a federal offense described in subsection (f)(1) and the offense was committed while the person was on release pending trial for a Federal, State, or local offense, and
    2. A period of not more than 5 years has elapsed since the date of conviction, or the release of the person from imprisonment, for the offense described in paragraph (1) of this subsection, whichever is later.
  2. A judicial officer finds there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of 10 years or more is prescribed.
  3. A judicial officer finds that there is probable cause to believe that the person committed an offense under 18 USC 924 (c).

Burden of Proof at Federal Detention Hearings

The government’s burden is to establish by clear and convincing evidence that no conditions of release will reasonably assure the safety of the community. The standard is different when the issue is whether any conditions of release will reasonably assure the defendant’s attendance at trial (risk of flight); the government need only prove that there are no such conditions by a “preponderance of the evidence.”

How and by Whom Motion for Detention Hearing is Made

In most districts, the motion is made orally, although some districts require a written motion served prior to the initial appearance. A motion by the government will generally being the process leading to a detention hearing. But the court can order a detention hearing on its own in certain circumstances.

Section 3142(f) provides that any detention hearing “shall be held immediately upon the person’s first appearance before the judicial officer” unless the court grants a request for a continuance, as authorized by the Act. Two circuits have uniformly held that this requires the government to make any motion for a detention hearing at defendant’s initial appearance. Other circuits have specified circumstances under which the motion can be made at a later time. Where the motion is not timely made, it is not clear what remedy, if any, exists.

Continuances and Detention Hearing

The detention hearing is to be held at the first appearance, unless defendant or the government requests a continuance. Section 3142(f) provides: “except for good cause, a continuance on motion of the defendant may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days. During a continuance, the defendant shall be detained…” Courts are split as to whether the weekends and holidays count.



For informational purposes only.  This document does not constitute attorney-client communications nor does it establish an attorney-client relationship.  Call our office at (502) 536-8062 to set up a consultation with federal criminal attorney Nick Mudd.  If you have a friend or family member facing a federal detention hearing, don’t wait…contact us now!!  Our after hours number is (502) 536-8062.


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