FEDERAL PROCEDURE

One of the benefits of Federal Court is the standardized procedural practice. A lawyer from Texas can travel to a federal court in Alaska and be instantly familiar with the process. Unlike, many State courts, the federal district court often incorporate magistrates to deal with preliminary matters, including initial appearances, arraignments and detention hearings.

A defendant charged with a federal crime can be summoned to court, although in practice, this is rare. Most of the time he is arrested and held until his preliminary appearance in front of a magistrate. If the Assistant U.S. Attorney recommends detention, the magistrate will determine whether the defendant has an attorney and then will set the date for a detention hearing. In practice, this means many defendants spend days in jail before the judge decides to release him. This may come as a shock to newcomers in the federal system, especially if they are familiar with the state practice of bail bonds.

The Bail Reform act of 1984 mandates release of a defendant on personal recognizance unless the court determines that "such release will not reasonably assure" the person's appearance in court, or "will endanger the safety of any other person or the community". For most financial crimes, such as bank or wire fraud, the defendant is likely to be released with some conditions. If a defendant is charged with a drug charge of some magnitude, the Act presumes that no condition is adequate for pretrial release. The defendant can rebut this presumption.

A detention hearing shall be held immediately, unless the government moves for a continuance. In such a case, the hearing must be held within three days, not including legal holidays or weekends. Assuming the case has not already been indicted, the government must prove two things at a detention hearing: 1) probable cause that a crime has been committed and 2) reasons why the defendant is likely to flee or be a danger to the community if released. Defense counsel has the right to fully cross exam any government witnesses and produce evidence rebutting dangerousness or possible flight. The rules of evidence do not apply at a detention hearing.

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