Fed Crim Pro – Siegler – Fall 2013
Overview of Fed Crim Process
Pretrial Release/Detention
Bail Reform Act, 18 USC § 3142
– Prior to BRA, central focus was “assuring presence in court.” Now, it’s “danger to community”
– Prior to BRA 2% were detained pre-trial; now, over 70% are detained.
– Initial appearance
o § 3142(f) determines whether bond/detention hearing is warranted
§ 7 factors that can trigger detention hearing
· (f)(1) circumstances
o Crime of violence, sex trafficking of children or terrorism
o Crime with max punishment of life or death
o Drug offense punishable by at least 10 years
o Felony case + client has 2 priors that are either:
§ Crime of violence
§ Crime punishable by life or death, or
§ Drug case with 10 yr max
o Any felony involving a minor or possession or use of firearm or destructive device/dangerous weapon
· (f)(2) circumstances/factors
o Serious risk of flight (as demonstrated by track record, such as previous failures to appears
o Serious risk that person will obstruct justice or threaten witness/juror
– Detention (or Bond) hearing
o Occurs 3-5 business days after AUSA successfully invokes at least one (f)-factor
o There is a PRESUMPTION of release–3142(b)
o AUSA must prove that no condition or combo of conditions exist to reasonably assure appearance and safety–see 3142(e)(1)
§ Standard of proof:
· Dangerousness: clear and convincing evidence
· Risk of flight: preponderance (though not mentioned in statute)
§ § 3142(g) factors to determine dangerousness/risk of flight
· (1) nature/circumstances of offense
· (2) family ties
· Employment ties
· Length of time in community
· History of drug/alcohol abuse
· Physical/mental condition
· Criminal history
· Existence of property/assets for collateral
· Strength of evidence against D (least important factor)
· Penalty D faces upon conviction
o 3142(e) contains various presumptions that D must rebut to get out on bond
§ (e)(3) Guns, Drugs or Minor Victim presumption
· No set of conditions if charged w/crime w/at least 10 years punishment
§ (e)(2) Dangerousness presumption
· If D has previously committed a violent crime while on release?
§ Dominguez, 7th Cir
· H: if presumption rebutted, release not automatic, it just means that judge can release. To rebut presumption, D must prove that particular D isn’t dangerous, not that the cr
rime was committed, and that D committed it)
– Not required by 5th amendment indictment clause. But once hearing provided, court can’t restrict right to hearing
o Gerstein: judge must find PC, but this can be ex parte, non-adversary hearing
– Objectives
o For government, establish PC
o For defense:
§ Coleman v AL
· H: D has 6th A right to assistance of counsel at PH (because it is a “critical stage of the prosecution” which is defined by whether presence of counsel is necessary to preserve D’s right to fair trial)
· FOUR reasons PH is critical stage:
o (1) D can undermine PC, expose weaknesses in government’s case
o (2) Discovery. Lawyer can more effectively discover government’s case than indigent D
§ Note, D can’t openly ask discovery questions (such as “how did you obtain this evidence?”). Questions must have demonstrable link to rebutting probable cause.
o (3) creating impeachment for trial (locking gov witness testimony)
o (4) use info gained here in bond hearing
