 A Federal Judicial Center Orientation Series for United States Magistrate Judges Criminal Litigation Before Magistrate Judges Part 2 Pre-Trial Services, Appointment of Counsel, Initial Appearance, Preliminary Examination, Pre-Trial Release, and Detention and Removal Hearings with the Honorable Tommy E. Miller Judge Miller was appointed United States Magistrate Judge for the Eastern District of Virginia in 1987. He is an officer of the Federal Magistrate Judges Association and serves on the Federal Judicial Center's Committee on Magistrate Judge Education. Judge James G. Carr was appointed United States Magistrate Judge for the Northern District of Ohio in 1979. He has served as a member of the Criminal Law Committee of the Judicial Conference and Judge Virginia Morgan. Judge Morgan has served as a United States Magistrate Judge for the Eastern District of Michigan since 1985. She is an officer of the Federal Magistrate Judges Association and a member of the Long Range Planning Committee of the Judicial Conference. Welcome to Part 2 of Criminal Litigation Before Magistrate Judges. In Part 1, Judge Goodstein introduced you to three of the pre-trial procedures you will usually perform prior to the arrest of a defendant in a criminal case. Judge Goodstein introduced you to complaints, warrants for arrest, and search warrants. Judges Morgan and Carr and I will continue this discussion by focusing on the pre-trial procedures you will perform after the arrest of a defendant. Pre-trial services, appointment of counsel, initial appearances, pre-trial release, detention hearings, preliminary examinations, and removal hearings. We hope you'll find our discussion and many of our suggestions helpful to begin your new duties as a Magistrate Judge. Keep in mind that the topics covered by our discussion apply to both misdemeanors and felonies. We'll also be referring to the federal rules of criminal procedure throughout our discussion. When possible, we'll use the hypothetical criminal drug case and criminal procedure flow chart presented in Part 1 to illustrate what we're discussing. We have quite a few topics to address in this program, so let's get started with our discussion of pre-trial services. Judge Carr, the decision whether to release a defendant pending trial or to order pre-trial detention is a difficult and demanding one. To aid this decision-making process, Congress enacted the Pre-Trial Services Act. Since adoption of the Act in 1984, Congress has mandated the provision of pre-trial services in each of the 94 federal districts. The Act, which is codified at Title 18 United States Code, Sections 3152 through 3156 envisions two distinct ways in which pre-trial services are to be provided, either through a pre-trial services agency or through the probation office. Pre-trial services officers play a crucial and helpful role at every initial appearance, other than in petty offense cases, and every detention hearing. Section 3154 of the Pre-Trial Services Act lists various functions and powers that have been delegated to the Pre-Trial Services Agency or its probation department counterpart. The first of these functions, and the focus of this discussion, is to collect, verify, and report information relating to the pre-trial release of the defendant. This includes information bearing on dangerousness and, where appropriate, a recommendation on whether the defendant should be released or detained. The collection, verification, and reporting of information relating to the defendant and his or her background are at the core of any effective pre-trial services operation. In the absence of adequate and accurate information bearing on the issue of pre-trial release, the magistrate judge is left unaided and unguided in his or her decision making. The risk of error and the likelihood of injustice in that circumstance are equally great. Judge Carr, wouldn't you agree that some tension exists between the amount of time pre-trial services needs to prepare the necessary information and the defendant's right to a prompt appearance and the right to counsel? Yes. There is no perfect way to accommodate these potentially conflicting interests. But there are a couple of steps that a magistrate judge can take to reduce some of the potential for delay. The first is to make certain that pre-trial services is notified immediately by either the marshals office or the law enforcement agency when an arrest has occurred. There is no need to postpone notification to the agency until the defendant has actually been delivered to the courthouse, which may have been as long as several hours after the arrest. Second, pre-trial services should be given the basic background information about the defendant is known by the arresting officers or law enforcement agency at the time pre-trial services is first told of the arrest. A copy of the warrant, a complaint, or indictment will also be given to the pre-trial service officer at this point. In addition, you should instruct the prosecutor's office routinely to inform the pre-trial services officer whether it will be requesting pre-trial detention or if it is aware of any special circumstances that bear on the question of release or detention prior to the initial appearance. Third, have the officer adapt the pre-trial services report to the circumstances. If a detention hearing appears likely, the officer should be encouraged to present you with a very brief report and to postpone preparation of a more elaborate report until the detention hearing. In other words, as part of your working relationship with government agents, assistant U.S. attorneys, and pre-trial services officers, you should communicate your expectation that all available steps will be taken to reduce the delay between the defendant's arrest and his or her appearance before you. Another problem, in addition to delay, is the risk that the defendant may unwittingly incriminate himself. That's absolutely correct. Much of the information about the defendant, the defendant's ties to the community, employment and family situation, and education and other pertinent factors is elicited during the pre-trial service officer's initial interview with the defendant. That process is not entirely without risk to the defendant, however, and procedures have been implemented to avoid those risks. In some courts, particularly where there's a federal public defender's office, an attorney may be readily available to consult with the defendant prior to or during the interview. In other courts, particularly those in which there's no federal public defender, significant delay may result if the pre-trial service officer's interview does not occur until counsel has consulted with the defendant. Even where the defendant has retained counsel, a significant amount of time may pass before the lawyer can come to the courthouse to meet with the defendant. Delay is undesirable from the defendant's standpoint as well as yours. Continued confinement may have a coercive effect that diminishes the defendant's willingness to assert constitutional rights. Using the hypothetical criminal case shown in Part 1, let's see how the pre-trial services officer handles Angela Smith's case. As you will recall, Smith was arrested for selling cocaine to undercover agent Ralph Brown of the Drug Enforcement Administration. The co-defendant, Michael Jones, drove away from the crime scene. Smith was processed by the United States Marshals Office. Agent Brown has already discussed the case with Assistant U.S. Attorney Ron Johnson. Johnson and Brown have drafted a complaint against Angela Smith, which will be presented to a magistrate judge at Smith's initial appearance. Smith is now in the cell block of the federal courthouse and is about to meet her pre-trial service officer for the first time. Ms. Smith, could you come here please? I'm a pre-trial services officer here. I need to fill out this form for you. It's just general information for you some determining conditions of release. Wait, what? A pre-trial what? Service report. What kind of information do you need? Just general information, residence employment. Okay, present address. 4107 to represent me in court. Okay, do you want to hire a lawyer? I can't hire an attorney. I can't afford it. Can't they appoint me one? Sure. If the court finds that you are unable to afford an attorney, the court will appoint one for you. Then you won't have to pay the lawyer's face. Right, just as long as it's free. Would you like the court to appoint you an attorney? As long as it's free. Okay, in that case you need to fill out this financial affidavit right here. And then you'll swear to it that all the information is true. The court will review it, and if you qualify, it will appoint you a court attorney. Okay, first you need to fill out the rent here month by month. Okay, okay. Again, here's income month by month. That's important. And then... As you've just seen, the pre-trial service officer is generally the first officer of the federal court system to contact the defendant. Most courts permit the officer to meet with the defendant in the absence of counsel, just as you saw here. And to present the defendant with a financial affidavit and a notice of rights and waiver form, both of which are included in the appendix to your written materials. The financial affidavit form is given to the magistrate judge, who reviews the information and decides whether or not the defendant qualifies for court appointed counsel. The notice of rights and waiver form focuses on three topics. The defendant's prior criminal record, his or her drug abuse, and unlawful sources of income. Which, if discussed by the defendant with the officer, may affect the defendant adversely at sentencing. Under the United States sentencing guidelines, proof of a prior criminal record, drug abuse, or an unlawful source of income may result in an increase in the defendant's guideline range. There is, accordingly, a concern that the defendant not be compelled to provide this information during the pre-trial services interview. Should the defendant be convicted, all information obtained during that interview will be made available to the probation officer preparing the pre-sentence report. On the other hand, this information is critical to the determinations you must make at the initial appearance. Nevertheless, this dilemma, which in the past has led to some courts to restrict access by pre-trial services officers to unrepresented defendants, can be avoided. One means of avoiding it is by using the notice of rights and waiver form that we just mentioned. Another is to encourage officers to check other available sources of information on these topics. The pre-trial services officer should have access to the defendant's prior criminal record through the agency's own office or through the marshals or other law enforcement sources. Also, the defendant should not be viewed as the only source of information about his or her possible drug use and financial circumstances. In most cases, that information can be obtained fairly quickly as part of the process of verifying information about the defendant's family ties and ties to the community. Such verification comes most typically from a spouse, parent, or other relative or friend. Where release is a possibility at the initial appearance, the pre-trial services officer's report should include any release conditions that should be imposed, including a program of supervision. These conditions usually will be fairly standard, but it is always useful to have them listed for your reference. Even where the process of gathering and verifying basic information is expedited, additional delay resulting from the time required by the officer to prepare a written report for your consideration is unavoidable. And where you may be tempted to save time by dispensing with the written report, I can only urge you not to do so. A written report, which is a record of the officer's activities, findings, and recommendation, is the most useful, reliable, and effective means of comprehending and using the information the officer has obtained and confirmed. Or his report may also note not confirmed. Of course, it may be necessary to dispense with the written report in some circumstances. But even then, a post-hearing report should be filed for the record. And as a general rule, you should expect and wait for a written report. What's your opinion on recommendations from pre-trial services officers concerning detention and conditions of release? My opinion, it's preferable that the officer's report include a recommendation on detention or release on conditions. That recommendation is not binding, of course, but it helps focus your thoughts. It may also cause you to ask the officer to obtain further information about a topic that has either been overlooked or not covered as thoroughly as necessary. A few moments' discussion with the officer before the initial appearance is also appropriate. That discussion should, however, be between you and the officer, or between you, the officer, and counsel for both parties. Any request by counsel to be heard ex parte should be denied. When a defendant has been arrested on a complaint, there's a likelihood that the government will seek to indict him or her, not just on the charge set forth in the complaint, but on other charges as well. The extent and severity of such additional charges may have a bearing on your view of the risk of flight or danger to the community, and the government may indicate whether such additional charges are likely to be filed. On the other hand, you should not permit the government to develop a habit of asserting at the initial appearance that other charges will be filed and then failing to go forward on those charges later. Nor should the possibility that the defendant may ultimately have additional offenses be used as a device to keep the defendant in custody on a pending charge that, standing alone, would warrant release. I agree, but I also think that it is essential that you remember your limited role as a magistrate judge. If the government volunteers additional charges and seeks to rely on them, you may consider them for whatever value you think they have. However, if they do not, it would be inappropriate for you to inquire as to what other potential charges the defendant may face, because you could possibly interfere in the grand jury process and impact on prosecutorial discretion. My point is a simple one, and that is, if you detect that certain assistant U.S. attorneys routinely appear before you at the time of initial appearance and indicate in support of a detention request that they have additional charges that they plan to file, and then it comes to your attention that no such charges are filed in due course, you should be alert to that kind of tactic that may be offered improperly to seek detention when otherwise release would be appropriate. Now, who should get a copy of the pretrial services report? The pretrial service officers report should be made available to the prosecutor and the defense attorney if there is one at the initial appearance. The pretrial services officer will retrieve those copies as well as your own at the conclusion of the hearing. So far, we've talked about pretrial services and the various recommendations concerning detention and conditions of release. Now let's talk about one of the first things the defendant will discuss with the pretrial services officer, the appointment of counsel. As you know, the Sixth Amendment to the Constitution guarantees persons accused of most crimes the right to be represented by an attorney. The Criminal Justice Act implements this guarantee in the federal courts by providing legal counsel to represent defendants who don't have enough money to hire attorneys for criminal cases. The Act calls for the appointment by the Court of Defense Counsel in Felony and misdemeanor cases and in a variety of other situations in which the accused may be incarcerated if convicted. It also allows the United States District Courts to set up different plans for appointing lawyers for indigent defendants. It will be your job to determine whether the defendant is indigent for purposes of appointing counsel under the Act. That determination is made based on the statements contained in the defendant's financial affidavit when in doubt you should err on the side of appointing counsel rather than denying counsel. Remember, if you later determine that the defendant is able to pay part or all of the cost of the court appointed attorney, you can order the defendant to make that partial or total payment to the clerk of court. The selection of the attorney is an important aspect of the appointment process. If you find that the defendant cannot afford to hire an attorney, the selection of the court appointed attorney is also governed by the Criminal Justice Act located at Title 18, United States Code, Section 3006A. In some districts, the magistrate judge appoints the Federal Public Defender's Office to represent defendants. In others, the magistrate judge selects an attorney from a list of private attorneys from the community who have been approved by the court to represent defendants under the Criminal Justice Act. Such attorneys are sometimes referred to as CJA panel attorneys. Sometimes the defendant will be uncertain about whether he or she will be able to retain counsel. In such a case, you should set a deadline for appearance by retaining counsel. Or you can set a deadline by which time the defendant must retain counsel. And at that time, the defendant's attorney has not entered an appearance. You should make further inquiry with respect to indigency. And if possible, you should appoint counsel or conduct an inquiry regarding prosa representation. What about the situation where the counsel who is retained wishes to make only a limited appearance? Or the situation where counsel is initially retained and enters an appearance but the retainer is not forthcoming? Judge Morgan? Limited appearances are generally not a good idea. It is important to have a lawyer who is committed to representing the defendant through the entire case, including the appeal. Limited appearances should rarely be accepted by the court. It should also be carefully explained to retain counsel that once the attorney enters an appearance, withdrawal is only by leave of court. One alternative is to appoint the Federal Public Defender's Office to represent the defendant at the initial stages and then have retained counsel substitute in. The difficulty, however, is that a substitution late in the pretrial stage may result in delay of the trial. Another alternative is to allow the lawyer to speak on behalf of the defendant for bond purposes only, without requiring the lawyer to enter an appearance until the next court date by which time he or she should be retained. Let's take another look at our hypothetical drug case. Let's assume that the magistrate judge finds that Angela Smith is financially unable to hire counsel and appoints attorney Jack Lee from the Public Defender's Office to represent her under the Criminal Justice Act. Ms. Lee? Yes, Ms. Lee? Hi, my name is Jack Lee. I'm an attorney with the Federal Public Defender and I've been appointed to represent you in your case. Well, I mean, I'm real glad that the judge appointed you and all, but I have a question. How can you work for me if you work for the judge? Well, that's a good question, Ms. Smith. My answer is this. Like all lawyers, I have to follow certain legal and ethical rules in my dealings with the court. And it's true that the court has appointed me as your attorney in this case. But I don't work for that judge and I don't work for the court. So who do you work for? I work for the Federal Public Defender. What's that? It's an organization of lawyers separate from the court. It's like a law firm full of lawyers who specialize in defending criminal cases. Well, I just hope that you do the same thing defending my case that a private lawyer would. I will. And just like a lawyer in private practice, my job is to protect your legal rights and make sure you get the best possible results in your case. But if you make the judge angry, won't he fire you? Look, Ms. Smith, the bottom line is this. When the judge appointed me to defend you in this case, he knew that like any defense lawyer, paid or appointed, my job is to give you the best legal representation I can. And that's what I intend to do. Okay. I feel a little bit better. In this case, the public defender, Jack Lee, was appointed before court actually began. That gave defendant Smith an opportunity to speak with her attorney prior to the initial appearance before the magistrate judge. This is not always the case. In some districts, public defenders will not be available and the actual appointment of counsel occurs in open court during the defendant's initial appearance. If that is the case, you should allow sufficient time for the defendant to meet briefly with appointed counsel before completing the initial appearance. What about the defendant who informs you that he or she wishes to waive the right to counsel and proceed pro se? This can sometimes create a troublesome situation. Yes, it can. An accused has a constitutional right to waive counsel and to represent himself or herself if he or she chooses to do so. However, courts have held that the defendant must knowingly and voluntarily waive the right to counsel. This means that you must make clear on the record that the defendant is fully aware of the hazards and disadvantages of self-representation. But what issues do you take into consideration before allowing such representation? There are many issues and Section 1.02 of the Bench Book for United States District Judges includes a colloquy that has been approved in a number of cases for establishing an appropriate waiver of counsel. You'll find a list of questions you should ask the defendant before granting the waiver. For instance, you must ask the defendant whether he has ever studied law or represented himself in other actions. You must advise the defendant of the nature of the crimes charged and the maximum penalty. Point out to the defendant the need for understanding the federal rules of evidence and the federal rules of criminal procedure and explain the voluntary nature of the waiver. In addition, you should emphasize that the court cannot give the defendant any advice on how to handle the case. The Bench Book also recommends that you consider the appointment of standby counsel to assist the defendant and to replace the prosa representation should you determine during trial that the defendant is unable to proceed prosa. These are just some of the issues and questions you should address before you allow prosa representation. That brings up two serious problems, hybrid representation and joint representation. What's your opinion on them? Hybrid representation should be discouraged. The defendant should either proceed prosa or have a lawyer. It should be noted that the defendant will not be able to claim ineffective assistance of counsel if he proceeds prosa. A related matter is joint representation of more than one defendant by the same counsel. This presents a different problem which may arise at any stage of the case. Ordinarily, the court appoints separate and independent counsel for each defendant. Occasionally, however, defendants will seek to share the same retained counsel. If a federal public defender is appointed, that attorney or the court should make sure that there are no conflicts from joint or prior representation. If there are, a panel attorney should be assigned. Under Rule 44C of the Federal Rules of Criminal Procedure, the court has a duty to promptly inquire about joint representation and to advise jointly represented defendants of their right to independent counsel. Again, you should take whatever measures you think are necessary to protect each defendant's right to counsel. If this gives the court substantial discretion, does it not to accept or reject proffered appearances on behalf of two or more joint defendants? Yes. And in wheat versus the United States, the Supreme Court said that the court did have discretion in this area. Rarely is there a good reason for defendants to be jointly represented. On the other hand, there are many good reasons for detecting and responding to conflicts of interest in joint representation cases at the earliest possible time. Some of the conflicts that may arise with dual representation of co-defendants concern pretrial matters, such as lack of independent investigation in support of each defendant's case or the inhibition or even total prevention of independent plea negotiations. Other conflicts may arise at trial or sentencing. So in other words, you would strongly recommend that magistrate judges advise co-defendants against dual representation. Yes. I believe it is the responsibility of the magistrate judge to make clear that a court-appointed attorney is available to represent the co-defendant or to consult with the co-defendant concerning the potential problems with dual representation. An attorney proposing to jointly represent co-defendants should be required to assure the court that such representation will not give rise to a conflict that might result in a lack of effective assistance of counsel or prejudice to any defendant. We should also point out that Section 1.22 of the Bench Book contains a series of questions you should ask the defendant regarding joint representation and that Section 1.23 contains a sample waiver of conflict of interest form. You should address these questions directly to the defendant and not just to counsel and have the defendant sign the waiver of conflict of interest form in any joint representation circumstance. Once the defendant has spoken with an attorney, the next step is for the defendant to appear before the magistrate judge at the initial appearance. Let's return to our hypothetical case and see what happens in Angela Smith's initial appearance. Good morning. Will counsel please identify themselves for the record? Good morning, Your Honor. Assistant United States Attorney Rhonda Johnson for the United States. Jack Lee on behalf of Miss Smith, Your Honor. Good morning. State your name for the record, please, ma'am. Angela Smith. Would the Deputy Clerk please administer the oath to Miss Smith? Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth to help you, God? I do. Miss Smith, let me advise you that you are not required to make any statement in connection with this matter. Even if you've made a statement, you need not say anything more to anyone about this case other than to your attorney, of course. Now, if you start to make a statement to anyone, you have the right to stop at any time. Any statement made by you can be used against you. Do you understand those rights, ma'am? Yes, Your Honor. Have you had an opportunity to speak with Mr. Lee about this case? Yes. Now, Miss Smith, as you know, I've reviewed your financial affidavit and I've appointed Mr. Lee to be your counsel to represent you under the Criminal Justice Act. But I want you to know that you have a right to employ counsel of your own choosing if you can afford it. I understand. I'm gonna stick with Mr. Lee. Very well. Miss Johnson, do you have a matter for the court to consider? Yes, Your Honor. The United States has filed a complaint and affidavit against Miss Smith on this matter. Now, Miss Smith, you've been brought before me today because the United States Attorney has charged you with a violation of law to width distribution of cocaine, a control substance and violation of Title 21, Section 841 of the Code. Now, the purpose of this hearing is not to decide your guilt or innocence, but to advise you of your rights and to make some preliminary decisions about bail. Now, I've read the complaint and affidavit filed by the United States in this matter and I find probable cause to believe that Miss Smith committed the offense of distribution of a control substance, that is cocaine. Miss Smith, you have a right to what is called a preliminary hearing in this case, since it is a felony case. Now, at the preliminary hearing, the government must present evidence that is probable cause to believe that the offense of distribution of cocaine was committed and that you committed it. Mr. Lee, does your client wish a preliminary examination? She does, Your Honor. Very well. We'll pick a date in just a minute. The initial appearance is the defendant's first appearance before a judicial officer in the federal court system. It is governed by Rule 5 of the Federal Rules of Criminal Procedure. As you've just seen, the magistrate judge is charged by Rule 5. The magistrate judge must, one, inform the defendant of the charges against her. Two, advise the defendant that she has the right to have counsel of her own choosing and that if she cannot afford to pay for an attorney, one will be provided at government expense. And three, advise the defendant that she has the right not to make a statement and if she does make a statement that the statement might be used against her. If the defendant has been charged by a complaint and not by a grand jury indictment, the defendant also has a right to a preliminary examination within 10 days that the defendant is in custody and within 20 days that the defendant is not in custody. You should be certain to ask the defendant if he or she has received a copy of the charging document, whether it is a complaint or an indictment. Although not required by Rule 5, many magistrate judges also advise the defendant of the possible penalties including any mandatory minimum sentence. Ideally, the defendant's counsel and assistant United States attorney and a pretrial services officer will be present at the initial appearance. However, the scheduling of an appearance without unnecessary delay as required by Federal Rule of Criminal Procedure 5A sometimes precludes the appearance of all the parties at the initial appearance. As Judge Carr mentioned earlier, preparation of the pretrial services report may also delay the initial appearance. Usually the report can be prepared in no more than two hours. However, an uncooperative defendant or unverifiable information may require extensive investigation on the part of the pretrial services officer to determine the background of a defendant and such an investigation takes time. Moreover, some magistrate judges are located in areas where there is no United States attorney's office. In this case, the judge may wish to have the assistant United States attorney communicate with the court by conference call to ensure the government's appearance at the initial appearance. The final matter to be addressed under Rule 5 is whether the defendant should be released or detained pending the trial. As you can see from the flow chart, this determination can be made more than once in the process. The decision is based on the same statute regardless of whether it is made at the initial appearance or at the arraignment. You must apply the provisions of the Bail Reform Act of 1984 contained in Title 18 of the United States Code. The act requires every accused to be released without posting bail or meeting special conditions of release unless the judicial officer finds that the defendant is likely to flee, endangered the safety of any other person, or endangered the community. In such event, the magistrate judge must impose the least restrictive further condition or combination of conditions that will reasonably assure the defendant's appearance and the community's safety. If the defendant is released before trial on conditions, you must sign an order setting conditions of release. A copy of the form is included in the appendix to your written materials. You'll notice that the form sets forth all of the pre-trial conditions imposed on the defendant as well as the consequences that will result if the defendant is alive with the conditions. If the magistrate judge finds that no conditions of release are adequate, then the detention of the defendant can be ordered, but only after a pre-trial detention hearing is held. We'll talk about detention hearings a little later in the program. First, let's take a few minutes to consider some of the release conditions that are available to district courts under section 3142C of the Bail Reform Act. In this discussion, I will be following the sequence that appears in the legal manual for the United States Magistrates and the monograph entitled Judicial Officers' Reference on Alternatives to Detention, which has been prepared by the Probation Division of the Administrative Office. Both are available from the Magistrate Judges Division of the Administrative Office. The first release condition we'll discuss is a condition requiring the defendant this typically will be either the pre-trial services agency or the probation department depending on which agency is responsible for pre-trial services in your court. The frequency and type of contact usually can be set by the officer responsible for monitoring compliance with the order of release. Another release condition is third-party custody. This typically is with a spouse or relative, though another custodian may be considered. In many instances, you will want to have pre-trial services also check the background of the proposed custodian. The important consideration is whether such custodian manifests qualities of mature judgment and responsibility sufficient to give you confidence that he or she will place the obligation to the court ahead of any sense of commitment that may be felt toward the defendant. Some magistrate judges rarely use third-party custodians. Others, like myself, use them frequently in the theory that even when release is warranted in any event it is always useful to have an additional pair of eyes on the defendant. I use this condition primarily when the defendant is young and I require him to live with his parents whom I require to be third-party custodians. Outpatient substance abuse treatments and outpatient mental health services are two other release conditions. These conditions are desirable whenever the defendant has a history of drug or alcohol abuse or mental health problems. You should keep in mind that pre-trial services often have contracts with treatment providers that assure immediate access at government expense to such treatment. Another release condition is to impose a curfew or home confinement. This condition restricts the defendant to a specific location during specified hours. It is often combined with supervision by a third-party or pre-trial service agency which can be required to maintain telephone contact with the defendant to ensure that he is where he is supposed to be in accordance with the curfew's conditions. Alternatively, you can have compliance with curfew or confinement supervised by means of electronic monitoring. Home confinement with electronic monitoring monitors a defendant's presence at a location designated by the court. The cost of such monitoring which are less than $10 per day in most areas can be imposed on the defendant or paid for by federal funds. Electronic monitoring whether used in conjunction with a curfew or as part of a more restrictive regime such as home confinement is no guarantee of appearance but it does offer the benefit of prompt notice that something is amiss. Most magistrate judges who have used electronic monitors appear to be well satisfied with their effectiveness as an alternative to detention where risk of flight is a concern. Home confinement without electronic monitoring sometimes referred to as house arrest is a released condition which confines the defendant to a specific residence system. The security of this approach can be enhanced by third party custody and supervision by pretrial services officer. As noted in the monograph a variety of factors may diminish the reliance that can be placed on this alternative. Financial conditions are another released condition which addresses risk of flight by the defendant. Most commonly the defendant may be required to execute an unsecured appearance bond. Additional signatories may also be required to enhance the security afforded by this bond. An agreement to forfeit title commonly referred to as a property bond is another possibility. You can make this as formal or as informal as you desire. Some courts take a quick claim deed from the owners of record. Others take other forms of conveyance while others use forms available from the administrative office. In any event the effect is the same. The property is posted as security for the defendant's appearance and compliance with the law. It's important to note that some magistrate judges have declined to consider property bonds because of perceived problems with verifying the value of the property, recording and releasing the bonds and other similar issues. From a practical standpoint these should rarely become impediments to taking real property as security. There is no requirement of an appraisal or even proof of ownership if you choose to dispense with this requirement. That's right. I have found that placing the owners of record under oath and having them testify to their ownership, equity and liens usually provides all the assurance I need. Moreover, I rarely require the bond be recorded and if I do, the defendant or property holders require to bear the costs. Cash bonds and percentage bonds are also alternatives to detention to considering cases where the defendant has resources to post such bonds. Both give the defendant a stake in appearing for trial and otherwise complying with the conditions of release. Under the Bail Reform Act a cash or percentage bond should not be set as a condition where the defendant is clearly unable to post a particular amount. If you take that route you are avoiding your responsibility either to allow release on conditions that can be met or to ordered detention. Another release condition is the corporate surety bond. It's my opinion that corporate surety bonds have the unwelcome effect of causing the federal criminal justice system to rely on the unregulated efforts of the surety or the bail bondsman to apprehend fugitives. I also believe that use of bail bondsman may encourage some magistrate judges to disregard alternatives to detention that Congress has specified in section 3142C of the Bail Reform Act and to refrain from developing conditions suitable to individual cases and circumstances. I have never used a corporate surety bond and can perceive almost no circumstance in which I would do so. The defendant has no stake in appearing and the money he spends for the bond could be placed if cash bail is desired on deposit with the court to be returned when the case is over. Two other release conditions that are closely related to each other are residential substance abuse treatment and residential mental health treatment. These community-based conditions are intended for defendants whose substance abuse or mental health problems can only be controlled by inpatient treatment. Pre-trial services may have residential facilities under contract to provide for immediate admittance. Placement in a halfway house or periodic return to custody are two other available release conditions. Placement in a halfway house if you have such facilities in your community can be a very useful means of ensuring control and supervision providing needed services and avoiding the cost of commitment to jail or detention facility. With periodic return to custody, the defendant spends nights and weekends in jail or a similar setting for specified hours but is released to go to work or attend school. The Bail Reform Act also lists a number of additional conditions that can be imposed in conjunction with the ones we just discussed. These include requirements of the defendant while on release, seek or maintain employment, pursue an education, restrictions on his associations or travel and abode, avoid contact with victims or witnesses, possess no weapons and refrain from excessive alcohol abuse or any drug use. Finally, as a statute notes, the court can impose any other condition of release that it reasonably concludes is necessary to assure the defendant's appearance or protect the community. One such condition that is becoming increasingly common is required the defendant to submit to drug testing. Other conditions that courts have imposed have included video surveillance of the defendant's residence, submission of telephone records and detachment of pen registers. So far we've discussed pretrial services, appointment of counsel, initial appearances and pretrial release as well as alternatives to detention. Let's focus now on the preliminary examination. The preliminary examination is a residential hearing held before a magistrate judge to determine if there is probable cause to hold a defendant who has been charged with a felony via complaint. No preliminary examination is held if an indictment is returned because the grand jury's determination of probable cause takes the place of a determination by the magistrate judge. If the defendant waves the indictment, the United States attorney and in that case as well, no preliminary examination is held. As we discussed earlier, the preliminary examination is scheduled at the initial appearance of the defendant. The defendant is entitled to waive his or her right to a preliminary exam. There are no rules or statutes governing the form or manner of accepting the waiver. Most districts, however, use a form which is filled out by the defendant and presented to the court. That's right, it's not. Although some aspects of the preliminary examination are the same as a trial. At the preliminary exam, the defendant has the right to present evidence and may cross-examine witnesses but is not required to testify. The defendant is also entitled to the assistance of counsel. However, motions to suppress and objections to unlawfully obtained evidence are not allowed. Rule 5.1 The federal rules of criminal procedure governs the conduct of preliminary examinations. The preliminary examination is narrow in scope and its purpose is to establish whether or not there is probable cause to hold the defendant to answer the charges. It should not be used as a means to obtain discovery or produce testimony which can be used for subsequent impeachment at trial. Although frequently, it is what is attempted by defense counsel. The rule specifically states that the finding of probable cause may be based on hearsay evidence in whole or in part. If you conclude that the government has established probable cause, the defendant is bound over for further proceedings. If not, the defendant must be discharged from custody and the complaint dismissed without prejudice. Your determination of probable cause is not a substitute for that of the grand jury and the defendant is still entitled to be indicted. Because the preliminary examination requires the magistrate judge to make a determination of probable cause, it is frequently combined with the detention hearing in cases where the government has moved for pre-trial detention of the defendant. You might be interested to know that in the case of Angela Smith, Smith's preliminary examination the magistrate judge found probable cause at the combined hearing resulting in a rebuttable presumption to require Smith to be detained pre-trial. That brings us to the detention hearing. As we mentioned earlier, a defendant may be detained prior to trial under the provisions of the bail reform act. The purpose of the hearing is to determine whether any condition or combination of conditions would reasonably assure the defendant's appearance or community safety. Section 3142-F of Title 18 provides that the detention hearing shall be held upon motion of the government in certain limited situations such as where the defendant is charged with a crime of violence, an offense punishable by life imprisonment or death, or a drug offense carrying a maximum term of violence or more. Section 3142-F2 further provides that a detention hearing may be held either on motion of the magistrate judge or upon motion of the government if the case involves a serious risk that the defendant will flee, attempt to obstruct justice or attempt to threaten, injure, or intimidate a prospective witness or juror. The law requires that the detention hearing be held at the defendant's initial appearance unless the government or the attorney for the defendant seeks a continuance. The government must establish by clear and convincing evidence the facts used to support a finding that no conditions or any combination of conditions of release will reasonably assure the safety of the community. Risk of flight need only be established by a preponderance of evidence. Thus, a finding of detention requires to some extent that you predict the defendant's future behavior. Earlier in the program we mentioned that Angela Smith was incarcerated pending her detention hearing under the provisions of the bail reform act. That's because the bail reform act requires that pending the hearing the defendant is to remain in jail. Yes, that's why it's so important that the magistrate judge not adjourn the hearing unnecessarily. Under the bail reform act the government is entitled to an adjournment of up to three days. However, if the government can be prepared earlier there is no reason to grant the entire three days automatically. Likewise, the defendant has a right to have an adjournment up to five days. You should assure yourself that such an adjournment is not merely done for the convenience of counsel or the court, but it is necessary for effective preparation. Again, the federal rules of evidence are not applicable to the conduct of the hearing. General principles of relevancy and materiality should be kept in mind and applied by you, particularly if counsel appears to be using the detention hearing for purposes of pre-trial discovery. What about the defendant who wishes to testify at the detention hearing? There are some courts which have held that putting a defendant on the stand at the detention hearing may be, per se, ineffective assistance of counsel. The Bail Reform Act allows the defendant as well as the government to proceed by way of proffer. Pre-trial services has interviewed the defendant and oftentimes has obtained information from relatives or from the defendant himself that may aid you in making a determination of detention or release. The magistrate judge should accept the defendant's evidence by proffer in such cases. What factors do you normally take into consideration in deciding whether a defendant should be detained? The act is pretty specific regarding the kinds of factors which the court should consider in determining whether or not to detain a defendant. The factors are set forth in section 3142G. It includes such things as the nature and circumstances of the offense, whether it involves violence or drugs, the weight of the evidence and the history and characteristics of the person, including the defendant's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community and community ties, past conduct, substance abuse history, criminal record and records concerning appearance at other proceedings. Additionally, the magistrate judge must consider whether at the time of the alleged offense the person was on probation or parole or on release pending trial for another offense. Finally, the court should consider the nature and seriousness of the danger to any person or the community. These are the items that should be contained in the pretrial services report. It is important to recognize that if you find probable cause to believe that a defendant has committed a drug offense carrying a maximum term of 10 years or more or that the defendant has used a firearm to commit the felony, a rebuttable presumption arises that no condition or combination of conditions will assure the defendant's appearance and community safety. These provisions are set forth in section 3142e. The presumption is subject to rebuttal by the defendant. The presumption also applies to defendants who have been recently released from prison or who are on release pending trial at the time of the alleged offense. Various circuits have interpreted section 3142e in different ways. Therefore, it is important that you know the law in your circuit. There is one more thing you must do following your determination to detain or release a defendant and that is to prepare an order. If the defendant is detained and a complaint and the magistrate judge denies release on the grounds of the presumption, you must find probable cause. This as well as your reasons for the detention should be made clear in your order. The written order should be prepared and filed as both the government and the defendant have a right to appeal this matter to the district judge. Several sample order forms with their findings are included in your written materials. A defendant has a constitutional right to be tried in the district in which the alleged crime was committed. But what happens if the defendant is arrested outside of that district? Rule 40 of the Federal Rules of Criminal Procedure states that the defendant has the right to appear before a magistrate judge in the district where the defendant was arrested and accords procedural safeguards before the defendant can be removed to the district in which the prosecution is pending against him or her. You should be particularly aware of the specific provisions of Rule 40 and their application to removal proceedings. You should also note that the preliminary advice given to the defendant includes the advice given at all initial appearances pursuant to Rule 5 of the Federal Rules of Criminal Procedure. If the defendant is arrested pursuant to a complaint issued in the charging district, the defendant must be advised to settle to a preliminary examination in either the arresting or charging district. Furthermore, the magistrate judge is required to advise the defendant that he has the right pursuant to Federal Rule of Criminal Procedure 20 to plead guilty to the pending charges in the district of arrest if the United States attorneys in the arresting district and in the district of prosecution agree. If a preliminary examination is not necessary because an indictment has previously been returned or the defendant waves the preliminary hearing or if the defendant elects to have a preliminary examination in the district where the prosecution is pending, then the only issue left for you is whether the defendant is the person named in the charging document. As with all other pre-trial Federal Criminal Matters, the rules of evidence do not apply and hearsay may be used to prove the identity of the arrestee. Federal Rule of Criminal Procedure 40F further requires the magistrate judge to take into account all release and detention decisions previously made in another district involving the arrestee. You are not bound to follow that decision but must consider the reasons for the previous release or detention decision. If you decide to amend the release or detention decision or to alter the conditions of release then you must set forth in writing your reasons for changing the previous decision. This concludes our discussion of Part 2 of Criminal Litigation Before Magistrate Judges. Again, be certain to refer to your outline if you need additional information or references. The legal manual for United States Magistrates also contains checklist and legal discussions on many of the issues covered in this program and is a handy reference guide to the administrative office to all magistrate judges. We leave you with this reminder as you develop experience as magistrate judges many of these proceedings will become second nature to you. Never forget however that the vast majority of defendants who appear before you will be appearing in a federal court for the first time. The proceedings will not be second nature to them. You must therefore take the time in each case to make certain that the defendants' rights are fully protected, that the federal rules of criminal procedure are followed, and that the case is resolved fairly and expeditiously. Good luck.