 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, endanger the safety of any other person, or endanger 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 pretrial conditions imposed on the defendant, as well as the consequences that will result if the defendant does not comply 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 pretrial 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. Judge Carr? 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 to report to a designated agency. This typically will be either the pretrial services agency or the Probation Department depending on which agency is responsible for pretrial 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 pretrial services officer 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 at 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 pretrial services officers 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 pretrial 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 costs 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 release condition which confines the defendant to a specific residence without benefit of electronic monitoring 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 release condition which addresses risk of flight by the defendant. Most commonly, the defendant may be required to execute an unsecured appearance bond. Federal 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 consider in 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 to the defendant while on release, seek or maintain employment, pursue an education, abide by 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 the 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 require 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 an evidentiary hearing held before a magistrate judge to determine if there is probable cause to hold a defendant who has been charged with a felony by a 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 waives the indictment, the United States attorney can file an information charging the felony. 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. In other words, the preliminary examination is not a trial. 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 of 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, this 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. Our 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 pretrial detention of the defendant. You might be interested to know that in the case of Angela Smith, Smith's preliminary examination and detention hearing were combined in one court hearing. The magistrate judge found probable cause at the combined hearing resulting in a rebuttable presumption to require Smith to be detained pretrial. 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 10 years 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 pretrial 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. Pretrial 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 3142-G. 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 pre-trial 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 that he is entitled 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 waives 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 40 F 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 two 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 that is available from the administrative office to all magistrate judges. Will you 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 defendant's rights are fully protected, that the federal rules of criminal procedure are followed, and that the case is resolved fairly and expeditiously. Good luck.