How about a brief refresher on federal bail, since everyone's got opinions on it this week? Yes?

Okay, here we go. In federal criminal cases, bail is governed by the Bail Reform

/2 Under the Bail Reform Act, a defendant MUST BE RELEASED ON BAIL unless the judicial officer (usually a federal magistrate judge) finds that no condition or combination of conditions will reasonably assure (1) them appearing for trial or (2) the safety of the community.
/3 It's the burden of the government -- the federal prosecutor - to PROVE by CLEAR AND CONVINCING EVIDENCE that the danger element applies, and no conditions can reasonably control it, if the government wants someone detained without bail. Preponderance burden for flight risk.
/4 HOWEVER there are certain statutory categories of crimes where there is a rebuttable presumption that no conditions will prevent flight or danger -- in other words, for those crimes, the burden shifts to the defendant.
/5 The Federal Rules of Evidence don't govern detention hearings and they can and do proceed by "proffer" -- that is, the government saying what they will prove if necessary.
/6 Here is a government-side description of the law and the process -- shaded towards the government but pretty reliable.

https://t.co/4qYabZo7St.
/7 Since bail is an entitlement unless NO COMBINATION OF CONDITIONS will prevent flight risk or danger, judges must and do consider measures like pretrial supervision, home detention, bail posted by the defendant or loved ones, restrictions on activities, etc.
/8 Before the bail hearing the Pretrial Services Office -- an arm of the court -- does a brief investigation, background check, and interviews (including of the defendant and family). Their recommendation tends to weigh heavily with the judge.
/9 The bottom line is that "why would someone accused of that federal crime be released" is, legally and practically, the wrong question.

/end

More from Law

There is a now-relevant parallel here to the difference here between matters before a judge & matters before a jury. Judges are far more reluctant to strike testimony or evidence if they are the only recipients of it, with the theory being that they are really smart about ...


law stuff & will know what they can & can't consider. For instance, there is a long-held rule that a fact witness can't make legal arguments, only a lawyer. So what will happen in a motion for summary judgment, where the entire proceeding is on paper, will play out like this:

1) Defendant makes a motion for summary judgment. It includes a sworn declaration from some fact witness.

2) The declaration includes all sorts of legal arguments about why the defendant should win. Often the declaration includes arguments the brief didn't even make.

Defendants (especially DOJ-represented ones) often do this to get around the word or page-limits placed on briefs.

3) Plaintiff moves to strike the declaration for its inclusion of inadmissible legal arguments.

4) Judge denies the motion to strike, on the grounds that a ...

judge is a sophisticated consumer of evidence & can choose what to consider & what to ignore, unlike a jury.

The legal fiction behind this impeachment exception is that Senators are also smart enough to know what to listen to & what to ignore. Now, that may not be ACCURATE, ...

You May Also Like