How Do I Get a Pretrial Release in Federal Court?


When an individual is arrested and charged with a crime, they are detained and held in jail. The time between an arrest and a criminal trial can be months, and sometimes years. Under the terms of the law, a judge must decide whether or not a defendant will be released back into the community or detained pending trial.

Pretrial release, also commonly referred to as bond or bail, is the release of a defendant pending his or her trial. It’s an important part of the pretrial stage of the criminal justice system and differs between state courts and federal courts. The criminal defense team at Berry Law can explain your rights and work toward securing your freedom while you await trial so that you can be an active participant in your own defense. They have the knowledge and experience to navigate the system for you.

How is Federal Pretrial Release Different from the State of Nebraska?

Pretrial release in federal court is different from Nebraska state court. A defendant who is charged with a crime under state statute in Nebraska will have bond set at their first court appearance. If he or she can post bond, they are typically released pending trial. That individual is then able to live at home or out in the community while they are under prosecution. Since it’s easier for an attorney to meet with a client out on bail, the defendant is also better able to participate in his or her own defense.

When it comes to pretrial release for federal charges, the federal government has its own procedures for permitting the release of a defendant while they await trial. Instead of bond, a defendant is either granted pretrial release by a judge or they aren’t.

Why Is There a Difference Between State and Federal Procedures for Pretrial Release?

Federal pretrial release was once run purely by a security bail system, which meant that any defendant who could post bail in an amount set by a judge could secure his or her release until trial. This system allowed persons accused of crimes to remain free pending trial by posting property or money as collateral to ensure that they would stand trial and serve their sentence if they were found guilty of the charges against them.

The Eighth Amendment of the Constitution guarantees citizens the right against excessive bail and allows them the ability to assist in their own defense. The purpose of bail as outlined by the law was to reduce the possibility that a defendant might be detained longer than any imposed sentence, they might receive should they be convicted at trial. It also was meant to support the idea that a defendant is innocent until guilt is proven.

At some point, it was determined that the federal security bail system was penalizing defendants of lesser means and violating the Eighth Amendment. As a result of this shift in thinking, the Bail Reform Act of 1966 reinforced the preference under federal law for releasing defendants pending trial whenever possible and deemphasized surety bail as a monetary term of release.

Instead, the legislation placed the emphasis on releasing defendants on their own recognizance or unsecured bond pending trial. During the decade that followed, increased concern over the need to protect society from potential dangers posed by violent defendants awaiting trail led to the Bail Reform Act of 1984. It granted federal courts the authority to detain criminal defendants and refuse to grant pretrial release if any of the following criteria is met:

  • The defendant is found to be a flight risk and may not return to stand trial.
  • The defendant is deemed a potential threat to the community or a specific individual and may commit additional crimes while they are on release pending trial.

Today, pretrial detainment is the assumed default for defendants charged with certain offenses. While the government would have once needed to demonstrate why pretrial detention was necessary, the defendant’s attorney instead is required to show why release is justified.

How Can I get Pretrial Release in an Omaha Federal Court?

During the pretrial phase of a criminal case, a detention hearing is scheduled. This hearing is also sometimes called a bond hearing. During this proceeding, a judge determines whether or not to grant the accused individual pretrial release. A detention hearing must occur within days of a defendant’s arrest and may be scheduled at the same time as other pretrial proceedings, including the initial appearance or arraignment.

Prior to a federal pretrial hearing, an interview is conducted with the defendant by an employee of the court known as a Pretrial Services Officer. The accused individual is interviewed regarding his or her background. Questions may include inquiries about the defendant’s family, work, education, and finances. The Pretrial Services Officer will verify the information received through an investigation of pertinent documents and by speaking with those who know the defendant.

Just as at any time during criminal proceedings, a defendant has the right to invoke his or her Fifth Amendment right to refuse to answer questions that may incriminate them during the pretrial interview phase of proceedings. The defendant may also request to have his or her attorney present at any point.

The Pretrial Services Officer will submit a report summarizing his or her findings to the judge and making recommendations regarding detainment and any conditions of release. Judges typically review these reports and hold them in high regard in making their final decision. They may even request to meet with the Pretrial Services Officer to discuss his or her recommendations prior to the hearing.

What Happens During a Pretrial Detention Hearing?

During the detention hearing, both the prosecutor and the defense present evidence in the form of documents, photos, videos, and sometimes, live testimony. In certain cases, a judge may allow a verbal summary of the evidence in question instead. Each side makes its arguments in favor of or against release pending trial. In most cases, the burden of proof is on the prosecutor to show that the defendant is a flight risk or a danger to the community. Drug charges, serious firearm offenses, and crimes against minors may require the defendant’s attorney to show evidence that his or her client is not a flight risk or danger to the community under the law.

After hearing arguments, the judge will decide whether to release the defendant, as well as any conditions of release he or she plans to impose.

What Does a Judge Consider When Granting Pretrial Release?

Some factors that the court typically takes into account when making decisions regarding detainment include:

  • A defendant’s past criminal history and any prior convictions
  • Past history of failure to appear for court proceedings
  • A history of violence
  • The nature and circumstances of the crime the defendant is charged with, including the seriousness of the danger his or her release may pose to the community
  • The strength and weight of the evidence in the case
  • The defendant’s place and years of residence and his or her ties to the criminal jurisdiction, including family members
  • Whether or not the defendant is currently employed or enrolled in school
  • The defendant’s financial resources
  • His or her character and physical and mental condition
  • Whether or not the defendant was under criminal justice supervision at the time of the current offense

What Are Some Conditions of Pretrial Release?

A universal condition of pretrial release for all state and federal cases is that the defendant must agree not to violate any laws while awaiting trial. In some instances, a judge may choose to consider a combination of release conditions to mitigate possible risk. For example, they could impose conditions when releasing a defendant out on bail, including:

Home Confinement

The defendant is allowed to leave jail but must remain at home unless otherwise instructed by the court. This typically involves the use of electronic GPS monitoring in the form of an ankle bracelet. They must also promise to show up for any future court hearings.

Third-party Supervision

A judge may allow the accused individual to be supervised by a third-party custodian, such as a family member who agrees to assume responsibility for supervising and reporting violations to the court.

Halfway House Placement

A halfway house is a community-based residential facility where a defendant may be released and only allowed to leave for reasons like employment, education, medical treatment or religious obligations.

Intermittent Custody/Work Release

This model requires the defendant to remain in jail awaiting trial, but he or she may be released from detention for limited periods of time to go to school or work.

Agreements Regarding Employment and Travel

The defendant must agree to seek and maintain full-time employment and to follow any travel restrictions the court has put in place regarding leaving the state or the country.

Substance Abuse and/or Mental Health Treatment

A judge may require a defendant to undergo routine drug and alcohol testing and to enroll in a substance abuse treatment program. Similarly, some defendants could face mandatory psychological or psychiatric treatment to reduce the risk of non-appearance or damage to the community associated with their emotional or mental health.

The accused individual is expected to comply with any other conditions a judge believes to be reasonable to assure that the defendant will appear in court and that ensure the safety of the community. Any defendant who violates a condition of pretrial release gives the judge a reason to revoke it immediately, leaving the defendant awaiting trial in jail for weeks or months.

How Can Having an Attorney Help Me Get Pretrial Release?

An attorney with a strong background in criminal defense will already know the procedures necessary to position his or her client for success during the pretrial phase.

Like the Pretrial Services Officer, your attorney will gather information that can help your case, including a list of witnesses with pertinent information about you. This might include family members, current and former employers, friends, and acquaintances who can supply information regarding your character, employment, and ties to the community. Your attorney will also inquire about these individuals’ willingness to help you secure pretrial release.

An attorney can obtain letters of support that are submitted to the court on your behalf. Judges rely on these letters as a confirmation of a defendant’s commitment to financially supporting his or her family and good character. Letters written by members of the community can show a defendant’s involvement in community organizations as well. All of these can be influential in securing a pretrial release.

In the event that a judge orders the defendant to be released to a third-party custodian, an attorney may be able to suggest suitable candidates to the judge. Having someone already lined up can be persuasive in convincing a judge to agree to pretrial release.

Finally, detention orders in federal court cases can be appealed to the next higher court if you don’t like the outcome. For example, a detention decision by a magistrate judge may be reviewed by a district court judge and either ruled against or upheld. Detention appeals decisions must be resolved in a timely manner so as not to unnecessarily detain a defendant. Your attorney can help if you wish to file an appeal of your pretrial detention decision. Reach out to us to learn more.

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