Federal Probable Cause and Detention Hearings by Blue LLP


Posted on 14 Aug 2012


Federal Probable Cause and Detention Hearings

In the federal criminal justice system, like North Carolina’s system, formal criminal proceedings are often initiated by what is called a criminal complaint. A criminal complaint is little more than a sworn statement by a law enforcement officer (or some other investigator) that accuses a suspect of breaking a federal law.

The sworn statement is presented to a United States Magistrate Judge who, upon making a preliminary finding of probable cause, signs the criminal complaint and issues a warrant for the suspect’s arrest.  Once the suspect – now defendant – is arrested, he or she is brought before the Magistrate for an initial appearance, advised of his or her rights, and often subjected to a financial evaluation to determine whether he or she will be appointed counsel.  This is where the similarity with the state criminal justice system as it relates to probable cause ends.

In most federal cases that involve crimes of violence, terrorism, drug charges that can be punished by a maximum term of imprisonment of 10 years or more, recidivist criminal conduct, crimes punishable by life imprisonment (or the death penalty), or other serious felonies, the federal government, represented by an Assistant United States Attorney (AUSA), will ask the Magistrate to enter a temporary order for the defendant’s detention.  Such orders are routinely granted, and a probable cause and detention hearing is set.   (Although such preliminary hearings are required in the state system, in practice, they are routinely circumvented by district attorneys who obtain a grand jury indictment for a defendant who will not plead guilty to a criminal complaint.)

At the probable cause and detention hearing, the Government has to demonstrate (1) that probable cause exists to proceed with the criminal prosecution of the defendant, and (2) that no set or combination of conditions of release will reasonably assure the defendant’s appearance at trial or assure that the defendant will not endanger any other person or the community while the criminal charges are pending.  The Government typically seeks to satisfy this burden by presenting the live testimony of any one of its witnesses, often an investigator, who has knowledge of the alleged criminal conduct.  The defendant, through his or her lawyer, has the right to cross-examine the Government’s witness and introduce his or her own witnesses.

Sometimes, the Government will ask a defendant to waive the hearing, particularly if plea negotiations already are underway and a more favorable result can be obtained by truncating the process.  On other occasions, however, even when probable cause clearly exists on the face of the criminal complaint, the hearing may provide the defendant and counsel an opportunity to learn more about the substance and strength of the Government’s evidence at trial and/or the sentencing hearing.

If the Court finds probable cause, the Government has up to 30 days to procure an indictment from the federal grand jury, after which a hearing will be set for the defendant’s arraignment.  Of course every criminal prosecution is different, and there may be some variation in the procedure that is followed in the initial stages of a criminal prosecution.  Nonetheless, the very process that governs a federal prosecution at its earliest stages demonstrates the substantial difference between the state and federal criminal justice systems.