During your first appearance in federal court, a District Court Judge will determine if you should be detained pending the outcome of your trial, or if there exists a set of conditions that will both guarantee your appearance for future court appearances as well as the safety of the community. The starting point of the Judge’s analysis is a report that is prepared by a U.S. Pre-Trial Officer after speaking to you.
Who conducts the Federal Pre-Trial Interview?
A Pre-trial interview is conducted by the U.S. Pre-Trial Services Officer, who works for the Court. The Pre-Trial Services Officer will conduct the interview with you and will then prepare a Pre-Trial recommendation report for the judge with a recommendation regarding your detention, or release and the conditions of the release (if any).
What is a Federal Pre-Trial Interview?
A federal pre-trial interview is conducted via phone, with your attorney on the line if your arrest and arraignment are pre-arranged. If you have been arrested and brought to court for a case on which you did not have advance notice of, the federal pre-trial interview will be conducted in a holding cell of the U.S. Marshall’s Office. Due to COVID-19, your interview will most likely be conducted via phone.
The officer will ask you questions about;
- Your family structure,
- Your employment, or source of income,
- Your education,
- Where you live and who you live with,
- Your drug and alcohol consumption,
- Your medical condition.
The officer will also request to obtain HIPAA waivers to obtain your medical records, as well as a release to get your credit report. Additionally, the officer will request that you provide contact information for one, usually two people that are close to you who can confirm the information that you give them. That is done to ensure that both the information is accurate and that you have people in your life who can confirm that information.
How Do I Prepare for a Pre-Trial Interview?
There is nothing that you should be doing to prepare for the pre-trial interview. Your attorney should spend a few minutes with you before the interview going over the general format of the questions that you will be asked. You should also obtain the names and phone numbers of the individuals who you’d like to speak to the pre-trial officer to confirm the information that you are giving to the pre-trial officer.
Importantly, the pre-trial officer does not discuss your case with you, or asks you questions regarding your guilt or innocence. The pre-trial officer also does not provide legal advice to you in terms of what the best thing is to do in your case. The Officer’s sole purpose during the pre-trial interview is to determine if there is a reasonable set of conditions that exist to ensure your appearance for court and the safety of the community at large.
Where Does Pre-Trial Officer Get The Information for the Report?
The Pre-trial officer obtains the information needed for the completion of the report from a variety of sources. Specifically, the information comes from:
- The interview with the client (commonly referred to as the “Defendant” in a criminal case),
- the U.S. Attorney’s Office or the case agents for information regarding the charges, client’s criminal history, and status in the United States,
- Interviews with client’s references who confirm the information provided by client,
- Financial institutions to obtain bank records, credit card statements, or credit history,
- Your doctor’s office, hospital or medical providers regarding your healthcare donations.
Importantly, in cases where you do not have notice of your impeding arrest, the pre-trial report is rather limited because the pre-trial officer won’t be able to unable to obtain your medical records or anything else that requires time to be ordered.
What is the Purpose of the Federal Pre-Trial interview and the Pre-Trial Report?
The purpose of the federal pre-trial interview is to obtain information about you for the officer to recommend a certain set of release conditions. The pre-trial officer is a neutral third party that acts as the Judge’s eyes and ears in obtaining information about you and developing a recommendation regarding your pre-trial conditions. The officer’s recommendation is mainly focused on two things;
- Safety of the community, AND
- Risk of non-appearance to court.
Factors such as history of substance abuse, prior arrests, convictions, allegations of violent behavior either in this case, or in previous cases, prior history of warrants, immigration status, and ties to the community all go into the calculus of risk of non-appearance and danger to the community.
What Recommendation Can a Pre-Trial Officer Make?
The Bail Reform Act establishes the conditions of release or detention pending the outcome of a judicial proceeding. After the federal pre-trial interview, the officer can make any of the following recommendations:
- Release on personal recognizance or Unsecured Bond – this means that no conditions are needed to assure your appearance for court or safety of the community.
- Release on conditions – this means that the Officer will recommend that certain conditions are necessary to ensure your appearance for court. Frequently, no new arrests or further criminal conduct is a condition. Additionally, you may be required to maintain stable employment, or report to a pre-trial officer during the pendency of your case. You may also have a curfew, be placed on home detention or electronic monitoring and may have to surrender your passport.
- Detention – upon motion of the Government’s attorney, an individual may be detained pending the outcome of the case. Initially, a temporary detention may be recommended. This temporary detention order results in a 10-day hold, after which the Judge will conduct a detention hearing to make an independent determination of whether an individual should be detained pending the outcome of trial.
When is Detention Recommended?
Although the pre-trial officer has to recommend an individually tailored and the least restrictive, in some situations the recommendation will be detention pending the outcome of the trial. Cases involving detention are those:
- Involving a crime of violence;
- With an offense with a maximum sentence of life imprisonment or death;
- With an offense for which the maximum term of imprisonment is 10 or more years as prescribed by the Controlled Substances Act;
- Involving any felony if the person has been convicted of two or more offenses involving drug distribution or crimes of violence;
- Involving a serious risk of flight; OR
- Involving a serious risk that the defendant will obstruct justice or threaten a witness.
Does the Judge Have to Follow the Recommendation in the Federal Pre-Trial Report?
A judge does not have to follow a pre-trial report recommendation. Rather, the pre-trial investigation report serves as a starting point for the Judge’s analysis of someone’s risk of flight or danger to the community.
Contact Top Rated Federal Criminal Defense Attorneys
If you or your loved one is dealing with a federal criminal defense case, or have questions about your pre-trial interview, please contact us to schedule your consultation. We have handled many federal cases nationwide and prepared a large number of our clients for their federal pre-trial interviews.