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What is a Detention Hearing and How to Get Released After Being Charged

When you first learn that you are being charged with a federal or state crime, you may feel overwhelmed, stressed, and concerned about what this means for your future. It can feel like you have just been thrown into a new world with legal jargon and processes you do not understand.

One of the first issues you will face, whether in federal or state court, is the issue of detention.  

If the nature of your criminal charges is such that the government believes you pose a danger to others or the community or a risk of flight, the government may seek to detain you pending trial.  If the government seeks detention, you may face a pretrial detention hearing. 

In some instances, a hearing can be avoided if both sides can agree on conditions of release to propose to the court. While defendants are often eligible to be released from custody with conditions—such as limited travel, home confinement, or limits on where they can be and for what reasons—under certain circumstances, the court may order that they not be released from custody until the case is resolved. 

A detention hearing allows the court to decide whether to detain a defendant. 

To understand your options during this time and prepare yourself for different contingencies, it is important to work with an experienced criminal defense attorney familiar with detention hearings in both a U.S. District Court for the District of New Jersey and a New Jersey state court.

Detention hearings in New Jersey state court: an overview

New Jersey enacted groundbreaking pretrial justice and speedy trial legislation in 2017 designed to help ensure defendants appear in court while protecting public safety. New Jersey no longer operates on a cash bail system. Instead, a pretrial Public Safety Assessment is used to calculate the risk entailed by pretrial release. It includes nine factors that are scored and weighted, and defense attorneys can use it to argue for a defendant’s release. 

The advantages of pretrial release are many, including greater stability for defendants, preservation of the presumption of innocence, and a greater likelihood of a better outcome. Statistics show that defendants detained initially are more likely to face conviction and prolonged incarceration than a defendant who is released after being charged.

When are detention hearings held in state court? 

Detention hearings must be held within 3–4 business days, but in most cases, they will occur the same day the defendant was arrested and arraigned. If prosecutors wish to delay the hearing, they can request up to a three-day delay. The defense is allowed to ask for up to five days, but you will remain in custody until the hearing. Sometimes it is worth delaying the hearing to allow time for your criminal defense attorney to obtain the necessary collateral information and documents to properly prepare to argue to the court that you are neither a safety risk nor a flight risk and should thus be released.

Your rights at a detention hearing

No matter the crime, all defendants have the right to a criminal defense attorney. A New Jersey attorney that has handled many cases like yours can prepare you for what happens at a detention hearing if the prosecution requests one.

During the hearing, the prosecuting team has the burden of establishing that: 

They do not, however, have to produce any evidence or witnesses at the hearing. 

How your lawyer can help you get released after being charged

The prosecution will determine whether to pursue a detention hearing. If they make a motion to initiate a detention hearing, hiring an attorney experienced in handling detention hearings is something you want to do immediately. 

The sooner you contact a New Jersey defense attorney, the more time they will have to fight for your release. 

A criminal defense attorney can:

In New Jersey, your defense attorney can also help you appeal an unfavorable detention decision by following the specific provisions that apply to this process.

Key factors that affect your release

Before a detention hearing, you will remain in custody and the prosecutors will seek evidence to prove that you are a flight risk or danger to society. 

Factors that may affect your release include (but aren’t limited to):

Keep in mind that while the judge will weigh these factors, your specific outcome will depend on the facts of your situation and the merits of your case. 

Exploring the outcomes of detention hearings

Detention hearings can have several potential outcomes. For example, you could be held in a New Jersey jail until your trial is resolved. Alternatively, the judge could order your release under specific, strict conditions, or on personal recognizance, which means you do not have any conditions and you may return home until your next scheduled court appearance. Release on conditions may be informed by the factors noted above and can range from a curfew to house arrest.

Your attorney can help you understand what all of the potential outcomes are and what they would mean for you.

What are your options if you’ve been detained?

A detention order can be scary for you and your loved ones, but there may be options. 

If new evidence or circumstances come to light in your case, you may request to reopen the case. In certain circumstances, it might make sense to appeal your detention order—but the appeal must be filed within a specific timeframe.

Find out more about what happens at a detention hearing from our experienced attorneys

At Dughi, Hewit & Domalewski, our knowledgeable criminal defense attorneys can help you understand your options and the best path forward for you. 

Our team includes attorneys certified by the New Jersey Supreme Court as criminal trial attorneys, a designation granted to less than 3% of New Jersey attorneys. Contact us to learn more. 

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