What will happen at my pretrial detention motion?

What will happen at my pretrial detention motion?

  • 5-409 Pretrial Detention
      • Let’s suppose you are arrested and charged with a felony. You will go to the felony first appearance at MDC. It will be the first time you see a judge. And you will learn something very important: is the prosecutor going to file a pretrial detention motion?
      • With the New Mexico State Constitution limiting cash bail, Rule 5-409 was enacted to give the prosecution a means of attempting to hold a defendant in custody. This rule requires prosecutors to file a motion and have a hearing before a District Court Judge if they want a defendant to stay in jail pretrial.
      • This hearing will determine whether you are released or stay in jail until the case is resolved. It is an incredibly important hearing.  
  • What is a 5-409 detention hearing like?
      • Under 5-409, the State has to prove to the Judge that the defendant is dangerous and that no conditions of release can keep the community or other individuals safe. The burden is “clear and convincing evidence”: a pretty high standard, but not as high as at trial: beyond a reasonable doubt.
      • The prosecutor can use your criminal record and performance on probation or pre-trial in the past as evidence in the hearing. 
      • The prosecutor has to show why the current case is dangerous. They can, but don’t have to, call a witness to testify. Instead, usually the prosecutor’s portion of the hearing will consist of them reading our past cases and the allegations in the current case. Usually, the prosecutor has a set of exhibits that they provide to the defense and the court ahead of time which is a preview of their argument. 
      • So at this hearing you can expect the prosecutor to go over your entire criminal record case by case. The prosecutor may try to find instances where you didn’t follow court orders or indications that you present a continuing threat to the alleged victim or the general public.
      • After the prosecution presents, then the defense responds. Afterward, the prosecution may reply, and then the judge rules from the bench
  • How can you defend yourself in this hearing?
      • Your defense relies on the preparation and argumentation of your lawyer.
      • Your lawyer’s response may include discovering errors or weaknesses in the new case. These question marks that make guilt or conviction look doubtful can be strong observations to make to the Judge. Your lawyer will want to bring your family to court to show their support. Treatment and counseling options are powerful factors that can lead a judge to think there will be a good network in place to allow you release.
      • The hearing has to occur within 5 days of when the motion was filed, so these hearings come up pretty quickly. And at this early stage, you and your lawyer may not know so much about the case itself. A pre-trial detention motion is often a very sudden and jarring event. Getting your attorney on board as soon as possible is very important to ensure your best chance at success.
  • Will I win or lose my 5-409 motion?
      • In my experience, the biggest factors are usually the amount and intensity of the criminal history and level of alleged conduct in the new case. History and present allegations are very often determinative for the judge. With homicide and sex cases, there is a good chance of pretrial detention even without much record at all, especially if the current evidence appears to the Judge to be strong. For other cases, the history of charges and performance on conditions of release and probation will be more determinative.
      • If there is already an outstanding charge that is open when the new arrest occurs, the judge will be inclined to grant the motion. Multiple open charges almost always lead to the State winning the 5-409 hearing.
      • A victory comes with a plan. Your lawyer needs to effectively convey why your supportive and protective factors like your job, your family, your treatment plan are sufficient to put the court at ease. 
      • If you lose a 5-409 motion, a reconsideration can be obtained if you can find new evidence which undermines the charge or a more powerful, more thorough treatment plan can get put into place. This can take time because you will need both new evidence or a new treatment plan and a written motion filed that has to be set by the judge for another hearing.
  • Conclusion
    • The 5-409 detention hearing is a crucial first stage in a serious criminal case. Whether a person is let out or must stay in jail has an outsized effect in how the case can be investigated, litigated, and generally handled. It is a huge strategic disadvantage to be held in jail pretrial. Moreover, it is a huge medical, psychological, financial, and social blow to be held in jail pretrial. So decisive and careful preparation to the extent possible for this hearing cannot be overvalued 

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