So you posted your bond, you are ready to be released…ready to go home, but you are told the government will not let you go free until you have a Nebbia hearing. In frustration, you ask “what is a Nebbia hearing?”
What is a Nebbia hearing?
A Nebbia hearing, named after the case of U.S. v. Nebbia, 357 F.2d 303 (C.A.N.Y. 1966), is a hearing in which the court must decide whether or not the money or property posted as bail is the fruit of unlawful or criminal conduct. In other words, did the money or property used to post bond come from legitimate sources? The court may conduct a Nebbia hearing on its own motion. However, the determination to hold a Nebbia hearing is left to the discretion of the court. For example, in U.S. v. O’Brien, 895 F.2d 810 (1st Cir. 1990), the court held that even on motion by the government, the court ultimately retains discretion on whether or not to hold a Nebbia hearing. Consequently, it is a not an automatic hearing that the State may invoke.
Who bears the burden of proof?
The burden of proof in a Nebbia hearing is on the Defendant and his/her family to prove that the bail funds or collateral come from legitimate, honest sources. The reasoning behind placing the burden on the Defendant in a Nebbia hearing is the belief that the Defendant is in a better position to prove the legality of the assets. If the State had the burden of proof, the Defendant’s release could be delayed, as the prosecutor would have to gather all relevant and discoverable evidence to investigate the source of the funds.
What kinds of cases involve Nebbia hearings?
Nebbia hearings are particularly common in narcotics and fraud cases, as the court is concerned that the bond money or collateral is coming from the very narcotics sales or fraudulent schemes that the Defendant is being charged with. However, Nebbia hearings may come up in any criminal matter to ensure that the bond or conditions imposed will reasonably assure the defendant’s presence at trial.
DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and the Koplow Law Firm. Legal advice usually varies from case to case.
If you need legal advice for a specific problem, you must consult with an attorney. For more information about Arizona Criminal Law, please contact the Koplow Law Firm online or by phone at (602) 494-3444. Moreover, please also visit our DUI and Vehicular Crimes Blog.
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The Arizona Criminal Defense Lawyer Blog is published by Lawrence Koplow. Our criminal practice experience includes a wide variety of defense representation and cases; and is led by Lawrence Koplow, a former prosecutor with the Maricopa County Attorney's Office.
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