My bond is posted why cant I get out of jail until I have a Nebbia Hearing

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.


What can I do to get help?


You can call LEWIS & DICKSTEIN, P.L.L.C. for a free consultation and confidential case evaluation at (248) 263-6800.  Government prosecutors are tough and well trained and so are the Michigan Criminal Defense Attorneys with LEWIS & DICKSTEIN, P.L.L.C.