After an accused has been arrested, a Judge or Magistrate makes a bail determination and thereby decides whether to release the arrested on their own recognizance, release the arrested with a bail condition, or remand the arrested without a bail option. Bail is a sum of money or bond which is held by the court throughout the pendency of the criminal prosecution. Should the accused runaway from court, the bail will be forfeited and the money kept by the state or municipality. Through a bail hearing, the arrested individual has the opportunity, hopefully with the assistance of an attorney, to argue for release with little or no bail. A judge sets bail when their is a risk the arrested individual might not return on the next court date. Some jurisdictions also factor in the risk posed to the community if the arrested individual were released. A successful bail argument will convince a judge that the arrested individual will return to court and that there is no danger posed to the community by the individual’s release.
It is crucial to convince the judge that the accused individual has local connections that will require him to stay close to the court. Such connections are often proven by detailing the family members, property owned, employment and communal responsibilities which are present in the cities and towns near the court.
Judge’s often calculate that a strong case against the accused defendant will provide incentive to run away. Detailing the weaknesses of the accusations, as set forth by the prosecutor or complaint, will serve to ease this concern. Judges find an accused less likely to run away from court when the case looks to be decided in their favor.
Often times, police will reach out to a person under investigation and let them know they are under investigation for a certain crime and wanted for questioning. Prudent individuals will hire an attorney and go to the police on their own. Although the individual will likely be arrested on arrival at the precinct, this act will provide strong evidence that the accused will not run away and is willing to face the charges. Judges often find that a person who surrenders to the police knowingly is more likely to appear in court, allowing for release or low bail.
One strategy is to stress that the accusations are out of character and a complete aberration. A person defending their good name is viewed as more likely to appear in court. Additionally, if the judge finds that the alleged crime was out of character and non-violent, the judge is less likely to find there to be any potential danger to the community. Many jurisdictions factor in potential safety concerns and highlighting the previously clean record and non-violent nature of the charges could help sway the judge to release the accused or reduce the amount of bail.
People often fear that a prior criminal record will automatically increase the likelihood or amount of bail. However, a criminal record can be used to the accused individual’s advantage. A long criminal record without any failures to appear in court or warrants is strong evidence that the accused can be trusted to return to court. Convince a judge the defendant will return to court and the judge will not require the posting of bail.
Remember, bail only means that you must post a sum of money, or a bond, that the Court will hold until the case is over. A judge may feel there is a small risk the defendant will run away and therefore set a small bail. This can be as little as a few hundred dollars. Therefore, it is a good idea for an accused to talk to family and friends about collecting potential bail money as early as the arrest.
Some defendants and their families think that if they ask an alleged victim to reach out to the judge, that they can get bail reduced. However, many judges issue orders of protection which prohibit the accused from contacting the alleged victim, either directly or through a third party. Violating such an order will only hurt the arrested individual as it will demonstrate an inability on the part of the accused to follow court instructions, one of which is to return to court. Additionally, a violation of an order of protection can be charged as a crime in of itself and bring rise to a second set of criminal charges.
Bail is certainly a hurdle but is only the first step in the criminal proceedings. It has no bearing on the ultimate finding of innocence or guilt. Even if the judge sets a high bail, there are ways to get the individual out of prison. The family can hire a bail bonds professional to post the bail in the form of a bond. Fees vary for bail services, but such professionals can help in the case of high bail. Additionally, one should hire a criminal defense attorney who can apply for a bail modification upon any change of circumstances. Bail might be an unfortunate reality for some defendants, but it has no effect on the ultimate disposition of the criminal case.
Although bail is determined by the Judge, highlighting crucial factors can convince the Judge to order release or to set a low bail. The decision turns on whether or not the judge believes the defendant will return to court. Any information such as community ties, local employment and family in the locality will help convince the judge that the individual is not running away. The weakness of the prosecution’s case and/or the strength of the individual’s defense can also tilt the scale in favor of a low bail. A criminal record can raise the stakes, but a record where the defendant made all his prior court appearances can convince the judge that the individual will return for his court date. Should bail be set, a change of circumstances can support a motion for a new bail hearing.
More expert advice about Criminal Law
Photo Credits: © Africa Studio - Fotolia.com; Check Man, Cross Man and Jump Man © ioannis kounadeas - Fotolia.com