Bail Hearings

If you watch enough crime television shows, you undoubtedly are familiar with the term “bail.” The purpose of bail is quite simple – to ensure that a defendant will appear in court. Bail is typically money or some other form of property pledged to the court in exchange for a defendant’s temporary freedom, with the understanding that the defendant is to return for trial. In fact, if the defendant fails to return for a scheduled court appearance, a default warrant will be issued. As with an arrest warrant, the police are authorized to make an arrest on a default warrant.

Depending on the severity of the charges and other circumstances, the amount set for bail can vary greatly. Based on Massachusetts law, many people charged with an offense will be released on their personal recognizance, or without bail. However, if the offense is one punishable by life in prison, or the court believes that a pre-trial release will not adequately assure a person’s presence at a future court date, the judge may exercise his or her discretion in setting or denying bail. For example, defendants charged with murder and repeat felony offenders are often held without bail.

The determination of bail is made during a proceeding known as a bail hearing.

At the bail hearing, the judge has the task of deciding on the amount of bail. The prosecutor will argue the reasons which he or she believes supports the amount of bail requested, with higher bail or no opportunity for bail requested for more serious crimes and lesser bail for lesser crimes. For example, charges that involve violence or illegal drugs typically warrant higher bail amounts. Higher amounts may also be requested for defendants with a history of failing to appear for court. A variety of other factors can also play a key role in whether to order bail and if so, the amount of bail that a judge deems appropriate. These include, but are not limited to:

• The nature of the charges –charges of violence against other people (i.e. armed robbery, rape, kidnapping, assault) are more likely to increase a defendant’s bail. These types of charges are also more likely to disqualify a defendant from receiving bail altogether.
• The defendant’s criminal history – a defendant with an extensive criminal history may be more likely to commit more crimes if he is able to gain his temporary freedom upon posting bail. Therefore, high bails are more likely to be set for defendants who have a propensity for committing crimes than for a first-time offender or someone whose crime is relatively minor.
• The defendant’s ties to the community, including evidence of flight to avoid prosecution – if a defendant has significant ties to the community, such as the presence of a home, a family, and a job, he or she may be considered less of a flight risk than a defendant with little or no ties to the community. Larger bail amounts may be set for high flight risk defendants.
• The defendant’s drug and/or alcohol abuse history – when the current charges are drug related, a defendant with prior drug charges is more likely to face higher bail than a defendant charged with a non-drug related offense.
• Whether the defendant is already on probation or parole for a separate, prior offense – higher bail may also be more likely for a defendant charged with an offense who is already on probation or parole for a different offense

The burden is on the prosecution to prove that bail is appropriate for the defendant. However, the defendant’s attorney can present counter-arguments. For example, the attorney might present evidence that the defendant is well respected in the community, has a consistent employment history, has never been in trouble with the law prior to the current offense, and/or is the primary provider for his or her family. A successful defense attorney may be able to persuade the judge to set a very low bail or even release the defendant on his or her own personal recognizance, which essentially allows the defendant to be released without bail, upon the promise that he or she will return for the next court date.

It does occur at times that a judge will set bail at an amount that seems unreasonably high for the circumstances. When this happens, it is possible to appeal the judge’s decision to a higher court in a judicial proceeding called a bail review. This court has the option of keeping the same bail amount set by the lower court, reducing that amount, or even increasing the amount. It is important to note, however, that the fact that a defendant cannot afford to post bail does not necessarily mean that the bail set by the judge was excessive. Therefore, it is critical to select a well-respected attorney who has experience not only with bail hearings, but who can also skillfully argue an appeal of bail.

Being arrested and charged with a crime can be a terrifying experience. It is often difficult to make a decision with a clear head while under the oppressing weight of the criminal justice system, but the decision to retain a skilled attorney for assistance with the bail hearing is one that should not be overlooked. It could be the single difference between temporary freedom and time spent in jail.

If you have been charged with a crime, it is critical that you consult a criminal defense attorney who has extensive experience in representing clients at bail hearings and who will aggressively argue on your behalf to obtain the best possible outcome. Not only is Stephen Neyman a skilled criminal defense attorney, but he also has a background in prosecution, and therefore is well-informed of the tactics needed to negotiate the best deal for his clients. Contact the Law Offices of Stephen Neyman at 617-263-6800 for a free phone consultation. All consultations are confidential and protected by the attorney-client privilege.