Understanding Bail

Bail is a method to get the defendant home during the trial proceedings. It is not a period of time to argue the merits of the case. Bail is an amount of money used by the court to ensure the defendant comes back to court when required to do so. There are typically two factors the judge considers before setting bail. Any bail argument by the defense attorney must address both parts:

Is the defendant a danger to the community?
What is the likelihood the defendant will flee?
In order to get bail reduced the defense attorney should do the following:

Demonstrate the potential crime is not one that the defendant would do again
Demonstrate the defendant is not a danger to the community
Demonstrate the defendant presents no likelihood to flee. The defense attorney can present this in various ways: - Character references - Community support - Stable employment history - Memberships in religious or civic organizations - Surrendering the defendant's passport - Agree to electronic monitoring
The court can present several bail release options. These may include:

Cash Bail. The defendant is responsible for paying the entire amount of bail to be released. The defendant will receive his bail back at the completion of all court appearances.
Release On Own Recognizance. If the judge is convinced the defendant is not a risk, he may release the defendant on his own recognizance.
Surety Bond. The bail agent guarantees to the court that they are responsible for the bond if the defendant fails to appear.
Property Bond. The court records a lien on the property of the defendant to secure the bail amount.
If the defendant is involved in a case with co-defendants, the defense attorney for the defendant may chose to make a motion to sever ties from the co-defendants.

The defense attorney can use the preliminary hearing as a strategy session. The standard of proof is lower during the preliminary hearing than the trial. The preliminary hearing is utilized by the judge to ensure there is sufficient evidence to review the case. The preliminary hearing assesses reasonable doubt and the facts of the case.

The pre-trial conference is used to introduce evidence, submit motions, identify procedural issues, exchange witness lists, and plea bargain. Most cases that do not reach trial are plea-bargained at the pre-trial conference.

An appeal occurs after the court has rendered its decision. The goal of an appeal is to have a higher court review and change the decision of the lower court, or send the case back to re-trial. There are two key types of appeals. One attempts to overturn the court's decision. The second attempts to overturn the courts sentencing decision.

Unlike a plea-bargained settlement, which completes the case prior to trial, a trial introduces risk for both the prosecution and defense. Neither side knows which side will win. Plea-bargaining eliminates the risk for both sides.

Plea-bargaining consists of two types: sentence bargaining and charge bargaining. In exchange for a plea of guilty or no contest by the defendant, the prosecutor may recommend a lighter sentence or may drop charges to a less serious offense.

The sentencing is completed by the trial judge. The judge will look at the defendants past background, nature of the crime, and other factors in order to weigh a decision. Many courts require a full investigation be prepared by the probation department, so that the judge may consider its determinations when sentencing the defendant.

The defendant may ask the court to appoint a public defender at the time of the arraignment. The defendant should be ready to demonstrate financial need. If the defendant does not qualify financially, the court may still appoint an attorney.

The defendant has a constitutional right not to testify.

The timeline for the appeals process varies by state. The defendant should check with an attorney on these timelines.

The vast majority of convictions result from a guilty plea by the defendant.

Motions available to the defense attorney prior to trial consist of excluding evidence, including evidence, dismissing the case, suppressing evidence.

The federal government does not have to honor expungements. Individuals whose cases have been expunged must still disclose the convictions when qualifying for professional licenses or filing to hold public office.

The defendant should ask his defense attorney to thoroughly review a transcript of the entire trial prior to preparing an appeal. In an appeal, no new witnesses and no new evidence will be available. Each party prepares briefs that the judges review prior to rendering a decision.

In some states the defense decides whether a trial will be by judge or jury. The defendant should confer with his attorney about the benefits of each in order to determine what will be in the defendant's best interest.

If the defendant receives a guilty verdict from the jury, the defense attorney can immediately begin a series of post-trial motions in the hope the judge will grant a new trial or make a judgment notwithstanding the verdict and acquit the defendant.

The burden of proving guilt rests at all times on the prosecution.

In discovery, the prosecutor must provide the defendant with information about the defendant's case. The defendant is entitled to receive copies of the arresting officers statements and filed reports and the defendant may review evidence the prosecution might submit at trial.

Back to top FAQ's - Answers to important questions

What type of sentence may the defendant expect to receive?

There are a myriad of sentencing options for the judge to consider. Sentencing is based on the nature of the case, the defendant's past history, and the defendant's threat to the community. Some sentencing options include jail time, probation, fine, community service, treatment or imprisonment in a penitentiary.