Pretrial Process Bail Hearings and Release From Jail or Police Custody

This article will explain what is bail, what are bail hearings, how bail hearings are conducted and factors that increase and decrease your chances of being released on bail.

What is Bail?

After an arrest, a defendant is placed into custody which is followed by an arraignment, the first step in a criminal proceeding. An arraignment is a short formal reading of the charges against the defendant where he or she has the ability to enter a plea of "guilty" or "not guilty" to the crime charged. Either at the arraignment or at a date after a defendant has been held in police custody, a bail hearing may take place to determine whether a defendant can or should be released from jail, pending the outcome of the criminal case. Bail hearings are usually held for serious crimes such as felonies.

In order for a defendant to be released pending a trial to determine the defendant's guilt, he or she must pay or pledge to pay a certain amount of money and secure property against that amount. This payment is known as bail and is taken as security by the court that you will appear for your trial. If the defendant fails to appear, this money is forfeited and not returned to the defendant (and a warrant for the defendant's arrest is issued.) In both state and federal courts, a judge cannot set excessive bail amounts.

There are times when the court determines that no money is needed to secure the defendant's release but the court proceeding will still be known as a bail hearing. If a person is released without money it is known as being released on personal recognizance or released "on your own recognizance." There are also times when bail is denied, regardless of the amount of money pledged, such as when charges are made against a serial killer accused of murdering a dozen people.

Setting Bail Amounts

Both state and federal courts have bail hearings but the procedures between the two will be slightly different. The Bail Reform Act of 1984 governs bail hearings in a federal court. Under this law a defendant can be held in custody prior to trial if he is considered to be a flight risk or dangerous. Some categories of crime means that bail will not even be considered as an option and there is a special court hearing which will determine detention prior to trial. Many states follow federal law or have enacted similar provisions.

According to the US Constitution, the amount of bail required must only be high enough to ensure that the defendant will return to court. It cannot be set too high so that it punishes the defendant and would not enable him to be released.

Some states have a bail schedule which will apply for warrantless arrests. If the charge against a defendant warrants bail, then the bail schedule can be used for both a misdemeanor and a felony. This means that there does not need to be a hearing in a case like this for the defendant to be able to post bail. Apart from this, the procedures between the two courts are similar.

What Happens at a Bail Hearing

A criminal defendant may have more than one bail hearing and sometimes persistence may result in release but there are conditions and requirements. During a bail hearing, the only facts that will be heard are whether or not it is suitable to let the defendant out of jail pending the trial. There will be certain requirements that the defendant must meet and the defendant is not always entitled to be released. It will be required to persuade a judge at a bail hearing of both of the following:
  • you don't present a danger to the community
  • you are not a flight risk, likely to run away from jurisdiction of the court

Factors that Improve Your Chances of Being Released on Bail

A defendant can increase his or her chances of getting bail by showing strong commitments or ties to the community. A person who has invested time and effort to be in a familiar place indicates a strong likelihood that this person has little intention of leaving town if released on bail. In order to prove these ties to the community and obtain bail, the defendant will need to provide witness testimonies or character references. These witnesses will also be asked to provide their knowledge of the defendant's good character and provide reasons why the defendant presents no flight risk or harm to the community if released on bail. The most common character witnesses include the following:
  • family members, including parents, spouse and children
  • current employers or business partners
  • landlord
  • religious professionals (Rabbi, Priest or other spiritual leader)
  • teachers or professors
  • doctors or counselors
Documents that may indicate a defendant poses no flight risk and has strong ties to the community include records that may provide proof of all of the following:
  • property deed, apartment lease, rent receipts and utility bills (current and old to show the length of time the defendant has been part of the community)
  • employment agreement, pay stubs, volunteer work (current and old records)
  • school enrollment, school ID card, school records, receipts and attendance
  • membership in community organizations, charities, church, synagogue, etc.
  • character letters from: employers, landlords, religious professionals, teachers (stating that you are a reliable
  • person, having good character, surely the kind of person who will appear in court for the trial)
  • contact information for character references

Factors that Decrease the Possibility of Bail Being Granted

There are certain factors which could affect a defendant's chances of being granted bail such as:
  • the defendant was accused of committing a violent crime
  • the defendant had not shown up at previous court hearings
  • the defendant was arrested while on probation, parole or out on bail
  • there is an outstanding warrant against the defendant
When it comes to deciding whether or not a defendant should be granted bail, a judge will weigh up the positive qualities of the defendant against the negative aspects of the case. If bail is not granted, then the defendant can re-request it at a later date or can appeal the decision at a higher court.

It is recommended to have the benefit of of an experienced criminal lawyer for handling arraignment and bail hearings.
Criminal Law & Procedure
Bail Hearing
About author
Michael Wechsler
Michael M. Wechsler is an experienced attorney, founder of, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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