Bail Hearing Procedures

Created by FindLaw's team of attorney writers and editors.

To determine what's necessary to ensure a defendant's appearance at trial, a judge or magistrate examines the nature and circumstances of the charges, with particular attention to whether the offense involves violence or narcotic drugs. The court may inquire into the nature and value of any property that might be offered as collateral. The court also examines the weight of the evidence against the defendant, whether the person was on parole or probation at the time of the present arrest, the nature and seriousness of danger to others in the community, and evidence of the defendant's character.

The following is an overview of bail hearing procedures, including the considerations of a defendant's character, whether they should be remanded, and special requirements for defendants out on bail.

History and Character of the Individual

The court will review the history and character of a defendant during the bail hearing procedure, including the following considerations:

  • Physical and mental condition;
  • Financial resources;
  • Family ties;
  • History relating to drug and alcohol abuse;
  • Criminal history;
  • Record concerning appearance at court proceedings; and
  • Length of residence in the community.

Risk to the Community

Where a defendant poses a threat to the safety of the community, they may be held without bail. In other situations, federal law typically requires that a defendant in a federal criminal case be released on personal recognizance or upon execution of an unsecured appearance bond. Released defendants must not commit any crimes during the period of release.

However, if a court determines that personal recognizance or an unsecured appearance bond won't reasonably assure the defendant's appearance, or determines that the safety of a person or the community is endangered, a defendant may be released upon conditions. Federal law delineates a number of conditions that may be imposed.

Defendants may be required to:

  • Limit travel (perhaps surrendering their passport);
  • Maintain or seek employment;
  • Undergo drug and alcohol testing;
  • Undergo medical, psychiatric, or psychological treatment;
  • Maintain or commence an educational program;
  • Comply with a curfew;
  • Refrain from excessive use of alcohol or any use of narcotic drugs;
  • Remain in the custody of a designated person;
  • Comply with periodic check-ins with authorities;
  • Refrain from possession of a firearm;
  • Refrain from contact with crime victim or others designated by the court;
  • Execute a bond agreement with the court or a solvent surety in an amount as is reasonably necessary to ensure the defendant's appearance; or
  • Agree to other reasonable conditions the court may impose to ensure a defendant's appearance.

Both the defendant and the government may appeal an adverse bail decision. The scope of review is limited, however. The only question for an appellate court is whether the trial court abused its discretion. In other words, an appellate court will uphold a bail decision unless it was clearly unreasonable, erroneous, or arbitrary and not supported by the facts or laws in the case. This leaves untouched a broad range of decisions to made as part of the bail hearing procedure, so long as they're based in some part on a reasonable review of the facts of the case.

Get Legal Help to Better Understand Bail Hearing Procedures

Bail issues are just the first set of hurdles a person accused of a crime will face. Having a qualified attorney assist in your defense will mean that you have access to information about the relevant laws in your jurisdiction. Contact a qualified local criminal defense attorney today to start working on bail and other defense issues.

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