In criminal law, a bail hearing is a court proceeding where the judge will decide if the person who is in custody should be allowed to post bail to get out of jail before the trial date. The court will consider various factors in making this decision, including the person’s history and whether the defendant poses a safety risk to the community.

Doesn’t Everyone Have the Right to Bail?

Unlike other rights, the right to bail is not explicitly stated in the Constitution. However, as stated in the 14th Amendment, an individual may not be deprived of life or liberty without due process of law. This means that if you are being held in jail, you are entitled to be charged with the crime you were arrested for, convicted, or let go within a reasonably short timeframe.

While being held, you may be able to apply for bail. If you choose to apply for bail, a bail hearing will be held, at which point the judge will either grant or deny bail. In instances of violent crimes, many states prohibit bail.

How Much Time is There Between Arrest and a Bail Hearing?

The time between arrest and a bail hearing varies between states. Generally, the hearing takes place at the time of arraignment and is usually within 72 hours of arrest. However, many criminal justice systems are clogged and it can take longer.

What is the Basic Purpose of a Bail Hearing?

The main purpose of a bail hearing is to give the defendant an opportunity to show the court that they will appear in court on the date of their trial. The defendant will want to provide evidence that they are not a threat to society and that they are not a flight risk.

How Does the Defendant Prove That They Will Appear in Court?

The defendant will want to present evidence that shows they will appear on their court date. Evidence such as witness statements about the defendant’s character, and documentation showing ties to the community. It is important to present any and all evidence that will show the judge they are less likely to flee.

The defendant may be asked to hand over certain things (like their passport) or the judge can order that the defendant’s assets (like bank accounts) can be frozen. However, if the judge decides that they do not believe the defendant will show up on their court date then they have the right to withhold bail.

What Will Prevent Bail from Being Set?

In some situations, bail will not be granted. As previously mentioned, it is not an automatic right for the accused. Below are a few situations where bail will most likely not be set:

  • The crime was violent or involved murder;
  • The accused poses a threat to society;
  • The accused is a flight risk;
  • The accused has a history of failing to appear at past court dates;
  • The accused has an outstanding warrant, or is on parole or probation;
  • The accused was already out on bail at the time of arrest; and/or
  • The accused is an illegal immigrant or is having immigration issues.

Remember, ultimately it is up to the judge to decide if they wish to grant bail. Each defendant should be prepared for the possibility that the judge will not grant bail or set bail at a very high amount that the defendant is unable to pay.

Do I Need a Lawyer?

If your loved one has been charged with a crime, contact a criminal lawyer immediately. An attorney may improve the chances of being granted bail, and will also be able to represent the individual at trial. The consequences of criminal charges can be severe, which is why having an experienced attorney on your side is imperative.