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Through the Bail Hearing

Getting you ready to go through the bail hearing

A bail hearing is organized shortly after arrest of the accused and is an opportunity given to the accused, acting through his attorney, to plead for his immediate release from jail pending commencement of the trial. The judge listens to the arguments prepared by the defense and the prosecution and decides whether the accused should be released on bail or be denied the privilege.

Every bail hearing need not be a time consuming affair and the motions are gone through pretty quickly culminating in a predetermined bail amount being set. It is important to remember that the bail hearing does not culminate in a “guilty” or “not guilty” verdict; it is simply a mechanism to determine the necessity of detaining or releasing the accused that is presumed to be innocent till proved otherwise. Entering a plea and arguing motions are usually reserved for the trial. The bail hearing is a good opportunity for the defense to marshal arguments seeking to quickly release the accused from preventive custody.

The judge usually bases his decision on releasing the accused on two important factors:

(1) Whether the accused can pose a threat to society or be able to tamper with the evidence or confront the victim or threaten some other person vital to the crime; and

(2) Whether there is the likelihood of the accused making an attempt to flee the court proceedings or avoid the court hearings.

The judge may also refuse the bail plea of the accused based on the following factors:

  • There is a warrant outstanding in respect of a previous crime.
  • Accused got himself arrested when he was absconding from a previous hearing set up in connection with an earlier charge.
  • There is a history of noncooperation in regard to court attendance.
  • Accused is mired in immigration problems and had a run in with the immigration authorities earlier.
  • There is evidence of violent crime in the past.
  • Accused is arrested with drugs or weapons or both in his possession.

Although the chips appear to be stacked against the accused in any bail hearing the defense can make an effort to improve the prospects of getting bail by marshaling arguments that the accused has deep association and long standing ties with the community and is unlikely to be a flight risk. It also helps if family members convince friends and well-wishers to stand as witness for the accused and supply documents that attest to his integrity and trustworthiness.


What happens in the bail hearing?

It is crucial that the accused briefs his lawyer thoroughly regarding his background and antecedents without leaving out seemingly trivial issues. Since the lawyer will be doing all the talking (and not the defendant) it is vital that he emphasizes the positives and is well prepared to defend the negatives that could be highlighted by the prosecution.

Appearances do count and the accused should be presentable

Nothing stands in the way of the judge from taking a close look at the accused and his overall appearance. His facial expressions and body language should exude attention and alertness and an ambiance of relaxed confidence, not arrogance or disdain. The dressing should be neat and tidy not loud and gaudy. One can’t allow anger or malevolence to cloud one’s expression. Bowing the head may signal diffidence or convey a guilty look and crossing arms over the chest may signal a confrontationist attitude. The accused is advised to stand up straight with arms calmly resting by the side looking respectful and dignified.

It is important to understand that this is a simple bail hearing and not a trial, and the judge may not have the time or inclination to read the entire history of the case. One should not expect to see any fireworks or the defense attorney flooring the court with his eloquence.

Presenting the ideal witnesses for a bail hearing:

  • Parents of the accused, his spouse or children
  • Employer of the accused or trusted and noteworthy business associates
  • Present landlord
  • Religious ministers of the community
  • School or college teachers and school friends
  • Counselors that can vouch for the integrity and reliability of the accused
  • Other persons that can adduce evidence in support of an alibi

Generally the witness should be a reliable and noteworthy person himself and should come properly dressed for the occasion and be willing to give supporting evidence in writing to the court attesting to the reliability of the accused. Witnesses should state emphatically that they have every reason to believe that the accused will attend all subsequent hearings and that he will cooperate fully with the court.

It is important for family members, to speak forthrightly and confidently and assume full responsibility for the behavior of the accused and seek his release, extending full support to the court’s directives. This often enhances the chances of securing bail.

The papers you need to gather for the bail hearing

  • The mortgage deed, lease agreement or rent receipts that can throw light on the period of stay of the accused in the community
  • Certificates and salary records that can throw light on employment history
  • School records and volunteer work evidencing deep rooted association with the community
  • Documents attesting to previous or continuing membership in community organizations or the church
  • Character certifications acknowledging that the accused is reliable enough to appear in court proceedings (without passing judgment on the case or the involvement of the accused). These could be sourced from teachers, colleagues, landlords, counselors, employers or minsters of the church.
  • A listing of the medical history of the accused duly certified by a registered medical practitioner or hospital mentioning appointments scheduled for critical care such as surgeries for example.

Though it may not be easy to ready all such documents at short notice for a bail hearing it is absolutely essential to make a genuine effort for securing the release of the accused. If time is a problem the least a family member can do is to provide the attorney with phone numbers of close relatives, employers, school authorities and the landlord so that the judge can be informed that calls have been made and it has been confirmed that the accused is employed, paying his rent, was attending school or was gainfully employed at the time of his arrest.

The bail hearing, though brief and to the point and lacking in frills or glamor, is a crucial turning point for the accused as a decision will be taken by the judge that will ensure either his freedom till trial commences or his incarceration for an unknown period. It is best to hire the services of a good lawyer that can place evidences and marshal good arguments that can convince the judge to take a lenient view.

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