During a bond hearing, a defendant has to appear in court and request that the judge allow him to be released from police custody while the criminal case is pending. It is common for the initial hearing, where the accused hears the charges, to also be a first bail bond hearing. This is known as an “arraignment”. Sometimes, however, the bond hearing is a separate proceeding. This is common in courthouses where bail hearings only take place at set times and days during the week. Typically, if bail bond hearing and arraignment are done at the same time, it must be within 48 to 72 hours after the accused has been arrested, although this may vary sometimes.
What Happens During a Bond Hearing?
During a bond hearing, the defense attorneys ask for their clients to be released, placing either their word or a dollar amount up as a bond. The lawyers will argue their case presenting evidence. The prosecution is present at the hearing and will agree with the request, deny it, or have an alternative proposal. The judge will then make a final decision.
Uniquely, during a bail hearing, the accused carries the burden of proof. Judges make decisions based on the proof that the defendant presents, but they also look at the charges, whether the defendant has a past criminal history, has close ties to the community and family, and his or her financial resources and financial situation.
How Bail Is Set
Bail is not an arbitrary figure at the discretion of the judge. Rather, it is down to a certain bail schedule, which is used for reference. In most cases, a felony offense carries a bail five to ten times higher than a misdemeanor. Furthermore, there is more to bail than just a dollar amount. Judges usually also have various conditions and restrictions, one of which is generally a curfew. Other restrictions include:
- Using drugs or alcohol
- Possessing firearms
- Being in contact with the plaintiff
Furthermore, while the case is pending, the defendant usually has to report to authorities.
Under the Eighth Amendment, it is not allowed for judges to set an excessive bail. If this happens, or if the defendant can not afford the bail for other reasons, a request for a reduction of bail can be made. Similarly, the prosecution can request for a bail increase if they believe it is unduly lenient. The burden of proof, in both cases, is on the defendant who must demonstrate either that the bail is set too high (if they ask for a reduction) or that it is fair (if the prosecution asks for an increase).
During the Bail Hearing
A judge presides over bail hearings and no jury is required. The defendant and the defense legal team will be there. It is possible for spectators to attend. During the hearing, the judge will listen to the arguments presented and decide whether bail should be granted and, if so, how much. To do this, the judge will look for certain specific things, including:
- The defendant’s character and history. This involves financial resources; mental and physical condition; drug and alcohol history; family ties; record in relation to past court appearances; criminal history; and how long the defendant has lived in the community.
- The risk the defendant poses to the community. It is possible for defendants to be held without bail if the judge feels they pose a threat to the community. In many cases, this is because someone is held on a federal crime, or because they have previously absconded. In many cases, and particularly those where a judge may consider not releasing on bond at all, special conditions will be imposed should the defendants argue for their release. These include limiting travel, seeking or maintaining employment, taking part in regular alcohol and drug testing, taking part in psychological treatment, enrolling in or maintaining an educational program, complying with a set curfew, not consuming drugs or excessive alcohol, being under house arrest, checking in with authorities regularly, not possessing a firearm, not contacting anyone in relation to the case (particularly the victim), signing a bond agreement, and more.
Sometimes, judges will decide not to free a defendant on bail. Alternatively, they may allow bail despite the government requesting that it be denied. In both cases, appeals can be made, although those have a limited scope. Mainly, the appellate will try to determine whether the discretion of the court was somehow abused. What this means is that bail decisions are almost always upheld, unless evidence can be presented that it was arbitrary, erroneous, or unreasonable. This means that it must be demonstrated that it is in opposition to the law or the facts. It does not, in other words, look at any of the factors that were previously taken into consideration to determine whether or not someone should be granted bail at all, it only determines whether the judge made the right decision.
