Bail & Pre-Trial Release Conditions
When Bail is Necessary
For a Massachusetts criminal defense lawyer, there may be no more important task than securing his client’s release prior to the trial. In many states, Massachusetts included, there is a presumption in favor of releasing a criminal defendant without bail during the pendency of his case. Where there is reason to doubt that a defendant will appear voluntarily at future court appearances, a court is permitted to set bail, though no higher than is reasonably necessary to compel his appearance at future court dates.
Since every defendant is presumed innocent, courts are not permitted to deny a defendant bail or to set bail unreasonably high to punish him for being accused of committing a crime. In reality, where there is compelling evidence of a defendant’s guilt and the crime is particularly heinous or violent, courts will often either deny bail or set bail at an amount that the defendant will not be able to raise. Most prosecutors will, therefore, treat arraignments or bail hearings as mini-trials, in an effort to destroy the criminal defendant in the eyes of the judge — or the community, especially if the cameras are rolling. A criminal defense lawyer must be prepared, even as early as the arraignment, to battle the prosecutor and knock him on his ass.
It most states, if the prosecutor demonstrates at a “dangerousness” hearing that the defendant poses a danger to the community, the courts are permitted to detain a defendant during the pendency of the case.
Factors Courts Consider When Determining Bail
Courts weigh the following factors in determing whether to set bail or how high to set bail:
- The seriousness of the crime, including potential or mandatory prison sentences prescribed by statute or common law.
- The defendant’s ties to the community, including family living in the jurisdiction.
- The defendant’s ties to other states or countries.
- The length of time that the defendant has resided in the community, if any.
- The defendant’s current and former employment.
- The defendant’s reputation within the community.
- The extensiveness of the defendant’s prior criminal record.
- The defendant’s record of attending scheduled court appearances.
- The defendant’s current parole or pre-trial status for any prior charges.
- The defendant’s use of an alias or false identification.
- The defendant’s mental health issues, if any.
- The defendant’s substance abuse issues, if any.
To properly represent you at your arraignment, your Cambridge criminal defense lawyer must obtain the police report, meet with you to go over the allegations, discuss your criminal record, if any, your employment history and ties to the community.
Being Released on Bail is Critical
If you are charged with a crime, but have not yet been arraigned, maximizing your chances of being released on personal recognizance or an affordable amount of bail, as well as working toward minimizing the conditions of your release, must be your attorney’s priority. After all, a criminal defense lawyer will have a greater chance of persuading a jury to acquit you or negotiating a favorable plea bargain on your behalf if you are released during the pendency of your case.
Why Being Released is so Important
When a client is released during the court proceedings, he can:
- Meet regularly with his lawyer at his office, lessening the burden on his attorney to travel to the jail and having to discuss the case in the jail’s small conference room. At the criminal defense lawyer’s office, they can spend adequate time discussing the case in a more relaxed atmosphere, spread out the evidence on the conference room table, and together formulate a strategy for winning the trial or negotiating a favorable plea bargain.
- Travel with his criminal defense attorney to the alleged crime scene. By visiting the alleged crime scene together, the lawyer and client can reenact the “crime,” allowing the lawyer to better understand the client’s explanations and/or identify inaccuracies in police reports or with witnesses’ recollections.
- Maintain his employment. A client can use his salary to support his family and pay legal and investigatory expenses, while employment helps him maintain his emotional health by giving his something productive to do each day. A judge is far less likely to incarcerate a defendant who demonstrates that he can reliably hold down a job.
- Seek counseling. Therapy may help a client overcome any issues that may need to be addressed, such as addictions, and alleviate his anxiety while the case works its way through the system. Judges look favorably on defendants who demonstrate a commitment to constructively dealing with their problems.
- Prove he can be trusted not to commit additional crimes during the months or years that it takes for the case to be resolved. When a judge sentences a client who has been detained since his arrest, he sees only an individual who, when last on the street, committed a crime.
Maximizing the Chances of Pre-Trial Release
Both you (and/or your family) and your Massachusetts criminal lawyer can take reasonable, commonsense steps to increase the likelihood that a Court will set either no bail or an affordable bail, as well as manageable pre-trial release conditions.
If you are currently under investigation, but not yet charged with a crime, your lawyer should contact the appropriate prosecutor. By reaching out to the prosecutor, whether he is an Assistant District Attorney or an Assistant U.S. Attorney, the criminal defense lawyer lets him know that you are represented by counsel and, despite being aware of the investigation and the possibility of being charged with a criminal offense, have not fled the jurisdiction. Your criminal defense lawyer should follow up that telephone conference or meeting with a letter documenting the meeting/conversation, providing your current residence and employment addresses, detailing your ties to the community, etc., and assuring the prosecutor of your willingness to voluntarily appear at court for any arraignment. By opening the lines of communication, the defense lawyer may be able to allay the prosecutor’s concerns that you might flee rather than face the charges, and persuade him to allow you to appear at court for arraignment on a pre-arranged date and forego any request for bail.
If you have been arrested and brought to a police station, the police will contact a Clerk-Magistrate to set your initial bail. Oftentimes, a Clerk-Magistrate will impose no bail, but will require you to pay his statutory fee (often less than $100). If the Clerk-Magistrate imposes a modest bail and you do not have the required funds on you, some police officers will be willing to escort you to a bank or an ATM. If the Clerk-Magistrate sets bail at an amount that exceeds your available funds, make every effort to ask your family and friends to help you raise that initial bail and secure your release. By returning home for even a few hours, you can, perhaps, get some needed rest, shower, dress appropriately for court, contact a Massachusetts criminal lawyer, and arrange for family and friends to attend your arraignment. Moreover, you can demonstrate to the Court your good faith intention to appear at all future court appearances, thereby greatly reducing the likelihood that the Court will impose additional bail or pre-trial release conditions.
At court, your lawyer should obtain a copy of any law enforcement report detailing the allegations, and a copy of your criminal record, if any, and review these documents with you. Inform your criminal defense attorney of any mitigating circumstances or any alibi, as well as the names and contact information of any witnesses who can testify to your innocence or, at least, cast doubt on your guilt. Empower your defense lawyer with detailed information he can use to undermine the strength of the government’s case against you during the bail argument and persuade the Court to release you on personal recognizance or impose a bail you can afford.
Finally, arraignment is your first appearance before the judge and, therefore, your chance to make a good first impression. Address the judge as “Your Honor” or “Judge.” Resist the temptation to demonstrate your displeasure with being charged with the crime, to argue your defense, or to criticize the police or any witnesses. Unless he addresses you specifically, a judge wants your lawyer to answer his questions and address his concerns. In most instances, the more you say, the higher the bail.
Pre-Trial Release Conditions
To ensure public safety and to limit the likelihood of the accused re-offending, most courts will place restrictions or conditons on the accused as part of the terms of release. Restrictions and conditions may include “stay away” orders (prohibiting a defendant from contacting the alleged victim or witnesses), drug testing and/or drug counseling, a mental health evaluation or counseling, maintaining or seeking employment, travel limitations and passport forfeiture, and surrender of firearms. Courts are required to impose the least restrictive condition or combination of conditions to reasonably assure the accused’s appearance at future court dates and the safety of persons involved in the case and the community. 18 U.S.C. §3142(c)(1).
Kevin J. Mahoney is a Massachusetts criminal defense lawyer, author of Relentless Criminal Cross-Examination, and on-air legal analyst. Call us at 617-492-0055 or use our online contact form to schedule an interview with Attorney Mahoney.