A bail hearing is when a judge decides if a defendant can be released from custody. Bail is the amount of money or property that a defendant must pay to secure their release from jail before trial. It's still called a bail hearing even if no money is required for release. This is known as release on personal recognizance. In any event, a hearing is held to determine if release is appropriate.

What Happens at a Bail Hearing

At a bail hearing, the defendant must show that he meets the requirements for release. Unlike a trial, bail hearings aren't meant to argue the facts of the case. The only issue being decided is whether to let the defendant out of jail. Bail isn't always a matter of right. There are some cases when bail isn't appropriate - such as when a defendant is a flight risk or a danger to the community. In those situations, a judge will deny bail.

There are ways that a defendant can improve his chances at the hearing. For example, a defendant can show that he's got strong, long-term ties to the community and wouldn't skip town if out on bail. This can be accomplished by witness testimony or character reference letters. Likewise, demonstrating stable employment can help convince the court that bail is the right decision.

There are certain factors that make it tougher to get released from jail. A judge is more likely to deny bail if a defendant:

  • Committed a violent crime
  • Failed to appear for other court dates
  • Was arrested while out on bail, probation or parole
  • Has an outstanding warrant

In making a bail decision, a judge balances a defendant's positive qualities against the negative aspects of the situation. If bail is denied, a defendant can ask for bail again at later hearings. Also, a decision to deny bail can be appealed in a higher court.

Setting Bail in the Federal and State Courts

Bail hearings happen in both federal and state courts. The procedures for setting bail are somewhat different between the two. Bail hearings in federal court are governed by the Bail Reform Act of 1984. This law allows for the pre-trial detention of a defendant if he's dangerous or a flight risk. There are specific categories of crimes and situations in which there's no chance of bail. There's a special hearing for determining pre-trial detention.

Bail laws vary from state to state. Some states follow the federal law. In other states, bail can be set according to a bail schedule, which generally applies when the defendant was arrested without a warrant. Bail schedules are used in felony and misdemeanor offenses, if the charge is one that's entitled to bail. In such cases, a defendant can post bail without having a hearing. Otherwise, the mechanics of a bail hearing are very similar between the two court systems.

There's one common factor in bail hearings in federal and state courts. Although the decision to grant or deny bail is within the judge's discretion, bail can't be excessive. It's a right that's found in the US Constitution. In other words, bail can't be more than what's necessary to assure that the defendant appears in court. Bail can't be set so high that it's a form of punishment for the defendant.

Questions for Your Attorney

  • Are bail hearings different for juvenile defendants?
  • If a defendant can't afford the bail amount that's set, is that considered excessive?
  • Are out-of-state defendants less likely to get bail?