As a police officer, I found that there were several people that I had to arrest who weren’t actually bad people. While there were the “frequent flyers” who were always getting into trouble and knew the system probably better than their own attorneys, most were good people who took a left when they should have taken a right. They simply made a bad decision one night. After bringing them back to the station and going through the booking process, most people spent the rest of their time staring at me and waiting for me to tell them what comes next. More than likely, you won’t get an answer to that question from the officer.
After being booked, the next step is to post bail. The purpose of bail is to ensure the Defendant’s appearance in court. The police will generally call a bail commissioner to come to the station for this. The bail commissioner works for the courts, and determines whether or not to release the person on bail. Most states allow the bail commissioners to receive a fee for their services. This fee is in addition to any amount that the commissioner sets for your bail. The police officer can also bring the person directly to the court, and have bail set by the judge.
In Massachusetts, there is a presumption that the person arrested should be released on “personal recognizance,” or rather your word that you will come to court when required and you will not commit any crimes while on release. The burden is on the prosecution to demonstrate by clear and convincing evidence that the Defendant is a risk. In a capital case, however, the burden shifts to the Defendant to show why he is entitled to liberty.
A Defendant has the right to legal representation at a bail hearing. This is the first time that his attorney will advocate for him. The Defendant has the right to present evidence, and hearsay evidence is allowed. The prosecutor will argue first and, obviously, will give the court reasons as to why the Defendant should not be entitled to bail, or at least not personal recognizance bail. The Defendant’s attorney will then argue why the Defendant is entitled to personal recognizance bail. Ultimately, the decision will be made by the man in the black robe.
If bail is set, and it is set excessively high, the Defendant may petition a bail review hearing be conducted by a Superior Court judge. This is a “de novo” review, or in other words a “do over.” Again, the burden will be on the prosecution to prove that the Defendant should be denied bail. The Superior Court judge can either raise or lower the bail at this hearing. In Massachusetts, if a Defendant is still unsatisfied with the outcome, he/she may have a further right to review by a single justice of the Supreme Judicial Court.
As a condition of bail, Defendants are generally placed on Pretrial Probation. If the Defendant commits a new offense while on release, his bail can be revoked for up to 60 days. For this reason, I strongly suggest to my client that they “keep their noses clean” while on bail.
This blog is merely a brief description about what to expect with bail. If you have been arrested for a crime, it is always best to consult with an experienced attorney. The only person who has rights, is the person who knows what those rights are.
North Andover Criminal Law Blog 