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Bail is the temporary release of an accused person awaiting trial. The appearance of the accused at trial is usually guaranteed by a sum of money that the court holds as security. Many factors go into deciding whether to allow for release on bail, and it should be considered on a case-by-case basis.

Obstacles to applying for bail include the lack of bail advocacy skills; a lawyer's not receiving a case until the trial stage, at which point it may be too late; and the expectation that a bail application will be denied, which dissuades lawyers from what they see as wasted time and effort.


A person arrested on a criminal charge may be held for trial unless he furnishes the required bail. To be released on bail, a defendant must provide money or collateral that the court holds until all proceedings and trials surrounding the defendant are complete. There are several theories behind bail:

  • Innocent people should not be imprisoned
  • Detention without trial violates the rule of law
  • It is expensive to keep people in prison
  • It can be a financial hardship on the defendant's family if the defendant is unable to work
  • Those remanded into custody are afforded less of an opportunity to prepare their case, and so are more likely to be convicted

Generally, bail should not be set higher than an amount believed to be necessary to guarantee the defendant's later appearance in court. If the defendant does not show up for court, any money or collateral held by the court is forfeited as a penalty. Not everyone is eligible for bail. Individuals who are flight risks or dangerous to the public may be denied bail. Understanding your client's ties to the community and financial status are important at the bail hearing.


Bail is generally reviewed at a preliminary hearing within twelve to twenty-four hours after the issuance of a complaint. At this preliminary hearing, the judge will ask the prosecutor to make a statement with respect to bail. The prosecutor will provide the judge with a brief description of the case, and then give an opinion on whether bail should be set, and how much the bail should be. After the prosecutor is finished, the judge will ask the defense lawyer to respond. This is the defense lawyer's chance to challenge statements made by the prosecutor or add information that the prosecutor may have left out. In this argument the defense lawyer may request outright release, or if that seems unlikely, an amount of bail likely to be made by the defendant. After hearing from both sides, the judge will make a decision about bail and the hearing is over. Types of Bail There are several conditions under which a person may be released on bail.

  • Release on Own Recognizance (ROR) - release on a promise to return to court when necessary and to comply with any other conditions set. ROR is particularly appropriate where, for example, the defendant is employed, has family and property within the community, and is a non-violent first offender.
  • Third Party Custody - release on the promise of someone other than the defendant to return the defendant to court when necessary and to assure compliance with any other conditions set. Consider whether there is a responsible family member who could serve in this role.
  • Unsecured Appearance Bond - a promise to return to court when necessary and to comply with any other conditions set or be liable for a money judgment in the amount of the bond.
  • Cash Bond - a promise to return to court when necessary and comply with any other conditions set or forfeit a sum of money which has to be deposited with the court clerk before release. If the defendant always appears and complies, the money is returned at the conclusion of the case.
  • Percent Bond - a promise to return to court when necessary and comply with any other conditions set or be liable for a money judgment in the amount of the bond, a specified percent of which (usually 10%) has to be deposited with the court clerk before release. If the defendant always appears and complies, the money is returned.
  • Property Bond - a promise to return to court when necessary and comply with any other conditions set or be liable for a money judgment in the amount of the bond, secured by a lien on specific property granted to the court. If the defendant always appears and complies, the lien is dissolved; and the person remains the owner of to the property. The property can be the defendant's or it can belong to another person willing to take this risk.
  • Surety Bond - a promise of a paid professional bail bondsman to return the defendant to court when necessary and assure compliance with any other conditions set or be liable for a money judgment in the amount of the bond. These types of bonds are commonly known as "bail bonds."

Factors which are considered by the court in granting bail include

  • The seriousness and nature of the offense charged
  • The apparent probability of conviction
  • The likely sentence
  • The ties of the defendant to the community
  • The reputation of the defendant
  • The employment status of the defendant
  • The educational background of the defendant
  • The prior criminal record of the defendant
  • The financial condition of the defendant
  • Whether the defendant has missed previous court dates

Pre-Trial Appointment

It is essential that the defendant's lawyer be appointed as soon as possible, so that she has the time and capacity to build the best possible defense. By getting a case at the earliest possible stage, the lawyer will be in the position to work with her clients to gather evidence, identify witnesses, learn about the witnesses' families, and begin to explore program, educational and sentencing options in the fullest possible manner. Lawyers should strive to have contact with clients at the investigation stage, immediately after the first interrogation. Early representation is key to lawyers establishing a productive relationship with their clients. This will also ensure that attorneys can gather all of the information necessary to make the best possible bail application.

Any of the facts that the lawyer learns in the course of her interview with the client or the client's family can then be independently verified. For instance, in a juvenile case, the defense lawyers may learn from a client or his family that he is a serious student. The defense's argument for release on bail may be made more forceful if the lawyer is able to produce the client's school records documenting that the client is indeed a good student, and that he attends school regularly.

An effective lawyer will show why the decision to release one's client on bail makes sense. Simply asking the court to release one's client is not enough.

Bail Applications are Integral to the Right to Defense

The purpose of bail is to ensure that one is not arbitrarily denied her liberty prior to a fair determination of guilt. Obviously, circumstances exist in which one should be detained prior to trial, e.g. if the defendant is a danger to the community, or is a risk of flight. But in most circumstances, people should be released pending trial. If, in the end, the defendant is found not guilty, or is found responsible for some minor or trivial offense, that will be little consolation when he has already effectively been punished by his pre-trial detention. Keeping a suspect in custody before his trial punishes him before he has actually been found guilty. The International Covenant on Civil and Political Rights, ratified by 166 countries and signed by eight more, stipulates that people charged with crimes have a right to reasonable bail.

Determining the reasonable amount is decided on a case-by-case basis. It will ultimately depend on the quality and amount of information that a lawyer submits to the court; it is a balancing test of a number of factors, including the seriousness of the crime, its circumstances, whether the defendant poses a serious threat to the community or a risk of flight, and the defendant's personal circumstances and needs.

For juvenile defendants, it is generally not reasonable to impose monetary bail, since they will be unable to pay. Instead, lawyers should locate an appropriate adult; generally, a parent or guardian can serve as a guarantor.

A lawyer's role is critical to ensure that every citizen is guaranteed their most basic rights under the law. Lawyers should provide early and repeated advocacy for release from detention or jail on bail.

Benefits of Bail

  • Better Case Preparation
    • It is often difficult for layers to meet with clients in custody. It is inconvenient and time-consuming. There also may be legal impediments to such meetings; for example, the police may insist on being present. This can lead to delays, as often the police are not available.
    • It is generally more difficult for an attorney to learn all pertinent facts if her client is in police custody. The lawyer's time may be limited if she must visit her client in police custody, and there may be distractions. Moreover, accused individuals being held in pre-trial detention may find it hard to understand or trust their attorney, because they are scared or are having a difficult time processing their predicament. They also may not have access to the names and contact information of potential witnesses.
    • If the lawyer has been appointed to the case, rather than hired by the defendant, it may take time to develop an effective attorney-client relationship. Bail gives an attorney the opportunity to have unlimited access to the defendant in a neutral setting. Increased contact with the client will lead to increased knowledge about the facts of the case or the defendant's circumstances.
  • Improved Relationship with Client
    • Many clients fail to understand the importance of the role their attorney plays. Most criminal suspects have been subjected to many rounds of interrogation by police or other officials and have been detained for a long period of time before meeting a lawyer. They may have little reason to believe that they have any hope; they may be despondent or incommunicative.
    • Lawyers who act to make arguments on their client's behalf will readily note the difference it makes in the relationship with the client; clients begin to trust their attorney, and see her as someone acting in their interest. This will in turn increase the prospect that the defendant will take an interest in his own case. Accordingly, the defendant will be more likely to give his lawyer the type of information that is helpful in setting up a viable defense theory.
  • Puts Client in a Better Light
    • A defendant out on bail has the opportunity to demonstrate to the court or prosecutor why they should be treated with leniency. It is nearly impossible while incarcerated for a client to overcome the perception that he is anything other than a criminal. But if a client is allowed to attend school, to work, to contribute to the community in a positive way while awaiting trial, it becomes easier for the court to accept that the defendant is innocent, or that he is a good candidate for a non-jail sentence (e.g., suspended sentence). In addition, a defendant out on bail is more likely to be able to withstand the pressures of a trial, because he is better able to take care of himself at home than in jail.

The Role of the Defendant's Lawyer

Judges, procurators, and other officials don't often act on their own to grant bail to criminal suspects, because they don't know enough about your client. Public security officials and procurators will, invariably, start with a negative impression of your client, since they believe he participated in a crime. Their role is to investigate criminal activity, no to discover all of the positive attributes criminal suspects possess.

As the defendant's advocate, it is your responsibility to draw out the facts and information that will alter these perceptions. You will have the opportunity to bring to light the information that will cause public security officials, procurators, and courts to think differently about your client, such as details about his upbringing and prior accomplishments.

Considerations when Making Bail Applications

  • Danger to the Community
    • Often suspects are charged with minor criminal offenses (e.g., petty theft or assault), and have no history of violence; thus, they should probably not be considered a danger. A lawyer must recognize what the court's overriding concerns will be, and then rebut them.
      • Some Factors Negating Danger to the Community
        • Suspect is accused/charged with minor offense
        • Suspect's involvement in alleged offense is minor
        • Suspect has no prior record
        • Suspect has prior record, but no convictions for violent offenses
        • Proposed guarantor has no concerns about suspect being violent
        • Suspect has medical issues
        • Suspect is small/weak for his age
  • Flight Risk
    • Many criminal suspects are not great flight risks. For example, it is rare for a juvenile suspect to be a flight risk. Juveniles by and large have strong roots in the community in which they live, and they seldom have the independence to strike out on their own. They depend on family to support, feed and house them. Some other factors negating flight risk include:
      • Suspect was aware of pending investigation but did not flee
      • Suspect voluntarily surrendered to public security bureau
      • Suspect has long-term community ties
      • Suspect has many family members in the area
      • Suspect gave a detailed statement to the police
      • Suspect expressed willingness to cooperate when detained
      • Suspect has history of regularly attending school/showing up to work
  • Additional Factors
    • There are many factors that may become relevant for the purposes of bail. A creative lawyer will always know how best to use facts to fashion the best argument she can. In addition to the above, consider these additional factors:
      • Physical and mental health
      • Substance abuse
      • Criminal History
      • Record of attending past court dates
      • Defendant's parole/probation status

Each bail application should stand out as unique. While similar in form, any bail argument will revolve around a separate set of factors, related to the distinctive facts of the case and the circumstances of the defendant. A good bail submission is built on logic and reason. Consider the following analogy:

If you want a bank to give you a loan, you would probably not be successful if you simply asked for the money. Without any information, a bank would be likely to deny your application. Before making an investment, a bank would want to alleviate any concerns it might have. Are you stable/low risk? Are you rooted in the community? Why are you asking for the loan? How is the bank's money protected?

If you came with a business plan, the bank would be more likely to approve the loan. Say, for example, that you want to open a caf�. You might be able to show that you have steady employment, that you own an apartment and a car, that you have a husband and a child, who live in the community with you. All of this demonstrates that you are a safe bet to repay the loan. A bank may ask you to document certain facts; for example, you may have to show the deed to any property you own. Anything you can document will help to show that you are reliable and worthy of the loan.

In law, as in business, a lot depends on how you conduct yourself. When you seek release on bail, you are in essence asking the judge or other official to invest in the word of your client, who is promising that he will not engage in destructive or dangerous behavior and that he will show up for questioning and for all necessary court appearances. It is crucial that you provide good reasons for allowing release on bail.

Client Interview

A lawyer should interview her client with an eye towards getting all of the information that she can use in a bail application. Clients may not always understand why the lawyer is asking for such detailed, personal information. Thus, the attorney should patiently explain at the outset why she is asking for such information. A lawyer should tell the client that she is doing her best to get the defendant out of jail; this will help to build trust between the defendant and the lawyer. The lawyer should also remember to speak to clients in a way that allows them to understand their situation more clearly; using big words or legal jargon will only serve to alienate the defendant. It is much better to use plain language.

Interview of Client's Family, Friends or References

A lawyer cannot always get all the information she needs from her client. Some clients lack the maturity or intelligence to tell their lawyer what is helpful. In that case, the lawyer should seek to speak to anyone who knows the client well. Speaking to a client's family is the best place to start; they may be able to tell the lawyer many things the client is unable to express. They can also help a lawyer to get documents that will support factual statements made in a bail application.

A lawyer can also reach out to someone who has extensive contact with the client, such as a former teacher or employer, or a neighbor. Such individuals may be able to tell the lawyer stories about or descriptions of the client that make him more sympathetic. For example, the client may help elderly neighbors carry groceries to their homes. These individuals may also agree to write a letter to the judge or other official, laying out reasons why the defendant deserves to be released on bail.

Documentary Support

There are many ways that a lawyer can support the allegations made in a bail application. For example, if the client has medical issues, a lawyer should attach medical records. If the defendant is a diligent student, a lawyer should provide school records. Other documents that should be provided if available include certificates of achievement or awards, letters of reference, and employment records.

Letters of Support

Letters of support from family members, employers, individuals in the community, or other relevant parties can help to show that the client is not a flight risk or a threat to the community. They can also show that the defendant has appropriate guidance or supervision in the community.

The letter should be addressed to the court or the appropriate governmental entity. It should begin by introducing the person writing, should contain one or two sentences about that individual's work and any role that that person has in the community that gives her credibility. For example, "My name is Wendy Smith. I work at the local Defendant's Rights office, and I am also a volunteer tutor in the public school system."

The writer should then explain for how long she has known the defendant, and how they met. If appropriate, the writer should then give an example of the kind of contract she has with the defendant. For example, "I have known John Robertson for three years. I tutor him every week and he often talks with me about things going on in his life."

The writer should ask that the court release the juvenile from detention, and give a reason or reasons why this is a good idea. For example, "I am asking that you release John Robertson until the trial. It is important that he not miss any time in class and that he continue with his involvement in positive activities, such as playing piano. He practices very diligently."

The letter should include all of the defendant's positive traits. For example, "John has always been considerate of elderly people. I know that he wants to please his mother."

It is also important that the letter include the writer's assessment as to the defendant's dangerousness and whether he is likely to return to court. For example, "I think John will not cause any trouble if he is released, and I believe that he will come to trial."

If appropriate, the writer should state what her role will be in helping the defendant upon release. For example, "If John is released, I will meet with him on a regular basis to see how he is doing." Or, "I get off work at 3pm. I have spoken with John's mother, and we have made arrangements for him to spend afternoons at my house until the resolution of the case."

The writer should close the letter with her name and a phone number. For example, "Thank you very much. Please call me if you have any questions or concerns. My phone number is _______. Sincerely, Wendy Smith."

What Not to Put in the Letter of Support

  • Any discussion about the crime or related incidents
  • Any comments about a possible sentence if the client were to be found guilty in the future
  • Broad statements about the defendant's innocence or guilt. For example, the writer should not say "I am sure that the defendant couldn't have done what the prosecution alleges," or "Everyone knows that the victim is a liar"
  • Anything that is not true or an exaggeration

International Examples


A person charged with a crime is entitled to be released on bail pending trial in most cases. Bail is a mechanism used to ensure the attendance to court by an arrested person. As an alternative to bail, the accused may be released on his own recognance in circumstances.

Article 49(1) (h) of the Constitution provides that an arrestee has the right to be released on bond or bail on reasonable conditions pending a charge or trial. Under Kenyan law, an arrested person can be granted bail either by the police or the court. The right to bail is not absolute. According to Section 123 (1) of the CPC, a person accused of murder, treason, robbery with violence, attempted robbery with violence and any related offence is not entitled to bail. The accused person’s right to bail also includes the right not be required to provide excessive bail.

In exercise of its discretionary power, the High Court may direct that an accused person be granted bail or that bail set by a subordinate court or a police officer be reduced, (see, Section 123 of the CPC).

In cases where the amount of bail is excessive, the advocate for the accused may make a motion for the reduction of the bail amount. Alternatively, he can make a motion for the accused to be released on his own recognizance. To increase the chances of being released on his own recognance, counsel for the accused should investigate and bring forth all evidence that presents the accused in the best possible light.

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