Difference between revisions of "Bail"

From Criminal Defense Wiki
Jump to navigationJump to search
Line 1: Line 1:
 +
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.
  
* 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.  
 
 
* 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.  
 
  
 
== Background ==
 
== Background ==
Line 28: Line 27:
 
* 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.
 
* 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."
 
* 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
 
Factors which are considered by the court in granting bail include
 
* The seriousness and nature of the offense charged  
 
* The seriousness and nature of the offense charged  
Line 41: Line 41:
  
 
===Pre-Trial Appointment===
 
===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.
+
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 about 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.  This 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.  
+
Any of the facts that the lawyer learns about 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.  This 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.
+
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 ==
 
== 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.  
+
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.  
+
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.
+
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.
+
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 ==
 
== Benefits of Bail ==
Line 68: Line 68:
  
 
== The Role of the Defendant's Lawyer ==
 
== 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.  
+
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.  
+
 
 +
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 ==
 
== Considerations when Making Bail Applications ==
Line 99: Line 100:
 
***Defendant's parole/probation status
 
***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:
+
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 you the loan. 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 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 you the loan. 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?
  
*
+
 
  
*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.
+
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 ==
 
== Client Interview ==
Line 111: Line 112:
  
 
== Interview of Client's Family, Friends or References ==
 
== 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 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.
+
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 ==
 
== 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 awards/certificates of achievement, letters of reference, and employment records.
+
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 awards/certificates of achievement, letters of reference, and employment records.
  
 
== Letters of Support ==
 
== 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.  
+
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 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 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 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."
+
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."  
 
*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 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."
+
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 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."
+
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===
 
===What Not to Put in the Letter of Support===

Revision as of 16:48, 1 June 2010