Difference between revisions of "Bail"
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Jump to navigationJump to search (Created page with '===Bail=== * 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 hold�') |
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*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 == | |
*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. | ||
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*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 == | |
*Better Case Preparation | *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 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. | ||
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*Puts Client in a Better Light | *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. | **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. | ||
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| + | == 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 == | |
*Danger to the Community | *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. | **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. | ||
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*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 == | |
*A lawyer should interview her client with an eye towards getting all of the information that one 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. | *A lawyer should interview her client with an eye towards getting all of the information that one 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 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 == | |
*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 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. | ||
