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What is Bail?
The term Bail
could be used in several distinct forms: (1) It
may indicate the security-cash or bond-given
for the appearance of the defendant. (2) It may
also mean the bondsman (i.e., the person who
acts as surety (signer on the bail bond) for the
defendant's appearance, and into whose custody
the defendant is released). (3) As a verb, it
may refer to the release of the defendant (he
was bailed out). The first meaning is the most
common and should be employed for clarity.
Admission to bail
is an order from a competent court that the
defendant be discharged from actual custody upon
bail. The discharge on bail is accomplished by
the taking of bail (i.e., the acceptance by the
court or magistrate of security-either an
undertaking or deposit-for the appearance of the
defendant before a court for some part of the
criminal proceeding).
Bail is evidenced
by a bond or recognizance, which as a rule
becomes a record of the court. The bond is in
the nature of a contract between the state on
one side and the defendant and his sureties on
the other. The agreement basically is that the
state will release the defendant from custody
the sureties will undertake that the defendant
will appear at a specified time and place to
answer the charge made against him. If the
defendant fails to appear, the sureties become
the absolute debtor of the state for the amount
of the bond.
When
talking about bail, what do you mean by the term
undertaking?
An undertaking is
a permissible type of bail security. The taking
of bail consists of a competent court accepting
an undertaking of sufficient security for the
appearance of the defendant, according to the
terms, or the surety will pay a specified sum to
the state. Corporate sureties are commonly used,
and the court will accept an admitted surety
insurer`s bail bond power of attorney if
executed by the insurer`s licensed bail agent
and issued in the insurer`s name by an
authorized person.
Must
you always use a bail bondsman?
In most State
systems the defendant, or any other person, may
deposit the sum mentioned in the bail order or
bail schedule. Cash is accepted, and it is the
practice for each court to adopt a written
policy permitting acceptance of checks or money
orders, upon conditions that tend to assure
their validity, in payment of bail deposits.
Some courts have a maximum amount over which a
personal check will not be accepted. Depending
upon the jurisdiction, government bonds may be
accepted. Please note some jurisdictions will
set a bail order requiring a corporate surety
bond. This means that you can only post bail
thru a surety bail bondsman.
What
if someone believes that the money to be used to
bail someone out is the product of criminal
activity?
The judge or a
magistrate may stay the release of a defendant
if a peace officer or prosecutor files a sworn
declaration demonstrating probable cause to
believe the source of the consideration, etc.
was feloniously obtained, or the judge or
magistrate has probable cause to believe the
source was feloniously obtained. This order is
commonly known as a Nebbia Hearing or Bail
Sufficiency Hearing. If probable cause exists,
the defendant then bears the burden by a
preponderance of evidence to prove that no part
of the source was so obtained. A defendant who
prevails must be released on issuance of a bail
bond as specified.
What
is the purpose of bail?
The purpose of
bail is to assure the attendance of the
defendant, when his or her appearance is
required in court, whether before or after
conviction. Bail is not a means of punishing a
defendant, nor should there be a suggestion of
revenue to the government.
Is
bail a matter of right?
Although the right
to bail has constitutional recognition in the
prohibition against excessive bail, bail is not
always a matter of right. However, with certain
exceptions a defendant charged with a criminal
offense shall be released on bail. Persons
charged with capital crimes when the facts are
evident or the presumption of guilt great, are
excepted from the right to release on bail.
However, a defendant charged with a capital
crime is entitled to a bail hearing in the trial
court to determine whether the facts are evident
or the presumption great. A capital crime is an
offense that a statute makes it potentially
punishable by death or life imprisonment, even
if the prosecutor / government has agreed not to
seek the death penalty. It is presumed that the
risk of flight of the defendant is too great
when he or she is facing death or life in prison
without the possibility of parole.
Is the Public Safety issue measured in the
decision to admit a defendant to bail, or to
deny Bail?
Bail can be denied
in certain non-capital cases based upon a
finding of substantial likelihood of harm to
others. When the facts are evident or the
presumption of guilt is evidently great, bail
may be denied in the following instances: In
felony cases involving acts of violence, or
felony sexual assault offenses on another
person, if the court finds on clear and
convincing evidence that there is a substantial
likelihood that the release of the accused would
result in great bodily harm to others. In a
felony case, if the court finds on clear and
convincing evidence that the accused has
threatened another with great bodily harm, and
that there is a substantial likelihood that the
accused would carry out the threat if released.
The requirement of findings based on clear and
convincing evidence implies that a hearing will
be held on the issue. If there is existence of a
substantial likelihood of public harm or danger
to the community it would be determined on the
basis of the specific circumstances of the case,
the testimony of witness' and prior history of
the defendant. The decision to grant or deny
bail is subject to review on a court petitioned
motion by the defendant.
What is considered by the Court in fixing the
amount of the bail?
The amount of the
bail is first and foremost within the scope and
discretion of the judge or magistrate, with only
two general limitations: First: The purpose of
bail is not to penalize or punish the defendant,
but only to secure the appearance of the
accused, and it should be set with that in mind.
Second: Excessive bail, not warranted by the
circumstances or the evidence at hand. Is not
only improper but a violation of constitutional
rights. In fixing the amount of the bail, the
court takes into consideration the seriousness
of the charge, the defendant's previous criminal
record, and the probability of the defendant
appearing at the trial or hearing.
Additionally, if
public safety is an issue, the court may make an
inquiry where it may consider allegations of
injury to the victim, danger to the public
and/or to the defendant him/her self, threats
to the victim or a witness, the use of a deadly
weapon, and the defendant's use or possession of
controlled substances. A judge or magistrate
setting bail in other than a scheduled or usual
amount must state on the record the reasons and
address the issue of threats made against a
victim or a witness. The court must also
consider evidence offered by the detained person
regarding ties to the community and ability to
post bond. The bail amount set by the court must
be within the minimum range amount of bail that
would reasonably assure the defendant's
appearance. NOT the Maximum!
Does
the bail bond continue eternally, can you get it
returned?
When the bail has
served its purpose, the surety will be
exonerated (i.e., released from the obligation).
Exoneration normally occurs when the proceeding
is terminated in some way or on the return of
the defendant to custody. After conviction, the
defendant appears for sentence. If sentenced to
jail confinement or imprisonment the defendant
is committed to the custody of the sheriff, and
the liability of the surety/s' is discharged.
Please note that if
What
if the defendant is sentenced to probation?
A defendant who is
convicted and given probation, is released from
custody and the bail bond must be exonerated as
a matter of law.
What is the difference between a surety and a
professional bail bondsman.
A
professional bail bondsman is a bail bondsman
who pledges his or her own property / security
to guarantee the bail bond to the state. A
surety bail bondsman utilizes the financial
strenght and backing of an admitted insurance
company. A surety bail bondsman is also able to
post federal court and immigration bail bonds,
where a professional bail agent is not. |