Bail Bond FAQ's
What is Bail?
The term Bail is used in several distinct senses: (1) It may mean
the security-cash or bond-given for the appearance of the prisoner. (2)
It may mean the bondsman (i.e., the person who acts as surety for the
defendants 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 the order of 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 ordinarily 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 insurers bail bond if executed by the insurers licensed
bail agent and issued in the insurers name by an authorized person.
Must you always use a bail
bondsman?
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.
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. If probably 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 presence 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 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
crime is a capital offense if the statute makes it potentially
punishable by death, even if the prosecutor has agreed not to seek the
death penalty. It is presumed that the risk of flight of the defendant
is great when he or she is facing death or life in prison without the
possibility of parole.
Is the Public Safety considered
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 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. There the
existence of a substantial likelihood of harm must be determined on the
basis of the specific circumstances of the case. The decision to grant
or deny bail is subject to review on petition by the defendant.
What is considered by the Court
in fixing the amount of the bail?
The amount of the bail is primarily within the discretion of the judge
or magistrate, with only two general limitations: First: the purpose of
bail is not to punish, but only to secure the appearance of the
defendant, and it should be fixed with that in mind. Second: Excessive
bail, not warranted by the circumstances. 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
defendants 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, threats to the victim or a witness,
the use of a deadly weapon, and the defendants 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.
Does the bail bond continue
forever, can you get it back?
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 imprisonment the defendant is committed to the
custody of the sheriff, and the liability of the surety terminates.
What if the defendant is
sentenced to probation?
In most states a defendant who is convicted and given probation is
released from custody, and the bail must be exonerated.
