Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

You Have Been Arrested In Boston For Assault, Murder Or An Outstanding Warrant; Will You Be Released On Bail?

You are arrested in Massachusetts. Being an avid reader of the daily Boston Criminal Law Blog, you know that what you do in the next few minutes could mean the difference between sleeping at home or at the local jail for the next few weeks. You remember that there were a variety of postings that had talked about things that could help and things that could hurt your chances at being released on low bail. But it was always about this story or that story…never a simple overview about bail and what determines an arrestee’s bail conditions.

Until now, that is.

In this, the latest edition of our weekly Thursday Attorney Sam’s Take, where we discuss certain issues facing people in the criminal justice system, we tackle the pre-trial release question.

Most people have heard about a “right to bail”. However, that “right” has been compromised over the years as the courts have been weighing it against the rest of the community’s rights.

The issue of bail is chiefly about the question of whether a criminal defendant is likely to return to court to answer the charges against him or her as it proceeds, over the next several months, to trial. The theory is that if the court is holding some of the defendant’s money, then the defendant will be less likely to flee. Therefore, at a bail hearing, one hears the prosecutor giving all the reasons the defendant to believe the defendant will not come back to court, while the defense attorney argues all the reasons to believe he will return to court.

While the strength of government’s case will likely be argued, it is not the real issue in a bail hearing. Therefore, simply arguing the facts as if the underlying case had now gone to trial, alone, is not that much help. However, it is relevant if one can persuade the court that the case against the defendant is weak and therefore he has every reason to want to return to challenge the non-existing evidence and clear his name.

This is the same reasoning in considering the seriousness of the case. For example, if the defendant has been charged with murder, considered the most serious of cases and punishable by either life imprisonment without parole or, in the federal system, the death penalty, the courts consider that these potential outcomes are usually enough reason to make a defendant not want to return for the outcome. These kinds of cases are among the few times a defendant can be held without bail for actual bail purposes.

Obviously, in matters which will likely end (even if there is a conviction) with no jail time, there is less incentive to keep the defendant away from court. These defendants are often released on little or no bail. In fact, some are not even technically arrested, but are given summonses to show up in court on a certain date and time.

The court’s considerations do not end, however, with the nature or strength of the prosecution’s case. It also has to do with the defendant’s background.

One of the first things the court does is to review the defendant’s past criminal history. This has been produced for the judge by the Department Of Probation, who has “run” the defendant’s background information to obtain what is known as a CORI report.

The court will consider whether the defendant has a criminal history. Has he been arrested before? What types of charges? How did the cases end?

You see, if the defendant has no prior matters, then there is less incentive for him to flee. This is because the more of a criminal history a defendant has, the chances increase that, if convicted, incarceration will be the sentence. Normally, the courts do not go backwards, and so the more time a criminal defendant has served in the past, the more time he is likely to receive in the future. Basically, the theory is that, “if he served 3 years before, and that did not teach him, then maybe 5 years will convince him to stop the criminal activity”.

About as important as the previous record of convictions, if not more, is whether the defendant has a history of showing up in court. The CORI reflects defaults that occurred in the past and so the court is alerted if the defendant is someone who generally has a difficult time motivating himself to come to court.

One specific note here – when the default warrant is recalled, because you came back to court, the issuing of the warrant is still on your record. Therefore, when your attorney asks you if you have had any warrants, do not tell him “no” because they have been “cleared up”. The answer is “yes” because they existed in the first place.

Likewise, what the defendant did at the time of arrest will be considered. If the defendant “went along quietly” with the police, there is no added reason to believe that the defendant will not return to court. However, if the defendant assaulted the police and tried to get away, then the court may assume it likely that the defendant is not likely to come back to court because he has already tried to escape and has shown little regard to “the rules”.

Another item the court will consider is whether a defendant has ties to the community. In other words, are there reasons, outside the judicial system, that reflect on whether the defendant has incentive to stay and answer the charges or is she likely to simply take off for a life on the run.

Such community ties are things like school, a job, a family in the community, active participation in clubs or organizations (legal organizations) and other community involvement.

The bottom line with bail is the equation of reasons to believe the defendant will show up in court weighed against reasons to believe she will not show up.

…And then there are those situation that you find yourself looking for bail….any bail. In other words, the so-called “Dangerousness Hearings”.

If the prosecution argues that to release the defendant on any bail poses a threat to the community, then it will request a Dangerousness Hearing. Such a threat is generally a violent threat. In such a hearing, the prosecutor is asking that the defendant be held without bail. There are debates about how often prosecutors use this device. In fact, earlier this week, we reviewed the Massachusetts Supreme Judicial Court’s ruling that simple possession of a firearm is not, in itself, a reason to hold a defendant without bail.

There is also another reason a defendant may be held without bail. When a defendant is released on bail, or even on her own recognizance (promise to return), a “bail warning” is read. Among other things, the defendant is advised that if she is arrested during the pendency of the case, she may be held without bail up to 60 days.

That’s right. Without bail. Simply by getting another charge which may, in the end, result in no conviction. Just like probation violation hearings. This is because, while the case is pending, you are technically on a form of probation.

I have met very few clients who would rather await trial behind bars. Therefore, as much as possible, when facing criminal charges, it is very important to do whatever is necessary to follow the rule of law and not give any of these reasons for the prosecutor to seek either requesting high bail or no bail at all.

As you know, different attorneys have different skill in make the arguments to the court that will convince the court to let the client go home…or, at least, not spend the night in jail. Therefore, this is something you want to consider when selecting an attorney. Once again, you want counsel who can best advise you as well as advocate for you to the court.

You want talent. You want skill.

You want experience.

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