A bail hearing is a formal court proceeding, usually requested by the defense attorney, in which the defense attorney will attempt to convince the judge to either release the defendant on his or her Own Recognizance or reduce bail. An Own Recognizance release requires the promise by the defendant to make all court appearances without posting bail. The Judge may set non-monetary conditions as part of the Own Recognizance release. Prosecutors can also request a bail hearing if they believe the bail is insufficient.
At the bail hearing the judge listens to arguments by both the prosecutor and defense attorney regarding bail. If the defense attorney is successful in securing an Own Recognizance release then the hearing is concluded. If however, the judge rejects the defendant's release on his or her Own Recognizance, then the defense attorney may attempt to have the bail reduced. A bail hearing can occur at the first court appearance, known as the Arraignment, or at any time during the defendant's court proceedings. In California, defense attorneys are required by law to give the prosecutor two days' notice to request bail reduction. In California, judges are required to presume the charges are true. In other words, the presumption of innocence does not apply to bail hearings.
In setting, reducing, or denying bail, the judge weighs the following factors:
- The defendant's prior criminal history
- The probability of the defendant attending all court appearances
- The seriousness of the crime charged
- Previous FTAs (Failures to Appear in other court proceedings)
- The defendant's current employment status
- The defendant's ties to the community (family, relatives, work, etc.).
Public safety is generally the judge's main concern in setting bail. When public safety is an issue or the defendant is charged with a serious or
violent felony the bail generally is set according to the bail schedule (or presumptive bail) amount unless the judge finds "unusual circumstances" to deviate from the scheduled amount of bail. The bail schedule is a listing of the presumed bail for a specific criminal charge. The bail schedule is set by judges in each county. California law is not specific in terms of unusual circumstances" but some of these circumstances include the age of the defendant (usually elderly) and medical conditions.
It is important to note that while a judge can reduce a defendant's bail, the judge can also raise the bail at the hearing. At the hearing the prosecutor may raise facts about the defendant or the charges of which the judge was previously unaware, such as probation or parole violation or an out-of-state warrant or conviction. Judges have great discretion on setting bail. That is why it is important to have an experienced attorney in your corner, especially an attorney who is skilled in the area of bail and knows the relevant bail issues to focus on. A well-prepared and skilled attorney can make a huge difference in the outcome of the hearing. It is absolutely critical for an attorney to know when and when not to raise a bail issue. Consult with a criminal defense attorney who has bail experience to secure the lowest bail possible and insure the release of the defendant from jail as soon as possible.