Preparing for a Bail Hearing

A bail hearing is any court appearance at which you ask the judge to release you from custody pending the outcome of your case. It’s still called a bail hearing, even though you may be asking for release on your own recognizance, rather than bail. Often, a bail hearing is just part of a longer hearing involving other procedures, such as entering a plea or arguing a motion. You can have multiple bail hearings, and persistence pays off: sometimes a judge finally decides to let you out of jail at your fourth or fifth bail hearing. It helps, of course, to present new evidence or arguments each time you request release.

To be released, you’ll have to persuade the judge that:

      (1) you’re not a danger to the community; and

      (2) you’re not a flight risk (likely to run away).

Certain factors make it tougher—and sometimes impossible—to get out of jail. The judge is less likely to order your release if you:

  •  have an outstanding warrant
  •  got arrested again while you were already out on a promise to appear, bail, or OR 
  •  are on probation or parole
  •  have failed to appear for court dates in the past
  •  have immigration problems
  •  were arrested for a violent crime
  •  were arrested with weapons in your possession

On the bright side, there are easy ways to improve your chances at a bail hearing. The main task is to supply your lawyer with proof that you’re not a flight risk. Your lawyer will be arguing to the judge that you have long-term ties to the community, and therefore you wouldn’t just leave and never come back. So you (and the family and friends who are helping you) should look for witnesses and documents that might assist your lawyer in convincing the judge that you won’t skip town.

Communicating at a Bail Hearing

Generally, your lawyer will do the talking. If you try to speak to the judge without being directed to do so by your lawyer, the judge will be annoyed. So, it’s important that you tell your lawyer about your ties to the community and any negative factors before your case is called.

Although you won’t be speaking, the judge will look carefully at you, trying to tell whether you’re reliable. Therefore, your facial expression and body language count for a great deal. Of course, if you were arrested the day before, you’ll probably be feeling upset, sleep-deprived, and ill. But you’ll only be in court for five minutes, so for that window of time, you’ve got to pull yourself together and look dependable and alert. Try to tidy yourself, before entering the courtroom. Don’t look angry, even if you were wrongfully arrested. Don’t let your gaze wander, but keep your attention focused on the judge. Don’t cross your arms over your chest (which looks challenging), but stand up straight and behave with respectful dignity.1

Remember, you’re not allowed to fight your case at the bail hearing. Your lawyer may point out weaknesses in the prosecution’s claims, in arguing that bail should be reduced, but the judge won’t listen to the story of what really happened. The only issue being decided is whether to let you out of jail; that is, what it will take to make sure you come to court.

Witnesses for a Bail Hearing:

  • relatives, especially parents and children

  •  employers or business partners
  •  landlord
  •  religious professionals (minister, priest, monk, nun, rabbi, imam)
  •  teachers or professors
  •  counselors 

The witnesses (and even the people who are simply there to show support) should be conservatively dressed, not wearing gang colors or t-shirts with slogans on them. The people who speak or write letters on your behalf must be able to say that they know you well, and that you’re a reliable person who will surely come to court whenever you’re supposed to. It does more harm than good if a character witness says hesitantly, “Well, I kind of know him, and I think he’d probably come to court…”

Being positive and assertive is particularly important for families who are trying to keep custody of a minor who’s been picked up for criminal activity.2 Before a detention hearing in juvenile court, family members should talk with the minor’s lawyer about how to convince the judge to let their kid come back home. In court, the family should firmly promise to help the young person follow whatever rules and programs the judge sets up. If the family members don’t speak with confidence, the judge may feel that they don’t have enough commitment or enough parenting skills to provide adequate structure for the minor.3

Documents for a Bail Hearing

  • deed or lease, rent receipts, utility bills, phone bills (both current bills and very old ones, to show the span of time you’ve been at this residence)

  • employment contract, pay stubs, records of volunteer work (both current and old records)

  • school i.d., school records

  • proof of membership in community organizations or church
  • character reference letters from: employers, landlords,religious professionals, teachers and counselors (saying only that you’re a reliable person who will surely come to court, not discussing the case itself)

  • list of character references with phone numbers

  • letters on doctor’s stationery about any medical conditions or appointments that necessitate your release (saying, for example, that you’re scheduled to have surgery next week)

It’s good to provide the original of each document (for the judge), plus three copies (for the prosecutor, the defense attorney, and yourself). Obviously, it can be very difficult for friends and family to run around trying to assemble these materials while you’re sitting in jail. It makes a lot of sense to keep such papers organized in a safe but accessible place, so that you can tell people where to look.

Official Reports for Determining Release on Your Own Recognizance

In some places, there’s an agency that creates reports for the court concerning the defendant’s community ties, to help the judge decide whether or not to release him on OR. The people preparing these reports may be part of the probation department, part of pretrial services, or from an outside organization. Generally, they meet with prisoners who’ve just been arrested, but haven’t yet been to court, and ask questions about address, length of residence, employment, etc. They’ll want phone numbers, so they can call and confirm the information you provide. Naturally, cooperating with such a report is to your advantage. It’s helpful, if you’ve been able to call your friends and family, to have them locate the phone numbers you’ll want to give this interviewer. It’s also important to let people know that they should go ahead and speak to whomever calls concerning the report. The one danger here is that you, or one of your contacts, might be talking to a police detective or other law enforcement agent, by mistake. So make sure that the person who’s asking you questions is just preparing an OR report. The individual should have appropriate identification, and should not be asking questions about anything other than community ties and character references. Unless you’re absolutely sure you’re talking to someone who’s preparing an OR report, say the Magic Words: I’m going to remain silent. I would like to see a lawyer. The worst that can happen, if it turns out that the interviewer was legitimate and you didn’t answer his questions, is that you’ll have to get your friends and your lawyer to provide this sort of information to the court, instead of relying on the report. If you have a good support network, they can be more effective than any agency in assembling material to prove your community ties.

Last Minute Preparation for a Bail Hearing

If you’re about to appear for a bail hearing and there’s been no OR interview and no time to assemble witnesses or documents, at least ask your attorney to call your relatives, employer, landlord, school, etc. That way, your lawyer will be able to tell the judge that she’s made these calls and verified your address and that you’re employed, paying rent, attending classes, etc. There may only be a few moments in which to undertake this task, so work on getting the names and phone numbers ready to give your lawyer.

1. This is a good opportunity to see whether you have any latent telepathic skills that might manifest during an emergency. Transmit loudly and clearly: "I am not a flight risk, I am a pillar of the community," or thoughts to that effect.

2. In most jurisdictions, there's no bail for juveniles. so the family must concentrate on persuading the judge that they will make sure the minor comes to court, since they can't just "ransom" him.

3. If family members feel they must yell at their kid, they should do it someplace other than the courtroom or the hallway of the courthouse.