Seriousness of the Charge

The more serious the charges against the person, the more likely a high bail amount will be set. For example, someone that is charged with armed robbery will have to post higher bail than someone charged with shoplifting. If the charge is serious enough (such as murder or kidnapping), no bail is set. The accused is remanded (held in jail) until trial.

Prior Criminal History

If the accused has a prior criminal history, then their chances of having a higher bail set (or even being remanded) increase. Also, the number of prior convictions, their seriousness, and the time at which they were committed play into the judge’s decision. For example, someone convicted of shoplifting when they were a teenager twenty years ago won’t have as much against them as someone that just got released from jail for armed robbery.

Prior criminal history means less and less as the crime gets more serious. If someone is accused of first degree murder, then their criminal history will matter very little in the judge’s decision. Once again, for less serious offenses, history plays a larger role.

Prior Bench Warrants

A defendant that has prior bench warrants for their previous convictions has a much greater chance of their bail being set very high or being remanded until trial. Bench warrants are issued when a defendant fails to show up for court. The entire issue of bail is about whether or not the defendant will show up for their court proceedings, thus avoiding having to issue a warrant.

It is possible that past warrants may have been issued in error or were issued for invalid reasons. If these can be satisfactorily explained by the defense attorney, the judge may remove the warrants from their consideration.

Ties to the Community

A defendant that has strong ties to the community in which they are accused has a more favorable position in regards to bail. For a misdemeanor or less serious crimes, someone with strong ties to the community may even get released on recognizance. For felonies, those with strong ties to the community will often have a lower bail amount set than those without strong ties.

There are several factors that are considered to give the defendant strong ties to the community. One is owning a home or property and living with their family in that community (it also helps if the family is in the courtroom for the arraignment). If they have been a long time resident of the community, that is even better. US Citizenship and employment at a steady full-time job are also considered strong ties. An effort to hire a private attorney can also show that the defendant has a stake in sticking around to face the charges. Finally, if the defendant voluntarily surrenders to the police (without having to be arrested), it also shows strong willingness to face the charges before them.

The Court Criminal Justice Agency

The Criminal Justice Agency (also know as the CJA or Pre-Trial Services) makes recommendations with respect to releasing each defendant that comes through the court. The agency makes its recommendations after interviewing each defendant. Obtaining a good recommendation from the CJA is a plus for the defendant, but the judges are not bound by the CJA’s recommendation and there is a lot of debate as to how much influence the CJA has in the judge’s decision.

The Judge

The judge that handles the arraignment of the defendant is different than the judge that will later handle the trial. Since a typical arraignment judge handles 80-100 arraignments in a day, they aren’t particularly interested in getting to the bottom of the case. The arraignment judge isn’t there to hear evidence or conduct an investigation. They are there to take care of that part of the criminal justice process, which is to make sure the defendant is properly charged and to determine whether or not bail is set and at what amount.

Judges are given a large amount of discretion when setting bail. Their attitudes and experiences when setting bail vary widely. Some judges set bail in most of their cases, others release many of the defendants, while some others have a fairly even split. The less experienced the judge, the more likely they are to “play it safe” and either remand the defendant (as compared to setting bail) or set bail (as compared to releasing on recognizance).

The Prosecutor

The prosecutor handling the arraignment is usually an assistant and doesn’t have much more than a passing interest in the case. However, the better the prosecutor, the more likely a defendant is remanded or has a high bail set.

The Defense Attorney

The arraignment can be among the most important few minutes of the case. Hiring a good defense attorney can be the difference between being remand or having bail set (or having bail set versus getting released on recognizance). Hiring a lawyer to guide the defendant through the arrest and arraignment process can also reduce a lot of the stress on the defendant’s family. A private attorney hired in time for the arraignment can explain and monitor the process to reassure the defendant’s friends and family that their loved one is getting their due process. The earlier an attorney is involved in the process, the more they can protect their client.

If the defendant is not able to hire an attorney, they will be appointed a lawyer that is staffing the arraignment courtroom. The appointed lawyers are not in the position monitor individual cases from arrest to the arraignment. They receive the case last minute after the accused has been fully processed by the police and court staff. The appointed attorneys are often very knowledgeable, but their caseload and the lack of time involved prevents them from speaking with the police and the court staff in order to obtain reliable information about the case.

(1) Calling of the Case- The court officer that organizes the cases into the judge’s calendar will announce the case, usually by calling out the case/docket number and then the defendant’s name “The People versus John Doe.”

(2) The court officer then brings the accused out from the court holding area and place them in front of the judge’s bench. The defense attorney stands next to the accused and the prosecuting attorney stands on the other side of the accused. Everyone involved faces the judge for the proceeding.

In recent years, some arraignments are conducted using closed circuit TV. The accused stands in front of a camera at the jail while the judge, defense attorney, prosecutor, and anyone else involved is in the courtroom with the accused appearing on the TV monitor.

(3) The next formal step is for the accused to be read the formal (detailed) charges against them. To save time, the judge will ask the defense attorney if they will wave the reading of the detailed charges. A defense attorney following good courtroom etiquette will agree and explain the charges to their client if private.

(4) After taking a moment to review the file, the judge asks the prosecutor for specifics of the case. The prosecutor then provides the court and defense attorney with certain formal notices (which can take many different forms) that may be required by law or procedural custom. The defense attorney can then provide the court and prosecutor with some “cross notices”.

(5) Once the paperwork has been exchanged, the judge asks the prosecutor to make a statement regarding bail. The prosecutor then tells the judge whether or not they feel bail should be set (along with reasons), how much the bail should be, and a very brief description of the case. At this point, those speaking cannot be interrupted by an objection or other motion. Once the prosecutor is finished, the defense attorney can state their reasoning as to whether or not bail should be set and/or the reasons why bail should be kept lower.

(6) Once the judge has heard both sides, they then make their decision regarding bail and the arraignment is over.

(7) If bail is set, the court officer escorts the defendant back to the court’s holding area until bail is posted. If the judge set a “Release on Recognizance” (the defendant is released simply on the promise that they will return on the date of the trial), the defendant can simply walk out the courtroom door. In some states, the defendant is held in jail for a short time while ROR paperwork is processed, then released.

Note 1: For some minor cases, the judge, prosecutor, and defense attorney may discuss resolving the case right then and there in order to save valuable court time for more serious cases.