Obtaining defendant's release on bail

Obtaining defendant's release on bail

From a psychological and a practical viewpoint, the defendant's release is most valuable. Less inhibited discussion with his or her attorney may take place when the defendant is out of jail. Certainly he or she will have a much better opportunity to locate witnesses, technical experts, and evidence once unconstrained by the facilities of a jail. To the extent that the defendant can be shown less likely to flee the jurisdiction, he or she is likely to be given low bail or own-recognizance release.FN65 The defendant's ties to the community; possession of a home, family, and a regular job; length of time at the current job; age, standing in the community; and prior criminal record or lack of it can all be raised at a bail hearing.FN66

Where the sensational nature of the case or any other factors have resulted in bail that seems unusually high, constitutional arguments may be raised.FN67 The first step is to set a hearing for reduction of bail.FN68 Such a motion is made upon notice to the prosecutor and should be based on evidence, affidavits where permissible, witnesses, and in rare instances the defendant. It is important to make sure that any testimony by the defendant on the issue of bail does not leave him or her open to improper cross-examination that might prove to be incriminating evidence later at trial.FN69