The bail process: Arrest to arraignment

Find out what to expect if you have been charged with a crime.

Table of Contents

Coming to court

After the person is arrested and the bail magistrate sets bail at the police station, the person is either admitted to bail (released for their court appearance) or stays in custody to be brought to the court by the police for arraignment, the first formal step of a criminal case.

Interview with probation

A probation officer interviews and assesses each person before their arraignment. The purpose of the interview is to:

  • Confirm the identity of the person being arraigned
  • Check to see if that person has a criminal record
  • Find out if that person wants a court- appointed lawyer, and
  • Decide whether they qualify for a court-appointed lawyer
$150 Minimum counsel fee for a court-appointed lawyer

 

If the defendant qualifies for a court-appointed lawyer, the minimum counsel fee is $150 —  regardless of the amount of time the lawyer spends working on their case. If the defendant is indigent (has limited money as defined by law), but is able to contribute more than the base $150 legal counsel fee, the court may order them to pay more.

If the defendant can’t pay the $150 minimum fee, the judge may have them cover the fee by performing 15 hours of community service. The judge will assess the legal counsel fee at the defendant’s arraignment. Ideally, the defendant should pay the $150 fee by the next court date (but if not, the defendant must pay by the end of their case)  or by doing 15 hours of community service. Otherwise, the defendant can’t get their bail back until they’ve paid the legal counsel fee.

 

Arraignment

An arraignment is the formal procedure that starts a criminal case.

After the defendant meets with probation, they go into the courtroom and wait for the session clerk (the clerk who helps the judge in court) to call their name to be arraigned.

  • The session clerk tells the defendant the specific charges. A summary of the alleged facts of the case is read to the defendant in court.
  • The clerk or the judge will typically tell the defendant, “A plea of not guilty will be entered on your behalf.”
  • The plea is then recorded on the case docket (a list of all important events connected to a case).
  • The clerk reads the charges and the judge asks the probation officer for the defendant’s criminal record.
  • The judge will also ask probation if the defendant is eligible to have a lawyer appointed to represent them.

The probation officer will tell the judge whether the defendant is indigent. The judge will then ask the defendant: “You’ve qualified; do you want me to assign you a lawyer (counsel)?”

If the defendant asks for a lawyer, the judge will appoint a bar advocate (criminal defense lawyer), who will step forward and join the defendant in front of the judge at the bar (the area in court where people involved in a case stand in front of a judge). If the answer is no, then the defendant is responsible for hiring their own lawyer (counsel).

Asking for bail

Based on the defendant’s record, and the facts of the crime, the prosecutor may ask the court to set bail. If they ask for bail, then everyone involved in the case steps back from the bar (the area in court where people stand before a judge). The lawyer assigned to represent the defendant will interview the defendant to prepare for the bail argument. 

Asking for bail conditions

The prosecutor can request bail conditions. Whether the defendant is released on personal recognizance or a cash bail, the Assistant District Attorney (ADA or prosecutor) can ask the judge to order the defendant to be released as long as the defendant follows certain conditions. For example, the ADA may request that the defendant  stay out of a certain area or away from the alleged victim, or to not drive without a license. 

Bail argument

The defense lawyer or counsel will interview the defendant and gather facts about the case: what happened, where they live and work, if they have any family nearby, etc. The defense lawyer’s job is to find out as much as they can about their client (the defendant) to present to the court, so the judge can decide whether or not to set bail. The judge will want to know:

  • The facts in the police report
  • If there’s a restraining order
  • Any other relevant facts related to the case

The Probation Department provides the defendant’s record to the judge, prosecutor, and defense lawyer. The judge might ask questions about the defendant’s record.

The Assistant District Attorney will tell the judge:

  • The facts in the police report
  • The reasons they are asking for bail
  • Any personal information and facts about the defendant that might help release the defendant from custody

Once the judge hears the bail argument, they order either personal recognizance, cash bail, or that the defendant stay in custody without bail. If the judge has ordered that the defendant can be released on a cash bail, then the question is whether the defendant can come up with the bail amount.

Bail warning

Once a date is set for pretrial, the judge may release the defendant on their personal recognizance (their word or promise to show up to court), or set a cash bail. The judge will warn the person what will happen if they don’t follow the terms of their bail.

In the bail warning, the judge will tell the defendant: “If you fail to appear, a warrant will be issued for your arrest. If you violate any of the terms of your release, or commit another crime, your recognizance could be revoked, and you could be held without bail for up to 90 days."

Posting bail

If the defendant can post cash bail immediately, they go to the clerk’s office and pay the amount set for bail. The court holds that money until the case is closed. However, if the defendant doesn’t show up at any other court date, they risk losing the bail money they posted.

If the defendant can’t come up with the cash bail money, they are brought to a house of correction (county jail) until they either post the bail or until their next court date.

If the prosecutor asks for the defendant to be held without bail until there is a dangerousness hearing, then the defendant will be brought to a house of correction until the hearing happens. Dangerousness hearings may be held in the District Court, BMC, or Superior Court.

A defendant held in custody instead of bail will receive credit for each day they are held in custody waiting for their trial if they are sentenced to a house of correction or state prison.

After the arraignment, the defendant will work with their lawyer to decide how to proceed with the case.

Arraignment in Superior Court

If you’re arraigned in Superior Court, the arraignment might be different because:

  •  A clerk magistrate can oversee the arraignment
  • The indictment (formal accusation) is read to the defendant and they’re asked how they want to plead to the charges.
  • Bail is set, and a case scheduling order, including the trial date and hearing dates, is established

If a defendant can’t pay the bail the court sets, they can ask the court to reconsider, or appeal, the bail.

  • If bail was set by a magistrate — Appeal to a Superior Court judge.
  • If bail was set by a Superior Court judge — Appeal to an Appellate Court single justice.

Arraignment in Juvenile Court

Juvenile arraignments are closed to the public. Otherwise, the process is the same as for adults. See bail for juveniles for more information.

Contact

Phone

Catherine M. Coughlin, Esquire (617) 788-7312

Address

Suffolk County Courthouse
3 Pemberton Square
Room 320
Boston, MA 02108
Last updated: May 4, 2022
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