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The bail process: Arrest to arraignment

Learn about the process for bail after arrest through the beginning of the criminal case.
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Reporting to court

After the person is arrested and bail is set in the police station by a bail magistrate, the arrested party is either admitted to bail (released for their court appearance) or remains in custody to be transported 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 probation interview process before arraignment in the Superior Court is the same as in the District or Boston Municipal Courts. The purpose of the interview is to:

  • Establish the identity of the person being arraigned
  • Check to see if that person has a criminal record
  • Determine if that person is seeking counsel (a defense lawyer) appointed by the court, and
  • Determine whether they qualify for the appointment of counsel at public expense
$150 Minimum counsel fee for a court-appointed lawyer

 

If the defendant qualifies for a court-appointed attorney, the minimum counsel fee is $150 —  regardless of the amount of time the lawyer spends defending that individual. 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 with a Trial Court-approved service provider. Either way, 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 returned 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 assists the judge in court) to call their name to be arraigned.

  • The session clerk tells the defendant the specific charges, and a summary of the alleged facts of the case is read aloud 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 in connection with a case).
  • The clerk reads the charges and the judge asks the probation officer, who also in the courtroom, for the defendant’s criminal record.
  • The judge will also ask probation if the defendant is eligible to have an attorney 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 yes, then the judge will appoint a bar advocate (criminal defense attorney), 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 before a judge). If the answer is no, then the defendant is responsible for hiring their own attorney (counsel).

Arraignment in Superior Court

If you’re arraigned in Superior Court:

  • The judge or clerk magistrate presides at a Superior Court arraignment.
  • The indictment 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 in accordance with the standing orders of the court.

If a defendant can’t make bail set by the court, they may ask the court to reconsider the bail, or appeal the bail.

  • If bail has been set by a magistrate — Appeal to a Superior Court justice.
  • If bail has been set by a Superior Court justice — Appeal to a single justice of an Appellate Court.
Arraignment in Juvenile Court

With the exception of youthful offender cases, arraignments of juveniles in court are closed to the public. The process is otherwise the same for adults. See bail for juveniles for more information.

A question of bail

The judge will ask the Assistant District Attorney (ADA, the prosecutor) if there’s a “question of bail.” This means that the prosecutor has reviewed the defendant’s file, which will include the:

  • Case docket
  • Police report
  • Booking sheet
  • Criminal record
  • Details from the probation officer’s intake interview of the defendant

The prosecutor will use this information to decide whether or not to:

  1. Ask that the defendant be released on personal recognizance, either with or without conditions, or;
  2. Ask for bail, and/or;
  3. Request that the defendant be held without bail pending a dangerousness hearing

If the prosecutor chooses option 1, to release the defendant on personal recognizance, the judge will set a date that works for both the prosecutor, defense attorney, and defendant to appear in court for one or more pretrial hearings.

Last updated: September 17, 2018

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