The bail process: Post arraignment

Learn about the bail process from the pretrial hearings and beyond, including how bail is returned.

Table of Contents

Pretrial hearing

After arraignment, the next court event for a criminal defendant is typically a pretrial hearing or pretrial conference. This is a hearing run by a judge or clerk magistrate with the lawyers on both sides.

The pretrial hearing tries to resolve, narrow, or reduce the issues that must be tried in court.

Unlike what often we see on TV or in the movies, the purpose of pretrial is to share information and assess the strengths and weaknesses of each side’s case.

By this time, the defense lawyer has read the defendant’s paperwork and made sure that everything was done correctly from a procedural standpoint on the defendant’s behalf. Depending on the paperwork the prosecutor gives the defense lawyer, the defense lawyer may  also consider either filing a motion to suppress or a motion to dismiss.

  • Motion to suppress — This is when the defense lawyer asks the court to exclude evidence that the prosecutor will offer at trial because they believe it was obtained in a way that violates the defendant’s constitutional rights.
  • Motion to dismiss — This is when the defense lawyer asks the court to dismiss the charges against the defendant because there isn’t enough evidence.

Go to trial or enter a plea

The defense lawyer’s job is to give advice and let their client know their options. They don’t make decisions for the client, but they do lay out and explain their options in a way the defendant can understand. They’re also an advocate for their client.

Once the defense lawyer has explained the charges to the defendant and reviewed the police report with them, discussed any potential witnesses on both sides, and believes that the defendant understands the case against them, they should decide on their defense strategy.

The defense lawyer and prosecutor will then discuss what the District Attorney (represented by the ADA or prosecutor) wants in terms of sentencing. If the defense lawyer is going to present an alibi (excuse or explanation) for the defendant, then they have to let the prosecutor know at this point.

Pretrial conference report

The prosecutor and defense lawyer then fill out a pretrial conference report, which has to be filed and given to the judge. The report:

  • Outlines the case’s facts
  • Outlines the agreed-upon charges the defendant faces
  • Includes whether or not there will be discovery (the process of gathering and preserving evidence before a trial)
  • Includes whether or not there will be motions (requests for orders or decisions on some aspect of the case)
  • Includes when the discoveries or motions will be filed with the court

Both sides must provide specific dates when they want discovery and motions to happen. The judge will listen and assign dates, called compliance and election dates. These dates outline when and what both sides have agreed to do and when they’ll do it.

Election of trial

The defense team will also say whether the defendant decided to have a bench trial or jury trial. Bench trial cases are heard and decided by judges, and there is no jury. 

Requesting to change the bail amount

A defendant may ask the court to adjust the bail if circumstances have changed since the time bail was first set. 

As the case continues, the court may adjust the bail if the defendant:

  • Doesn’t appear on time for a hearing or trial
  • Acquires new charges while out on bail or conditions of release
  • Violates curfews
  • Has a restraining order against them
  • Fails court-ordered drug and alcohol tests
  • Violates "no-contact orders" with witnesses, alleged victims, and other parties in the case

Returning bail

After 3 years unclaimed bail is turned over to the State Treasurer

At the end of a case, if the defendant appeared at all required court hearings and trials, the cash bail will be returned to the defendant, relative or friend who posted the bail. Depending on who posted the bail, the defendant or the surety must report to the clerk’s office with their bail receipt and their driver’s license or some form of photo ID. The clerk’s office will review the case to make sure bail can be returned and that any legal counsel fees have been paid, and will then issue a check for the bail amount.

Bail that isn’t collected from the clerk’s office within 3 years is turned over to the State Treasurer as unclaimed funds.

Contact

Phone

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

Address

Suffolk County Courthouse
3 Pemberton Square
Room 320
Boston, MA 02108
Last updated: April 22, 2022
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