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The bail process: Pretrial hearing process

Learn about the pretrial hearing process for bail in District Court and Boston Municipal Court (BMC).
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Bail warning

Once a date is set for pretrial, the judge or bail magistrate will release a newly charged defendant on their personal recognizance, and will warn the person what will happen if they don’t honor the terms of their bail.

In the bail warning, the judge will tell the defendant: “You’re being released on your personal recognizance, which is your promise to appear in court on the next date. 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.”

The defendant then leaves the court until their next court date for pre-trial hearing.

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, provided that the defendant obey certain conditions. For example, the ADA may request that the defendant stay out of a certain area or away from the alleged victim, or not drive without a license.

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 attorney assigned to represent the defendant will interview the defendant in preparation for the bail argument.

Bail argument

The defense attorney or counsel will interview the defendant and gather facts about the case: what happened, where they live, work, if they have any family nearby, etc. The defense attorney’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 determine whether or not bail will be set. 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 attorney. 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 for 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 remain in custody without bail. If the judge has ordered that the defendant be released on a cash bail, then the question is whether the defendant can come up with the bail amount.

Posting bail

If the defendant can post 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 fails to appear at any other court date, they risk losing the bail money they posted.

If the defendant can’t come up with the 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 requests that the defendant be held without bail pending a dangerousness hearing, then the defendant will be brought to a house of correction until the hearing takes place. 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 awaiting trial if the defendant is sentenced to a house of correction or state prison.

Last updated: September 17, 2018

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