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The bail process: post arraignment

Learn about the bail process from the pretrial hearings and beyond.

Following 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 attorneys on both sides.

Pretrial hearing

The pretrial hearing aims to resolve, narrow, or reduce the issues that must be tried in court. In the pretrial hearing, the prosecutor (ADA or assistant district attorney) will present their case to the defense attorney.

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 attorney has read the defendant’s paperwork, and ensures that everything was done correctly from a procedural standpoint on the defendant’s behalf. The defense attorney will also consider either filing a motion to suppress or a motion to dismiss.

  • A motion to suppress: The defense attorney asks the court to exclude evidence that will be offered by a prosecutor at trial because they believe it was obtained in violation of the defendant’s constitutional rights.
  • A motion to dismiss: The defense attorney asks the court to dismiss the charges against the defendant due to lack of evidence.

Go to trial or enter a plea?

The defense attorney’s job is to give advice and let their client know their options not to make decisions for them, but to lay out and explain their options in a way that the defendant can understand. They are also an advocate for their client.

Once the defense attorney has explained the charges to the defendant and has reviewed the police report with him or her, discussed any potential prosecution and defense witnesses, and is satisfied that the defendant understands the case against him, they should decide upon their defense strategy.

The defense attorney and prosecutor will then discuss what the District Attorney (represented by the ADA or prosecutor) wants in terms of sentencing. It’s significant here that if the defense attorney were 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 attorney then fill out a pretrial conference report, which has to be filed and given to the judge.

The report:

  • outlines the facts of the case
  • outlines the mutually 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 or 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 occur. 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 will do it.

Election of trial

The defense team will also specify whether the defendant is electing to have a bench trial or jury trial.

Bench trial cases are heard and decided by judges. There is no jury.

Requesting a change in the bail amount

A defendant may have the issue of bail revisited by the court if circumstances change from the time bail is initially set. Examples of "changed circumstances" could include:

  • failure of the defendant to appear on time for a hearing or trial;
  • acquiring new charges while out on bail or conditions of release;
  • violations of curfews;
  • restraining orders;
  • failing court-ordered drug and alcohol tests; and
  • violations of "no-contact orders" with witnesses, alleged victims, and other parties in the case.

As the case proceeds, under some circumstances, a defendant may have their bail revoked for a period of time as ordered by the court.

Return of bail

Return of bail at the end of a case

At the conclusion of a case, if a defendant or other party (such as a relative or friend) posts cash as bail in a case and the defendant appears at all required court hearings and trials, the cash bail will be returned to the defendant or 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 of payment and their driver’s license or some form of photo ID. The clerk’s office will issue a check for the bail amount for which the defendant or surety is entitled.

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


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