An Explanation of the Bail Source Hearing

Posted about 5 years ago. Applies to New Jersey, 4 helpful votes



How Does This Type of Condition Get Placed On My Bail?

A Judge hears a Bail Motion, and sets the terms and conditions of the bail. Among other things, these terms of bail can impose a cash only restriction; permit the posting of a 10% cash bail alternative; set a condition that you sign a waiver of extradition and surrender your passport; and, impose a requirement that any bail posted be subjected to a Source of Funds Inquiry. None of these conditions are mandatory in all cases. As an example, unless there is a statutory requirement that precludes the setting of a 10% alternative, most judges will at least consider this condition while setting the bail. You need to discuss this with your lawyer, as it will allow you to post cash (10% of the actual bail amount), which you will get back at the end of the case. Similarly, most judges will automatically impose a waiver of extradition and the surrender of your passport as standard conditions of bail. These conditions are easy to meet. A Source Hearing is not a standard condition.


Why Did The Source of Funds Hearing Get Imposed On My Bail?

A Source of Funds Hearing is requested by the State when the prosecution believes that the defendant themself had no legitimate source of income. When the State decides that this is true (whether it is or not) the State seeks to limit the ability of the defendant from using the proceeds of criminal activity to get out of jail. In a few cases, this rationale may be true, but in the vast majority of cases where this condition is requested by the State, it is not. The problem arises, when the State decides that the defendant is a career criminal who makes their living from crime, and the only way to show that he is not, may be for the defendant to give up their right to remain silent and prove that they have other legitimate sources of income. In essence, the defendant ends up surrendering privileged personal information to the Court (that the State gets to see) in order to support the defendant's assertion that he was in fact legitimately in a financial position to post their own bail.


How Do I Get My Bail Posted, Without the State Trying to Seize it Under a Theory That It Was Proceeds Of Criminal Activity?

Start by talking to your lawyer about what the probable bail range will be. Ask about the lawyer's experience in front of this judge, and whether he typically sets high bails. Tell the lawyer whether you can meet this amount, with or without a 10% alternative. Discuss with the lawyer where the funds would come from. Discuss who can produce documentation establishing the legitimate sources of the bail monies? Arrange for the documents to be provided to the lawyer before you try to post the bail. Once this hearing starts, is not the time to be trying to get the bail documentation together. Try to locate financial sources that pre-date the alleged criminal activity. If it is available, posting a property bond for real estate that has been in the name of another family member for 10 or more years before the alleged criminal activity is a great way to establish the legitimacy of the source of funds. Once you have identified the possible sources you can rely on, file the Bail Motion.

Additional Resources

NJ Criminal Defense

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