If you have been arrested, you need to remember that you have many legal rights that are afforded to you. First and perhaps most important, you have the right to remain silent and to have an attorney. If you cannot afford one, then the court will provide one for you. Under no circumstances should you ever waive your legal rights because there is nothing that you can possibly say that will either change the fact that you have been arrested or that you can prevent being arrested if the police are determined to arrest you. You should provide your real name and date of birth so you are not listed as a John or Jane Doe in jail. If that happens you will not be able to bond out of jail until your identification can be verified.
Many times when a person is arrested, they are automatically given bail before they see an initial appearance judge. If that should happen to you, you may want to consider posting the bail if you can afford it. There are a couple of reasons. First, jail sucks. I know, not the most poetic term, but honestly I have visited enough jails to know that I do not want to stay any longer in one of them than I have to. Second, an initial appearance judge might change the bond amount. This can either be good or bad for you. An initial appearance judge is supposed to see you within 24 hours of your arrest. At the Initial Appearance hearing, the judge will review the charging affidavit of the police and determine whether probable cause exists. The court can then set bail. Usually, the court will leave the bail set to what the bond schedule calls for. However, a judge can increase or decrease the bail depending on the circumstances.
Initial Appearance Part I
As previously discussed, a person arrested is supposed to be seen within 24 hours of their arrest. The purpose of an Initial Appearance hearing is two fold. First, the judge will make a determination as to whether or not there is probable cause to continue to hold you for the crime you have have been arrested for. If the judge determines that there is no probable cause, the State can ask for an additional amount of time to establish probable cause. A judge may grant an additional 24 hours for the affidavits to be supplemented or the court can deny the State's request and release a person on their own recognizance. If a person is released because no probable cause was found, this does not mean that you were found not guilty. This means that the government cannot have you held in jail or admitted to bail pending the outcome of this case. The government can still later charge you with a crime.
Initial Appearance Part II
If probable cause is found, then the court will consider what form of pretrial release to grant to you. In most crimes, you are entitled to reasonable bail. Exceptions do exist for crimes in which you are charged with capital offenses such as murder or capital sexual battery. The court will consider such factors as the nature of the crime alleged, the ties you have to the community, your financial status, your criminal history and your risk of flight.
If possible, you would like to have your attorney present for your Initial Appearance hearing because your attorney may be able to either persuade the judge that probable cause does not exist for the charges that you were arrested on or the attorney may be able to negotiate for you a lower bond. Additionally, the judge may place restrictions on your liberty if allowed to post bail and your attorney may be able to mitigate those conditions.
Bail: Brother can you lend a dime?
Posting a bail is usually a very difficult task to accomplish unless you have somebody on the outside who is willing to help you out. A person can either post a cash bond or they can hire a bail bondsman to post a bond for them. There are advantages and disadvantages to both options. The advantage to posting a cash bond is that you can expect to get almost all of your money back if the charges are dismissed or you are found not guilty. The disadvantage to a cash bond is that you have to divest yourself of these funds until the case is completed. This can impact your ability to afford counsel and pay your other bills.
Hiring a bail bondsman offers you the opportunity to post your bail with a much smaller amount of money out of your pocket. For example, if you were admitted to bail in the amount of $5,000.00. You could hire a bail bondsman for a fee of around $500.00 and they would bail you out. The disadvantage is that once you paid the bail bondsman the fee is nonrefundable.
Hey, I am still in jail what do I do now?
If you are still in jail, then there are some important time lines to be made aware of. The first important number to remember is 21. No, I am not advocating you to become a blackjack player, although it may help pass the time. A person in jail must be charged by Indictment or Information within 21 days of their arrest and if they are not and they are in custody, then a person is entitled to an Adversarial Probable Cause Hearing. This hearing is not optional if you demand it, even if the government files on day 22 the required documentation.
This hearing is invaluable to you for the following reasons. First, the court is required to hold a hearing giving you the full benefits of due process, to wit: cross examination, the right to call witnesses, the right to remain silent, the right testify on your own behalf. The State cannot simply rely upon a police report, rather in most instances, they will have to have witnesses to testify.
Adversarial Probable Cause Hearing Pt. II
Demanding this hearing is invaluable to you because you can start to get a feel for the strengths and weaknesses of the criminal case against you. Further, you will have sworn statements that are being provided early on in the case that may be used later for impeachment purposes. Once again, the court will need to make a determination as to probable cause. The court may find no probable cause and release you on your own recognizance. Remember, a finding of no probable cause is not a finding of not guilty. You may still be charged with a crime by the government. The court may find probable cause but reduce your bail based upon the strength of the case against you. Of course, the court might increase your bail.
Your jail cell is starting to feel like home: 30 days in jail
Unfortunately, many people find themselves unable to bond out of jail and they are still in jail thirty days after their arrest. Many times there is no demand made for an adversarial probable cause hearing. Sometimes, the government fails to formally charge a person with a crime within thirty days. The court is supposed to send notice to the prosecutor's office that unless charges are filed by the 33rd day, the court will release a person on their own recognizance. The reality is court's often don't notice that a person is in jail for thirty days without being charged. Your attorney, however, should be aware that you are still in jail and not charged. Ideally, your attorney should file a motion to have you released and this motion should be filed on the thirtieth day if you have not been formally charged with a crime. The court will hold a hearing on the 33rd day and determine whether or not a charging document is in the court file.
33 days and I am free...or am I?
At your 33 day hearing, the court will check the court file and see if a charging document has been filed. Often times, the documents have been filed and you will be returned to your cell. Sometimes, there will not be a charging document filed by the 33rd day. The court is obligated to order your release on your own recognizance unless the government can show good cause as to why the document has not been filed. The court can grant an extension for seven days. However, in no event may a person be held without a charging document for more than 40 days.
Experienced attorneys will alert their clients to this situation and sometimes advise their clients to sit it out and wait until day 41 to file a motion for release. The law is clear that you must be released if no formal charges have been filed within 40 days.
If you are arrested, do yourself a favor and get the best lawyer that you can afford.