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The Bailschool Introduction to bail risk management

 

Bail Risk Management Stipulations

 

Factors to be considered in determining  bail risk

Typical indemnitors would include

family

friends

co-workers

employers

Usually a surety will only be able to act as surety for one accused at a time. An exception may be made if the surety is the parent of more than one accused person.

Confirm the surety’s knowledge about the case and the source of that knowledge, and consider whether calling the surety may harm the case:

Has the proposed surety spoken to the client since the arrest?

Has the proposed surety spoken to the client about the alleged offense?

Is the proposed surety also a potential witness?

Is the proposed surety a potential co-accused in the case?

Has the proposed surety provided a statement to the police?

Has the proposed surety spoken to potential witnesses?

Does the proposed surety need independent legal advice?

Is the proposed surety presenting testimony that could have a negative impact on issues at trial?

Background information needed from the proposed surety include

date of birth

address and length of time the proposed surety has resided at that address

names of those who reside at the address with the surety

work information, including schedule

educational background

volunteer work/special skills

criminal record

outstanding charges

status in the county, state and country

equity the proposed surety is going to sign against (for example, real property, money in the bank and investments) and documents available as proof of equity

the relationship between the client and the proposed surety

length of time the proposed surety has known the client

during the time the parties have known each other, the frequency of contact that the proposed surety had with the client

whether the surety is familiar with the outstanding charges and criminal record of the client

whether the client and proposed surety have spoken about the current charges

whether the proposed surety has signed bail for the client in the past and, if so, whether there were any breaches of the bail contract

plan of supervision

whether the client can live with the proposed surety

Will the proposed surety call the authorities if needed?

The surety will be required to pledge an amount of money based on ascertainable assets. The amount pledged should reflect the surety's means, balancing the ability to pay and the significance of that amount to the surety. The amount must reflect the nature and seriousness of the offense.

Is the State requesting a cash bail? A cash bail will be ordered if the accused is not ordinarily a resident in State or lives outside a 200 mile radius of the court's location .

If no surety is available, consider alternatives such as anon-profit Bail Program.  Consider the program's requirements for coverage and the delay necessary to have the accused interviewed by them.

For an "own recognizance" or bail, consider the client's testimonial capacity and prepare the client to testify about background information, the plan of release and the client’s ability to comply with proposed bail conditions.

If a client is likely to testify at the bail source hearing, remind the client that the State cannot ask about the allegations before the court unless the client testifies about these allegations first. Having the client testify about the allegations before the court at a bail source hearing is rarely advantageous except in very unusual situations perhaps involving a confirmed alibi.

If the client has mental health issues, consider whether a mental health plan should be prepared prior to the bail source hearing to support a plan of release.

Consider whether the bail hearing should be heard in one of the specialty courts such as the mental health court, IDV court or Gladue court.

The bail source hearing

The State will announce its position to the court, including the grounds on which it seeks detention: remand, cash only, bail or bond . Submissions need only address enumerated concerns.

The State will either call witnesses or read in the police background about the accused. This information can be challenged or contradicted by defense attorney (sureties).

The State will either call witnesses or read in the synopsis of the allegations as prepared by the police.

If an officer is testifying, disclosure of the officer’s notes, statement and other documents the officer may rely upon should be requested before the bail hearing to enable counsel to prepare for cross-examination

If the allegations are weak or misleading, counsel should consider requiring an officer to testify rather than allowing the State to rely on the synopsis

The defense will be given an opportunity to ask questions about the synopsis. The most helpful questions to the defense case are those that highlight problems with the State's case. The defense & witnesses are then called to the stand and examined in state charge and in cross-examination. Other evidence may be called at the bail hearing, including potential witnesses. Always consider the potential impact on trial prior to disclosing or calling potential witnesses at a bail hearing and seek written instructions from the client. Whichever side bears the onus makes submissions first. Consider the following issues when formulating submissions, based on criminal procedure:

Primary grounds of concern (flight risk and attendance at court), under bail bond:

Is there a history of failing to comply, failing to attend court or a change in stability that will prevent future occurrences?

Does the client have roots in the community, for example, employment, school, family, length and stability of residence or involvement in a faith organization?

If there are potential concerns on the primary grounds suggest conditions that will address these concerns, such as residing with a surety, requiring a surety to drive the client to and from court, requiring the client to report to a reporting office on a regular basis, etc.

If bail program supervision is proposed, remind the court of the reporting and stabilizing elements of being in the program.

Secondary grounds of concern (substantial likelihood to re-offend and danger to the public safety), forfeiture :

If there are potential concerns on the secondary grounds emphasize factors such as strong surety supervision, a gap in the criminal record, compliance with bail on previous occasions, non-relation between historical charges and present charges, cooperation with the police, etc.

If bail bond program supervision is used, emphasize the reporting and stabilizing elements of being in the program and the assistance provided by community resources.

Other proposed conditions to consider that could address the concerns of the court are

forebid contact with the complainant or witnesses except through counsel

require a geographical boundary

impose a curfew or house arrest

require reporting to bail bond office

forebid alcohol or non-prescribed drugs

require counselling or treatment for anger management, addictions or mental health concerns

forebid firearms or weapons

require attendance at school or the seeking and maintaining of employment

require the deposit of passport

forebid contact with the co-accused except through counsel

Public policy grounds of concern (detention necessary to maintain public confidence in the administration of justice),

These grounds are only to be used in extreme cases of grave allegations and a strong State case. These grounds can be countered by advising the court that, even in cases of near-certain guilt, justices have released based on the fact that their job is to determine the bail application only and to assess the strength of the case, not to try the case, and that the presumption of innocence applies.

Remind the court that strong State cases do unravel at trial and that punishment (incarceration) should not start prior to trial. Moreover, public concern about safety can be relevant to the tertiary ground, but this is not the exclusive consideration when assessing public confidence in the administration of justice. Rather, the assessment is a broad one and requires a reasonable person test where the person is informed of legislation, the Constitutional Bill of Rights and Freedoms and the philosophy informing them.

Emphasize weaknesses in the States’s case at this stage.

Always propose that your surety be named to avoid any unforeseen difficulties with documentation once a bail has been set.

Fullfill post-hearing tasks

Consider a short remand for the client until the paperwork is signed by the sureties and the bail is officially in place.

Statutes and Rules

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Joseph D Best Instructor