Bail Hearing

HISTORY OF BAIL:

The Ohio Constitution provides that ALL offenses have the right to bail but there is a traditional exception for capital cases and preventative detention. 

Under the Bail Reform Act of 1984, A federal Court may detail an arrestee pending trial is the prosecution demonstrates by clear and convincing evidence, after the adversary hearing, that no release conditions will reasonably assure… the safety of any other person and the community.”

 

IMPORTANCE OF REPRESENTATION:

At the bail hearing, statements made by the defendant are inadmissible by the state at trial. However, the state is permitted to use such statements to impeach, which means if there is an inconsistency in what is said at the bail hearing and trial, the state is allowed to introduce the statement.

 

WHEN CAN BAIL BE DENIED?

Bail may be denied if the prosecution establishes that: 

1. The proof is evident, or the presumption is great that the accused committed the charged offense. 

2. The accused poses a substantial risk of serious physical harm to a person or the community AND

3. No release conditions will reasonably assure the safety of that person or the community. 

The court must find by clear and convincing evidence that the three conditions exist. 

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WHAT DOES THE COURT LOOK AT WHEN SETTING BAIL?

Crim. R. 46(C) specifies the factors that the court must consider in determining the types, amounts and conditions of bail. 

1. The nature and circumstances of the offense charged

2. The weight of the evidence against the accused

3. Th confirmation of the D’s identity

4. The D’s family ties, employment, financial resources, character, mental condition, length of residence in the community, jurisdiction of residence, record of convictions, 

5. Record of appearances at court proceedings or of flight to avoid prosecution and

6. Whether the D is on probation, parole, post release control or bail. 

Additionally, R.C. 2937.23(B) requires the court to determine whether a mental evaluation should be ordered before setting bail in stalking and protection order violation cases. 

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WHAT ARE THE TYPES OF PRETRIAL RELEASE?

1. Personal recognizance (O.R. BOND) 

   1. Unsecured promise to appear when required

   2. Least restrictive, but the consequences for violating can be more serious. 

   3. Failure to appear can be a MM or felony, depending on whether the original charge was a MM or felony. 

2. Unsecured Bond

   1. D’s promise to appear, coupled with an unsecured promise to forfeit the face amount of the bond. 

   2. Preferred method of release when the D appears pursuant to a summons. 

3. 10% Bond

   1. Requires the D to deposit 10% of the face value of the amount with the clerk of court. 

   2. If the D appears as required, 90% of the deposit is refunded. 

      • EX: Bail set at $500, requires $50 and if the D complies then $45 is refunded. 

4. Bail Bond

   1. Cost is usually 10% of the face amount and is non-refundable. 

   2. 10% bond is viewed as more desirable. 

   3. A D’s state constitutional right to bail is violated when a court attempts to deny access to a surety y requiring the D to post a cash bond. 

      • R. 46(A) now explicitly provides that the option whether to post a surety bond, property bond, or cash is the D’s. 

5. Property Bond 

   1. Secured by a lien on real property. The value of which over and above all encumbrances must be at least double the face amount of the bond and which must be liable to execution in at least the face amount of the bond. 

6. Cash and Sureties 

   1. A defendant can make bail by depositing the face amount of the bond with the clerk of court either in cash or government bonds. 

   2. If securities are used, they must be properly endorsed for transfer at the time of deposit. 

   3. If the defendant abides by the terms of the bond, the entire amount of the deposit is refunded. 

   4. Criminal rule 46(J) requires evidence of financial responsibility for all sureties except corporations licensed by the state. No licensed attorney may be a surety. 

   5. Remission of Sureties—If the accused reappears after judgment against a surety, the surety may file a motion requesting the court to remit the amount forfeited. 

 

Credit Cards in misdemeanor and traffic cases

        1. Under, Criminal rule 46(G) each court is required to establish a procedure where a D             can make bond in a misdemeanor (including traffic cases) by credit card of a                         “recognized and established issuer.”

        2. Credit card transactions are prohibited if the issuer levies a service charge against               the clerk or court. 

 

Drivers License in traffic cases

        1. R.C. 2937.211, persons cited for traffic offenses, with some exceptions, may make               bail by depositing their drivers license with the arresting officer or court having                   jurisdiction. 

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•  NOTE:  If the defendant appears and the license is not suspended or revoked, the court is required to return the license. 

  • If not, the license must be revoked. 

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