Arraignment and Bail

Most criminal prosecutions begin with arraignment. At arraignment, the offender, now called the defendant, is formally notified of the charges against him and enters a plea (at this stage the plea is routinely “not guilty” even if the defendant has overwhelming evidence against him). The defendant will also be assigned a lawyer if he does not already have one. In addition, conditions of release, called bail, are set.

• Bail: The purpose of bail is simply to ensure that the defendant will return to court to answer to the charges. It is not intended to be a punishment since the defendant is presumed innocent until proved guilty. In Massachusetts, a criminal defendant has a presumptive right to be released during a criminal case, whether by posting bail (an amount of money ordered by the judge) or simply by promising to return to court ( “release on his own recognizance”).
  
  In deciding whether to set bail, and the amount of bail, the judge may consider many factors including, the nature and circumstances of the offense; the potential penalty; the defendant’s family and community ties; employment record; prior convictions; present drug dependency; use of an alias; whether the offense involves violence on an intimate partner, family or household member; whether the offense involves violation of a restraining order; and whether he is already on probation or parole.
  
  If the judge sets bail, and the offender pays it, he will be released while the case proceeds. If he cannot pay the bail, he will remain in custody in jail until he can pay the bail or the case is resolved. If he does not return to court while released on bail, he may forfeit the bail money and be subject to arrest. If the defendant is released on bail and violates any of the conditions of his release, such as by committing a new offense or contacting the victim in violation of a stay-away order, the defendant’s bail can be revoked and he can be held without bail for up to sixty days.
  
  A defendant may only be held in custody without bail if he is charged with murder, is already on probation, or the court decides to hold the offender in pre-trial detention after finding him to be dangerous.
  
  
• Pre-Trial Detention: Since the purpose of bail is to insure a defendant’s return to court, a judge generally may not consider the defendant’s dangerousness or a victim’s fear of the defendant in setting bail. In cases involving the use of force, the prosecutor may request that the defendant be held in custody without bail pending the outcome of the case. Prosecutors frequently seek pre-trial detention in domestic violence cases to ensure victim safety, but it may be used in other cases as well.

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