The Importance of Bail Applications

Bail applications are hugely important parts of any criminal defense case even though ostensibly such motions have nothing to do with the case’s ultimate disposition.  The most experienced and successful New York criminal defense attorneys will tell you that beyond the obvious goal of securing the client’s freedom pending trial, a bail motion can provide some insight into the prosecution’s theories and evidence which otherwise would not surface until much closer to trial. The more effort put into the written submission and oral argument before the court, therefore, the greater head start a defense lawyer will have in preparation for – and winning – the case at trial.

Conditions for Release on Bail: Federal v. State Cases 

To begin, detention hearings in federal and state courts are informal proceedings, and the evidence presented is not governed by the rules of evidence.  In federal bail motions, only in certain specific situations may a judicial officer even hold a detention hearing to detain a defendant.  These situations include cases which charge: a crime of violence; an offense with a maximum sentence of life imprisonment or death; a narcotics offense for which the maximum term of imprisonment is 10 or more years; or any felony if the defendant person has been convicted of two or more offenses as described above.  In addition, a detention hearing can occur if the prosecutor or court believe that the defendant is either a serious risk of flight or a danger to obstruct justice or threaten a witness.  18 U.S.C. § 3142(f).  Once a detention hearing is deemed warranted, the court may consider evidence relating to a defendant’s danger to the community.  18 U.S.C. § 3142(g).

In New York and New Jersey cases, in contrast to federal practice, danger to the community is an “invalid” and “legally impermissible” criterion, People ex rel. Shaw v. Lombard, 95 Misc.2d 664, 667, 408 N.Y.S.2d 664 (Monroe Cty. Ct. 1978), and “may not properly be considered.”  The “primary purpose of bail is to secure the defendant’s appearance at court,” e.g. State v. Calcano, 397 N.J. Super 302, 306 (App. Div. 2007) and flight risk — not “protect[ion] of the community,” is the factor to be addressed at a bail hearing.  State v. Steele, 430 N.J. Super. 24, 41 (App. Div. 2013).

Bail Strategies

While courts are willing to listen to consecutive bail applications based on changed circumstances following denial of bail, it is our position that the best chance for a defendant to be granted bail is at the first bail application.  Unless a defense lawyer has reached an agreement on bail with the prosecutor prior to that first appearance, counsel should be careful not to make a hurried bail application without the proverbial bells and whistles: a written submission with attached letters speaking to a defendant’s good character, mental health, reputation, length of residence, support and ties to the community, and employment history.  The nature and circumstances of the offense charged as well as the weight of the evidence against the defendant should also be addressed as they surely impact the determination of whether a defendant will be more or less likely to return to court.

A proposed bail package secured by property or sureties should also be proffered to the court, including the option of electronic monitoring in severe cases: if done correctly, even an Italian national charged with tens of millions of dollars of fraud can be released from detention to his family and free to better assist his counsel in preparation for his defense.

A well-made bail application will force the prosecutor to reveal more of his case than desired, solely fueled by hopes of keeping the defendant behind bars pending trial.  In the prosecutor’s mind, the issue is not always concern for the community or risk of flight of the defendant; a defendant not used to the miseries of prison may be more likely to cooperate with authorities if detained.


In sum, a bail application should always be made in any criminal case, even if its chances for success are remote — at least, evidence and prosecution theories will be exposed perhaps months before otherwise required.  And when charged with a serious criminal offense, a defendant can and should take any opportunity to get a jump on the case: it could mean the difference between an acquittal and conviction.