Arraignment and Bail
Arraignment refers to the formal reading of criminal charges by the court to a person charged with a crime, known as the defendant. At an arraignment, the defendant enters a plea of not guilty to all charges. The judge will then inquire as to whether the defendant qualifies for court-appointed counsel or will hire their own. If a defendant needs additional time to hire counsel, the court will schedule the matter for an “appearance of counsel” hearing within approximately 30-60 days. If a defendant has counsel at arraignment, the court will then schedule the case for a pre-trial conference. For minor offenses, such as operating on a suspended license, the prosecution may be willing to dismiss a case on the payment of court costs or completion of community service.
At arraignment, the prosecutor may request cash bail, move to revoke the defendant’s bail on a pending open case, and/or may request the defendant be held without bail pending a M.G.L. c. 276 sec. 58A hearing (also deferred to as a “dangerousness hearing”).
The purpose of bail is to ensure the defendant’s appearance in Court. Bail is not to be used as a form of punishment. In determining whether to impose bail and in what amount, judges may consider:
- the nature and circumstances of the charged offense
- the potential penalties of the charges offense
- the person’s family ties in the community
- the person’s employment history, length of residency and reputation in the community,
- whether the person has a history of mental illness and/or substance abuse
- the person’s criminal record
- the person’s prior history of defaults (failure to appear at past court dates)
- the person’s financial means
- whether the person has known aliases or fake identifications
- whether the person is on bail for another criminal case
- whether the person has any restraining orders in effect against them
- whether the person is currently on parole, or pending appeal of a criminal conviction
A defense attorney may argue that bail is not appropriate, or may suggest less restrictive conditions of release that will assure the defendant’s appearance in court, such as GPS monitoring, a condition to check in with the probation department, or a stay away/no contact order with the alleged victim. After hearing arguments from both the prosecutor and defense counsel, the judge will make a determination on bail.
NOTE: Bail may also be set by an on-call clerk magistrate who visits the jail. The magistrate will review the charges and the defendant’s record and make a determination as to the appropriate amount of bail to ensure the defendant’s appearance at arraignment.
Bail Revocation Motion
If a defendant has a pending case and is arraigned on new charges, the prosecutors arraigning the second case may move to revoke the defendant’s bail on his/her pending case, pursuant to M.G.L. c. 276 § 58 or M.G.L. c. § 58B. Bail revocation is a request that the defendant be held without the possibility of bail on the pending criminal case.
M.G.L. c. 276 § 58
In order to revoke a defendant’s bail, the prosecutor must prove that the bail warning was given to the defendant at arraignment on the pending case. Namely, that the judge or clerk warned the defendant at the arraignment on his/her pending case that if they commit a new offense, bail may be revoked. This may be done by producing a copy of the docket sheet from the underlying case that denotes the warning was given.
In order to revoke bail, the Court must find:
- Probable cause for the new offense (while on release for another charge); and
- “The release of said person will seriously endanger any person or the community and detention of the person is necessary to reasonably assure the safety of the person or the community.”
The Court will hear arguments from the prosecutor and defense counsel prior to ruling on the motion. The Court is not required to revoke bail, but if the Court allows the motion, the defendant may be held for up to 60 days, pursuant to M.G.L. c. 276 § 58, par. 3.
M.G.L. c. 276, § 58B
Prosecutors may also move to revoke a defendant’s bail for an alleged violation of pre-trial conditions or new offense, pursuant to M.G.L. c. 276 § 58B. A violation of pre-trial conditions may occur, for example, if a defendant was ordered not to drink alcohol pending a third offense OUI and tested positive at a random screen; or if a defendant released on an assault & battery offense made contact with the alleged victim in violation of the pre-trial condition to stay away and have no contact with said victim.
In order for the court to revoke bail under G. L. c. 276, § 58B, the court must find:
- That the defendant received notice of the conditions;
- Probable cause that a new offense has been committed while the defendant was on release for another charge OR there is clear and convincing evidence that the defendant has violated any other condition of release; and
- That the release of said person will seriously endanger any person or the community and detention of the person is necessary to reasonably assure the safety of the person or the community OR the person is unlikely to abide by any condition or combination of conditions of release.
The Court will hear arguments from the prosecutor and defense counsel, and may also solicit testimony from the probation department if the allegation stems from a violation of pre-trial release. If the Court allows the motion, the defendant may be held for up to 90 days without bail.