Do I Have To Remain Incarcerated While Awaiting Trial?

The criminal justice system can be very slow. It may take weeks or months after an arrest before your court date. During this time, the court could keep you behind bars for pretrial detention. The court can also release you with a promise to appear or make you put up money as security for pretrial release.

After an arrest, you will want to get out of jail as soon as possible. Talk to a criminal defense lawyer about your legal options to avoid incarceration while awaiting trial.

What Happens Between an Arrest and Trial?

After an arrest, the suspect is booked at the police station. The suspect could be held overnight or for a couple of days until they can appear for a first appearance. During the first appearance or arraignment, the judge reads the charges against the defendant and tells them their rights. These include the right to remain silent, the right to an attorney, and the right to a public defender if you cannot afford a lawyer.

A trial date is usually set for some time in the future. Until the trial, the suspect may be detained or released. A bail hearing determines the bail amount to set for release or if the defendant will not be eligible for bail. Bail is an amount of money to get out of jail. The money is to ensure you show up for trial and not leave the state.

When Can You Get Released From Jail?

To get out of jail pending trial, the court may examine your case and determine if you pose a flight risk or danger to the community. Depending on state law, the judge could release you on personal recognizance, set bail, or refuse bail and keep you in prison for trial detention.

You will likely be released on personal recognizance for minor offenses and nonviolent misdemeanors. You must promise to attend any court appearances, including trial. The judge can issue a bench warrant for your arrest if you don’t appear.

For serious felonies, the court may be more likely to keep you in jail. Depending on the criminal charge, the court could set a high or low bond amount for release. The availability of bail and the amount can depend on several factors that may come up during your bail hearing.

How Long Do You Have to Stay in Jail?

After an arrest, it generally takes a day or two before you can appear before a judge. Some states provide for a time limit, generally no later than 48 hours. Other states have less concrete standards, like promptly or without undue delay.

For example, under the California penal code, the defendant shall immediately appear before a magistrate. In any event, it shall be within 48 hours, excluding Sundays and holidays.

The judge can then determine if you are eligible for release or not. If you are eligible for release, the judge can set the conditions for release.

How Can You Get Released Before Trial?

To get released from jail before trial, you can get out on bail or be released on personal recognizance. Bail is the amount of money you pay to the court to ensure the defendant will appear. If the defendant appears, the money is generally returned. If the defendant doesn’t show up, you can lose the money.

The cash bail system has been criticized for its unequal treatment based on financial ability. People with lower incomes may be unable to afford bail to get released from jail. They may not have any assets to get a bail bond. In 2023, Illinoisbecame the first state to eliminate cash bail. Instead, pretrial detainment is determined based on the risks of danger to the community.

Posting Bail or Bonding Out

The amount of bail for release depends on several factors. The bail amount is to ensure the defendant appears for their criminal case and to protect the community. Bail may also take into account the individual person and their financial situation. Many jurisdictions use a bail schedule, which can increase or decrease.

Factors in determining bail and who can post bond for the defendant include:

• Employment status
• Family relationships
• Past residences
• Character and reputation
• Likely sentence
• Prior criminal record
• Likelihood of harassing or intimidating witnesses
• Flight risk
• Public safety risk

If you can’t afford the money for bail, you can use a bail bond company. The bail bond company will generally arrange for release for a fee. The fee is usually 10% to 15% of the bail amount. The money is not refunded. The bond company may also require a security interest in the property, like your vehicle. If the defendant doesn’t show up, the bond company can claim the secured property.

Released on Your Own Recognizance

Release on your own recognizance (OR) means that you promise to appear, and the court will hold you to your word. There is no security to deposit for release, but there are penalties for failure to appear. If you don’t appear for your court dates or don’t notify the court, penalties can include:

• Bench warrant
• Contempt of court
• Fines
• Jail time

How a Criminal Defense Attorney Can Help

Pretrial detainees may not have the money to put up to get released. A criminal defense lawyer can request a detention hearing to show good cause for release. Your attorney can also negotiate a plea bargain so you can avoid a prison sentence. To understand your due process rights after an arrest, speak with a criminal defense attorney.