BAIL: What It Is And How To Get It
Bail is an amount of money or property deposited by an accused person with the Court, in order to be released from custody. If you are arrested and charged with a crime, you may be required to post bail before the police will let you go. The bail is a kind of insurance to guarantee that you’ll appear in Court for your trial. If you are accused in a criminal case, or if you are accused of violating a Court order, and you do not appear in Court when ordered to, your bail money is forfeited--that is, it now belongs to the Court. Bail may be posted in cash or in property, by the accused or by someone on his behalf.
Every crime in Tennessee is a bailable offense, except capital crimes--that is, crimes for which the death penalty may be asked.
The rules are different for federal offenses. If you are charged with a federal offense, whether in Tennessee or another jurisdiction, you may not be eligible for bail. The federal court will make a determination within 72 hours of your arrest as to whether or not there are suitable conditions of release pending your trial. Such conditions may include the posting of a property bond, signature bonds whereby you or other individuals promise to pay a sum of money should you fail to appear for court or not abide by court orders, pretrial monitoring by pretrial service officers, and other similar conditions.
The amount of bail you will have to pay is set by the Court. Sometimes the arresting agency--the police themselves or a court clerk sets bail for the crime, based on a printed list supplied by the Court.
If a judge sets your bail the amount of bail you’ll have to deposit if you are arrested is based on several different considerations. It has to be enough to make certain you will appear in Court rather than lose a large sum of money. The seriousness of your crime is also a factor in determining the amount of bail, and so is your employment history and position in the community. Also considered are your length of time in the community, your past record, and whether or not you have hired an attorney to represent you. If you do hire an attorney, it is usually a good indication that you will appear in Court to defend yourself against the charges brought against you.
There are three ways to make a bond. The most often used way is to use the services of a bail bonding company. You will see the name and phone number of several bail bonding companies at the jail. The service they render is to act as a surety. If you pay them a set fee, generally about ten percent of the bond, you get out of jail, and then the bonding company serves as a surety, to insure to the Court that you will appear when you are supposed to. The disadvantage to this means of posting your bail, is that the fee you pay to the bail bonding company is not returned. It works in much the same way as an insurance premium.
The most economical way to get out of jail is to post the full amount of the bond in cash. The Court will then hold the cash until the case is concluded. Then, you get all of your cash back. If, at the conclusion of your case, you owe either court costs or fines, the clerk may be authorized to withhold those funds from your cash bond and return any remaining balance to you or your attorney.
A third way which often makes sense when the bond is high, is to post a property bond. It is a complicated procedure, and requires the services of a lawyer, but the bottom line is that you would put up your real property, or someone else’s, to guarantee that you would appear in Court as you are supposed to. Typically, you must post property in excess of 1.5 times the amount of the bond in order to be released on a property bond. The value of the property posted must be free from any encumbrances such as a mortgage.
Sometimes an accused person will be released on his own recognizance. This means being released without any bail being put up, promising to appear in Court at the appointed time. The same considerations are made as with setting bail--that is, one’s standing in the community, employment record, past history of arrests, etc. Often, if you are able to contact any attorney from jail, and the charge is minor, an attorney can secure your release on recognizance. A release like this places you on your honor to appear in Court for your trial, and if you fail to appear, you’ll be charged with failure to appear--a completely separate offense.
Bail bondsmen usually have offices near the police station or the courthouse or the jail. You can make arrangements for bail through any friend or relative who is willing to contact the bondsman for you. Do not accept an attorney referral from a bondsman. Often these referrals are unethical and even illegal.
If you are arrested, it is wise to consult your attorney first, before making bail arrangements. An attorney may be able to get you released on your own recognizance, and save you the money for the bail.
Who Has A Right To A Public Defender?
If you are charged with a crime and cannot afford an attorney, one will be appointed for you. In most cases, it will be the Public Defender or a member of his or her staff. Lawyers are only appointed in cases for which you can receive a jail sentence. If you are charged with a traffic ticket or given a citation for a violation that does not carry a jail term, an attorney will not be appointed. In Hamilton County, the Public Defender's office handles cases in General Sessions Court, Criminal Court and Juvenile Court.
There are three divisions of General Sessions Court in Hamilton County---misdemeanor court, felony court and DUI court. Your first appearance on a criminal charge in any of these divisions will be your arraignment. At arraignment, the charges against you will be read and you will be asked how you wish to plead. The judicial commissioner will have you list your income and property and, if you do not have the money to hire a lawyer, one will be appointed at that time. You will be arraigned whether you have made bond or remain in jail.
If your case is not dismissed or resolved in General Sessions Court, it will be presented to the Grand Jury. If the Grand Jury decides there is enough evidence against you to continue with the case, you will be indicted and your case assigned to Criminal Court. You will then be given a new arraignment date and the process will begin all over again. A different attorney from the Public Defender's Office will be appointed to handle your case in Criminal Court if the judge decides you still cannot afford an attorney.
In Juvenile Court, you will be given an attorney only if you are charged with a felony.
To reach the Public Defender's Office, call (423) 634-6374 between the hours of 8:30 a.m. and 5:00 p.m., Monday through Friday. The Office is located at 720 Cherry Street, Chattanooga, TN 37402.
Rights of Juveniles Who Are Arrested
The law and the court system do not deal with juvenile offenders in the same way as they deal with adult offenders. The major purposes of the juvenile law are to try to help and guide the minor and his or her parents, to protect the rights of innocent juveniles, to protect society from criminal conduct by juveniles, and to give juveniles a sense of responsibility for their own acts. One of the most important features of the juvenile court is that the minor will not end up with an adult criminal record. Although a juvenile who is not transferred from the juvenile court system will not have an adult record, there are instances where a juvenile’s record may be made available for public inspection.
Anyone under eighteen years of age who is accused or arrested for breaking the law comes within the juvenile court system and is taken to the juvenile detention facility rather than jail. However, if a juvenile enters the juvenile justice system before his eighteenth birthday, a juvenile court can retain jurisdiction of that person until they reach the age of nineteen.
The right to remain silent, the Fifth Amendment right against testifying against yourself, applies to juveniles, and the minor has a right to refuse to say anything to anyone about the offense he or she is accused of until first talking to a lawyer. Following arrest, the juvenile detention officer will try to notify the parents of the minor and tell them about the arrest and where their child is being held. Oftentimes juvenile offenders are released to the custody of their parents prior to the initial hearing in the juvenile court.
Every juvenile has the right to a lawyer as soon as he or she has been charged with an offense. The juvenile alone can waive the right to counsel, and then only with parental consent.
If a juvenile is taken into custody there is no right to bail, however bond is routinely set for most offenses. The court officer who conducts the initial hearing can always choose to release the child under restrictions if he believes this is the best way to handle the case. If a minor is kept in the juvenile detention facility, a petition--a legal document that describes the complaint against the juvenile--must be filed in the juvenile court as soon as possible. Following arrest the court will conduct a detention hearing as soon as practicable. The detention hearing is to decide whether or not the juvenile should be sent home while awaiting a final hearing. If the charges are very serious older juveniles may be subject to a "transfer hearing" to decide whether their case should be resolved in the adult criminal court. If a juvenile is transferred to adult criminal court, he or she will be provided the same protections of an adult in the criminal court system. Should a juvenile be convicted in the adult system, and sentenced to incarceration, he or she will be placed in a juvenile facility until their eighteenth birthday, and then transferred to an appropriate adult prison or other adult custodial arrangement.
When children are kept in custody, a trial will be scheduled within thirty days. If the juvenile is not kept in custody, the trial will be scheduled within ninety days. Either hearing can be postponed for a good cause. At the trial, the juvenile does not have the right to a jury; instead the case is heard by a juvenile court judge or referee. Just as in criminal prosecution, the District Attorney must prove the allegations against the juvenile beyond a reasonable doubt. The juvenile does not have to prove his or her innocence. The juvenile has a right to call witnesses in his defense at no expense to the minor. Witnesses can be subpoenaed-that is, ordered to come into court.
At the final hearing, if a juvenile is found to have violated the law he can be declared a ward of the court and parental custody may be removed. The court can place the juvenile on probation in his or her own home, in a foster home, or in a group home or other institution for more serious or repeat offenders. Generally, the court will first make every effort to work with minors in their own homes on probation.
Remember a juvenile accused of a crime is entitled to a lawyer and their attorney’s advice should be obtained as soon as possible to make certain that the juvenile’s legal rights are protected.
State Payments To Victims Of Violent Crimes
Did you know that if you are a victim of a violent crime you may be eligible for financial compensation? A state law now gives the Tennessee Claims Commission the power to determine claims and award compensation to victims of crimes.
The Tennessee Claims Commission may order the payment of compensation for personal injury or death of the victim of the commission of a crime, or of a person attempting to prevent the commission of a crime, or of a person apprehending an individual who committed a crime in the presence of the victim.
Compensation may be paid to the victim, to a dependent of a victim in the case of death, to the legal representative of the victim for unreimbursed funeral or burial expenses, or to a person responsible for the maintenance of the victim in the case of personal injury.
In certain cases, members of the offender’s family are not eligible for compensation, and in no case is an accomplice or a person criminally responsible for the crime upon which the claim is based eligible for compensation.
The maximum total award which can be made is $10,000.00, and the court can reach this total by awarding compensation for actual medical and burial expenses, loss of past earnings, permanent or temporary disability, and other loss which the court determines to be reasonable. No awards are made for damage to property, and no award is made for pain and suffering except for victims of the crimes of sexual crimes such as rape.
If a victim applies for compensation under this law, it is also required that the victim cooperate with the District Attorney in the prosecution of the related crime. Your failure to appear in court to assist in the prosecution, or answer questions from the Attorney General or the police can result in your claim being denied.
The amount of compensation is reduced by the amounts which are received from other sources as insurance or from a personal injury lawsuit, unless the recovery from the other sources are not sufficient to reimburse the victim for his loss.
A victim has only one year in which to file the claim for compensation; however, the court may extend this time for good reason. When the claim is filed, a hearing will be held in court, and a Judge will determine first, whether the claim should be allowed, and second, the amount to be paid. The court may allow reasonable attorney’s fees which are not to exceed 15% of the amount awarded as compensation, and this fee, if allowed, is to be paid in addition to the amount of the compensation to the attorney for the claimant. The attorney is not allowed to charge a sum larger than the amount allowed by the court.
An emergency award may be made if it appears to the court before time has come for the hearing that an award will probably be made on the claim, and that undue hardship will result if immediate payment is not made. The amount of the emergency award cannot exceed $500.00, and it is deducted from any final award made to the claimant.
Payment of any award which the court makes is made from the Criminal Injuries Compensation Fund but only as money is available in the fund to pay the award.
What Should I Do If I Am Arrested?
Being arrested can be a very frightening and confusing experience. Knowing what your rights are at least gives you some guidelines to follow. If you are arrested on suspicion of committing a crime, probably the most important thing for you to remember is, you do not have to say anything about the alleged crime. It is generally best not to discuss any allegations of criminal behavior on your part with law enforcement until you have consulted with an attorney.
If you are in custody, the police are required by law to inform you of your constitutional rights if they are going to question you. They must tell you that you have the right not to answer any question or make any statement because your answers or statements may be used against you in a court of law. Remember that you do not have to submit to questioning, and that in the eyes of the law you are presumed innocent until found guilty in court. Blurting out statements to the police at the time of your arrest can hurt your case. Even if you are not guilty and want to tell the police everything you know so that you will be cleared of all charges, you may be better off contacting an attorney first and letting him do your talking for you.
Tell the police you want a lawyer. This is your legal right and you should ask for a lawyer immediately. The police have to let you call your own lawyer, if you can afford one, or the court has to appoint an attorney to handle your case, if you cannot afford one. Your own lawyer may be able to get to your case sooner, but a court appointed attorney will also act in your best interests.
Call the lawyer before you call the bail bondsman. A lawyer may be able to get you out of jail on your own recognizance--this means you don’t have to put up bail but you must promise to appear in court at the appointed time for your trial. You’ll have to pay the attorney a retainer fee-a sum of money that makes your agreement with him for his services binding--but you may avoid paying for a bail bond.
You can serve as your own attorney, that is, defend yourself in court under the legal rights granted by the constitution. However, even lawyers and judges, if they are accused of crimes, usually hire lawyers to defend them.
If you should decide that you must answer some questions the police ask before you call an attorney, just remember to always tell the truth. If nothing else, a lie can be used against you in court to show that you are a person who will tell lies to get himself out of trouble. Again, it is best to talk with a lawyer before you say anything to the police.
Do not try to make bargains with the police. Trying to bribe an arresting officer or to resist arrest are other offenses you can be charged with. On the other hand, the police can promise to take it easy if you’ll cooperate and answer their questions, but a verbal agreement doesn’t mean anything. The police do not have the authority to make deals. It’s up to your attorney to negotiate with the prosecuting attorney if your case reaches that point. In the meantime, if a deal is offered by the police, which rarely happens, get it in writing or don’t agree to it.
Remember--you are protected by the constitutions of the United States and of the state of Tennessee. You don’t have to answer any questions, and you have the right to demand an attorney as soon as you are arrested. You also have the right to make one phone call. Use that call to contact your lawyer, or call family or friends to get a lawyer for you. Don’t say or do anything that could possibly be used against you. Your silence can never be used against you in a trial.
When May Police Legally Enter Your Home?
Ordinarily a peace officer, regardless of whether he works for the Federal Government, State, County or Local Police Departments, must have a search warrant or an arrest warrant in order to enter your home, unless you consent. A residence can be a home, an apartment, a mobile home, a house trailer or even a tent. The rules regarding when an officer may enter are the same. The rules are also the same regardless of whether the owner, a renter, or simply a guest who has the permission of the owner to be in possession, are in the residence.
No warrant is required where consent to search or enter is given by someone who has the right to give consent. The owner of the residence can give consent to enter but so can a renter for the rented property, or a guest with permission to be in possession of the residence. Two or more people may have joint possession of property and, therefore, each may have the right to consent to the search of the property. However, a friend, a neighbor, or even a relative, who does not have the permission of the owner to control the residence, may not consent to any entry by police or to a search. Peace officers may also enter a residence without a warrant, it they are in hot pursuit of a person who has committed a felony. If you do not wish to have your home searched without a warrant, do not let the police persuade you against your better judgment to do so. Immediately attempt to contact a lawyer and seek their advice before consenting to a search if you have concerns whether or not the police should enter your home.
The police will usually have one of two kinds of warrant. They may have a search warrant for a described residence or person, or an arrest warrant for a person they have probable cause to believe is in the residence. When a warrant is served, the police must knock and announce their authority for entering, and their purpose in entering the property, before they can enter. They must give whoever is inside the residence a reasonable amount of time to respond. If the people inside the residence do not respond within a reasonable time, or there are reasonable grounds to believe they are destroying evidence, or a belief exists that immediate and deadly harm may come to the police in their efforts to execute their warrant, the police may break into the residence.
If peace officers wish to enter your residence, you have a right to ask to see the warrant upon which they rely. If it is a search warrant, it should describe the residence giving its address and apartment number, it any. Peace officers may not legally search a residence which is not described in their warrant.
If it is an arrest warrant, the person who is to be arrested should be named or described in detail. If the person named in the warrant is not a person who owns or lives at the residence, the officers must have some reason for believing that he or she is inside before they may legally enter.
All warrants must be signed by a magistrate or judge. The warrant must be served within a reasonable time after it has been issued, and no more then five days after it is issued.
When the warrant is served, the officers must look for the item or person described in the warrant. They may not search for an item in a place where it could not be. For example, if they were searching for a stolen car, they could not search the cupboard and clothes closet of a residence. Similarly, peace officers may not search individuals who are not named in the warrant, unless the person gives them probable cause to believe they are committing a crime by doing something in the presence of the peace officers such as possessing drugs or committing an act of violence. Peace officers may enter a home with a warrant without knocking if they are in hot pursuit of a person named in the warrant, or if they have reasonable grounds to believe that a person inside the residence is in danger.
If a search is conducted of your home, the peace officers are required to make an itemized list of everything they seize during the search. You have a right to receive such a list if you are the owner or person in possession of the residence. It is also wise to attempt to take written notes of the activities of the police as they search your home. Please be advised that if the police are there with a search warrant, you may not interfere in their activities to search your home. Again, this is a very important time for you to try to attempt to contact a lawyer.
Peace officers are not required to advise you that you have the right to refuse to consent to a search without a search warrant. Nor do you have the right to be advised by peace officers that you can call and confer with an attorney before or during the time that peace officers enter and search a residence. Whenever a warrant of any kind is served upon your home, or whenever peace officers wish to enter and search your home, you should consult an attorney to determine what your legal rights and responsibilities are.
You may not forcibly resist peace officers who go beyond their legal right entering and searching your residence. You may only resist a peace officer if the officer has become so physically abusive in arresting or searching you that it is reasonable to believe that you may be seriously injured or killed by the peace officer. Otherwise, the only remedies that you have for the illegal entry and search of your home by peace officers, is to file a lawsuit for damages against the peace officers and their superiors and to file a motion to have the case dismissed or evidence suppressed based on the police officers behavior.
