Most of our clients are poor and cannot afford bail even if the bail set by the judge could be posted. So why file a formal motion for a bail hearing? Here’s why:

1.        A bail motion forces the judge to more thoroughly consider the facts and the client’s background. Judges often set bail without knowing much about our clients. At the arraignment, they often defer to the statutory bail schedule or the prosecutor's demand. Because we arraign the client on the same day we receive the complaint and police report, and meet our client, we do not have sufficient time to investigate the facts underlying the motion or interview our client on the facts. Information is often missed or not verified in time for the arraignment. Filing a formal bail motion allows us the time necessary to present all the relevant facts to the judge.

2.        The bail motion/hearing gives you an opportunity to articulate your case to the judge. Although you won’t want to reveal your defense in the bail motion, it gives you an opportunity to point out the weakness in the prosecution’s case, while educating the judge on the facts of your case. It also signals to the prosecutor that you will oppose them at every turn.

3.        The bail motion gives your client’s family a way to get involved. Family members can testify or submit declarations at the bail hearing and can gather letters and testimonials to help convince the judge to release your client and reduce the bail.  These letters can later be used to help mitigate a charge or argue for a reduced sentence in the event your client is convicted. Family members often feel helpless when their loved one is in jail, charged with a crime; this gives them a way to get involved in the case.

4.        The most important fight for the in-custody client is the fight for their freedom.  Being “out of custody” rather than in can make all the difference in the world: it reduces the pressure to plead in order to get out of jial and allows your client to resume his or her life during the pendency of the case. According to a 2013 study by the Arnold Foundation, clients who are detained are 4 times more likely to be sentenced to jail, 3 times more likely to receive longer jail sentences and 74|PERCENT| more likely to recidivate if held for 31 days or more.

5.        Your client gets to see you fight for him or her. Even if you are not successful in winning your client’s freedom, your client will see you fight for their freedom and this will build your client’s trust and confidence in you.  It creates an instant bond between lawyer and client when your client sees that you care about them and are fighting for their release pending trial.

6.        Bail motions can also improve your practice.  The exercise of preparing a formal bail motion and hearing for your client's release, you will become more familiar with your client's background.  You will become even more skilled in arguing for release and build more credibility with the judge.  The judge will also take notice that if she or he denies your initial bail pitch, you'll be back in court for a formal bail hearing.

7.        You have nothing to lose.  It is a rare circumstance that a judge will increase bail when you ask for a bail reduction. The worst outcome is that your client’s bail will remain the same.   Even if you succeed in getting the bail reduced by a nominal amount, that’s a victory for you and your client.   
NOTE: In juvenile court there is a similar motion for release pending disposition of the juvenile matter (since no bail is available in juvenile court) called a detention hearing. The attorney files a formal release motion three days prior to the arraignment.  The motion typically includes a child’s social history and provides linkages to services such as substance abuse counseling, therapy, etc for the judge to consider in releasing the minor.