One of the first issues addressed in a criminal proceeding is pre-trial release (aka bail). As in all criminal cases, the accused is presumed innocent until proven guilty. Therefore, the defendant is entitled to reasonable bail in all cases of misdemeanor. In felony cases, a defendant is also entitled to bail unless the state can show that the defendant
- is a significant escape risk.
- is a significant danger to persons or property in the community.
- is a significant risk of committing a crime that is still pending trial.
- there is a significant risk of intimidating witnesses in the case.
If the state can prove only one of these factors, the judge can deny the bond. While the burden of proof at the hearing rests with the state, the defendant is tasked with the initial “presentation” of evidence of community membership. In Georgia, magistrates issue most bonds. However, there are certain serious allegations for which only a Supreme Court Justice has the authority to grant bonds. These include primarily:
- Treason
- murder
- Rape
- Aggravated sodomy
- Armed robbery
- First degree home invasion
- Airplane hijacking and automobile hijacking in the first degree
- Severe child abuse
- Aggravated sexual battery
- Sale, manufacture or distribution of medicines
- Increased stalking
If a person has been charged with any of these crimes, only a Supreme Court judge can grant bail.
Bond hearing
In Georgia, bail is usually set within the first 24 to 72 hours of a person’s incarceration, which is known as first or first appearance. People charged with low-level misdemeanors or felonies (with little or no criminal record) are usually given bail on first appearance. If a person does not receive bail upon first appearance, they or their attorney may file a bail application. If this is the defendant’s first request for bail, the law requires the request to be heard within 10 days of its filing. At the Bond Hearing, your attorney may present evidence and present arguments to show that you are not incurring a significant risk of violating any of the Bond Factors. This may include calling witnesses or collecting letters to demonstrate a person’s work history, lack of a criminal history, and good character in the community.
The main case in the Georgia government bond is Ayala v. State. Ayala explains that the purpose of the bond is “to prevent punishment prior to conviction and to ensure the person’s appearance in court for the trial.” Ayala v. State, 262 Ga. 704 (1993). Ayala also suggests factors the court should consider when deciding bail, including “the defendant’s length and type of residency in the community, employment status and history, past trial response and criminal record.”
bottom line
Release before a trial or conviction is a fundamental constitutional right. People must not be punished before a guilty conviction or imprisoned without cause. The state can only withdraw these rights under certain conditions. Contact an experienced attorney today who can protect your rights and work to get you out of prison before the trial.
