From the standpoint of the defense, and sometimes the prosecution, the issue of bond is almost always the very first problem to address in a criminal prosecution.
Oftentimes, the accused will be given a pre-set bond after the arrest and booking procedures are complete. This typically happens in cases where the arrest is for a non-violent misdemeanor such as a DUI or other less serious offense.
If a pre-set bond is not available, the accused may also have a fairly quick opportunity to have a bond set at a first appearance hearing. This is a hearing conducted by a magistrate judge who will inform the accused of his rights in a criminal case. Additionally, the judge may consider setting a bond in some felony cases if the accused does not have any probation, parole, or other types of law enforcement holds.
If there is no pre-set bond and the magistrate judge does not set a bond, then the accused will sit in jail until the case comes up for trial or a bond is set at a later date. The request to have bond set at a later date usually comes in the form of a motion for bond filed in the superior court.
This bond motion will set the stage for a bond hearing in front of a superior court judge. The district attorney represents the state of Georgia at these hearings. While procedures and local rules differ slightly from county to county, the superior court will be authorized to set bond if the judge determines that the accused:
(1) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;
(2) Poses no significant threat or danger to any person, or to the community, or to any property in the community;
(3) Poses no significant risk of committing any felonies pending trial; and
(4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.
While these four determinations are used as the criteria for the judge in the bond hearing, the foremost consideration when setting a bond is the probability that the accused, if freed, will appear for trial. This important consideration was made clear in the landmark Georgia Supreme Court case of Ayala v. State.
Sometimes the judge will refuse to set a bond in the case. This can happen for a number of reasons, but is very common in cases where the accused has been arrested for serious violent felonies, such as murder or child molestation. It can also happen when the accused has a significant criminal history.
However, if the accused is denied bond and is not indicted by a grand jury within 90 days, the accused will be entitled to bond under most circumstances. Emergency bond motions are filed and heard in these scenarios.
From a practical standpoint, the accused should prepare for the bond hearing with his attorney before the court date. Witness testimony and other evidence can assist in establishing that the accused has ties to the community, will show back up for court, and otherwise meets the criteria for setting bond.
Some bond hearings are simple. There are also cases when the State will consent to a bond. However, complex bond hearings require diligent preparation not only on the part of the attorney, but the accused and his or her family and friends as well. Disorganized and unprepared bond hearings are almost always a disaster for the accused. This means “bond denied.”
Swindle is a local attorney at law.