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What Does a Judge Consider When Setting Bail?

Last week, we published a blog about bail--specifically, we looked at the purpose of bail and mechanically how it works. This week, we examine a related topic: factors a judge considers when setting bail.

As described last week, the general rule provides that a judge will set bail if he or she has public safety concerns or concerns about a defendant's ability to appear for future court appearances. The question then becomes, what factors bear on this general rule? The Minnesota Rules of Criminal Procedure answer that question and provide that a judge must consider the following factors when setting bail:

  1. The type of crime and the nature of the allegations;
  2. Whether the allegations are believable and show guilt;
  3. Whether the defendant has family support in the community;
  4. Whether the defendant is employed;
  5. Whether the defendant has financial resources that may cause him or her to flee;
  6. The defendant's character and mental condition;
  7. The defendant's length of residence in the community;
  8. The defendant's criminal history;
  9. The defendant's prior history of appearing for court;
  10. Whether the defendant has previously tried to flee to avoid prosecution;
  11. The victim's safety;
  12. Any other person's safety; and
  13. Safety to the community at large.

At an arraignment, which is the defendant's first appearance in the criminal court process, both the prosecutor and defense attorney will argue these factors to the judge in support of their respective positions.

The process will start with the prosecutor making his or her recommendation to the judge about whether bail is appropriate and, if so, how much should be imposed. The prosecutor will then state the reasons for the request. Prosecutors will generally point to the defendant's warrant history, criminal record, and/or the nature of the present allegations to support the State's position.

The defense attorney then has a chance to present his or her arguments. The arguments made by the defense attorney vary depending on the circumstances. However, the goal is to have the client released on his or her own recognizance or, alternatively, with the least amount of bail possible.

If you have been arrested for a crime, it is important to call an attorney right away. You will want an attorney to be present with you at your arraignment to make sure you are either released on your own recognizance or released with the lowest amount of bail possible. Defense attorneys are skilled at arguing the factors listed above. A criminal defendant is not wise to go it alone. Grant Borgen of Bird, Jacobsen & Stevens, P.C. handles criminal cases and is always available for a free consultation.

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