3. The arrest and charging procedure: bail and "own recognicance"

Most individuals enter the criminal system when they are arrested or hear that a warrant for their arrest has been issued and turn themselves in. The right to be released before trial is a vital one in the United States, as is the right to a speedy trial so that one does not languish in jail awaiting trial. Unless a person is determined by the court to be a danger to society or there is good evidence that the accused will disappear before trial, the court is required to release the accused either without bail (on his or her "own recognizance) or by positing an amount of money ("bail") with the clerk of the court as security that will be forfeited if the person fails to appear for court.

Most first offenders or those accused of minor crimes ("misdemeanors") are released on own recognizance ("OR")within a few hours of arrest. Those accused of more serious crimes ("felonies") may have to post bail or may even be denied the right to bail. The latter normally only occurs in truly major crimes, most usually involving violence to others or massive sums of money stolen. Bail can range from a few hundred dollars to hundreds of thousands, depending on whether the judge feels there is a substantial risk of flight. The accused can either post his or her own money for bail, or can go to a bail bondsmen who, for ten percent fee and with some type of security pledged by the accused or his or her family, will post bail after obtaining such security. Thus, one hundred thousand dollar bail will normally cost the accused ten thousand dollars to the bail bondsman. Bail bonds offices surround the various jails and are usually open day or night.

Once arrested, the accused is normally brought before the judge for a bail hearing within a few hours, but if one is unlucky and arrested on a weekend or very late at night, one may not have the bail hearing for many hours or even a day. One is normally allowed a telephone call from the jail after one is "booked" which means after the police establish a record of the arrest, take fingerprints, etc.

One has the right to legal counsel at any questioning that occurs in which one is considered possibly to be arrested. If one asks for counsel, all questioning must cease until your legal counsel is selected and present. Most police departments give a warning (the "Miranda warning" named after the case which limited the right to question and the warning states that the accused need not answer any questions, has a right to counsel to be present, and that if that person cannot afford counsel, one will be appointed by the court. DO NOT AGREE TO ANSWER QUESTIONS UNTIL YOUR LEGAL COUNSEL IS PRESENT. EVER.

One does have a right to have legal counsel at all stages of the criminal proceeding AND IT IS VITAL FOR THE ACCUSED TO CONTACT HIS OR HER ATTORNEY AS SOON AS POSSIBLE. A common mistake made by the accused is to feel that that the entire arrest is merely a mistake and that if he or she can only explain the situation to the police or an official, the entire matter will be "forgotten." Do not make that mistake. Obtain legal counsel as soon as you can and do not volunteer information until you have received good legal advice. As they say in the movies, anything you say can and will be used against you and once arrested it is very seldom for a matter to be dismissed prior to a full scale hearing once booking is made.

One must also assume that any conversations outside the presence of your legal counsel may be subject to electronic scrutiny thus discussing the case with any persons while incarcerated is foolish, indeed. The prisoner sharing your cell or your meal times is not your friend and is as likely to buy his or her freedom by testifying against you as not. Volunteer nothing in any conversation outside the presence of legal counsel. Be courteous, be cooperative, but say nothing except you wish to have legal counsel present.

One has a right to seek a hearing to reduce bail if bail was set that is too high. The court considers the type of crime alleged to have been committed; your ties to the community that would indicate you are unlikely to flee; and your prior record in determining if bail should be set and the amount. Thus, a person accused of theft who has a family and regular job in the community and no record is going to face a small bail or OR while a third time convicted felon accused of assault and battery who was recently out of prison will face high bail or none at all.

Whether bailed out or not, the law requires the Court to promptly have a hearing in which the accused is made aware of the charge against him or her.