Ever since the imposition of statutory bail schedules where standard rates or amounts were set as bail for certain specific offenses, courts and judges have become lax about allowing a defendant to be represented by counsel during a bail hearing.
There is what is known as the 48-hour rule, in which a defendant who is arrested should be expected to appear in court within the next 48 hours after his arrest to determine not only the validity of his arrest but also whether there was probable cause for his arrest if arrested without a warrant. Formal charges are filed against him during this time, and the judge makes a determination on his right to bail. This 48-hour rule was imposed in order to prevent the injustice of keeping a defendant locked up for an unreasonable length of time during which he may not even know what the charges against him are. To a certain extent, this 48-hour rule is intended to prevent the unjust imprisonment of a defendant, particularly when he is charged with a bailable offense and should have been entitled to be freed upon posting bail.
The bail hearing, which is often the initial appearance of the defendant in court, is considered a critical stage of the criminal proceedings which should entitle him to the benefit of counsel. But because these hearings are mandated to take place soon after an arrest, a defendant does not usually have the chance to find a lawyer for himself or to be assigned one. Many times, bail hearings take place with only the defendant facing the judge. The judge makes a determination on whether or not the defendant is allowed bail, what the bail amount is, and what other possible conditions he deems necessary to attach to the bail.
The reason counsel should be present during a bail hearing is because it is a very critical stage of the proceedings: much of a defendant’s rights could be lost without argument. An advocate could request the granting of bail even if the judge denies bail, based on certain situational peculiarities. Counsel may also request the lowering of the amount of bail if there is simply no financial capacity to afford it, thus making it “impossible” for the defendant to afford, thereby bringing it under the ambit of the constitutional prohibition on excessive bail. Sometimes, it can also happen that a defendant ends up agreeing to plead guilty to a lower offense in exchange for the early termination of the case. Contested charges could mean a lengthy trial while pleading guilty allows the court to make a judgment and pronounce sentencing immediately, thereby ensuring a speedy grinding of the wheels of justice.
Of course, the latter cannot be done effectively unless the defendant is duly represented. The judge may speak to a defendant, advising him of the consequences should he plead guilty to a lesser charge instead, but it is simply not the same as advice coming from defendant’s own counsel, who will likely advise him against it. Again, the bail hearing is a critical stage of the criminal procedure because the repercussions of what takes place during the said hearing affect substantial rights of the accused. Many argue that a defendant has the right to counsel even at this early stage of the proceedings, as the setting is still an adversarial one. In point of fact, pretrial proceedings such as probable cause hearings and bail hearings are considered critical stages of the trial because substantial rights of the accused are affected. In such instances, allowing the accused his right to counsel can severely reduce the chances of any of his rights being violated.
During a bail hearing, a judge can conceivably take away a person’s liberty, and determine what price the defendant can get it back. Being duly represented by counsel means that a defendant has the chance to argue for his right to bail should it be denied, and to argue for a lower amount of bail if the bail amount set is too high.
Again, the repercussions of what is decided during a bail hearing can spell the difference between what is just and what is unjust. Being deprived of liberty is no small thing, particularly when a person hasn’t even been convicted yet of the charges against him, and he has yet to be given a chance to defend himself. Being deprived of liberty could not only impact his personal life, as for whether he can still hold employment and earn an income, or whether he can be in the company of friends and family that can give him support during the criminal proceedings against him. These differences can go a long way to the possible rehabilitation of a guilty defendant. At the far end of that spectrum is his ability to prepare for his trial, and to prepare his defense against the charges against him, if he is deprived of his liberty. Not having sufficient resources at the outset, whether to hire a lawyer or to afford his bail, can lead to injustice proceeding on down the line regarding his right to due process of law and right against unjust imprisonment.