If the defendant qualifies for bail, Wisconsin law states that the defendant is “eligible for release under reasonable conditions designed to assure his or her appearance in court, protect members of the community from serious harm, and prevent the intimidation of witnesses.” In practice, you may need to fight for reasonable pretrial conditions or even to be released at all.

Bail Payment in Appleton, WI

Options for Possible Pretrial Release (or Detention)

Not every defendant is eligible for bail. The court will consider pretrial release at the defendant’s initial appearance in court. There are usually three options that a court will consider:

  • Releasing the defendant on their own recognizance without requiring bail
  • Releasing the defendant after they have posted the amount of bail set by the court
  • Denying bail altogether and keeping the defendant in jail until their trial

Bail Is to Ensure Appearance at Trial and for Public Safety Reasons

The court should only set bail if the judge believes that it is necessary to ensure the defendant will show up at their trial. Bail is a restriction on the defendant’s freedom, so it should not be set higher than is reasonably necessary to ensure their appearance at trial. There are times when a judge may set bail at a very high amount.

Excessive bail is considered unconstitutional under the Eighth Amendment to the United States Constitution. It would violate your legal rights as a defendant. Excessive bail can be viewed both in light of the defendant’s financial resources and the potential flight risk. The amount of bail is analyzed with regard to the specific defendant’s situation. A $1 million bail may not be excessive for one defendant, but a $100,000 could be excessive for another.

You Are Not Always Assured Bail

While the Constitution prohibits excessive bail, it does not guarantee a right to bail in all cases. The state may have its own public safety interest in denying a defendant bail. Some who have been charged with certain violent offenses or are a flight risk may be denied bail. Further, defendants who have been charged with a violent crime after already being convicted of a prior offense could be denied bail. The court would consider the defendant’s individual circumstances in deciding whether bail should be set at all.

Wisconsin voters recently passed an amendment to the state’s Constitution to make it harder to get bail before trial in certain circumstances. There was a high-profile incident in which a defendant out on bail killed six people when he drove his car through a Christmas parade. Now, judges are allowed to consider the following:

  • Past convictions for violent crimes when setting bail for someone accused of a violent crime (the list of what is considered “violent crimes” is very broad
  • What conditions are necessary to protect the public safety

In all likelihood, the new amendment will mean higher cash bail amounts and more restrictive conditions. The amendment affects the amount of bail, as opposed to a judge’s ability to hold someone in jail without bail pending trial. In Wisconsin, it is very difficult for a judge to keep someone in jail without bail pending trial. Judges can deny bail for a list of crimes that include homicides and sex offenses.

Requirements for the Pretrial Detention Hearing

Bail will be addressed at a pretrial detention hearing. The court holds this hearing to determine whether the defendant can continue to be held in advance of the trial. At that hearing, the prosecution would have the burden of proof to show by clear and convincing evidence that the defendant committed an offense that could result in the denial of bail.

A court cannot delay a pretrial detention hearing. The defendant must be allowed this hearing within ten days of the time that they are arrested or charged. In other words, the state cannot keep the defendant in jail indefinitely without the judge considering whether they should be freed pending trial.

As the defendant, you also have a right to be heard at the pretrial detention hearing. Wisconsin law allows the following:

  • The right of confrontation for the defendant
  • The right to call witnesses on your behalf
  • The right to cross-examine witnesses that the prosecution presents
  • The right to be represented by an attorney at the hearing

You may even be called to testify at the pretrial bail hearing. What you say in this hearing cannot be used against you in a criminal trial, although it could be considered for potential perjury charges in the future.

You would be released from custody unless the court makes specific findings that you should remain in custody. If you are being kept in custody, you have the right to petition the court for your release at any time. If the court still does not grant bail, you would have the right to an expedited trial, so you are not left in jail indefinitely without the prospect of a trial in the near future.

It is essential that you have a criminal defense attorney at the pretrial hearing and when the court is considering bail. Being released, even subject to conditions, is not a sure thing in your case. Your lawyer may need to argue against conditions that appear to be excessive or a denial of bail. You have the right to due process, which involves your attorney making your own case about why you deserve bail in the first place or why the conditions should be lesser than what the state is requesting, or the judge is considering.

Contact an Appleton Criminal Defense Attorney Today

If you have been arrested and charged with a crime, the attorneys at Hogan Eickhoff are on your side and ready to help you. We will appear on your behalf from the very beginning of the case and work on building a defense or seeking the best legal outcome. You can contact us online or call us today at (920) 450-9800 to schedule your free initial consultation.