Pretrial Release in a Criminal Case

In the United States, criminal defendants are presumed innocent until proven guilty. It is impossible to overstate the significance of this idea. At the same time, pretrial release is a very important element in a successful criminal defense. Defendants who are in jail can only speak to their attorneys on a limited and controlled basis; furthermore, it is almost impossible for them to participate in the case in a meaningful way. There are also personal reasons, aside from the legal reasons: persons who are incarcerated cannot work and cannot spend time with their families.

At the same time, the state has an interest in ensuring that the defendant appears at trial and keeping the public safe. The Eighth Amendment recognizes this balancing principle, and states that “excessive bail” is illegal in criminal cases.


Since the Constitution contains only two words about pretrial release, the courts have, over the years, developed a test to determine what is “excessive.” Some of the major factors include:

  • Severity of the Charged Offense: The theory is that a defendant is less likely to appear at trial if the charges are serious.
  • Risk of Flight: The same theory applies. Evidence of flight risk includes the financial means to travel, business or personal connections to another state or country, and the seriousness of the crime.
  • Harm to the Public: This element is present if there is a verifiable fear that the defendant might harm witnesses. It was once present in DUI cases as well, but the advent of ignition interlock devices, which make it virtually impossible to drive under the influence, has largely eliminated this fear.

Pretrial release is never a way to “punish” the defendant; any such consideration is illegal.


Depending on the jurisdiction, most defendants go before a magistrate judge within a few hours of their arrest. At this “hearing,” the judge typically only hears one side of the story. As a result, most jurisdictions have default bail amounts, such as $750 for a misdemeanor and $2,000 for a felony, that are applied in most cases.

Once the magistrate sets bail, the defendant has two options. A bonding company will normally secure release for a fixed percentage of the bail (typically 10-15 percent). This percentage is nonrefundable. The other option is to post the entire amount with the arresting jurisdiction in cash; this cash deposit is refunded after the trial is over.

Personal recognizance is a third option that is sometimes available for non-violent offenses if the defendant has no criminal record. Many times, it is necessary to have a bail reduction hearing, so an attorney can present evidence on the defendant’s behalf.

Lawyers Who Are On Your Side

Pretrial release is often the foundation of a successful result at trial or during plea negotiations. For a confidential consultation with aggressive defense attorneys in Charlotte, contact the law firm of Remington & Dixon, PLLC today. We routinely represent defendants throughout Mecklenburg County and nearby jurisdictions.


Are consultations free?

While we offer a free consultation on traffic matters, criminal matters, and most professional license defense cases, we charge a fee for family law consultations to personalize our consultations to your specific needs. To learn about our fee structure, please get in touch.

Where can I get legal advice?

We recommend meeting with an attorney. While there is free legal help available for North Carolina residents from pro bono resources for civil matters, and public defenders for criminal cases, the best way to access tailored advice is to hire a lawyer.

Can I hire you if I’m in another state?

This is done on a case by case basis if you are involved in a family law, criminal, or professional disciplinary matter that involves another jurisdiction.



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