The Constitution requires that a person must be brought before a magistrate or judge within a reasonable time after being arrested for an initial determination of whether there is probable case to detain him. If there is no probable cause to believe the person committed a crime the person must be released. If so, the court must set bail if the defendant is otherwise eligible for bail.
In most jurisdictions and in most cases, a person who is arrested is entitled to bail. Exceptions usually involve serious violent offenses or serious drug trafficking offenses. Some states, like Louisiana provide a state constitutional right to bail with limited exceptions. Bail in federal cases is controlled by the Bail Reform Act, which provides for liberal bail in most cases. However the Bail Reform Act also provides the government a mechanism to detain individuals until trial when there is a likelihood they will continue to engage in criminal activity, present a threat to the safety of the community or if they are likely to flee if released.
In the case of misdemeanors and minor offenses bail is often set at the time of arrest based on a predetermined schedule. With felonies and more serious offenses, a judge who is provided some basic information about the offense, usually in the form of an affidavit prepared by the arresting officer, will set bail. In most cases, a person accused of a crime is entitled to a "preliminary hearing." This is an "adversarial hearing" where a defendant is entitled to legal counsel. The prosecutor is required to present evidence and has the burden establishing "probable cause" or reasonable grounds to believe the defendant committed a crime.
In some jurisdictions the court will dismiss the case if the prosecutor does not carry his burden. In Louisiana the court is not allowed to dismiss the charges. However, it can release the defendant from his obligation to post bail pending trial. In some jurisdictions, such a Louisiana, there is no absolute right to a preliminary hearing, and once an indictment is returned it may only be allowed for limited purposes such as preserving testimony.
"Having a client out on bond is an important factor in successfully defending a criminal accusation. If my client is unable to make bond I will often move for a bond hearing or preliminary examination in an effort to have the bond reduced to a level the client or his family can afford."
