Representing Yourself in Court

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

 

Pro se means “for self” in Latin. In the legal system it is the term applied to cases in which someone represents himself, rather than having a lawyer. In almost every kind of court case, individuals have the opportunity to represent themselves. But there are all kinds of documents and actions that have to be done exactly right in a court case, not only to win, but even to keep the case alive through the numerous processes in formal dispute structure.

There is an impression that judges will be flexible and patient with people representing themselves in court. Judicial conduct codes require judges to be thoughtful and unbiased,[i] but they do not require judges to waive court formalities or provide unlimited time for people representing themselves to make their way through a case. In fact, judges trying to be unbiased might have to restrain themselves from being too helpful to litigants representing themselves.

Judges’ professional organizations have produced position papers and suggestions about keeping court fair, efficient, and accurate for self-represented claimants and also their opponents who are paying attorney fees.  [ii] In sum, judges have no legal obligation to protect or assist people simply because they have come to court without a lawyer.

Many courts have a “pro se packet” or a similarly named segment of their Web sites where case filing instructions are provided for non-lawyers. [iii]   The difference between those instructions and the ones the lawyers follow is basically in the way they are written, although they also tell how to notify the court that you don’t have legal counsel. Even though a pro se printing of the court’s requirements may be easier to read than the full-text of the court rules, the fact is that pro se litigants do not get to avoid court formalities simply because they have not hired a lawyer.

The court formalities and the strange ways that laws and cases are written make it very hard to independently navigate the legal system. New litigants often want to have someone explain a legal phrase in plain English or just summarize a whole long process in a few sentences. Those kinds of communications are forms of legal advice because they involve interpreting the law.

Sometimes, people who represent themselves in court cases find themselves asking for legal advice from the lawyer on the other side of the case. This not only puts that lawyer in an awkward ethical position,[iv] it also informs him about the case strategy. It is also unwise to ask court clerks, law librarians, and various legal system employees for advice about a case. While those people may have been tangentially involved in a lot of cases, they do not necessarily have the knowledge or information to analyze or plan a case. Only lawyers can give legal advice. Non-lawyers are at risk of being charged with the crime of practicing law without a license if they give legal advice.
The more pressing problems for the pro se litigant who seeks legal advice from a non-lawyer are:
1. that he will either get incomplete or incorrect guidance or else
2. that he will irritate that legal system employee who cannot give the desired advice. It is very annoying to be asked for help that you cannot give.

For assistance in planning litigation strategies, collecting evidence, and pleading a case in court, pro se litigants (and lawyers) can get a great deal of help from law library books in the call number ranges beginning with KF 8800 and KF 8900. That section of the library has books with sample deposition questions, instructions for writing and delivering an opening statement in court, ideas for asking questions of witnesses, recommendations for how to use evidence, tactics for effectively communicating with the judge and jury, and much more.

Some books are just about bringing a case in a particular jurisdiction, others are about succeeding with specific legal claims, and others teach techniques.

There are several large series’ of practice books that give especially detailed examples: Am Jur Trials, Shepard’s Causes of Action, and Am Jur Proof of Factsare the three primary sets of these. They include features such as checklists to follow for organizing a case to be sure that all of the necessary information is collected and provided to the court, examples of actual documents that have been filed in cases, lists of questions to ask in depositions before trial and cross or direct examination during trial, and suggestions for how to present evidence.

There is a Web-based resource called Self Help Support.org http://www.selfhelpsupport.org/ with a library about self-representation, several listservs, a newsletter about self-representation, and other background about handling a case without a lawyer. Note that this service is not designed for individuals representing themselves in court, but is “a virtual resource for people involved with providing pro se assistance or directing pro se and self help programs.” (from http://www.selfhelpsupport.org/about/) They do not have information about specific law topics.LawHelp.org http://www.lawhelp.org/ does have topical law information. The first screen on LawHelp lets users select the state within which they are representing themselves. Within each state’s page are the topical categories (employment, children and families, health law, veterans, migrant issues, etc…) with links to legal explanations and free legal services for each of those categories.

Findlaw has an ever-growing collection of articles about representing yourself in at http://public.findlaw.com/.

Here is a very useful guide listing each state’s various support services for self-help litigants. http://www.co.washington.or.us/LawLibrary/upload/Collaborative_State_JD_MLS_TaskForces_April2014.pdf  Note that this list was compiled by librarian Laura Orr whose goal was to identify collaborations between law libraries, courts, bar associations, and other groups/


[i] Code of Conduct for United States Judges, available at http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct.aspx.

[ii] Paula Hannaford-Agor, Helping the Pro Se Litigant: A Changing Landscape, Court Review (published by the American Judges Association) (Winter 2003) available at http://aja.ncsc.dni.us/courtrv/cr39_4/CR39-4Hannaford.pdf;  Here is an article called Pro Se Litigation: Best Practices from Judge’s Perspective.

[iii] Federal court Web sites are available through http://www.uscourts.gov/courtlinks/. Look for a link to “documents” or “communications” that might link to instructions for filing a pro se case.

[iv] Forms for self-representation in state courts are available via the National Center for State Courts at http://www.ncsc.org/Topics/Access-and-Fairness/Self-Representation/State-Links.aspx?cat=Court%20Forms. The National Center for State Courts also has other helpful information about self-representation. Simply go to http://www.ncsconline.org/ and search within the site using the phrase “self-representation.”  Also, take note of NCSC’s resource guide for self-help litigants. http://www.ncsc.org/topics/access-and-fairness/self-representation/resource-guide.aspx

[v] Rule 4.3 of the Model Rules of Professional Conduct prohibits lawyers from giving advice to litigants who are not their clients. Link to states’ lawyer ethics material at http://www.abanet.org/cpr/links.html.

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What are the stages of a criminal prosecution?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

1. Arrest– being taken into custody by police in order to be charged with a crime.

Who you interact with: arresting police officers and booking police officers

Basic legal rights at this stage: right to remain silent rather than responding to police questions and the right to seek a lawyer’s help for interactions with the police, the prosecutor, and the court. These rights come from the Sixth Amendment to the U.S. Constitution and similar components of state constitutions, as interpreted by court cases.

The Sixth Amendment and links to cases about the right to representation are available at: http://supreme.justia.com/constitution/amendment-06/index.html
2. Arraignment– a pre-trial court appearance where the charges are put on record and the defendant pleads guilty or not guilty. No evidence is presented and no arguments are made. It is simply a first chance for the prosecutor and the defendant to each formally put their positions in writing. “He committed this crime.” “No I didn’t.”

Who you interact with: a hearing officer or magistrate, prosecutor, defense lawyer

Basic legal rights at this stage: the right to hear what crimes the prosecutor plans to prove. The state or federal rules of criminal procedure http://www.llrx.com/courtrules/ tell specifically what information has to be conveyed to a defendant at this state. If the criminal charges are serious enough that the defendant can be punished with imprisonment, the defendant has a right to have an attorney represent him in future court appearances and transactions involved with this case.

3. Preliminary Hearing – a pre-trial court appearance where the prosecution has to demonstrate that it has enough proof to demonstrate that the elements of the crime were met by this defendant’s actions.

Who you interact with: a hearing officer or magistrate, prosecutor, defense lawyer

Basic legal rights at this stage: the right to contest the prosecutor’s claim that he can prove the elements of the crime. The state or federal rules of criminal procedure tell how a defendant can respond to the prosecutor’s claims at this stage. Generally, there is nothing written at this stage. When the prosecutor finishes telling about his case, the defendant (or the defendant’s lawyer) tells what the prosecutor’s claim is missing. For example, if the prosecutor says that the defendant committed burglary-breaking and entering with the intent to commit a crime-but then doesn’t show how he can prove whether the defendant actually entered the place, the defendant can point out to the hearing officer that the prosecutor has not shown that he can make the case. Find the crime components, which the prosecutor has to present, in your state’s crimes code or your local ordinances at http://www.justia.com/us-states/ or http://www.law.cornell.edu/topics/state_statutes2.html#criminal_code.

See the Rules of Criminal Procedure http://www.llrx.com/courtrules/ to find out how the hearing is supposed to be conducted.

4. Indictment or Information– filing with the trial court a written list of the charges approved in the preliminary hearing.

Who you interact with: This is not a proceeding in which the defendant interacts with anyone. The prosecutor communicates with the court by submitting the document.

Basic legal rights at this stage: The right to receive a copy of the indictment or information. This is not always an automatic right; the document might be provided only when the defendant requests it from the court clerk. The state or federal rules of criminal procedure regulate the way this document is written and presented to the court as well as how and when the defendant can get a copy of the indictment or information.

Rules of Criminal Procedure http://www.llrx.com/courtrules/

5. Discovery – parties collect information from each other. The prosecution is typically required to provide the defendant with copies of evidence and names of witnesses that are relevant to the case. The defendant is usually required to provide the prosecution with the results of mental or physical health exams related to the case and a list of experts and other witnesses.

Who you interact with: the prosecutor and witnesses for your defense

Basic legal rights at this stage: the right not to incriminate yourself and the right to know what evidence the prosecutor plans to use. The right against self-incrimination comes from the Fifth Amendment to the U.S. Constitution and similar components of state constitutions as interpreted by cases. The right to full disclosure of the prosecutor’s evidence comes from the state or federal rules of criminal procedure.

Fifth Amendment http://supreme.justia.com/constitution/amendment-05/index.html  

Rules of Criminal Procedure http://www.llrx.com/courtrules/

6. Trial – elaborate court presentations in which the prosecutor tries to prove that the defendant is guilty of the crime and the defendant tries to prove that the prosecutor has not proved his claims.

Who you interact with: judge, jury, witnesses, prosecutor

Basic legal rights at this stage: right to a fair trial which comports with all of the rules of criminal procedure including the right to object to improper evidence, the right to present evidence contradicting the prosecutor’s assertions, and the right to cross examine the prosecution’s witnesses. These rights come from previous cases as well as the rules of criminal procedure.

To find cases about trial techniques, look under the topic “trial” in any source published by Thomson West Publishing. Books about trial techniques are in  the KF 8915 Library of Congress call number range.

Rules of Evidence and Criminal Procedure http://www.llrx.com/courtrules/

After the trial, a defendant who is found innocent is free to get away from the courthouse and the criminal justice system. A defendant who is found guilty will probably have a separate hearing at which his sentence (or punishment) is decided. In that hearing, the prosecutor tries to show why the defendant deserves the harshest possible sentence and the defendant tries to show that he deserves the lightest possible sentence. The ranges of possible sentences are published in each jurisdiction’s sentencing guidelines.[i]

Meanwhile, if the defendant can show that the judge made errors in handling the case, he can appeal the case to a higher court. The appeal is not an opportunity to prove the whole case again; it is merely a forum in which to show that the judge improperly allowed or disallowed certain evidence, that he demonstrated bias, that he failed to properly instruct the jury, or that he made other errors. When filing an appeal, it is usually necessary to request that the trial court postpone sentencing until the appellate process is over.

If the appeals process doesn’t work out in a convicted criminal’s favor, the last resort is to file a federal or state court habeas corpus petition asserting that the conviction violates federal laws or the U.S. Constitution.[ii] In this case, the defendant has to show that the prosecutor or trial judge did something that truly was illegal, for example: not providing defendant with a lawyer, allowing evidence from illegal search to be presented in court, being biased or prejudicial in judging, or misinforming the jury about appropriate sentencing options.

 

Who you interact with: Trial court judge, witnesses, and lawyers for sentencing; appellate court clerk to file appeal; district court clerk/judge for filing habeas corpus petition.

Basic legal rights at this stage: In the sentencing phase, defendants have the rights to: 1. attorney representation-even during the court’s pre-sentence investigation 2. read and contradict or explain parts of the pre-sentence report and 3. speak on their own behalf at the sentencing hearing.[iii] In the appeal, convicted criminals have the following rights: 1. representation by an attorney (court-provided for indigents) 2. have a copy of the trial transcript 3. access to a law library or other appeal preparation resources while incarcerated. The appellate rights also apply when petitioning for habeas corpus.


[i] Federal Sentencing Guidelines are at http://www.ussc.gov/guidelin.htm. States’ sentencing commissions, which typically post the guidelines on their Web sites, can be reached through the National Association of State Sentencing Commissions. http://www.ussc.gov/STATES.HTM.[ii] The federal court system provides habeas corpus forms at http://www.uscourts.gov/forms/uscforms.html. Many federal district courts post forms for Habeas Corpus and other actions on their Web sites. http://www.uscourts.gov/courtlinks Volume 13 of Am Jur Pleading and Practice Forms has a broad assortment of habeas corpus forms. The Federal Judicial Center http://www.fjc.gov/ has an outline of the habeas process with references to all of the relevant laws. Search within the FJC site using the phrase “habeas corpus” the get the publication containing this outline “Habeas Corpus Review of Capital Convictions”

[iii] Lynn S. Branham, THE LAW AND POLICY OF SENTENCING AND CORRECTIONS IN A NUTSHELL, 7th Ed, (West 2005).

What kinds of information can you get when you do legal research?

 **** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

Every branch of the government makes law.  

1. Statutes are written by the legislative branch of government.
2. Cases are decided by the judiciary branch of government.
3. Regulations are made by the executive branch of government.

The notes at the end of each of these blog posts show examples of all of these kinds of law.  Statutes, cases, and regulations are known as “primary law” because they are written by the government. There are also good “secondary” sources that are clearer to read and easier to navigate than the primary sources. It is usually a good idea to begin a legal research project by hunting through the secondary sources and, from those, getting leads for what to seek in the primary law.

Secondary sources include legal encyclopedias such as American Jurisprudence (called “Am Jur”) and Corpus Juris Secundum (known as CJS) which are both organized in alphabetical order by topic, just like most encyclopedias. At the end of each set is an index where researchers can look for a particular word or issue to find out where it fits within the main alphabetical topics of the set. Some states have their own legal encyclopedias. Other commonly used secondary sources are law journals which publish long detailed descriptive articles and have lots of footnotes leading to additional information. At public libraries, law journals might be available in social sciences databases for convenient searching.

It is almost always possible to identify at least one entire book about any legal subject. The public library might not have the particular books you need, but the county law library might have them.  If you cannot get to the county law library, as if your public  library can borrow it from another library which does have it. This procedure is called interlibrary loan. It is a service that public libraries typically provide to patrons with a library card. A homeless patron who, because of the lack of an address, does not have a library card can sometimes arrange an alternative method of obtaining interlibrary loan books though he won’t be able to remove them from the library.

The internet, as is obvious from this blog’s footnotes, has a wealth of freely available legal information. Nearly every state and federal agency, legislature, and court has its own Web site with its laws or case opinions.[i] Law libraries publish helpful online research guides with links to reliable Web sources.[ii] Bar associations and law firms publish authoritative introductions to legal issues.[iii] These types of entities are good sources of legal information. 
——————————————————————————–

[i] Cornell Legal Information Institute http://www.law.cornell.edu/ and WashLaw Web from Washburn law school http://www.washlaw.edu/ and Justia http://www.justia.com/ are all reliable sources of state and federal law.

[ii] The law librarians’ resource exchange has a good collection of research guides http://llrx.com/. NYU’s research guides are at http://www.law.nyu.edu/library/research/researchguides/index.htm. The Washington State Library has research guides at http://www.courts.wa.gov/library/index.cfm. A terrific non-library site, the University of Pittsburgh’s JURIST has extensive scholarly legal information links organized by topic http://www.jurist.law.pitt.edu/subj_gd.htm.

[iii] The Texas Bar Association provides free pamphlets on a variety of legal issues at http://www.texasbar.com/template.cfm?section=pamphlets. The Michigan Bar’s Online Legal Help Center http://www.michbar.org/generalinfo/libraries/selfhelp.cfm “was created to help Michigan citizens find legal information to help them work better with their attorney, and to represent themselves in some instances.” The Illinois Bar has a Web site called “The Law and You in Illinois” http://www.illinoislawyerfinder.com/publicinfo/home.html which links to useful summaries about all kinds of legal transactions. The Oregon State Bar has explanatory guides at http://www.osbar.org/public/legallinks.html. The State Bar of Nevada has law topic brochures at http://www.nvbar.org/publications/pamphlets.htm. All of the states’ bar associations are accessible by clicking on a state name in Washlaw http://www.washlaw.edu/.

What kinds of legal research sources are jails and prisons required to provide?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

The U.S. Constitution has been understood to say that because people are entitled to represent themselves in criminal court[i] and to have due process in their interactions with the government[ii] they are entitled to legal information sources with which to represent themselves when they are incarcerated.[iii]   The cases explaining why inmates should have access to legal resources do not specify exactly what kinds of resources have to be available. They say that inmates should have “tools” that enable them “to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement.”[iv]

While law library access is one helpful tool, the courts more broadly require that somehow the prisons and jails confer “the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts.”[v] When inmates who could not read and did not know English sued a prison for not providing them with this capability, the U.S. Supreme Court recognized that a library full of standard English language law books would not make them capable of fighting their convictions or anything about their incarceration.[vi]


[i] Cases have stated that the Sixth Amendment, providing for a right to counsel, also provides criminal defendants with the choice of representing themselves. Faretta v. California, 422 U.S. 806 95 S.Ct 2525 (1975). An article showing how this principle has been followed throughout the country is John Herbrand, Accused’s Right to Represent Himself in State Criminal Proceedings, 98 ALR 3d. 13 (1980- updated through 2006).

[ii] Cruz v. Beto 405 U.S. 319 (1972) (about prisoners’ rights to file grievances about prohibitions against their religious practices in prison); Johnson v. Avery 393 U.S. 483 (1969) (about prisoners’ rights to get assistance with legal document preparation from other inmates); Buchalter v. NY, 319 U.S. 427 (1943). (“action by a state through any of its agencies must be consistent with the fundamental principles of liberty and justice which lie at the base of our civil and political institutions, which not infrequently are designated as the ‘law of the land.’ Where this requirement has been disregarded in a criminal trial in a state court this court has not hesitated to exercise its jurisdiction to enforce the constitutional guarantee.”)

[iii] Cases declaring that jailed criminal defendants have access to law libraries in jail include Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491 (1977) and Lewis v. Casey, 518 U.S. 343, 116 S.Ct 2174 (1996). See also William Lindsley, Penal and Correctional Institutions, 60 Am. Jur. 2d §68 (updated through 2007). Section 68 is about “inmates’ access to courts, legal assistance, and materials.”

[iv] Lewis v. Casey at 518 U.S. 355 and 116 S.Ct. 2182.

[v] Id. at 356, 2182.

[vi] Id. 

Where can you go to conduct legal research?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

 

The general answer to this question is, go to the nearest law library. The most likely law library to be accessible to the public is a county law library, but those are usually only located in the county seat. Some law schools allow the public to use their libraries for independent legal research. But because their purpose is to assist faculty and students with serious scholarly research, rather than to help the public with practical case research, they do not always have the kinds of resources that public patrons would want.

Public libraries often have basic state laws as well as small collections of books that are written for non-lawyers to use in handling legal transactions and court cases. If going to the library is impossible, inquire about getting internet access at community centers or social service agencies. We have leads many good internet sources throughout this blog because we anticipate that accessing those is likely to be more convenient than getting access to a thorough collection of law books.

If you can’t get out on bail and are later proved innocent, can you get paid back for the time you spent in jail?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

When a judge makes a bail decision, he is obligated only to use his best discretion in deciding whether the defendant should be released.  He has to rely on the prosecutor and defense attorney to be thorough and accurate.  It is very hard for individuals representing themselves to collect proof of tasks that the judge and lawyers might have failed to do.  Still, there is research material that a person who was wrongly jailed and wrongly denied bail might want to investigate.

Clearly, a person in jail awaiting trial can suffer losses of money and experience. He might lose pay for missing work or he might lose the job altogether. If he lived in a public place or even in a shelter, he might have lost all of his possessions during the time that he was in jail and unavailable to watch his stuff. If he missed making payments on something because of being in jail, the item might have been repossessed.

He could miss a job interview or someone’s birthday or some other important event. He might have gotten housing if he’d been at a meeting that he couldn’t attend because he was held in jail, waiting for a trial. These losses might not have as much significance if that person is found guilty at his trial and has to spend a long time in prison anyway. But, if the person is found to be innocent, then the justice system has cost him truly unnecessary losses.

Only after the trial is that person in a position to have full proof of his losses because only then, when a court of law has held that he was innocent of the crime he was charged with, can he definitely state that had it not been for the bail denial, he would have been able to continue that job, get into that housing, save his possessions, etc… So, it is in an entirely separate case from his criminal trial that he would seek to make a claim for financial damages.[i] And, like all claims for money damages, the case would be in civil court, rather than criminal court.

There is not a body of legal literature about cases in which innocent people who were denied bail successfully sued the court for damages. This does not mean that there have never been any successful claims like this, but closest body of law is about cases in which people were wrongly convicted and later found innocent.[ii] Nevertheless, here is how a claim might play out:

Being a civil case involving an individual against a government entity, i.e. the court that denied bail, this claim for damages arising from unnecessary jailing would be based on constitutional rights. Likely claims would be violations of Fifth and Fourteenth Amendment rights to life, liberty, and due process.[iii] It has been said that, “In convicting an individual of a crime, the government reaches out to deprive him of life, liberty, or property by execution, jail, or fine.”[iv]

Years ago, a Lawyer-in-Chief of the Office of Professional Responsibility at the U.S. Dep’t. of Justice declared that “There is no other department [of government] that is viewed with comparable terror or fear, because there is no other department that by itself can put you in jail or take your life, liberty or property away from you.”[v] And, a court deciding a case in which a lawyer did not seek pretrial release for two indigent clients firmly stated that, “Any form of pretrial incarceration infringes on an accused’s liberty interest in a powerful and obvious manner.”[vi]

Some people present their due process claim along with a claim that the court violated rules about bail or release on recognizance.[vii] For this research, the innocent person, denied bail, would find the state or local rule of criminal procedure delineating how bail decisions are to be made and would show how that procedure was not properly applied in his case. Then, this unnecessarily jailed claimant would read Title 42 of the U.S. Code §1983[viii] which is about money damages for civil rights violations, and decide whether to include that kind of claim in the case.

NOTE: If you are in jail and are representing yourself in court, you might like The Jailhouse Lawyer’s Handbook published by the National Lawyers Guild.


[i] Notice that this question and answer are only about financial damages. It is definitely possible to appeal a bail decision in the criminal court system. The procedure for appealing a bail decision is established in criminal court rules. Those rules, and possibly forms to use for the appeal, are likely to be published in the local and state statutes, in individual books titled “(Name of State) Rules of Court”, and in attorney practice manuals for that jurisdiction. The clerk of the criminal court might even have an appeal packet available upon request.

[ii] See the National Registry of Exonerations to read about people who were eventually freed after being wrongly convicted of crimes. For a comparison of cases from throughout the country, See Annotation, Application of State Statute Providing Compensation for Wrongful Conviction and Incarceration, 34 ALR 4th 648 (1984 updated through 2006). In addition to “wrongful conviction,” a related research term for locating law on this topic is “false imprisonment.”

[iii] U.S. CONST. Amend. V, XIV. “No person shall ….be deprived of life, liberty, or property, without due process of law.”

[iv] David. P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L.Rev. 864, 874 (1986).

[v] Elkin Abramowitz and Peter Scher, The Hyde Amendment: Congress Creates a Toehold for Wrongful Prosecution, 22 Champion 22 (1998). Available at http://www.nacdl.org/CHAMPION/ARTICLES/98mar04.htm quoting from the book MAIN JUSTICE by Jim McGee and Brian Duffy.

[vi] Matter of Rosen, 470 A.2d. 292 (D.C. 1983).

[vii] The Federal Rules of Criminal Procedure are at http://www.law.cornell.edu/rules/frcrmp/. State Rules of Criminal Procedure are at http://www.law.cornell.edu/topics/state_statutes2.html#criminal_procedure. Note, however, that a criminal statute might say that bail or other pre-trial release is impossible in connection with a particular crime.

[viii] 42. U.S.C. §1983.

Is it possible to get out on bail if you have no money?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

The purpose of bail is to assure that defendants will return to court for trial after having been formally accused of a crime at a preliminary hearing. The bail agreement between a court and a defendant establishes a defendant’s promise to pay the court a high amount of money which will then be returned to the defendant when he returns for the hearing.

A better assurance that the defendant will be present for trial is to simply keep him in jail, but that contradicts the notion that a defendant is innocent until proven guilty.[i] In many states, money does not have to be posted; defendants can be released until trial “on their own recognizance.”[ii] Even in those jurisdictions though, if the court believes either that the defendant is likely to not return for trial or to pose a threat to the public, bail may be imposed to remind the defendant to behave and return for trial or else risk staying in jail until the trial.[iii]

For a homeless person, the reasons for denying him bail, such as: no money to put down as a guarantee, no community roots like a job or house, and no way to track him down are the same issues that can be argued in favor of releasing him on his own recognizance. The fact that a homeless defendant has no money with which to post bail also means that the defendant does not have money to pay for transportation out of the jurisdiction. Not having the responsibilities of a job or house would seem to leave a defendant flexible enough to abscond, but if the defendant has already been living in the jurisdiction without those roots, there is reason to believe that he has no place else to go. Similarly, the lack of an address and the defendant’s status as homeless provide even more routes by which to track him down than anyone who does have a permanent address because the homeless tend to be out in public areas and to repeatedly access particular social services sites.


[i] The presumption of innocence is described and analyzed very thoroughly in 1 Wayne R. LeFave, et al., Criminal Procedure, §1.4 part (d) “Accusatorial Burdens” (2d. Ed. Current through 2006 update.) In support of their analysis, the authors of that authoritative treatise cite to the following U.S. Supreme Court cases: Speiser v. Randall, 357 U.S. 513, 525-26, 78 S.Ct. 1332, 1341-2 (1958); Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930 (1978); Bell v. Wofish, 441 U.S. 20, 533, 99 S.Ct 1861, 1871 (1979), and Watts v. Indiana, 338 U.S. 49, 54, 69 S.Ct. 1347, 1350 (1949). For a detailed explanation of the constitutional right to be released on bail, see 8 CJS Bail §20. (CJS is Corpus Juris Secundum, a legal encyclopedia.)

[ii] Lynn C. Cobb, Annotation, Application of State Statutes Establishing Pretrial Release of Accused on Personal Recognizance as Presumptive Form of Release, 78 A.L.R.3d 780 (1977).

[iii] 1 Wayne R. LeFave, et al., Criminal Procedure, §1.4 Part (f) “Minimizing the Burdens of Accusation and Litigation” (2d. Ed. Current through 2006 update.); Lynn C. Cobb, Annotation, Application of State Statutes Establishing Pretrial Release of Accused on Personal Recognizance as Presumptive Form of Release, 78 A.L.R.3d 780, § 2(a) (1977).