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Factors Used By Judges To Determine Bail

To a large extent, the granting of bail is governed by the facts and circumstances of each particular case.  Since the object of the detention or imprisonment is to secure his/her appearance and submission to the jurisdiction and judgment of the court, the primary inquiry is whether a bond or recognizance will effect that end[i].

In setting, reducing, or denying bail, the judge or magistrate shall take into consideration the factors such as:

  • the protection of the public,
  • the seriousness of the offense charged,
  • the previous criminal record of the defendant, and
  • the probability of his/her appearing at trial or hearing of the case.

However, the public safety shall be the primary consideration[ii].  There are guidelines to assist trial courts in making reasoned determinations regarding post-conviction bail applications by felons.  In exercising discretion, trial courts may consider:

  • the likelihood of the defendant’s flight;
  • the potential danger to society posed by the defendant’s release; and
  • the frivolousness or lack of diligence in defendant’s prosecution of his/her appeal[iii].


[i] State v. Olson, 82 S.D. 605 (S.D. 1967)

[ii] In re McSherry, 112 Cal. App. 4th 856 (Cal. App. 2d Dist. 2003)

[iii] People v. Seneca Ins. Co., 94 Cal. App. 4th 1358 (Cal. App. 2d Dist. 2002)

Inside Factors Used By Judges To Determine Bail