Held Without Bail and Pretrial Release Hearings in MA

What Does Held Without Bail Mean?

If you or someone you love have been held without bail, it means the court has determined one or both of the following: 1. No conditions of release can reasonably assure the defendant’s future appearance in court, and/or 2. The defendant poses a danger to specific individuals or to the community at large.

Being held without bail in Massachusetts could also mean the defendant has been charged with capital murder, an offense for which there is no presumption of pretrial release.

Reasons for no bail sometimes involve holding a defendant pending a dangerousness hearing and a psychological evaluation. This can happen when the judge needs medical opinions as to whether the accused is competent to stand trial.

Offenses Considered for Dangerousness Hearing and Pretrial Detention

In some cases after an arrest in Massachusetts, the prosecution and/or judge may believe the accused poses a serious danger to the community at large or to a specific person, such as with domestic assault charges.

When this happens, the judge can conduct a dangerousness hearing under M.G.L. c.276 §58A. A 58A hearing in Massachusetts is only warranted when certain violent or abusive offenses are alleged. For instance, the defendant can be held without bail for a murder charge or for allegations of domestic abuse.

If the judge holds a dangerousness hearing and finds that the defendant is a danger, the accused will be held in jail until trial or adjudication.

List of Charges that can Trigger a Dangerousness Hearing

There are several types of criminal charges that can cause a dangerous hearing to occur:

  • Any felony that by its nature involved a substantial risk that physical force against another may result.
  • A felony charge that has an element of threatened physical force or that used or attempted to use physical force.
  • Burglary or arson, whether or not a person was placed at risk.
  • Alleged violation of Orders for Protection;
    • Divorce proceeding protection orders
    • Probate court orders protecting spouses
    • Probate court orders protecting children
    • 209A Abuse Prevention Orders.
  • A misdemeanor or felony charge involving abuse as defined under 209A.
  • Any misdemeanor or felony offense committed while a 209A restraining order is in effect.
  • Drug offenses carrying mandatory minimums of 3 years imprisonment or more.
  • Charges for intimidating jurors or witnesses.
  • A third OUI offense and subsequent.
  • Second or subsequent felony possession of weapons or a machine gun with a prior violent crime conviction.
  • Weapons charges;
    • Trafficking in silencers
    • Use of Tear Gas.
  • Violation of a pretrial release through commission of a new offense.

Your Rights at a Dangerousness Hearing

You are afforded certain rights by law in a dangerous hearing. Specifically, you are entitled to:

  • Legal representation throughout the hearing process
  • An opportunity to be heard and to testify on your own behalf
  • Present witnesses
  • Cross‐examine the Commonwealth’s witnesses
  • Present information in favor of your pretrial release
  • Speedy review by a superior court judge on appeal of a detainment or conditional release order.

How Long Can I Be Held in Jail Awaiting Trial?

You can be held in jail pending trial for up to 120 days if a judge finds that you are a danger after a 58A hearing. However, the law allows for some extensions due to good faith reasons and continuances. A continuance related to any case for which the defendant is held without bail cannot exceed 30 days.

Important: If the state’s attorney decides to indict the case, a new dangerousness hearing can be requested. There are many factors that need to be competently evaluated in serious criminal cases alleging violence or abuse. Consult with a top defense lawyer as soon after your arrest as possible.

Pretrial Release Hearing – What Do Judges Consider at Bail?

Except in a capital murder case, the default presumption in Massachusetts is that all criminal defendants will be released on personal recognizance or admitted to bail. However, the legislature has enacted bail laws that allow judicial officers and judges to add pretrial conditions of release under certain circumstances.

Setting conditions of pretrial release should only be done in cases where the judge believes that releasing the defendant on their own recognizance without conditions is insufficient to ensure their return for future court dates, or when one of the dangerous or serious threat exceptions can be resolved using conditions of release.

Information judges consider

If you were arrested on a felony charge or a misdemeanor involving violence, a number of factors will be considered by the judge (or a judicial officer if court is not in session) when deciding whether to release you on your own recognizance or admit you to bail with or without conditions.

Factors Considered for Pretrial Release and Bail Hearings:

  • The nature and details of the underlying incident for the complaint charged and if necessary,
  • The level of any danger posed to an individual or the community upon the defendant’s release.
  • Defendant’s criminal convictions record
  • The potential penalties the offense carries
  • The defendant’s family ties and responsibilities
  • Defendant’s employment status and history
  • Any history of mental illness
  • The defendant’s reputation
  • Prior bench warrants
  • Drug dependency and addiction issues
  • Whether allegations involved the abuse of another
  • Whether allegations are for violating protection from abuse orders
  • Parole, probation or bail status in another case

Your defense attorney can prepare information about your character and circumstances to argue in favor of your release with no conditions or the least amount of conditions and bail.

Rules of evidence for criminal procedures do not apply in dangerous hearings or hearings for conditional release. Both sides can offer hearsay testimony during proceedings.

If the judge decides you should be admitted to bail under certain conditions, s/he may impose one or several of the following before you are released pending trial:

  • Post a cash bail or execute a commercial bail bond
  • Maintain or seek employment
  • Stay in school or start an educational program
  • Have no contact with any victim/s or witnesses
  • Stay away from certain persons
  • Stay away from certain places and restrict travel
  • Comply with a curfew
  • Report regularly to a designated agency
  • Refrain from possessing weapons
  • Designate someone to supervise you while out on bail pending trial
  • Refrain from excessive alcohol use
  • Refrain from narcotics or any controlled substances without a prescription
  • Undergo specific treatments
  • Be subjected to work release
  • Any other condition reasonably necessary to ensure you reappear and/or to ensure the safety of another and the community.

 

You must also promise not to commit any local, state or federal offense/s.

After an Arrest in Massachusetts

Getting arrested is one of the most stressful experiences you can go through in life. Worries about how the arrest and charges might affect your job and your loved ones can be overwhelming. Protecting against pretrial detention might not be among your primary concerns. However, if your charges could qualify for a dangerousness hearing, you should start searching among the best criminal lawyers in Massachusetts without delay.

You need to find a criminal defense lawyer to properly represent your rights at arraignment in district court before a conditional release or detainment hearing takes place. An experienced defense attorney can find out if a 58A hearing is imminent and will be able to prepare evidence in your favor so you have the best chance of being let out of jail while your case is pending.

It is also important to understand that an arrest does not equal guilt! With aggressive defense, many positive outcomes can be achieved; including having the police complaint dropped by the prosecutor —known as “arrested but not charged.”

Other positive strategies and defenses may be available to you that will substantially lessen the charges or lead to beating the state’s case against you free and clear.


If you need representation for yourself or someone you love after arrest in an upcoming pretrial release or bail hearing in Massachusetts, call my law office at 978-452-1116 anytime day or night. My office will get the message to me so that we can connect as soon as humanly possible.

Attorney Gregory Oberhauser

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Gregory Oberhauser is the ONLY attorney in Massachusetts to be distinguished as an ACS-CHAL Forensic Lawyer-Scientist by the American Chemical Society!

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