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CHAPTER 4: OVERVIEW OF A CRIMINAL CASE - Table of Contents

4.1 - Filing of Charges4.2 - Arrest and Custody4.3 - Advisement Hearings4.4 - Preliminary Proceedings4.5 - Plea Negotiations4.6 - Arraignment4.7 - Pretrial Motions4.8 - Overview of a Criminal Trial

4.2 ARREST AND CUSTODY

GENERAL

An arrest occurs when a person is apprehended or detained to answer for an alleged crime. Courts have described an arrest as occurring when a reasonable person in the shoes of the person would feel that his freedom of movement is restricted in a significant way by law enforcement action. Courts use an objective, reasonable person test to determine if a person is placed under arrest. The subjective intent of the officer is a factor, but is not dispositive of the question whether an arrest has occurred. A person need not be handcuffed, or taken to the jail, or even specifically told they are under arrest for an arrest to occur.

THE NEED FOR AN ARREST WARRANT

An officer can arrest a person without a warrant when: (1) the person has committed or is committing a crime in the officer's presence or (2) the officer has probable cause to believe that the person has committed a crime. Probable cause is the reasonable belief that an offense has been or is being committed by the person arrested. But before arresting a person in a home, an officer must get an arrest warrant, unless the officer receives consent to enter the home or there are emergency (exigent) circumstances.

An officer can also arrest any person for whom there is an arrest warrant. An arrest warrant is a written order issued by a judge, commanding the authorities to arrest the named person and bring him or her without unnecessary delay before the nearest available judge of a county or district court. A judge can issue an arrest warrant only upon a sworn affidavit that explains facts sufficient to establish probable cause that an offense has been committed and that a particular person committed the offense.

PROCEDURES FOLLOWING ARREST

After arrest, the person arrested is formally processed or booked, usually at the police station or county jail. Booking usually includes photographing the person, taking fingerprints and getting identification information.

BAIL AND BOND

With certain very limited exceptions noted below, everyone is entitled to bail. Bail means the amount of money or other security that must be posted with the court for the release of a person in custody. Bail is set by a judge. The purpose of bail is to ensure that the person appears in court and complies with other conditions set by the court as a condition of release. The court fixes the amount of bail based on information provided by bond commissioners concerning the offense and the background of the defendant. Bond commissioners are employees of the judicial district whose work includes preparing these reports.

The court setting bail may require that it be posted by either a secured bond or allow it to be posted by an unsecured bond. A secured bond may be posted by depositing cash with the court, or by depositing certain approved securities or real estate with the court, or through the use of aprofessional bonding agent - commonly called a bail bondsman - who has been approved by the State to post bonds on behalf of persons accused of crimes. An unsecured bond is merely a promise by the defendant to appear in court - a personal recognizance bond - or a promise by both the defendant and some other party that the defendant will appear in court - a co-signed personal recognizance bond. . An unsecured bond does not require the posting of any money or other property. If the accused does not appear in court as ordered, or violates other condition of the bail, the bond maybe forfeited.

After arrest, a person is taken into custody and kept there until bond is posted. Bond conditions might already be set if the arrest was effected by an arrest warrant. If the accused was arrested without a warrant, bond will typically be set at the first appearance or the advisement. The arresting officer can also exercise her discretion and release the person by issuing a summons requiring the person to appear in court on a future date.

The purpose of bail is to ensure the defendant's future appearances in court and not to punish a defendant before he has been convicted. This purpose should be met by means that impose the least possible hardship upon the accused.

When a judge issues an arrest warrant, the judge will usually set bail as part of the issuance of the warrant. When a person is arrested without a warrant, bail may be set pursuant to a bail schedule established by the judges of the district. An arrested person whose bail has been set pursuant to warrant or the local bail schedule may post bail before seeing a judge. In any event, the judge who conducts the first appearance of the person in court can review and modify the amount of bail and the type of bond required to post that bail.

A defendant in Colorado has an absolute right to bail in all cases except for capital offenses where "the proof is evident or the presumption great" that the accused committed the crime, and certain preventive detention cases. In capital cases, the burden of proof is upon the prosecution to establish that the proof of guilt is evident or the presumption of guilt is great. This standard requires more evidence than for probable cause, but less evidence than is required for conviction. A 1982 amendment to the Colorado Constitution permits bail to be denied in certain serious non-capital cases based on a finding that the public would be placed in significant peril if the defendant were released. In certain cases - primarily domestic violence cases - a person may be denied bail until such time as he or she has been brought in front of a judge and advised about the requirement that he or she have absolutely no contact with the alleged victim in the case.

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