How does bail work? What is a Preliminary Arraignment?

I just got arrested. How does bail work? 

Most criminal cases begin with an arrest. Occasionally, in the suburban counties, they may begin with a summons to appear before the Magisterial District Justice. The first court hearing in a criminal case is called the preliminary arraignment. The preliminary arraignment is a hearing in which the magistrate or bail commissioner informs the defendant of the charges and sets bail. 

Preliminary Arraignment

Following an arrest, the police will process the defendant and schedule the preliminary arraignment at which bail will be set. The amount of time between arrest and preliminary arraignment can vary depending on the location of the arrest. In Philadelphia, it typically takes between 12-24 hours before the defendant will be brought before the bail commissioner by video for preliminary arraignment. In the suburban counties, the police will typically take the defendant to preliminary arraignment before a Magisterial District Justice much more quickly if the District Justice’s office is open. If the office is closed, the defendant could have to wait at the county prison until the next business day.

The Affidavit of Probable Cause

The preliminary arraignment is the first court hearing in a criminal case. At the preliminary arraignment, the magistrate will inform the defendant of the charges against him or her, determine if the defendant needs a public defender or intends to retain a private lawyer, set bail, and schedule the case for a preliminary hearing. The court will also usually provide private defense counsel or the public defender with a copy of the Affidavit of Probable Cause. The Affidavit of Probable Cause usually contains a summary of the case against the defendant. If the accused turned themselves in after learning of an arrest warrant, it is often possible for the accused to retain a criminal defense attorney and have the lawyer present for the preliminary arraignment to argue for lower or unsecured bail.

Pennsylvania Uses a Cash Bail System

For the accused, the most important part of this hearing is usually the setting of bail. Pennsylvania operates on a cash bail system. The idea behind cash bail is that if the defendant or the defendant’s family must post some sort of collateral in exchange for release, it makes it more likely that the defendant will return to court to face the charges. Unfortunately, this has the practical effect of ensuring that the ability to obtain pre-trial release depends primarily on how wealthy the defendant is. Wealthy defendants may be able to make bail on extremely serious charges, while poor or indigent defendants may spend months or years in jail awaiting trial on low-level drug charges because they cannot post bail.

When the magistrate sets bail, the magistrate will typically evaluate the seriousness of the offense charged and the likelihood that the defendant will show up for court. Serious charges, especially charges involving firearms and violent crimes, are more likely to result in a higher bail. Likewise, a defendant with a history of failing to appear for court or with a number of serious criminal convictions is more likely to receive a higher bail.

How A Philadelphia Criminal Defense Attorney Can Help

It is extremely important that you speak with an attorney before you turn yourself in. The presence of a criminal defense lawyer at the preliminary arraignment can often result in much lower bail because the defense attorney is likely to have more information about the defendant’s background which could help in convincing the magistrate to set a low bail amount. Further, the fact that the defendant has retained an attorney may suggest to the court that the defendant does not intend to flee the jurisdiction. Instead, the defendant has retained a defense lawyer and is prepared to defend against the charges.

How much of the bail do I have to pay to get out? 

In most cases, the defendant must post 10% of the bail amount and a small administrative fee in order to be released. Due to recent changes in the law, bail bondsmen are now allowed to operate in Philadelphia. However, they are required to post high collateral amounts with the courts, and so only a handful of bail bondsmen have begun operating in the city. Most of the time, the defendant’s friends or family pay 10% of the bail amount directly to the court in exchange for the defendant’s release. A bail bondsman operates by taking less than 10% in exchange for posting the bail bond, but the bail bondsman does not return the money at the end of the case. If the defendant cannot make bail or has any open warrants or probation detainers, then the defendant will remain in custody at the county prison until the case is over or the bail is reduced and the defendant is able to pay. Our criminal defense lawyers regularly handle motions to reduce bail and are often able to have the initial bail substantially reduced upon review by a higher ranking judge. 

Will I get the bail money back? 

In Philadelphia, the surety will receive most of the money back thirty days from the date on which the case is finished. When the case is over, the surety (the person who posted the bail) will receive at least 70% of the posted money back. The city will keep 30% of the amount paid or $1,500, whichever amount is less. This means that the city will not keep more than $1,500 even if the bail was very high. In the suburban counties, it is more common to use a bail bondsman, and each bail bondsman may charge a different rate. The counties also vary in the percentage of bail that they keep in cases in which the defendant posts bail directly to the court without the use of a bail bondsman. Once bail has been paid, the defendant will be released pending trial with a subpoena to appear for the next court date, which will typically be a preliminary hearing.

What if I cannot make bail? WHAT IS A BAIL MOTION?

If you cannot make the bail set by the magistrate at preliminary arraignment, then it may be possible to have the bail reduced by filing a bail motion. Each preliminary hearing listing provides an opportunity to make a bail motion asking the magistrate or Municipal Court judge to reduce the defendant's bail. If the magistrate or Municipal Court judge refuse to reduce bail, it may be possible to file a written bail motion in the Court of Common Pleas and have the bail decision reviewed by a higher ranking judge. Additionally, once the defendant has been held for six months without a trial, the Rules of Criminal Procedure provide that bail should be reduced to nominal bail, meaning the defendant ordinarily should be released. There are, of course, exceptions to this rule, and in some cases, the judge may impose a house arrest condition. Additionally, if the delay in bringing the defendant to trial is due to defense continuance requests, then the time will not count towards the six month limit. 

We Can Help With Bail Hearings, BAIL MOTIONS, and Preliminary Arraignments


The initial bail hearing is one of the most important hearings in any criminal case. If bail is set at an amount that the defendant cannot afford, then the defendant will be remanded to custody pending the resolution of charges. Defendants who are in custody while awaiting trial are at a significant disadvantage because it is more difficult to meet with attorneys, locate witnesses, and prepare for trial. Likewise, the defendant could lose his or her job while in prison. Therefore, if you learn that you are wanted for criminal charges or receive a summons from a detective, it is critical that you retain a criminal defense lawyer prior to turning yourself in and having bail set. Call 267-225-2545 to speak with one of our Philadelphia criminal lawyers today. 

Contact A Philadelphia Criminal Defense Attorney Today

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