What to Do When the Prosecutor Questions the Source of the Funds Used for Bail

July 11, 2018

By Jill K. Sanders, Esq.

Your first appearance in court is important for many reasons. For the defendant, one of the primary concerns is whether the judge will set bail and how much the bail will be. At your arraignment, the prosecutor will often request bail, and it is the job of your criminal defense attorney to ask the judge and argue for no bail or a reduced bail based on various circumstances.

Even if your attorney successfully argues for bail in an amount you or your family can post, that doesn’t necessarily mean you can be released. In some cases – particularly those involving drugs, white collar offenses, or organized crime – the prosecutor will ask for a “bail source” or “72-hour surety” hearing. If the judge grants this request, you may stay in jail for the next 72 hours until such a hearing can take place, even though you can afford to post bail.


What Is a Bail Source Hearing?

As a matter of public policy, the law discourages the use of illegally-obtained funds for securing the bail of criminal defendants who are awaiting trial. This includes money that has been stolen or embezzled, proceeds from drug sales, or money obtained through other illegal means such as robbery or fraud.

At a bail source hearing in New York, a judge will determine whether the money used for the defendant’s bail has been legally obtained. If the defendant cannot prove that the money is not the product of criminal activity, the judge can remand the defendant – meaning he or she is held in custody without bail.

As a practical matter, many times a criminal defense attorney and the prosecutor can come to an agreement as to whether the source of the bail funds is legitimate. This can be done by presenting documentary evidence to the prosecutor showing the source of the money. If the defense attorney and the prosecutor cannot come to an agreement, the prosecutor has 72 hours to investigate the source of the bail money, and then a hearing before a judge will commence.


Who’s Posting the Bail?

One of the primary concerns for determining the legitimacy of the source of funds is who is posting the bail. A prosecutor or judge will question whether the person posting the bail has a non-criminal relationship with the defendant.

Often times, it is best for a close family member or friend to be the person who is posting bail. In some circumstances, an employer or even a co-worker will post bail for a defendant. The prosecutor or the judge will question whether the person posting the bail is involved in some criminal activity with the defendant, such as a drug dealer or a pimp.


What is the Source of the Funds?

The person posting the bail must also be able to show that the source of the funds is legitimate. This includes proof that the money was earned through legitimate employment, investments, or inheritance. The person posting bail or securing a bail bond will need to provide financial documents such as bank statements, pay stubs, and tax returns.

Further, friends and family should consult with the defendant’s attorney before moving around funds for bail. A prosecutor or judge may take a suspicious view of evidence suggesting that money changed hands quickly just before it was used to post bail, even if the movement of funds was done honestly.

Many times, using a licensed bail bond company can make proving the source of bail funds easier, as the bail bond company will collect important documents about the collateral used to secure the bond. For example, when a home is used as collateral, the bail bond company will have already collected proof of ownership of the home.


  • Crim. Proc. Law § 520.30