Can You Cross-Examine Witnesses at Bail?

The United States Constitution and Texas law guarantee a criminal defendant’s right to seek and receive reasonable bail pending trial. That does not necessarily bar a judge from setting a high bail. But it does require the court to consider a number of factors in setting bails, such as the nature of the alleged crimes and the potential safety risks to the purported victims.

Texas 14th District Court of Appeals: Ex Parte Estrada

The Texas 14th District Court of Appeals recently addressed a case, Ex Parte Estrada, where a defendant challenged high bail in part on the grounds that he was not allowed to cross-examine a key witness against him in court. The defendant is a previously convicted felon charged with burglary and illegal possession of a firearm and body armor. According to prosecutors, the defendant broke into a “bait-house” used by the Houston Police Department to lure drug suspects with the intent of stealing drugs.

The trial court initially set the defendant’s bail at $1.25 million. The defendant requested a hearing to present evidence in support of reducing that bail amount. At the hearing, prosecutors introduced a “summary of facts” prepared by the lead police detective in the case. The detective did not personally appear in court. The defense, therefore, objected to the summary as inadmissible hearsay. The judge overruled the objection.

The court ultimately granted a partial reduction in bail to $900,000. Unable to afford even this amount, the defendant appealed to the 14th District. Among other arguments, the defendant said the admission of the detective’s summary violated his Sixth Amendment right to confront the witnesses against him.

The Court of Appeals disagreed and upheld the $900,000 bond. The 14th District noted that while it was undisputed the defendant had the right to cross-examine a prosecution witness at trial, there was a “scant” precedent under Texas law regarding confrontation rights at a bail hearing. Federal courts have typically held that defendants do not have cross-examination rights when it comes to setting bail. (The Supreme Court, however, has never specifically addressed the question.) So as far as the 14th District was concerned, it saw no reason to extend such rights to the defendant here.

As to the amount of bail itself, the 14th District said the trial court acted well within its discretion. The Court largely pointed to the nature of the charges against the defendant–i.e., that he allegedly planned to storm a house with weapons and steal drugs–and the potential risk that posed to community safety.

Contact Galveston Criminal Defense Lawyer Tad Nelson Today

Pretrial bail is designed to guarantee a defendant’s appearance in court. It is not supposed to punish the accused before they have their day in court. Unfortunately, bail decisions are often influenced by the sensational nature of the charges against a particular defendant.

That is why it is essential to work with an experienced Houston criminal defense attorney who can represent you at a bail or any other pretrial hearing where your freedom hangs in the balance. Contact the Law Offices of Tad Nelson & Associates today to schedule a consultation.