In Pennsylvania, if a judge imposes monetary bail on a defendant for the criminal offenses he or she is charged with, that defendant is required to post a monetary amount to be released from incarceration. While bail is a critical factor in ensuring a defendant’s rights, there are special circumstances in which a Magisterial District Judge or Court of Common Pleas Judge can require a hearing to determine the source of the funds utilized for bail. These are called “Nebbia Hearings” (bail hearings). Nebbia Hearings came from an infamous federal case, United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966), in which the Federal Court of Appeals ultimately determined that the source of funds for bail could be investigated. As there has been a recent uptick in Nebbia Hearings, knowing your rights is critical. In short, 42 Pa.C.S.A. §5761(a), requires that when a person is charged in Pennsylvania with a violation of the Controlled Substance, Drug, Device and Cosmetic Act, the magisterial district judge or judge shall determine the source of the currency used for the payment of the bail or the procurement of a surety bond on behalf of the defendant. The goal of this hearing is to ensure that the currency used for the bail is not derived from the same violations of the Controlled Substance, Drug, Device and Cosmetic Act (i.e., money used from the sale, production, or procurement of drugs). If the judge determines that the currency was not derived from an illegal source, the currency can be used for bail. If the judge determines there is not enough evidence to establish that the funds were not obtained illegally, the currency may not be used to bail out the defendant.
It is critical to note that the statute does not require showing that the defendant has the ability to pay, but rather the showing that the funds are from a legitimate source. Therefore, taking a loan, using a house as collateral, and using a credit card to obtain a bail bondsman are all factors establishing the legitimacy of the funds. Whether you are utilizing funds or collateral to pay for bail on behalf of a defendant or to utilize a bail bondsman, it is important to be prepared in the event there is a Nebbia Hearing.
If you or a loved one is facing a Nebbia hearing or has questions about bail in a drug-related case, contact Kayla Zizzi at (717) 221-7970 or at kzizzi@tuckerlaw.com to discuss your rights and how to prepare.