In Kentucky, criminal defendants who fail to show up for court appearances can be charged with bail jumping. Bail Jumping First Degree is a Class D Felony carrying a range of punishment of 1-5 years. Bail Jumping Second Degree is a Class A Misdemeanor carrying a punishment of up to 12 months. Bail Jumping Second Degree is not a lesser included offense of Bail Jumping First Degree. The difference between the two is that Bail Jumping First Degree is when the underlying case is a felony offense, and Bail Jumping Second Degree is for underlying misdemeanor offenses.
It might seem like an easy thing for the Commonwealth to prove–a defendant missed court, therefore he jumped bail. Conventional wisdom certainly agrees. But a more rigorous review reveals it is actually sometimes one of the tougher charges to prove. The statutes don’t criminalize merely missing court, even if you know about the court date. Rather, the Commonwealth has to prove beyond a reasonable doubt that a defendant intentionally missed court. This isn’t always easy to do.
A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause that result or to engage in that conduct. In lay persons terms, that means they have to make a decision to do (or not do) something. So with bail jumping, it isn’t a crime to miss court, it is only a crime to intentionally miss court.
Why is this a big distinction? Well, many of the crimes that defendants are released on bond for are the least serious offenses. And with the crimes of bail jumping, the underlying ‘charge’ is an element of the offense. This matters immensely because many defendants facing less serious charges don’t appear in court because they forget about court, rather than making a conscious decision to skip. It’s not that different from people who miss doctors appointments they schedule because life got too busy. This unintentional failure to appear becomes less and less likely the more serious the charges get.
So how will the Commonwealth attempt to prove their case? Almost inevitably they will attempt to introduce video from the court appearances showing the defendant knew about the court date. But that alone probably isn’t enough. They may try to introduce evidence of bond violations or statements that the defendant made when he was eventually arrested. However, not all of this evidence should be admissible and a clever attorney may be able to get some of it excluded based on relevance or prejudice.
Bail jumping charges rarely go to trial. The reason isn’t that these cases are so strong–sometimes they are not. The real reason is that usually prosecutors make reasonable offers with this charge that make the risk of trial unnecessary. But if you have a Persistent Felony Offender enhancement or an unreasonable prosecutor, trial might be necessary. If you find yourself charged with one of these offenses and you don’t want to accept the plea offer, it is essential that you have an attorney who isn’t afraid of this charge and understands how to defend you.