A “Humphrey’s” hearing is a bail hearing where the defendant intends to argue, among other things, that he or she cannot afford the amount of bail required to get out of jail.
What is Bail: "Bail" is term used in criminal court proceedings whereby the defendant stakes a certain amount of money or property with the court, usually through a bail agent, to secure pretrial release from jail. The bail is forfeited and unrecoverable if the defendant does not promise to appear in court as ordered.
Amount of Bail: The Court, or law enforcement, can set the amount of bail in a criminal case. The amount of bail set for any crime is usually predetermined in a County’s “bail schedule.” The amount can be lowered or raised or even denied altogether at a bail hearing depending on several factors.
Example: The crime of Criminal Threats (PC 422) has a bail schedule of $50,000 in San Bernardino County (2025). The Court can lower that amount if the judge finds that the defendant has no prior criminal history. Alternatively, the judge can raise the amount of bail if the court finds that the defendant has a lengthy criminal history.
For more information, see What Is Bail in Criminal Court?
Why is it Called a "Humphrey’s Hearing": The name “Humphrey’s Hearing,” or a "Humphrey Motion," comes from a California criminal case by the same name (In Re Kenneth Humphrey, 2017). In the Humphrey case, the court set bail for the defendant without considering Mr. Humphrey's ability to afford the amount of bail set.
On limited appeal from the issue regarding bail, the California Supreme Court determined that Equal Protection and Due Process Laws require the Court to consider the defendant’s ability to afford bail when setting the bail amount (In re Kenneth Humphrey, 11 Cal.5th 135 (Cal. 2021 [Summ.]).
Of course, the amount of money the defendant can afford for bail is not the only consideration for the court when setting a bail amount for a defendant. More important factors, such as the defendant’s danger to the community and his or her risk of fleeing the jurisdiction, or “flight risk," are still primarily considered by the court before the judge determines the amount of bail to be set.
Example: David is arrested in San Bernardino County for Murder (PC 187). The arresting agency requests a million-dollar bail (the amount listed in S.B. County’s “Bail Schedule.”). At arraignment, David’s criminal defense attorney requests a “Humphrey’s Hearing” at the next court date because David cannot afford a million-dollar bail However, this does not mean that the judge must either lower David’s bail amount or release David from jail. The judge could determine that a lower bail amount does not sufficiently protect the community from David’s criminal behavior or his risk of flight, and David cannot afford the bail; therefore, the court could deny David bail altogether (i.e., “No Bail” for David).
Of course, in the above example, the court could consider other protections for the community upon a conditional release for David, such as having David wear a tracking ankle monitor, or order criminal protective orders (CPO) against David, but these conditions could also be considered inadequate by the judge to protect the community and secure David’s presence at court for pretrial hearings.
For more information on arguments against “danger to the community,” or “flight risk” allegations, see How to Bail Out of Jail.
Changed Circumstances: If the judge denies the defendant’s lowered bail request (or “Own Recognizance” release, then the judge will usually set a “No Bail” order against the defendant after a Humphrey's bail hearing. This essentially means that the defendant cannot afford the bail amount set and the judge cannot lower the amount of bail while still protecting the public and assuring the defendant’s presence at court for pretrial hearings. However, in situations where the defendant’s access to bail funds has improved (i.e., circumstances have changed), the defendant may request a new Humphrey’s hearing to reconsider the issue of bail.
The court will not ordinarily entertain a new Humphrey’s Bail Hearing without a change in circumstance from the time that bail was set by the court. The change in circumstance can relate to either the danger to the community, the defendant’s flight risk, or the defendant’s change in available funds for bail.
Example: Maria is charged with Willful Child Endangerment with Priors (PC 273a(a)) against her daughter. At a Humphrey bail hearing, the judge issued a “No Bail” hold against Maria because the court found Maria’s requested lowered bail could not protect Maria's daughter. However, after Maria’s “No Bail” order, Maria is denied access to her child in juvenile court (i.e., child protection services court [CPS]). Therefore, Maria’s circumstances changed, and the judge could consider a new bail hearing for Maria since other protections for Maria’s child have been put in place (i.e., restraining orders from the juvenile court).
Defense Considerations: A defendant who is charged with either 1) a violent felony, which is listed in PC 667.5, or a defendant who is charged with 2) a serious felony, which is listed in PC 1192.7, and who also has a long criminal history for felonious conduct, might consider not setting a Humphrey’s bail hearing until after the preliminary hearing. This is especially true if the defendant believes his or her family can afford the amount of bail currently set.
The reason for this is that the judge might set a “No Bail” order after a Humphrey’s hearing if the judge believes the defendant cannot afford an amount of bail that protect the public and assures the defendant’s presence in court. That would mean the defendant’s family would not be able to bail the defendant out of jail (because of the “No Bail” court order), unless the family allows their finances to be considered in the amount of bail set (i.e., changed circumstances).
Danger to the Community: The court’s primary focus at a Humphrey’s hearing is the danger to the community that is created if the judge releases the defendant from jail prior to conclusion of the criminal case. Nothing about the Humphrey’s case has changed the court’s primary focus at a bail hearing. However, the Humphrey court was concerned with the idea that a person should not be held in jail only because he or she could not afford to bail.
With this in mind, when the defendant is 1) charged with a non-serious or non-violent felony, 2) the defendant does not have a long criminal history and 3) there is no named victim in the criminal complaint, then a Humphrey’s hearing will almost always be requested at arraignment for defendant’s who are in custody.
For example: Joseph, who has no criminal history, is charged with felony Welfare Fraud (WI 10980) in San Bernardino County. The alleged crime is a non-serious and non-violent felony. There is no named victim in the welfare fraud charges (i.e., the victim in the crime of welfare fraud is the People of the State of California, in general). Joseph cannot afford the $50,000 bail as set by the judge using San Bernardino County bail schedule.
Result: Joseph is not likely to be considered a danger to the community or a flight risk. Therefore, the only thing keeping Joseph in jail is his inability to pay the bail amount. This could be a violation of the rule set out in Humphrey and Joseph should be released.
Caution: Many factors are considered in determining the defendant’s “danger to the community,” and “flight risk.” The name of the criminal charge is but one factor in that analysis. However, for purposes of the above example, we assume no other information is offered at the Humphrey’s hearing by either the defendant’s attorney or the district attorney.
How to Determine Affordability: At the Humphrey’s hearing, the court will often ask about the defendant’s work history, the amount of money the defendant earns, whether the defendant is married and how much money the defendant’s spouse makes, how much money the defendant has in the bank, how much money the defendant is owed by others, etc. Most of this information is provided to the court by the defendant’s attorney in advance of the Humphrey’s bail hearing, either by written declarations or documentary evidence.
The district attorney has the right to question the evidence presented at the Humphrey hearing, and the district attorney may even examine, or inquire, as to the source of money used for bail consideration (PC 1275.1). False information provided in any document presented to the court in consideration of setting bail (or Own Recognizance Release) is subject to perjury laws (PC 118).
Defense Considerations: The defense might consider arguing for the defendant’s release on his or her own recognizance (i.e., “OR release”), as opposed to arguing a Humphrey’s bail hearing.
The reason for this is that an OR hearing does not investigate the defendant’s ability to afford bail, but rather only investigates the issues of “danger to the community,” and “risk of flight” discussed above. Therefore, there is no chance that the judge will deny bail after the hearing (i.e., “No Bail” order).
Example: Jerry is charged with Keeping a House of Prostitution (PC 315). He wants his attorney to argue for lowered bail at a Humphrey Bail Hearing, but this means that the court, and the district attorney, can inquire as to where Jerry receives his money, which could lead to more evidence and/or new criminal charges against Jerry. Therefore, Jerry’s attorney might suggest arguing for an OR release, as the source of bail is not examined, and because Jerry is charged with a non-serious, non-violent crime.
In addition, an OR request does not require a “change in circumstances,” to argue. Therefore, the defense attorney can, in theory, argue for an OR release from jail at any court hearing.
Note: For considerations not mentioned here, most criminal defense attorneys will only argue for OR release at either the arraignment stage, or soon thereafter, or after the preliminary hearing.
As stated, after the Humphrey case, the court must consider the defendant’s financial situation when setting a bail amount. However, the primary focus of any bail hearing should remain on the issues of the defendant’s danger to the community and his or her risk of flight.
Possible Drawbacks: Just because a Humphrey Bail Hearing is available to every defendant (at least once), it is not always the case that the Humphrey hearing should be argued at the outset of the defendant’s case, especially if the defendant can afford the bail amount set. This is for several reasons, including the issues of possible “No Bail” orders, the examination of the source of income, the necessity of “changed circumstances” for subsequent bail motions, the fact that the judge can raise the defendant's bail at a bail hearing, and more.
Example: Jessica is charged with felony Inflict Corporal Injury to Spouse w/prior (PC 273.5(f)). Jessica and her husband, Daniel (Jessica’s victim), can afford the bail, and they both want to bail Jessica out of jail. However, Jessica first proceeds with a Humphrey’s bail motion to try to have her bail lowered so that she and Daniel can save money. At the hearing, Jessica and Daniel claim that they cannot afford the bail amount (i.e., they commit perjury). Nevertheless, the court orders “No Bail” at the Humphrey’s hearing as the Court finds there is no adequate protection for Daniel with lowered bail for Jessica.
Result: Jessica cannot bring another Humphrey’s bail hearing because no circumstances have changed since the first Humphrey's bail hearing (unless Jessica and Daniel admit they perjured themselves at the first bail hearing). This means that Jessica and Daniel could have afforded to bail Jessica out of jail before the Humphrey's Bail Motion, but now, Jessica cannot bail out of jail (or be released OR) because she brought the Humphrey’s motion.
Risk of Increased Bail: When the defendant requests a Humphrey’s hearing related to bail, there is a chance that the defendant’s bail may be increased. This is because the defendant’s ability to afford the bail amount may be examined by both sides (the defense and prosecuting attorneys).
In other words, the court may find that a bail amount can protect the public and assure the defendant’s presence in court, but that amount might be higher than what the court first considered.
Example: Peter is charged with Murder (PC 187). David’s attorney sets a Humphrey’s hearing to lower Peter’s bail. During the hearing, it is learned that Peter is worth a hundred million dollars and has close family ties to a foreign country, which makes Peter a flight risk.
Result: Peter is considered a flight risk, and the court increases his bail to five million dollars (the court considers five million dollars sufficient to protect society and ensure Peter’s presence in court). If Peter had not brought the Humphrey bail hearing, he would have been able to bail out on the million dollar and the judge would not likely increase the bail in the future without a change in circumstance and to avoid “economic waste.”
For more information on Humphreys motions related to bail and OR release hearings, contact our Southern California criminal defense attorneys. Our criminal defense attorneys have successfully handled thousands of misdemeanor and felony cases in San Bernardino, Riverside, Los Angeles, and Orange County. Our success rate is second to none and we can help you too. Call today!
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