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Criminal Procedure II
University of Mississippi School of Law
Clancy, Thomas K.

Criminal Procedure II Outline: Fall 2008
Professor: Clancy

Pretrial Release


Rule 5(d): If the defendant is charged with a felony, the judge must inform the defendant of the following:

i. The complaint against the defendant, and any affidavit filed with it
ii. The defendant’s right to retain counsel or to request that counsel be appointed if the defendant cannot obtain counsel
iii. The circumstances, if any, under which the defendant may secure pretrial release
iv. Any right to a preliminary hearing
v. The defendant’s right not to make a statement, and that any statement made may be used against the defendant.

Interests at stake:

i. Defendant’s interests at stake: helping with their own defense, simply being free (able to work, keep family together), safety (remember that jails aren’t safe places), more likely to be convicted if they are kept in jail pre-trial
ii. State’s interests at stake: whether the defendant is likely to commit another crime, protecting the victim (esp. in domestic violence cases), protecting potential witnesses, flight risks, possibility of defendant destroying evidence

6th amendment right to counsel:

i. Attaches at the initial apprearance (but not during the initial arraignment, only 8 states do that)

statutory criteria (When arguing for/against bail, work your way down the list, found at Section 3142(g) of Bail Reform Act):

i. nature, circumstances of offense
ii. weight of evidence
iii. financial ability of defendant to give bail
iv. character of the defendant (criminal history, community ties, employment, education, physical and mental condition, etc.)

Bail Reform Act

i. With the BRA Congress’ intent was not punitive—sought to balance D’s interests with society’s
ii. In general: presumption in favor of release
iii. “shall order pretrial release…unless”-exceptions are:
1. cannon reasonable assure the defendant’s appearance
2. endanger the safety of another person/community at large
iv. judge should impose the least restrictive conditions (conditions listed under § 3142(c)(1)(B), includes:
1. own recognizance, periodic reporting, drug testing/treatment, educational program, home detention, 3rd party release..

Types of Bond:

i. Surety bonds: The bondsman puts up the money. The Defendant usually pays 10% for this service.
ii. Unsecured bonds: The bond amount only has to be paid if the defendant fails to show up.
iii. Deposit bond/% bond: Defendant pays a certain percentage of bail amount (usually about 10%), and most of that “deposit” is returned if the defendant appears for all court dates. But if defendant doesn’t show up, the person who posted the deposit is liable for the full amount of the bond.

Consequences of violation of conditions:

i. Failure to appearàa crime; look at § 3146 for punishments
ii. § 3146(d)—bond forfeiture
iii. § 3147—committing a crime while on release:
1. get a consecutive sentence
a. 10 years for a felony
b. One year for a misdemeanor

Preventive Detention

Preventive Detention is increasing in prevalence; can’t get bail if the government can prove (1) danger to other person/community, OR (2) no release conditions will reasonably assure appearance (3142(e))
8th amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted (not incorporated through 14th amendment, so doesn’t apply to states)
Is there a constitutional right to bail? Stack v. Boyle and US v. Salerno are in conflict.
Stack v. Boyle: “traditional right to freedom before conviction”

i. Bail is excessive if it is more than is needed to meet the purpose
ii. The whole point of Stack is that each defendant is an individual
iii. 8th—only a right to bail for non-capital offenses (according to Stack)

U.S. v. Salerno: 8th amendment protects against excessive bail, but says nothing about whether bail is available at all
Standards of Proof as to when detention is justified:

i. Dangerousness: need clear and convincing evidence
ii. Risk of fligh

i. 5.1(a) requires preliminary hearings in all federal proceedings except for “petty offenses”
1. Exceptions: (1) Defendant waives, (2) Defendant is indicted, (3) Defendant is charged with a misdemeanor by way of information
ii. 5.1(c) requires preliminary hearings to be within:
1. 10 days after Defendant’s initial appearance, if in custody
2. 20 days after Defendant’s initial appearance, if not in custody
iii. 5.1(d):
1. Time can be extended for good cause

Purpose of preliminary hearings:

i. Probable cause determination whether the defendant committed the offense (if no probable cause, defendant is discharged and the complaint is dismissed, but defendant can later be prosecuted for the same offense)
1. “If a defendant is held in jail more than forty-eight hours, the Fourth Amendment requires a judicial finding of probable cause to believe that the defendant committed the crime.” P. 811
ii. To fix bail

Conduct of preliminary hearings:

i. Defendant can cross examine
ii. Defendant can introduce evidence
iii. Illegally obtained evidence can be introduced
iv. Hearsay is admissible

Coleman v. Alabama

i. Is a preliminary hearing prior to indictment a “critical stage” of prosecution and thus counsel must be appointed? USSCtàYes (but ONLY as far as getting right to counsel)

Standard of proof at preliminary hearing:

i. Probable cause standard (very low); If the govt can’t meet the standard, the case is dismissed and the govt refiles as a grand jury indictment. PH’s are really not that important anymore.

How do preliminary hearings benefit defense: