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Criminal Adjudication
University of South Carolina School of Law
Miller, Colin

Criminal Adjudication Final Outline – Colin Miller Fall 2013
Pretrial Release
Types of Pretrial Release
·         Field Release
o    Released before custody (by officer) aka “cite and release”
o    i.e. traffic citations
·         Stationhouse release
o    Rlsd after taken to police station and booked, but before charged/indicted
o    Robinson-allows police to search person in booking w/o SW
·         Bail Schedule
o    Annual list sets bail amount
o    If suspect can pay that amount he is released
o    Subsequent offenses will increase bail amount on the schedule
·         Own Recognizance (PR)
o    Suspect promises to appear in court
§  Normally other conditions attach
o    **Baseline presumption
§  if overcomeàadd conditions (SEE Bail Reform Act)
·         Supervised Release
o    Suspect released and reports to PO/other agency and has conditions attached
§  i.e. pay $50/mo for supervisions fee; alcohol/drug counseling/monitoring, etc
·         Third Party Custody Release
o    3P is charged w/ responsibility of suspect and getting him to court
§  i.e. parent, halfway house
·         Unsecured Bond
o    Suspect executes bond for certain amt. to get released, BUT that $ only becomes payable if suspect fails to appear at trial
·         Deposit Bond
o    Suspect or 3P posts % of bond (i.e. 10%) and it is returned if suspect appears for all court dates
·         Full Bond “bail bond”
o    Suspect normally pays bondsmen/surety a % of bond and bondsman pays the bail amount
o    If suspects fails to appearàbondsman hires someone to find suspect so he can get $ back
Constitutional Considerations
-Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
-Bail set at a figure higher than an amount reasonably calculated to ensure the defendant’s presence at trial violates the Eighth Amendment.
-A magistrate/court violates due process by setting bail at an unusually high amount based on the indictment alone
Stack v. Boyle-cannot infer from indictment alone that bail should be higher than normal
Bail set at a figure higher than an amount reasonably calculated to ensure the defendant’s presence at trial violates the Eighth Amendment.
-Most state constitutions contain some right to bail (South Carolina Constitution Article I § 15)
Detainee Considerations
Detainee’s liberty as well as his right to be free from communicable disease and physical and sexual violence
Detainee’s ability to prepare adequately for trial
Detainee’s ability to keep his job/income/relationships
Detainee’s ability to achieve a favorable outcome due to trial/plea bargain
Inability to make bail correlates w/ higher conviction rate
Public/State Considerations
Public’s interest in the detainee not fleeing and being punished (detainer ensures ∆’s presence at trial)
Public’s interest in preventing the destruction of evidence, the intimidation of witnesses, the hindering of the criminal investigation, and the commission of other crimes
Federal Bail Reform Act of 1984
18 U.S.C. §3141(a)
Pending Trial.
-Under 18 U.S.C. §3141(a), judicial officers (state or federal judges/justices, magistrates, justices of the peace, and city mayors) have the power to decide whether to release a defendant before trial.
1) released on PR or unsecured bond
2) released on condition or combo of conditions
3) detained to permit revocation of conditional release, deportation
i.e. can temporarily detain pending a bail revocation hearing (∆ released on DUI charge w/ condition to wear monitoràmonitor disappearsàdetain until hearing to see if he should be detained until trial or if he can stay released
4) detained under subsection (e)
NOTE: When ∆ goes before magistrate (federal)àthese are magistrates’ only options governing release/detention
Applies to ANY federal crime that is being prosecuted in federal ct. à decision is governed by Federal Bail Reform Act
18 U.S.C. §3142(b) (baseline presumption-pretrial release)***
Presumption: Release on Personal Recognizance or Unsecured Appearance Bond.
-Under 18 U.S.C. §3141(b), the judge shall order pretrial release on personal recognizance or an unsecured bond, subject to the conditions that:
the defendant not commit a crime during the period of release; AND
the defendant cooperate in the collection of a DNA sample, if such a sample is authorized;
UNLESS the judge determines that such release will 1) not reasonably assure the appearance of the person as required OR 2) will endanger the safety of any other person or the community.
(economic harm ≠ physical harm)
NOTE: Burden is on Gov’t to show ∆ should be detained or released subject to other conditions
18 U.S.C. §3142(c)
(c) Release on Conditions. (when Govt cannot convince to detain, BUT overcomes presumption in 3142(b)
-Under 18 U.S.C. §3141(c)(1), if release pursuant to (b) will not provide such assurance (assurance ∆ will appear), the judge shall order pretrial release subject to the same conditions in (b) AND
(same as § 3141(b))
-under §3141(c)(1)(A), the defendant not commit a crime during the period of release and cooperate in the collection of a DNA sample, if such a sample is authorized;AND
-under §3141(c)(1)(B), subject to the least restrictive further condition, or combination of conditions, that the judge determines will reasonably assure the appearance of the defendant as required AND the safety of any other person and the community, which may include the condition that the defendant:
-(i) remain in the custody of a designated person, who agrees to assume supervision and to report any violation of a release condition to the court, if the designated person is able reasonably to assure the judicial officer that the person will appear as required and will not pose a danger to the safety of any other person or the community
normally relative or friend
substance abuse cases: may be released to recovery house
NOTE: courts are split on whether a 3P custody release can entitle a ∆ to Presentence Credit
-(ii) maintain employment, or, if unemployed, actively seek employment;
Rechnitzer 2007-
Allowed to impose conditions such as:
Provide po w/ access to requested financial info
Not open additional credit lines w/o po approval
If PO says soàmay need to notify employer of your criminal record, personal history
Note: balancing ∆’s interest vs. gov/community interest
-(iii) maintain or commence an educational program;
Goals are to ensure ∆ can eventually have legitimate means of supporting himself
Reducing motive to commit $ crimes
Provide additional ties to community
NOTE: judge could seek to impose (ii) and/or (iii)
-(iv) abide by specified restrictions on personal associations, place of abode, or travel;
U.S. v. Washington-court cannot prohibit ∆ from cooperating w/ LE unless there are EXTRAORDINARY circs making the condition necessary to assure ∆’s appearance and safety to community 
-(v) avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense;
i.e. “No Contact” condition when worried about killing, intimidating, coercing witnesses
normally will not impose no contact w/ family members, EXCEPT in cases of domestic violence/sexual abuse
Note: may need to allow attys to contact witnesses, but can restrict ∆’s from contacting
-(vi) report on a regular basis to a designated law enforcement agency, pretrial services agency, or other agency;
i.e. drug testing or counseling
normally imposed w/ another condition
-(vii) comply with a specified curfew;
may be imposed if nature of crime charged makes it dangerous for him to be out at night (i.e. sex crimes, robbery, escape)
could authorize government to conduct checks to make sure of compliance
-(viii) refrain from possessing a firearm, destructive device, or other dangerous weapon;
imposed to protect members of community & as safeguard of PO’s that will have contact w/ ∆’s while on bail
normally imposed on ∆’s w/ violent crimes or firearms crimes
NOTE: may be imposed on ∆’s charged w/ crimes that are not gun related if he had history or association w/ violent groups
-(ix) refrain from excessive use of alcohol, or any use of a narcotic drug or other

mally ok in gun cases, drugs, child porn, etc
May also be ok in cases where ∆ prohibited from using drugs as a conditionàwarrantless searches allow policing of drug abuse condition
18 U.S.C. §3142(f)
(f) Detention Hearing.
-Under 18 U.S.C. §3142(f), the judge shall hold a hearing to determine whether any condition or combination of conditions set forth in (c) will reasonably assure the appearance of such person as required and the safety of any other person and the community:
-(1) upon a motion of the attorney for the government, in a case that involves:
-(A) acts of terrorism (2332b(g)(5)(B)punishable by 10 OR more years incarceration, crimes of violence, or sex trafficking of children (1591);
terrorism crimes must be 10+ years max
COV (3156(a)(4)):
1)Element of the offense involves physical force (or threatened/attempted) against person/prop of another
2)Felony and by its nature involves substantial risk of physical force in the course of committing the offense
3)Sexual abuse, sexual exploitation and other abuse of children, domestic assault by habitual offender
-(B) an offense punishable by life imprisonment or death;
nature of crime here is irrelevant
focuses on max sentence
-(C) a drug crime punishable by 10 or more years incarceration;
i.e. does not matter if it was meth or steroids as long as sentence is 10+ years
-(D) any felony if the defendant has 2 prior convictions under (A)-(C) or state counterparts; aka “Felony + 2”
Charged w/ FELONY; AND
2 prior CONVICTIONS (of A-C or state equivalent)
-(E) any felony that is not otherwise a crime of violence that (a) involves a minor victim, OR (b) that involves the possession or use of a firearm or destructive device or any other dangerous weapon, OR (c) involves a failure to register (sex offender)
Note: Minor is under 18 yoa
NOTE: courts are split over whether a crime attempted against an UNDERCOVER OFFICER posing as a minor “involves a minor victim” i.e. Kahn says must really be minor vs. Rizzuti says UC officer works
∆ would use Statutory cxn: Lenity doctrine saying that “minor victim” should be construed in ∆’s favor
-(2) upon motion of the attorney for the Government OR upon the judge’s own motion in a case, that involves
-(A) a serious risk that such person will flee; or
History of flight
Finances i.e. Offshore accts
Dual citizenship
Statements by ∆ or those that know him well, etc
-(B) a serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror
History of obstruction/intimidation
History of violence
Connection to organized crime
Statements by ∆ or others who know him well
TIMING/SCHEDULING: A detention hearing shall be held immediately upon the defendant’s first appearance before the judicial officer unless the defendant or the prosecutor seeks a continuance
-Except for good cause, a continuance on defendant’s motion may not exceed 5 days (not including weekends/holidays)
-Except for good cause, a continuance on prosecution’s motion may not exceed 3 days (not including weekends/holidays)
Note: ∆ is detained during his continuance (and judge could make him undergo medical exam)
What is “GOOD CAUSE”