Criminal Procedure II Outline – Mandross
BAIL – case specific
– Premise behind bail/bond is to determine what means are necessary, as related to EACH person’s trustworthiness to appear for trial and what security will supply reasonable assurance of HIS appearance.
o If the gov’t departs from the norm in a particular case, they must show with clear and convincing evidence that such an action is justified.
o When determining bail several factors should be weighed of which are:
§ Seriousness of the crime- more serious the crime the less likely the D will voluntarily return
§ Evidence against D- if overwhelming evidence against D and he knows, the less likely he will voluntarily return
§ D’s ties to the community- more ties, more likely to voluntarily return
§ Character of D- look at past criminal record
o Bail determination is not concrete. It is always subject to reassessment, either up or down, dependent on if the above factors change.
– 8th Amendment states that there shall be no excessive bail or bond
o Note that it does not require that bond be set at all, practically speaking you do.
§ Capital exception to bail- for capital crimes at least 40 states preclude bail in capital offenses when the proof is evident or the presumption is great.
o If the detention is deemed regulatory/preventative and not punitive then it does not involve an 8th Amendment question (Salerno).
§ 1984 Bail Reform Act
o The 8th Amendment does not apply to the states as a fundamental right
§ But most states have similar provisions in place.
– Types of Bail/Bond
o Own recognizance (OR)
§ Moderate OR- call in a specific number of times on a schedule determined by the judge
o Supervised release- D reports to a social service agency, such as probation or rehab
o 3rd party custody- 3rd party is formally charged w/ responsibility for the D and his continued appearance in court
o Surety bond- monetary bond that is insured by an insurance company
o Property bond- value must be twice that of bond after liens, mortgage, taxes, etc.
o Cash bond
§ Unsecured bond- (least restrictive) $ only has to be paid IF the D fails to appear
§ Deposit bond- (usually 10%) of the total bail is paid
vestigate crime and gather evidence
o Can ask for whatever evidence or witnesses they want, even if P did not originally bring forward.
§ Note that the rules of evidence do not apply in the proceedings. Thus hearsay, etc. are permissible.
§ Also, P does not have a duty to present exculpatory evidence at this time.
o Can issue subpoenas for people, documents and real evidence.
§ If do not comply can be held in contempt.
§ Serve essentially the same final function as a search warrant.
· Shield: used to keep the executive branch from harassing citizens with ill-founded prosecutions. (acts as a buffer between the gov’t & the people).
o Death Qualify : P is allowed to remove, for cause, a potential juror who acknowledges that they could not impose a death sentence for any reason.
In felony cases, there are to be 12 jurors and not more than 6 alternates.