Select Page

Criminal Procedure II
University of Toledo School of Law
Mandross, Dean

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).
§         P
–         Jury
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.