NCJ Number
52352
Journal
Wisconsin Law Review Volume: 1978 Issue: 2 Dated: (1978) Pages: 441-484
Date Published
1978
Length
44 pages
Annotation
THE LEGAL PRESUMPTION OF INNOCENCE AND THE CONSTITUTIONAL MANDATE FOR DUE PROCESS COMPEL A FAIR AND ACCURATE PRETRIAL SCREENING OF ALL CRIMINAL CASES.
Abstract
A REVISED PRETRIAL PROCESS IS REQUIRED FOR THE PROTECTION OF THE THOUSANDS OF PEOPLE WHO AT ANY TIME ARE BEING DETAINED IN JAILS AND PRISONS PENDING TRIAL OR PLEA BARGAINING. ALTHOUGH LESS THAN 10 PERCENT OF THE DETAINEES MAY EVER RECEIVE A TRIAL, THEY MAY BE INCARCERATED FOR SEVERAL MONTHS WITHOUT APPARENT BENEFIT OF THE PRESUMPTION OF INNOCENCE UNLESS GUILT IS PROVEN BEYOND A REASONABLE DOUBT. THE CURRENT 'PROBABLE CAUSE MODEL' PERMITS THE PRESUMPTION OF INNOCENCE TO BE REBUTTED IF CIRCUMSTANCES ARE PRESENT SUFFICIENT TO WARRANT A PRUDENT MAN'S BELIEF THAT THE SUSPECT HAS COMMITTED A CRIME. THE USE OF THIS MODEL RESULTS IN OVER 9 MILLION ARRESTS EACH YEAR FOLLOWED BY INITIAL APPEARANCES OF THE DEFENDANTS BEFORE MAGISTRATES. ALTHOUGH RELEASE ON BOND MAY OCCUR FOLLOWING SUCH APPEARANCES, THE STANDARDS FOR DECISIONMAKING BY MAGISTRATES ARE INADEQUATE FOR THE TASK OF SETTING BAIL RATES AND RELEASE CONDITIONS. DISCREPANCIES IN RELEASE PROCEDURES ARE DISCUSSED FOR BOTH CAPITAL AND NONCAPITAL CRIMES, SHOWING THAT UNREASONABLE HIGH BAIL CONDITIONS EFFECTIVELY IMPRISON DEFENDANTS PRIOR TO SUFFICIENT DEMONSTRATIONS OF THE PROSECUTION'S CASE AGAINST THE DEFENDANTS. THE DETAINEES, MANY OF WHOM ARE ACQUITTED OR RELEASED BY DISMISSAL, SUFFER BOTH THE DIRECT CONSEQUENCES OF INCARCERATION, AND THE INDIRECT EFFECTS SUCH AS SOCIAL STIGMA AND THE PRESENCE OF AN ARREST RECORD, WHICH MAY BE BASED ON A PREJUDICED DETERMINATION OF GUILT. IT IS FELT THAT THE 'FUNDAMENTAL FAIRNESS' RECOGNIZED BY THE U. S. SUPREME COURT AS AN ELEMENT OF THE CRIMINAL JUSTICE SYSTEM SHOULD NOT COMMENCE AT THE TRIAL STAGE OF ADJUDICATION, BUT SHOULD APPLY FROM THE MOMENT OF ARREST. THE FULFILLMENT OF THE PRINCIPLES OF PRESUMING INNOCENCE AND OF DUE PROCESS OF LAW DIRECT THE FUTURE USE OF A PROBABLE GUILT MODEL IN WHICH THE PREVENTION OF FUTURE CRIMES WOULD NOT BE A CRITERION FOR THE IMPOSITION OF HIGH BAIL, AND THE PROSECUTION WOULD BE REQUIRED AT THE BAIL HEARING TO INTRODUCE EVIDENCE SUFFICIENT FOR THE COURT TO FIND BY A PREPONDERANCE OF SUCH EVIDENCE THAT THE DEFENDANT COMMITTED THE CRIME OF WHICH HE IS CHARGED. THE BURDEN OF PROOF AT A PRETRIAL HEARING SHOULD BE THAT OF REQUIRING THE PROSECUTION TO SHOW CLEAR AND CONVINCING EVIDENCE OF THE LIKELIHOOD OF THE DEFENDANT'S CONVICTION AT TRIAL. IF THAT BURDEN WERE NOT MET THE DEFENDANT WOULD BE RELEASED PENDING TRIAL. AN ACCUSED WOULD HAVE THE RIGHT TO COUNSEL DURING THE 'CRUCIAL STAGE' OF THE PROBABLE GUILT HEARING. ANY ADMINISTRATIVE BURDENS OF THE NEW MODEL ARE SEEN TO BE INSUFFICIENT TO OVERCOME THE RESPONSIBILITY OF THE STATE TO THE ACCUSED. FOOTNOTES AND REFERENCES ARE PROVIDED. (TWK)