There is no right to bail created by the U.S. Constitution. The Eighth Amendment states that "Excessive bail shall not be required" but it does not create the right to bail. In Stack v. Boyle, 342 US 1, 72 S.Ct. 1(1951), the U.S. Supreme Court held that there is no constitutional right to bail, but the Eighth Amendment requires that when bail is determined by a trial court it must be reasonable and particularized to the defendant.
A motion for pre-trial release is based upon a right that an arrested person has been given. State constitutions may provide for this substantive right to bail in criminal cases. For example, the Florida Constitution in Article I, section 14 reads,
Unless charged with a capital offense or an offense punishable by life
imprisonment and the proof of guilt is evident or the presumption is great,
every person charged with a crime or violation of municipal or county
ordinance shall be entitled to pretrial release on reasonable conditions.
The key wording here has an historical basis deriving from the Northwest Territory Act of 1787. This act stated, "all persons should be bailable, unless for capital offenses, where the proof shall be evident or the presumption great." See Kent , 2 Commentaries on American Law, page 14.
The State's Burden of Proof Against Pre-Trial Release
The phrase "proof is evident or the presumption is great" is actually a standard of proof that the State must carry. It is the highest standard of proof known to American law. It is far higher than the usual standard in criminal trials, which is guilt beyond a reasonable doubt. The prosecution must present testimony and/or real evidence not only sufficient to convict the defendant but there must be no question of his guilt at all. If some doubt arises from the other evidence or if there are contradictions or discrepancies in the evidence, then the standard has not been met and the accused is entitled to reasonable bail as a matter of right.
So what is it that the State must show in order to keep the defendant from being admitted to bail and then being able to bond out during the pre-trial process? The State must prove that the offense is a capital offense [i.e., capital or first degree intentional murder (may be punished by the death penalty); and capital sexual battery (sexual penetration on a child under 12 years old)]. Or, the State must prove that the offense is one that is punishable by life imprisonment. These very serious offenses are listed in Florida Statute section 907.041. Once the State proves that the charged offense is either a capital offense or one punishable by life imprisonment, then the State has the burden to prove that the proof is evident or the presumption is great. If the State fails to prove these things, the defendant is entitled to reasonable bail as a matter of law.
The Defense Fight for Pre-Trial Release
However, even where the State can carry its burden to prove that the proof is evident or the presumption is great, the trial court may still have discretion to set a reasonable bond in the case. Florida Statute section 903.046 delineates criteria that the trial court must consider in determining if bail can be set in the particular case.
After being arrested and taken to jail the defendant will not be allowed to bond out because the charged offense is one that is not initially bondable. The defendant's lawyer will file a motion in the trial court asking that he be admitted to bail. In it he will raise the points of constitutional law, statutory law and rule provisions that will force the State to produce witnesses and real evidence at a hearing in the trial court.
When the State fails to meet its burden of proof but the trial court wrongly decides that the proof is evident and the presumption is great, the defendant can seek review of that denial by filing a petition for a writ of habeas corpus in the court of appeals. If there is such a lack of proof by the State, the appellate court will grant the habeas relief and require the trial court to set a reasonable bond. This oversight by the court of appeals is necessary because the defendant does have a right to pretrial release. Sometimes judges rule by their emotions rather than by the requirements of the law. They become fearful that a defendant who is let out on bond might get in more trouble or try to flee the jurisdiction before trial. They should require the State to make its proof so that the defendant isn't entitled to bond as a matter of right. Where the State can't meet its proof, the trial judge shouldn't try to help the record out by throwing the case against the defendant.
If the State does meet its burden of proof at the pretrial release hearing, the defense can still put on evidence to show the defendant's ties to the community, his history of being in court on time, job, school, religious organizations, etc., to show that the defendant will not flee the jurisdiction but will be in court whenever his presence is required and that he is not a danger to the community if he is released on bond.
On these serious offense cases, the criminal defense lawyer must be prepared to fight hard to get his client admitted to bail and get a reasonable bond set. It is here that the defendant will know that his attorney is fighting for his rights and that his attorney is very concerned about the defendant's liberty before trial. It is well known in the profession that if the defense lawyer doesn't go to the wall for his client, he may be replaced by another lawyer who will. The experienced criminal defense lawyer will fight hard for the defendant to win his motion for pretrial release.
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