Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault
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- 4.3.1.Arguments for Bail
- 4.3.2.Dangerousness Hearings Pursuant to Chapter 276 § 58A
- 4.3.3.Revocation of Defendant’s Bail if Arrested While on Release
- 4.3.4.Insure the Defendant is Given Written Notices
- 4.3.5.Insure the Victim is Informed of Bail/ Detention/Conditions
4.3. BAIL/ PRETRIAL DETENTIONIn 1992, the legislature amended the bail statute and added dangerousness as one of the factors to consider in setting bail. The SJC, in Aime v. Commonwealth, 414 Mass. 667 (1993), held the amendments violated due process because (1) the provisions applied to all arrested persons without limitation for the seriousness of the crime, (2) proof was not required by clear and convincing evidence, and (3) the defendant was not provided with a full right to be heard. Effective August 15, 1994, the bail statute, Mass. Gen. Laws c. 276, § 58, was amended to provide for preventive detention (or release on conditions) of individuals who have allegedly committed certain offenses and who have been proven to be dangerous at a “58A hearing,” at which the defendant has the right to be heard. References to dangerousness as a bail factor were deleted from the bail statute. Also, a new provision was added to provide the Court with the option of detaining without bail, for up to sixty days, a person who commits a new crime while on prior release, if the court determines that release would “seriously endanger any person or the community”. Accordingly, you must know when and how to argue for bail, when and how to move for and obtain an order of pretrial detention or release on conditions, and when and how to move for bail revocation. Your familiarity with the procedures is particularly compelling given that nearly all domestic violence and sexual assault cases qualify as potential pre-trial detention cases (see infra). 4.3.1.Arguments for BailThe bail statute entitles an arrested person to be released on personal recognizance unless the judge determines that “such a release will not reasonably assure the appearance of the prisoner before the court”. The statutory presumption does not apply to capital offenses, Comm. v. Flaherty, 384 Mass. 802, 803 (1981), nor to persons held on a “warrant of arrest ... issued by the superior court.” Mass. Gen. Laws ch. 276, § 58. In making the bail determination, the judge, clerk or bail commissioner is to consider the following factors, as delineated in paragraph one of the statute, and as listed in the Judge’s “Reasons for Bail” form, DC-CR-6, “on the basis of any information which he can reasonably obtain”:
emphasize: injuries threats use of weapons presence of children victim’s fear
include: past abuse by the defendant prior police involvement -- whether or not charges issued past investigations by police, social services, school authorities, past cases which were dropped
emphasize: propensity, means, and opportunity to flee
emphasize: connections to other states or countries items listed above under ‘family ties’
Any person denied release on personal recognizance by the District Court under the terms of paragraph one of section fifty-eight has the right to petition the Superior Court for an immediate de novo review of the bail order. The defendant has the right to participate in the bail hearing. 4.3.2.Dangerousness Hearings Pursuant to Chapter 276 § 58ASEE SAMPLE MOTIONS, SECTION 6. SEE SAMPLE COURT FORMS IN THE APPENDICES, SECTION 9. (ORDER OF PRETRIAL DETENTION AND ORDER OF CONDITIONAL RELEASE) What is a 58A Hearing ? A straight bail hearing may not consider the defendant’s dangerousness to the victim or the community. A 58A Hearing is a procedure by which the Court, on motion of the Commonwealth at the Defendant’s first appearance, can decide the issue of pretrial release based on the defendant’s alleged dangerousness. The Commonwealth may request either an order of pretrial detention or release on conditions. Both the Commonwealth and the defendant may move for a continuance of the hearing because a witness or document is not immediately available. If the court allows a request by the Commonwealth, the maximum continuance is three days; for the defendant, the maximum continuance is seven days. The 58A procedure is available only for certain crimes. At the conclusion of the hearing the Court may either:
In what circumstances am I allowed to request a 58A Hearing? The Commonwealth may move for pretrial detention or release on conditions for the following offenses:
examples: manslaughter, indecent A&B, A&B on a child, mayhem, ABDW, assault w/ intent to murder, assault w/ intent to rob, attempted murder, rape, assault w/ intent to rape, kidnapping, stalking
(The legislature added the “or”, by amendment, effective June 21, 1995. The change greatly widened the statute’s scope. Prior to its amendment, the phrase applied only to a defendant who had been arrested for an offense involving abuse if there was a ch. 209A order against him or her at the time. As amended it applies to both a defendant arrested for any misdemeanor or felony involving abuse and also a defendant arrested for any misdemeanor or felony if there was a 209A order against him or her at the time.)
What factors will the Court consider in making its decision? The statute lists 17 factors for the court to consider in making the pretrial release decision based on dangerousness. The judge must make this determination “on the basis of any information which he can reasonably obtain ...” Mass. Gen. Laws ch. 276, § 58A(5). The factors are listed in the court’s forms, entitled “Order of Conditional Release under Mass. Gen. Laws ch. 276, § 58A” and “Order of Pretrial Detention Under Mass. Gen. Laws ch. 276, §58A,” copies of which follow this section. They are the same factors as those listed supra, for consideration of bail, with the addition of the following:
What are the Court’s options? The court must determine if personal recognizance will reasonably assure the defendant’s return and if personal recognizance will not endanger the safety of any other person. If the answer to both these queries is yes, the court must issue an order of release on personal recognizance without surety. If the court finds, by clear and convincing evidence, that no conditions of release will assure the safety of any other person, the court shall order detention prior to trial for not more than 90 days, excluding delay under Rule 36 (B) (2). (The Judge must make written findings of fact and written statements of reasons for the detention.) Otherwise, the court must order pretrial release on condition that the defendant not commit any crimes during his release and on other conditions necessary to assure the appearance and safety of all members of the community. The court must impose the least restrictive condition or combination of conditions that will meet both goals of assuring the defendant’s appearance and protecting the public’s safety. The statute lists 14 conditions, which are also listed on the court’s form, “Order of Conditional Release:”
. “The judge is precluded from imposing a financial condition that results in pretrial detention in order to assure the safety of other persons, although financial conditions having that effect are not precluded for the purpose of assuring his appearance before the court. Mass. Gen. Laws. ch. 276, § 58A (2) and (3). Accordingly, the provision should end any tendency to require high bail as a device for effecting preventive detention because it directs that all decisions based on dangerousness be made under the procedures set forth for that specific purpose.” Mendoza v. Commonwealth, 423 Mass. 771 (1996) at 774. When should I decide to request a 58A Hearing? The pretrial detention provision of the bail statute is a powerful weapon. Your goal may be to detain every defendant whose release pending trial can be proved by clear and convincing evidence to pose a danger to the community or to a particular victim. You may, however, find you are confined by the realities of the strict time tables involved. Deciding whether to move for pre-trial detention based on dangerousness requires knowing the facts of the case and knowing background information about the defendant and the victim -- all before the arraignment. If you are not certain you can make a convincing showing of dangerousness at the time of arraignment, move for a continuance. (See infra.) In some circumstances, the decision to request a 58A hearing will be relatively easy, such as where a defendant has previous convictions for crimes of violence, or where a defendant is charged with a particularly violent offense, such as armed assault, assault with the intent to murder, rape or rob, rape kidnapping, stalking, or murder. Certain domestic violence cases may present more difficult decisions. Remember that the victim’s wishes are significant but not dispositive. If a victim shows up at court and wants the defendant released, but his record shows violent offenses, or you have evidence of a history of violent abuse, it is the Commonwealth’s duty to try to protect her safety. It is not the victim’s burden to decide whether or not a defendant should be detained. Make sure you understand your office’s policies. Some DA’s require ADAs to obtain the approval of a supervisor, before deciding to move for detention, when the defendant is charged with a designated offense. Others require approval not to move for the detention. How do I initiate the 58A Hearing process? SEE SAMPLE MOTION, SECTION 6.2.1 At arraignment, file a written Motion for an Order of Pretrial Detention, which specifies the charge bringing the case within the jurisdiction of a 58A hearing. Be sure to give the defense counsel a copy. Have an officer or other witness ready to testify. Be familiar with the facts of the alleged offenses (knowing which of the alleged offenses are designated in the statute). And be prepared to argue which reasons (listed on the court’s form) support your motion. If you also argue for conditional release (usually in the alternative), be prepared to suggest exactly what conditions the court should impose. How do I obtain a continuance? SEE SAMPLE MOTION, SECTION 6. Both the Commonwealth and the defendant may move for a continuance of the hearing. If the court allows a request by the Commonwealth the maximum continuance is three days; for the defendant, the maximum continuance is seven days., The Commonwealth may seek a continuance if it can show there was probable cause to arrest the defendant and good cause for the continuance. In Commonwealth v. Lester L., 445 Mass. 250 (2005), the SJC determined how the showing of probable cause may be made, what sort of hearing is required at the continuance phase, and whether the judge must order the defendant held during the continuance period: Probable Cause: The Commonwealth may make a showing of probable cause by reading or summarizing the police report for the judge, or relying on the fact that a criminal complaint was issued. “A properly issued complaint is one based on a finding of probable cause to arrest and thus satisfies the Commonwealth’s burden for purposes of the continuance hearing.” Continuance Hearing: When the Commonwealth seeks a continuance of the dangerousness determination, the defendant is entitled to “a hearing where the defendant, represented by counsel, is afforded the opportunity to make representations and arguments, but not the right to present evidence or cross-examine witnesses.” However, the judge does have the discretion to expand the hearing by allowing cross-examination and the presentation of evidence “or other procedures.” Detention Pending the Hearing: Once there is a determination that probable cause to arrest existed and there is good cause to continue the hearing, the statute does not give the judge discretion to release the defendant pending a dangerousness hearing. The defendant must be held. What are the rules, procedures and standards at a 58A Hearing?
Proof of dangerousness by clear and convincing evidence is sufficient for the purposes of the limited and preliminary preventative detention of a person charged with certain crimes, as provided for in Mass Gen. Laws. ch. 276, § 58A, and the statute does not violate article 12 of the Declaration of Rights of the Massachusetts Constitution. Mendoza v. Comm., 423 Mass.771, 782-784 (1996).
Do the pretrial detention provisions apply to juveniles? Yes, as § 58A does not exclude juveniles and is in keeping with statutory intent: By its express terms, s. 58A applies to any ‘individual’... . In the absence of any statutory language indicating that the word ‘individual’ excludes juveniles, juveniles are properly within the word ‘individual’. ...Our procedural rules are consistent with the General Laws in using the term ‘District Court’ to encompass the Juvenile Court Department. ...We also disagree with the juvenile’s contention that s. 58A is at odds with the rehabilitative goals of the juvenile justice system. ... Section 58A is simply a measure intended to protect the public from the violent acts of a dangerous individual, whether a juvenile or an adult, while that individual’s trial is pending.
It is within your discretion alone to decide whom the Commonwealth will call as witnesses. Should you confront a judge who insists otherwise, you and your supervisors will have to make the difficult decision whether to appeal such a ruling. Of course, the defendant is entitled to call the victim to the stand, and if there is a continuance, the defendant will have the opportunity to summons her. Can the defendant appeal the court’s decision after the hearing? Yes: “The judge may reopen the order at any time to consider material new information, Mass. Gen. Laws. c. 276, § 58A (4), and the prisoner has the right to petition the Superior Court for review of a decision in the District Court. Mass. Gen. Laws. c. 276, s. 58A (7). ...There is no provision for review of a Superior Court detention order although such review may be had by application to a single justice of this court. G.L. c. 211, § 3.” Mendoza v. Commonwealth, 423 Mass. 771, 775(1996). Are defendants released from custody prior to their first court appearance subject to a 58A hearing at arraignment? The statute does not explicitly exclude defendants released from custody prior to arraignment. Furthermore, a single justice opinion on March 1, 1995 held the statute should not be limited only to defendants held under arrest until arraignment. In Commonwealth v. Joseph Parisi, SJ-95-0011 (1995), the Commonwealth filed a petition pursuant to Mass.Gen. Laws ch. 211, § 3, after a district court judge in Springfield District Court denied the Commonwealth’s motion for a 58A pretrial detention hearing, indicating that the court lacked jurisdiction because the defendant appeared in court after being released on bail. Justice O’Connor granted the Commonwealth’s request to order the Springfield District Court to conduct the 58A hearing, and to hold the defendant during any continuance prior to the hearing. Justice O‘Connor reasoned that section 58A does not prevent a judge from conducting a dangerousness hearing simply because a defendant has been released from the police station by a bail commissioner, as such a reading of the bail law would, in essence, render it meaningless. Furthermore, should you find that the defendant was ‘under-charged’ by the police, and you bring new charges against him on the original date of his arraignment, he will be subject to a motion for a 58A hearing. What should I expect from defense counsel? How should I respond?
1. You should repeatedly object and request that the court limit the scope of the hearings to whether or not conditions of release will reasonably assure the safety of any other person or the community. 2. Ask for offers of proof as to the expected testimony of a Commonwealth witness, summoned by the defense. 3. Provide the court with support for requiring an offer of proof from the defendant as to what he expects to prove through the Commonwealth’s witnesses, (and support for denying the request even after the offer of proof), Commonwealth v. David B. Connors, No. 94-634, Supreme Judicial Court, Single Justice, (Feb. 8, 1995) The defendant was properly precluded from calling the victims as witnesses at the 58A hearing after the judge requested an offer of proof and the defendant asserted that (1) the victims would say the defendant never posed a personal threat to any one of them and (2) any fear they might have now is imagined. Justice Abrams ruled the testimony sought was not relevant. 4. Provide the court with guidance from federal case law concerning detention hearings under the federal Bail Reform Act. Detention hearings are not a vehicle for discovery or an opportunity to conduct a mini-trial: United States v. Acevedo-Ramos, 775 F. 2d 203, 207-8 (1st Cir. 1985); United States v. Martin, 782 F. 2d 1141, 1145 (2d Cir. 1986); United States v. Williams, 789 F. Supp. 34, 36 (D. D.C. 1992 ). Pretrial subpoenas should not be used as a vehicle for discovery: United States v. Nixon, 418 U.S. 683, 689, 699, 701 (1974), (subpoenas for pretrial proceedings may not be used as a discovery device; nor may it be used for a “fishing expedition”); United States v. Hughes, 895 F. 2d 1135, 1145-46(6th Cir. 1990). The Court should use its discretion whether to allow the defendant to call the government’s likely trial witnesses to testify. It should not permit the testimony in cases where the defendant has not make any proffer that includes a detailed explanation of how he expects the testimony of the Government’s witness to rebut evidence supporting detention: United States v. Acevedo-Ramos, 775 F. 2d at 207-8; United States v. Accetturo, 783 F. 2d 382 (3d Cir. 1986). 4.3.3.Revocation of Defendant’s Bail if Arrested While on ReleaseUnder s. 58B, the court may detain without bail, for up to sixty days, a person who commits a new crime while on prior release. If the court finds probable cause to believe the prisoner has committed a new crime, the court then determines “whether the release of said prisoner will seriously endanger any person or the community.” Where probable cause that the prisoner committed the new offense exists, a rebuttable presumption arises that no condition or combination of conditions will assure that the prisoner will not pose a danger to the safety of any other person or the community. A revocation hearing is held on a prisoner’s first appearance, subject to the seven day, three day continuance rule. During any continuance, the prisoner may be detained. At the hearing, the judge can rule based on the police reports and representations made by counsel. A full blown evidentiary hearing is not required, although “an evidentiary hearing with the right to present and cross examine witnesses, or some variation, may be held in the judge’s discretion…” Paquette v. Commonwealth, 440 Mass. 121 (2003). At the hearing, the court may consider :
4.3.4.Insure the Defendant is Given Written NoticesThough it is not your duty to provide the notice, make sure the court provides the defendant with the written notices to which he is entitled, in order to prevent successful appeals:
4.3.5.Insure the Victim is Informed of Bail/ Detention/ConditionsThe victim should always be kept up to date on the defendant’s bail status -- as a matter of safety, as a matter of common courtesy to her, and as mandated by the “Victims’ Rights Statute.” Download 1.82 Mb. Share with your friends:
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