Freedom and Liberty:

Pretrial Services In An Adversarial Criminal Legal System

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Andrew Capone, Esq

Assistant Director of Training (West)

Public Defender Association of Pennsylvania

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May 2024

Contents

• Freedom – US and PA Constitution
• When and How the Government Can Encroach on Freedom?
• Freedom or Liberty – Setting Bail
• Article 1, Section 14 of the Pennsylvania Constitution
• Commonwealth v. Tally, 265 A.3d 485 (Pa. 2021)
• Pretrial Services in an Adversarial System
• Defense Perspective

Note About Legal Citations

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What Is The Best Thing About Living in America?

• Freedom!
• United States Constitution
• Bill of Rights (1^st Ten Amendments to the United States Constitution)

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Bill of Rights: Individual Freedoms from our Government

• 1^st Amendment – Free Speech
• 2^nd Amendment – Right to Bear Arms
• 3^rd Amendment – Soldiers Can’t Commandeer Our Houses
• 4^th Amendment - We are free in our “persons, houses, papers, and effects” from unreasonable search and seizure
• 5^th Amendment – Right to due process in any criminal case, and also the government cant take our land (without compensation)
• 6^th Amendment – Right to Fair Trial by Jury

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What About Pennsylvania

• The PA Constitution has even stronger protections of our freedom than our Federal Constitution!
• Article 1: Declaration of Rights

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PA Constitution: Article 1 Declaration of Rights

• Section 1 - All [people] are born equally free and independent
• Section 2 - All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness (right to create, modify, and abolish our government)
• Section 3 and 4 - Religious Freedom (believe/ worship what/how we want)
• Section 5 – Free and Fair Elections
• Section 6 – Trial by Jury
• Section 7 – Freedom of Press

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PA Constitution: Article 1 Declaration of Rights

• Section 8 – Freedom from Unlawful Search and Seizure
• The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.
• Section 9 – Rights of Accused in Criminal Prosecutions
• In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land…

Liberty – Freedom

Declaration of Independence

War Poster, 1941 - 1945

Liberty Bell, Philadelphia, PA

Limitations on Individual Freedom

• When Can the Government Interfere with our Individual Freedoms?
• Can’t leave this conference, get on the highway and drive 150 miles per hour all the way home
• Can’t go into my neighbor’s house and take their new car because I want to drive it to the store.
• How Free Are We Really?
• We Participate in Democratic Elections, Select Law Makers, They Create Rules Governing What is Permissible and What isn’t
• For any limitation on freedom (laws) to be valid, or enforceable, it MUST comport with our Constitutions

Limitations On Government Actors Interfering With Individual Freedoms

• Laws Are Made Dictating What Behaviors Are Acceptable and What Aren't
• Can’t Steal, Can’t Hurt Others
• General Protection of Our Communities and Our Societies
• Focus of this Presentation: What Rules Govern How Government Actors Can Restrict Freedoms
• Government Actors: Police, Judges, Prosecutors, Probation Officers, Pretrial Service Personnel, Game Wardens, Jail Guards, Etc.,
• Our Constitutions Law Out [sometimes very vague, and unclear] rules about how a government actor can interfere with freedoms.

Rules Governing Government Interference With Liberty

Police Interactions with Citizens:

• Mere Encounter
• Police walk up to a citizen and ask them a question:
• We just got a report of a burglary in this area, what are you doing walking around here?
• What is the required cause for a police officer to interact with a citizen in this way?
• No Proof Required for this type of interaction

Rules Governing Government Interference With Liberty

Police Interactions with Citizens:

• Seizure/ Investigatory Detention
• Police walk up to a citizen and give them an instruction:
• “We just got a report of a burglary in this area, I am going to need you to stay here while I make a radio call and check on a few things.”
• What is the required cause for a police officer to interact with a citizen in this way?
• Reasonable Suspicion that Criminal Activity is occurring

Rules Governing Government Interference With Liberty

Police Interactions with Citizens:

• Arrest
• Police walk up to a citizen and place them under arrest:
• “We just got a report of a burglary in this area, I am placing you under arrest for Burglary.”
• What is the required cause for a police officer to interact with a citizen in this way?
• Probable Cause to believe that the citizen has committed a crime

Rules Governing Government Interference With Liberty

Police Interactions with Citizens:

• Traffic Stop
• Police pull over a citizens vehicle for going through a redlight:
• “I am pulling you over because you ran that redlight.”
• What is the required cause for a police officer to interact with a citizen in this way?
• Probable Cause to believe that the citizen has committed a violation of the traffic code

Rules Governing Government Interference With Liberty

Police Interactions with Citizens:

• Traffic Stop
• Police pull over a citizens vehicle for suspected driving under the influence:
• “Did you have anything to drink tonight? Can you please step out of the car and submit to a few standardized tests?”
• What is the required cause for a police officer to interact with a citizen in this way?
• Reasonable Suspicion to believe that the citizen has committed a violation of the traffic code (DUI) and further investigation is required prior to forming probable cause.

Rules Governing Government Interference With Liberty

• Burden of Proof at a Preliminary Hearing
• District Attorney presents witnesses at a preliminary hearing to establish that a crime has occurred and that the defendant is the person who committed it.
• Q: Can you identify the person who stole your watch?
• A: Yes it was the man in the red jump prison outfit sitting at counsel table.
• What is the required cause for the court to “hold” a case for formal arraignment?
• Prima Facie
• “The prima facie standard requires that the Commonwealth produce evidence of the existence of each and every element of the crime charged” Commonwealth v. Austin, 575 A.2d 141, 143 (Pa. Super. 1990)
• It is well-established that, “the ‘more-likely-than-not test’ is, of course, a minimum standard against which we measure the reasonableness of the inferences used to establish a prima facie case of criminality.” Commonwealth v. Lacey, 496 A.2d 1256, 1261 1985)

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Rules Governing Government Interference With Liberty

• Burden of Proof at a Trial (Bench or Jury)
• District Attorney presents witnesses at trial to establish that a crime has occurred and that the defendant is the person who committed it.
• Q: Can you please tell the jury who stole your watch?
• A: Yes it was the man in the suit sitting at counsel table next to his attorney.
• What is the required cause for someone to be convicted of a Criminal Offense?
• Proof Beyond a Reasonable Doubt
• A reasonable doubt is something that would cause an average person to pause or hesitate when making a decision in a matter of importance in their lives.

Rules Governing Government Interference With Liberty

• Bail
• Preliminary Arraignment
• Modifications of Bail
• Rule 600

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PA Constitution on Bail

• All prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great; and the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion the public safety may require it. Pa. Const. Art. 1 Sec 14.
• Note that in 1998 – “for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community.” was added

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Who is Bailable

• All prisoners, Except:
• Capital offenses;
• Offenses for which the maximum sentence is life imprisonment; or
• [A defendant where] no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community

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Bail Cannot be Denied Absent Proof

• What needs to be proven?
• The defendant is guilty of a capital offense (being charged is not enough); or
• The defendant is guilty of an offense which carries life in prison (being charged is not enough); or
• “No condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community.”

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“For that reason, capital defendants could be denied their right to bail only when a second condition was satisfied: Not only did the prosecution have to support the arrest or indictment with sufficient evidence, but the proof of the defendant's guilt of the capital offense at issue had to be evident, or its presumption great. Where the proof of guilt was not evident or apparent, or the presumption marginal at best, the framers believed that a reasonable person would choose to risk his life before a jury rather than forfeit bail. In such cases, the right to bail could not be denied.” – Commonwealth v. Tally, 265 A.3d 485 at 515 (Pa. 2021).

Bail Cannot be Denied Absent Proof

• Wait a Minute, Bail Starts at the Beginning of a Case; Proof of Guilt Doesn’t Come Until Trial.
• For Purposes of Bail We Are Not Talking About Proof Beyond a Reasonable Doubt
• Proof is Evident and Presumption is Great
• Guilt
• Proof [of guilt] is evident; or
• presumption [of guilt] great
• No Conditions can assure the safety of the community
• Proof [that the community cannot be safe] is evident
• Presumption [that the community cannot be safe] is great

Bail Cannot Be Denied Absent Proof

• How must this be proven?
• "the proof was evident or presumption great.”
• If it is not proven, then the court CANNOT deny bail. (This is not discretionary, absent this proof it cannot happen).
• Think of it this way,
• someone is innocent until they are proven guilty
• Someone must be bailable unless they are proven otherwise
• “Put simply, in scrutinizing whether the accused can be denied the right to bail, the Commonwealth bears a burden of both production and persuasion.” Commonwealth v. Tally, 265 A.3d 485 at 517 (Pa. 2021)

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Proof Evident and Presumption Great

• What Does “Evident” Proof or “Great” Presumption Mean?
• These are legal terms, they don’t mean anything without context.
• “…Under Article I, Section 14, "proof is evident or presumption great" constitutes its own unique standard, one that lies in the interstice between probable cause and proof beyond a reasonable doubt. Unlike the prima facie standard, it requires both a qualitative and quantitative assessment of the evidence adduced at the bail hearing.” Commonwealth v. Tally, 265 A.3d 485 at 522 (Pa. 2021).

Proof Evident and Presumption Great

• “When the Commonwealth seeks to deny bail, the quality of its evidence must be such that it persuades the bail court that it is substantially more likely than not that the accused is nonbailable.” Commonwealth v. Tally, 265 A.3d 485 at 524 (Pa. 2021)
• “When the Commonwealth seeks to deny bail due to the alleged safety risk the accused poses to "any person and the community," those qualitative standards demand that the Commonwealth demonstrates that it is substantially more likely than not that (1) the accused will harm someone if he is released and that (2) there is no condition of bail within the court's power that reasonably can prevent the defendant from inflicting that harm.” id.

Proof Evident and Presumption Great

• What should the court consider when deciding this?
• …a bail court should consider:
• the defendant's character,
• relevant behavioral history, or past patterns of conduct;
• the gravity of the charged offense;
• the conditions of bail reasonably available to the court; and
• any evidence that tends to show that those conditions would be inadequate to ensure the protection of any person or the community.
• (Not an Exhaustive List) Commonwealth v. Tally, 265 A.3d 485 at 525 (Pa. 2021)

Proof Evident and Presumption Great

In sum, a trial court may deny bail under Article I, Section 14 when the Commonwealth's proffered evidence makes it substantially more likely than not that the accused: (1) committed a capital offense, (2) committed an offense that carries a maximum sentence of life imprisonment, or (3) presents a danger to any person and the community, which cannot be abated using any available bail conditions. That determination requires a qualitative assessment of the Commonwealth's case. If the balance of the evidence is rife with uncertainty, legally is incompetent, requires excessive inferential leaps, or lacks any indicia of credibility, it simply is not evident proof, nor can it give rise to a great presumption, that the accused is not entitled to bail. Commonwealth v. Tally, 265 A.3d 485 at 525 (Pa. 2021)

Pretrial Services in an Adversarial System?

- Two Adversarial Parties: Commonwealth and Defense

• One Objective, Unbiased, Uninvolved Party: The Court
• Pretrial Services is part of the court
• The Court’s Responsibility Is To Listen To the Evidence and Decide Whether Or Not the Commonwealth has Met Their Burden
• The Court does not have an interest in one outcome or the other.
• If the Commonwealth doesn’t meet their burden, then the defendant remains bailable.

Role of Pretrial Services: Designated Bail Agency

Pa. R. Crim. Pro 530. Duties and Powers of a Bail Agency.

(A) Each court of common pleas may, by local rule, establish or designate a bail agency to monitor and assist defendants released on bail pursuant to these rules. The duties and powers of the agency shall include the following:

(1) gathering information about defendants relevant to bail decisions;

(2) making recommendations to the bail authorities concerning the types of release and the conditions of release on bail for individual defendants;

(3) supervising defendants when so designated by the bail authority;

(4) administering percentage cash bail when authorized by a bail authority pursuant to Rule 528, and evaluating for the bail authority the reliability and solvency of prospective sureties for percentage cash bail programs; and

(5) making reasonable rules and regulations to implement the bail agency’s functions.

(B) The representative of the bail agency who obtains information from a defendant shall, both orally and in writing, advise the defendant that anything said to a bail agency representative may be used against the defendant.

(C) Information obtained from or concerning the defendant by a bail agency shall be disclosed only to the defendant, counsel for the defendant, the issuing authority or judge setting bail, the attorney for the Commonwealth, and the department of probation or parole preparing a presentence report regarding the defendant. This information shall not be disclosed or used except for purposes relating to the defendant’s bail or a presentence report about the defendant, or in a prosecution based on the falsity of the information, or for impeachment purposes to the extent permitted by law.

Pretrial Services: Preliminary Arraignment

Pa. R. Crim. Pro 540: Preliminary Arraignment

(F) The issuing authority shall not question the defendant about the offense(s) charged but shall read the complaint to the defendant. The issuing authority also shall inform the defendant: … (3) if the offense is bailable, the type of release on bail, as provided in Chapter 5 Part C of these rules, and the conditions of the bail bond.

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Defense Perspective: Types of Bail

Pa. R. Crim. Pro 524. Types of Release on Bail.

(A) If bail is set pursuant to Rule 520, the defendant shall be eligible for the following types of release on bail. The bail authority, after considering the release criteria in Rule 523, shall determine the type or combination of types of release on bail reasonably necessary, in the bail authority’s discretion, to ensure that the defendant will appear at all subsequent proceedings and comply with the conditions of the bail bond.

(B) All of the types of release in paragraph (C) shall be conditioned upon the defendant’s written agreement to appear and to comply with the conditions of the bail bond set forth in Rule 526(A).

(C) The types of release on bail are:

(1) Release On Recognizance (ROR): Release conditioned only upon the defendant’s written agreement to appear when required and to comply with the conditions of the bail bond in Rule 526(A).

(2) Release on Nonmonetary Conditions: Release conditioned upon the defendant’s agreement to comply with any nonmonetary conditions, as set forth in Rule 527, which the bail authority determines are reasonably necessary to ensure the defendant’s appearance and compliance with the conditions of the bail bond.

(3) Release on Unsecured Bail Bond: Release conditioned upon the defendant’s written agreement to be liable for a fixed sum of money if he or she fails to appear as required or fails to comply with the conditions of the bail bond. No money or other form of security is deposited.

(4) Release on Nominal Bail: Release conditioned upon the defendant’s depositing a nominal amount of cash which the bail authority determines is sufficient security for the defendant’s release, such as $1.00, and the agreement of a designated person, organization, or bail agency to act as surety for the defendant.

(5) Release on a Monetary Condition: Release conditioned upon the defendant’s compliance with a monetary condition imposed pursuant to Rule 528. The amount of the monetary condition shall not be greater than is necessary to reasonably ensure the defendant’s appearance and compliance with the conditions of the bail bond.

Rule 600 (B) – 180 Day Rule

(B) Pretrial Incarceration: Except in cases in which the defendant is not entitled to release on bail as provided by law, no defendant shall be held in pretrial incarceration in excess of … (1) 180 days from the date on which the complaint is filed;

(D) Remedies: (2) Except in cases in which the defendant is not entitled to release on bail as provided by law, when a defendant is held in pretrial incarceration beyond the time set forth in paragraph (B), at any time before trial, the defendant’s attorney, or the defendant if unrepresented, may file a written motion requesting that the defendant be released immediately on nominal bail subject to any nonmonetary conditions of bail imposed by the court as permitted by law. A copy of the motion shall be served on the attorney for the Commonwealth concurrently with filing. The judge shall conduct a hearing on the motion.

Defense Perspective

Questions?

Contact Information

Andrew J. Capone, Esq.

Public Defender Association of PA

Andrew@PaPublicDefenders.com

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