Summary: U2-3) Bail And Preventive Detention; The Charging Decision

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• 1 U2) Bail and Preventive Detention

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• FRCP 5.1. Preliminary [probable cause] hearing

  Required for all non-petty offenses. Can be waived by D or not held if D is indicted by a grand jury, or the government files an "information."

• Stack v Boyle (US 1951)

  A federal court must set bail in a manner that furthers the purposes of bail. Also, the judge cannot impose a financial condition that will result in the detention of D.

• Bail Reform Act (1984)

  Requires the court to consider both (1) risk to public safety posed by accused's release and (2) flight risk. If the court finds no combination of conditions is adequate, it must order the accused's pretrial detention

• BRA (1984) - Preventive Detention Standard

  Can detain only if [a] all other options will not assure his appearance, [b] if there is a risk of obstruction of justice, or [c] if there is a danger to the community.If it is not a violent crime or drug offense, the judge cannot invoke the (c) "dangerousness" reason to support preventive detention

• BRA - Presumption in favor of least restrictive condition

  There is a presumption in favor of the least restrictive condition that will ensure D's appearance and protect public safety. Burden of proving the necessity of conditions or detention is on the prosecution.

• FRCP 48(a) - Dismissal by the Government

  The government may, with leave of court, dismiss an indictment, information, or complaint. The government may NOT dismiss the prosecution during trial without the D's consent.

• FRCP 48(b) - Dismissal by the Court

  The judge may dismiss an indictment, information, or complaint if necessary delay occurs in (1) presenting a charge to a grand jury, (2) filing an information against a D, or (3) bringing a D to trial.

• Must the prosecution sign an indictment preferred by a grand jury?

  No. See FRCP 7(c)(1) (attorney for the government must sign the indictment in order for it to be valid.

• Selective Prosecution - Constitutional Limitations

  Generally, a charge of selective enforcement (prosecution) will be sustained only where the party shows that the prosecution violated Equal Protection CL. by acting on impermissible motives such as race or religion

• Armstrong - Equal Protection Analysis of Selective Prosecution Claims: What must D show [BOP: Clear and convincing evidence] to make out a prima facie case

  (1) Discriminatory Effect. 
  (2) Discriminatory Purpose.