When one is initially accused of a crime, the court make a finding of “probable cause” in order to set conditions of release. This is a very low bar. And is one-sided. Basically, the process involves a prosecutor summarizing what evidence they think they have, and the court deciding on that basis, with no input from the accused or his counsel. Or live witnesses. Just a written declaration. And the court’s decision isn’t even as lofty as “he probably did it.” This is the so-called “ham sandwich” standard.
The end result, if the accused actually participates in a trial, is much more robust. The accused can call witnesses on his behalf. The accused can testify. The accused can ask questions of the witnesses called by the State and present impeachment evidence (e.g. that the accuser was previously convicted of perjury, or was under the influence of methamphetamine at the time, or got a sweetheart plea deal in exchange for his testimony). Twelve people (the jury) get to make the decision, instead of one person (the judge). And the burden of proof is “beyond a reasonable doubt.” The problem is that when this trial happens is often “not soon.” Yes, there are constitutional rights to speedy trial, and court rules that outline a default schedule. But these rules are what I think of as “swiss cheese” rules: full of holes and exceptions that make the actual trial date anything but prompt. I’ve had clients languish for many months, waiting for their trials to start.
So I’m proposing that an intervening evidentiary hearing be implemented. The idea is this: if conditions of release are set that result in the accused sitting in jail pending trial (usually because of too-high bail) and more than a certain period of time has elapsed without a trial (say, 60 days), the defendant gets a “mini trial.” No jury. Lower burden of proof (say, preponderance of the evidence). Perhaps only certain witnesses need to be live. Perhaps certain relaxed rules of evidence. If the judge determines the accused probably committed the crime with which he is accused, the conditions of release stay the same (or perhaps get increased to a “no bail” hold). If the judge determines the accused probably did not commit the crime, he has to be released. Case isn’t dismissed; the real trial will still happen at some point. But he can no longer be held in custody until the real trial happens.
This is helpful in a number of ways. First, it avoids holding probably innocent people in jail for extensive periods of time. Second, it helps everyone focus the mind about the strength of the evidence. If the prosecutor loses the mini trial, he may decide it isn’t worth the expense and effort involved in a full trial (unless he has reason to believe the evidence will be substantially different at the second trial, like if a key witness didn’t show up for the mini trial for explainable reasons). If the defendant loses the mini trial, his attorney may have an easier time convincing him his desired defense may not be persuasive to the jury. Either way, full trials may become less frequent, which may end up benefiting judicial economy. Third, it allow the accused and the alleged victims (where applicable) an early opportunity for a “day in court,” preserving testimony when it is still moderately fresh. There are few things more frustrating to parties when a key witness forgets, disappears, or dies between the incident and the trial, which can occur many months or even years later. Fourth, it helps avoid discovery violations. If something comes out during the mini trial that was previously undisclosed, that’s a problem. But not nearly as significant a problem if it comes out during the real trial, after all the effort and expense of impaneling a jury has occurred. Mistrials are much worse than aborted mini trials.
We here at CR Taylor Law, P.S. are primarily motivated to represent clients on a one-on-one basis. But we also think about, and work towards, systemic change that can benefit everyone involved in the criminal justice system.