NCJ Number
56341
Journal
Texas Law Review Volume: 57 Issue: 2 Dated: (JANUARY 1979) Pages: 275-288
Date Published
1979
Length
13 pages
Annotation
IDENTIFYING THE INTERNAL INCONGRUITY OF THE FEDERAL RULE GOVERNING AN APPELLANT'S ELIGIBILITY FOR BAIL--FEDERAL RULE AND APPELLATE PROCEDURE 9(C)--A LESS CONTRADICTORY INCORPORATION OF THE BAIL REFORM ACT IS ADVOCATED.
Abstract
FEDERAL RULE OF APPELLATE PROCEDURE 9(C) PLACES THE BURDEN ON THE APPELLANT OF PROVING THAT HE OR SHE WOULD NOT FLEE NOR POSE A DANGER TO ANYONE IF RELEASED ON BAIL. HOWEVER, THE RELEASE CRITERIA MANDATED BY THE BAIL REFORM ACT OF 1966 CONTRADICT THE BURDEN OF PROOF PROVISION OF RULE 9 (C) BY PLACING THIS BURDEN ON THE COURTS, RATHER THAN ON THE APPELLANT. THIS CONFLICT STEMMING FROM THE BAIL REFORM ACT'S INCORPORATION INTO RULE 9(C) CAN BE RESOLVED THROUGH THE USE OF A TWO-TIERED MODEL OF BAIL DECISIONMAKING. THE COURTS WOULD INITIALLY DETERMINE WHETHER THE APPEAL HAD LEGAL MERIT; IF SO DETERMINED, THEN THE BURDEN WOULD BE ON THE GOVERNMENT TO SHOW WHY THE APPELLANT OUGHT NOT BE RELEASED. ON THE OTHER HAND, IF THE APPEAL WAS INSUBSTANTIAL, THEN THE APPELLANT WOULD HAVE THE BURDEN OF PROVING THAT HIS RELEASE WOULD NOT ENDANGER THE COMMUNITY. ADDITIONALLY, THE COURTS WOULD CONSIDER THE POTENTIAL FOR REVERSAL ON APPEAL IN DECIDING ON THE MERITS OF THE APPEAL. ALSO EXAMINED ARE THE DEVELOPMENT OF THE CRITERIA OF LEGAL MERIT, RISK OF FLIGHT AND DANGER, AND THE CONCEPT OF SUBSTANTIALITY. RELEVANT COURT DECISIONS AND OTHER REFERENCES ARE FOOTNOTED. (TWK)