Retrial: How Can They Hold You In Jail?

Factual Questions
1

The woman in Texas who drowned her children. She’s getting a retrial based on the fact that a witness lied. So my question is, since this means she’s currently not guilty, how can they hold her?

Now I realize that she’s mentally ill and probably a suicide risk (or at least she was at one time) so I guess I understand them holding HER. But in general, I don’t understand the whole notion of holding people in jail until their trial. They haven’t been found guilty! How can they lock you up when you haven’t been convicted of a crime?

And what’s with bail, for that matter? Why should you have to pay to get out of jail for a crime you haven’t been proven guilty of? Just something I’ve been pondering. Thanks.

2

The sad truth is that people accused of crimes often do not wish to face the consequences that will ensue after a trial finds them guilty. While these people are entitled to the presumption of innocence AT trial, they have already been found “probably guilty” – that is, probable cause exists to bind them over for trial, as the result of a grand jury indictment, prosecutor’s information, or probable cause hearing before a judge. Many such people choose to flee rather than face trial.

Bail, and pre-trial detention, are two ways of avoiding this. Requiring someone to post bail means that they forfeit their bail if they fail to appear for trial. And if they cannot post bail, or if the circumstances of their situation warrant, they may be remanded with no bail to await trial.

3

I know. But how is that fair? Probably guilty is something *I]/i] decide whilst laying around watching TV. The fact is, “probably” doesn’t mean guilty by process of law. I just think it’s unfair. Particularly when a poor person can’t make bail.

4

Actually, it IS decided by a process of law. You can’t be held awaiting trial just because the prosecuting law-talking guy feels like it. He has to go before a judge, explain why he thinks the accused is a flight risk, and why he thinks bail or jail is justified. If the judge doesn’t buy the prosecutor’s arguments then the accused is released on his own recognizance.

5

It’s tougher for a poor person to make bail, but in the US you have a massive industry of bail bondsmen (and bounty hunters) for this particular purpose. Essentially, they provide a high-interest loan to pay for your bail, and if you don’t turn up to court, they track you down using bounty hunters and force you to do so.

6

I don’t know if this is a nitpick, but it seems that equating probably cause with “probably guilty” is an overstatement. The latter sounds like a preponderance of the evidence (i.e. more than fifty percent likelihood of guilt). While it’s difficult to attach an actual likelihood of guilt to probable cause, I’ve never understood it to rise to this level of being “more likely than not” that the accused is guilty. If, in fact, probable cause meant “probably guilty,” the presumption of innocence would be reduced to even more of a fiction than it already is.

7

So, a thug breaks into your home, beats you to a pulp, rapes your wife, and sodomizes your child. You managed to call 911 at the beginning and the police arrive, catch him in the act, and arrest him. However, he hasn’t had his trial yet and hasn’t been found guilty. How can they lock him up? They should just let him go, right?

8

Let me reverse that…someone who looks generally like you rapes a woman in your neighborhood. You’re walking down the street and you fit the description, so the cops pick you up. You’re considered a dangerous risk so they lock you up with no bail until the trial. How do you feel now?

9

I keep saying “I wanna talk to my lawyer, I wanna talk to my lawyer, I wanna talk to my lawyer” over and over again. When my law-talking-guy arrives, he demands that they either charge me with a crime or release me. When the cops realize that they have no reason to suspect me other than that I vaguely resemble the perpetrator, they let me go.

The cops can’t just arrest and hold you with no oversight. They can’t just charge you with a crime if there’s no evidence you commited a crime, the case wouldn’t make it past the grand jury. And if you’re charged with a crime, the prosecuting attorney has to prove to the judge that you’re either a serious flight risk or a potential danger, otherwise they’ve gotta let you free during your trial.

10

Unless of course the President (in the US) thinks you are an enemy combatant-then all these discussions about cause and lawyers etc become irrelevant. Actually, of course the President doesn’t personally identify anyone as a bad guy, just some nameless security operative somewhere in the Government. Then the person goes into indefinite detention.

It isn’t how I thought my country works, but it does. :frowning:

11

It’s not about how people feel. It’s about tending to the public safety. As many posts in this thread have explained, there is a system based on law, with various procedures, requirements, and safeguards. People arrested and charged with crimes are subject to being held in custody until their trial, and having already been found guilty is obviously not one of the requirements.

I was trying to give a simple, obvious example of someone who clearly should be held, to illustrate that it’s not always an unreasonable thing to do. Instead of getting the point, you changed it into a different situation that’s really beside the point of my example. If you don’t want to understand pre-trial custody, you won’t.

12

You’re living in a dream world. People are jailed and convicted on unbelieveably bad eyewitness testimony all the time.

13

Well, duh. Obviously, in a cut-and-dried case such as the silly one you threw out, yes…it would be wise to hold the person. But in the more realistic one I proposed, the detainee is fucked.

14

You’re convinced your scenario is more realistic?

And what experience do you have in the criminal justice world that leads you to this conclusion?

15

In Virginia, probable cause exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed, and that the person arrested is guilty. See Saunders v. Commonwealth, 218 Va. 294, 300, 237 S.E.2d 150, 155 (1977).

16

Bricker, I’m not a lawyer, but Barry Scheck is, and his numbers say that it happens a lot:

Keep in mind that the Innocence Project isn’t able to investigate every single case of mistaken identity. There are plenty more out there than what this short paragraph has identified.

As a lawyer, certainly you know that eyewitness testimony is not the most reliable means of identifying a perpetrator.

The fact remains, catching someone in the act vs. identifying someone as a perpetrator after the fact shouldn’t even be discussed in the same paragraph. I conceded that his scenario would warrant holding someone until trial. What is your point?

17

I wasn’t attacking the unreliability of eyewitness identification. I was attacking your unrealistic scenario:

In this scenario, there’s not even an eyewitness identification; the police are merely relying on a general description to arrest and hold you. Not to speak for Barry Scheck, but I’m quite confident he’d agree that the odds of a probable cause hearing or grand jury indictment based on the facts you posited are miniscule.

18

Look, those numbers you cited don’t tell us anything about how common it is for an eyewitness identification to be mistaken, although I agree that it certainly isn’t rare or unknown for witnesses to misidentify people.

The numbers you give show that for people who were exonerated, most of them were victims of mistaken eyewitness identification. They don’t say how how many eyewitness identifications are mistaken.

And anyway, what exactly does this have to do with holding someone in jail before trial? Those wrongfully convicted people weren’t held without trial, they were tried and convicted and sent to jail. Yes, people are wrongfully convicted, but what does that have to do with your original complaint that people shouldn’t be held by the cops until they’re convicted? That has nothing to do with whether lots of people are wrongfully convicted.

Look, if the cops think you murdered someone, they’re going to arrest you. Are you saying that the cops shouldn’t be able to arrest someone unless that person was already convicted of a crime? What incentive does someone accused of a crime have to show up in court? Why not just skip town?

You’re conflating two issues here. One is the justice of holding accused criminals pending trial. Another is that some people are wrongfully convicted of crimes when they’re actually innocent. Which one do you want to talk about?

19

I’m not sure what “logical process” has come about that established the principle of bail and remand as being “just” or “fair.” But it goes all the way back to the 1200s in our common law system, when local sheriffs had the authority to hold suspected criminals in custody to avoid them attempting to run away. Back then, bail was often little more than a personal bribe paid to the sheriff to get out of jail, we’ve made some progress since then, luckily.

I think there are a few justifications for bail/remand that I can think of:

  1. Common sense and history has shown that certain persons will a) represent a continuing threat if allowed out of custody, b) attempt to flee justice if not held in custody prior and during their trial and c) attempt to influence the trial extralegally if they remain out of custody (witness intimidation.)

Locking someone up for a lengthy period of time (sometimes months to over a year depending on the length and complexity of the trial) probably isn’t the best thing in the world when that person hasn’t been convicted of the crime. However, how can the legal system enforce it’s decisions if it doesn’t have the person in question? If that person has fled from the jurisdiction to parts unknown, how is society able to properly apply a punishment if conviction is attained?

Without bail/remand in many cases the government would be unable to properly effect the court’s decisions, and justice would not be attainable.

  1. Courts have lots of powers that private individuals do not have. And in the fact-finding process the court has a wide degree of powers that it can enforce even when, in other situations, it would be considered a violation of one’s liberty. For example if I’m a witness to a crime a court can issue orders that will result in me being physicall forced to testify. Refusal could result in me being imprisoned or fined or both. There’s little to no review on this power, if the court thinks I have something important to testify, I don’t really get much choice in the matter. If I get on the stand and refuse to testify I’m guilty of contempt and can be locked up, if I refuse to show up I can be locked up. I can always get up on the stand and lie, saying I saw nothing. But if it can ever be demonstrated that that is not the truth I can be tried and convicted of perjury.

For the court to exert authority or authorize the use of different forms of governmental power against me I need not necessarily be found guilty of a crime. A court can authorize a search warrant, in which people will come into my home against my wishes and ransack my house, as long as it finds there is in the opinion of one judge good reason for authorizing that warrant. There is nothing requiring I be convicted of a crime to surrender my right to privace/property.

So I think, since we’ve already demonstrated that the court does have powers like this, it isn’t a far stretch to assume a court should rightly have the power to takes steps that insure it’s decisions are actually going to be effected. To insure that criminals who stand before the court actually receive the punishments of a possible conviction.

So I don’t see it as a far stretch that the court should have the power to detain someone to those ends. And this power is not without review. At arraignment arguments can be made for/or against bail, against the defendant having to pay bail at all, or for/or against the defendant even being eligible for pre-trial release in any sort of way. Evidence is frequently submitted for the approval of the judge. If the defendant has a history of criminal convictions, that is relevant, if the defendant has a violent history, that is relevant, if the defendant has a history of fleeing while on bail, that is relevant. If the crime is of an extremely violent or malicious nature, that is relevant. Relevant in that the government is responsible for protecting its citizens. And while the defendant is not guilty of said malicious crime, there has been sound evidence reported to the court system that has been shown to be meaningful enough that the person has some likelihood of being guilty above and beyond that of an average Joe off the street. So it is seen as rational that the court “hedge its bets” and take steps to protect society from the possibility of a depraved and violent person being loosed onto the streets.

20

Um…SOMEBODY had to tell the police what the perpetrator looked like. That’s the unreliable eyewitness identification they’re going by.

Look…the Innocence Project wouldn’t have been created if there weren’t serious problems with the justice system in the U.S. The state of Illinois put the brakes on the death penalty because there was enough cause to believe that the system is seriously flawed.