Lead Opinion
The Indiana Constitution provides a qualified right to bail, exempting murder and treason from that right when “the proof is evident, or the presumption strong.” For nearly 150 years, every time we have addressed the issue in the context of a murder charge, this Court has held that the defendant must carry the burden of demonstrating that the proof is not evident and the presumption not strong, and that he is thus entitled to bail. And the Indiana General Assembly has codified this constitutional provision and our jurisprudence into the Indiana Code.
A criminal defendant now charged with murder challenges the constitutionality of the statutory provision assigning him the burden of showing he is entitled to bail. After due consideration, today we hold that the burden must be placed upon the State to prove the defendant should be denied bail. Nevertheless, given the facts and circumstances of this particular case we affirm the trial court’s decision denying the defendant bail.
Facts and Procedural History
In September 2011, Loren Fry was arrested in Cass County, Indiana, and charged with the murder of David Schro-der. Fry filed a motion seeking bail, claiming that the State’s evidence against him was circumstantial and therefore the presumption of his guilt was not strong. He simultaneously filed a motion seeking a declaration that Indiana Code § 35-33-8-2(b), which places on a defendant charged with murder the burden of proving why he or she should be admitted to bail, is unconstitutional.
Judge Maughmer ordered the State to present evidence that the proof was evi
After a hearing pursuant to his instructions, Judge Maughmer denied Fry bail. Fry appealed directly to this Court, seeking review as to both the constitutionality of § 35-33-8-2(b) and the denial of his request for bail. See Ind. Appellate Rule 4(A)(1)(b) (providing Supreme Court mandatory and exclusive jurisdiction over appeals of final judgments declaring state statutes unconstitutional).
Standard of Review
When reviewing a challenge to the constitutionality of a statute, we observe a high level of deference to the legislature’s decision-making. Collins v. Day,
I. Constitutionality of Indiana Code § 35-33-8-2(b)
The right to bail is “a traditional and cherished right.” Bozovichar v. State,
That the right to bail is so deeply valued, however, does not mean that it is unqualified. The Indiana Constitution specifically provides that “[o]ffenses, other than murder or treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable, when the proof is evident, or the presumption strong.” Ind. Const. art. 1, § 17.
This qualification was proper because murder is “the most serious charge that can be lodged by this state against an individual and carries with it the possibility of the imposition of a sentence of death, society’s harshest penalty,” Phillips,
We have also long-held that the burden is placed upon the defendant to show that either of those two separate and distinct circumstances exist—i.e., to show that in his murder case the proof is not evident, or the presumption not strong. Bozovichar,
In 1981, the General Assembly codified this case law into § 35-33-8-2, which states, “(a) Murder is not bailable when the proof is evident or the presumption strong. In all other cases, offenses are bailable, (b) A person charged with murder has the burden of proof that he should be admitted to bail.” Ind.Code § 35-33-8-2. Fry challenges subsection (b) of this statute, and, by extension, our prior case law.
He argues that the subsection is unconstitutional because “there is a constitutional presumption in favor of innocence and in favor the right to bail, while this statute removes those presumptions by placing the burden upon the person charged.” (Appellant’s Br. at 10-11.) In essence, he disagrees with the premise that there is an inherent presumption against a right to bail in murder or treason cases under Article 1, § 17. Instead, he argues, the provision’s second sentence simply states that murder and treason shall not be bailable when the proof is evident or the presumption strong—but it says nothing about who carries the burden of showing that to be the case. His view is that this burden should be on the State, just as it is to ultimately prove guilt beyond a reasonable doubt.
A. The Indiana Approach
A cold reading of the plain language of Article 1, § 17, shows that Fry is at least partly correct: the provision makes no allocation of the burden for either showing that the proof is evident or the presumption strong, or showing that it is not. That interpretation—and the resulting codification in § 35-33-8-2(b)—is almost purely a result of this Court’s cases.
In our country, the grand jury has an “ancient role” in “determining if there is probable cause to believe that a crime has been committed” and a related responsibility of “protecting citizens against unfounded criminal prosecutions.” Branzburg v. Hayes,
Because of this protective function, grand juries are afforded a special level of deference in our judicial process. Grand jurors are charged by oath and have broad statutory powers to investigate potential criminal conduct — either at their own direction or at the direction of the county prosecutor. Coons v. State,
But regardless of the great weight we gave to grand jury indictments, such indictments could not, standing alone, support a complete assignment of the burden of proof to the defendant. That determination, we believe, also originated in the second distinct feature of the cases: that our analysis was made in the context of habeas corpus proceedings in which the defendants had filed petitions seeking release from pre-trial detention. See Ex parte Richards,
Habeas corpus “is an ancient common law remedy for imprisonment without just cause, the origin of which is obscure by reason of its great antiquity.” State ex rel. Allen v. Fayette Cir. Ct.,
Although it is obvious that the habeas petitioner initiates the action, just who bears the burden of proof in the actual proceeding itself depends somewhat upon the nature of the claim being made. In some instances, the burden is on the responding party.
The Heffren Court either took this latter view and assigned the defendant the burden of proof from the outset as a habeas petitioner or, in light of the weight given to the grand jury indictment, impliedly found that the State carried the initial burden and that burden was satisfied by the indictment.
B. Treatment by Other States
Our constitutional qualification on the presumptive right to bail is not unique to Indiana. As far back as 1682, the Pennsylvania charter permitted bail for capital crimes except “where the proof is evident, or the presumption great.” Simpson v. Owens,
Some states have placed the burden of proving the exception on the State,
As the State says, those cases to which Fry points us tend to rely on two primary points: the presumption of innocence and the practicality of which party is better positioned to present evidence at this stage of the criminal proceeding. We explore the merits of those points in turn.
First, the cases highlight the link between the presumptive right to bail and the presumption of innocence — something our case law also emphasizes. See Simpson,
The State argues that the presumption of innocence is not the only factor at issue in bail decisions, which is quite correct. As we have said, the determination must primarily consider the likelihood that the accused will be present to stand trial and, in some instances, any potential danger to the community. In fact, as the State correctly continues, guilt or innocence is not a factor at all in the bail decision, which is why appellate courts avoid laying out the evidence in opinions reviewing pre-trial denial of bail. Doing so would risk improperly influencing a later trial and jeopardizing the presumption of innocence. Rather, the presumption against bail in a murder case is — as we said in Phillips — based on a presumptive likelihood that one accused of such a crime is unlikely to appear for trial no matter what the monetary consequences.
Nevertheless, we do not find the State’s arguments availing. For one thing, we read Article 1, § 17, to grant a right to bail for all offenses “other than murder or treason,” and those two crimes “shall not be bailable, when the proof is evident, or
Additionally, contrary to the State’s argument that guilt or innocence is not at issue in a bail hearing, those matters are very much at issue in a bail hearing where the defendant is accused of murder. In fact, the “proof’ and “presumption” that Article 1, § 17, refers to are the “proof’ and “presumption” of guilt. What the State is seeking — and what we acknowledge that we have always required — is for a criminal defendant accused of murder (and who is presumed innocent until found guilty beyond a reasonable doubt) to get bail only by carrying the burden of proving that he is probably not guilty. This flies in the face of “the principle that the presumption of innocence abides in the accused for all purposes while awaiting trial.” Arthur,
Second, in considering whether the State or defendant should carry the burden of proof in these matters, these cases tend to hold that “as a matter of convenience, fairness, and practicality, it is preferable that the state have the burden of coming forward when the accused seeks release on bail. Presumably the state is in a better position to present to the court the evidence upon which it intends to rely.” Id. at 720; cf. Simpson,
Let us see at what point the theory of the minority is stopped by logic, a decent regard for the rights of the accused, and the limitations upon the powers of mere human beings. The state avers that the accused is guilty of a charged crime. In all arguments for the claim that the indictment makes prima facie proof the major premise is that the grand jury would not indict if there were not evidence justifying indictment. It follows that the prosecution knows what and where the justifying evidence is. It certainly does seem more natural that the one who affirms guilt, and that there is evidence which makes the proof of guilt evident or the presumption thereof great, should, in the first instance, be held to point out what that evidence is, rather than that the accused, saying there is and should be no evidence, should go into the wide world in search of that which he says does not and should not exist; and this for the purpose of cross-examining and overthrowing it after he has gathered it.
Ford,
The State downplays this concern, saying that defendants have carried this burden in Indiana since 1866 and the process
Again, we find the State’s arguments unavailing. For one thing, “because that’s the way we’ve always done it” is a poor excuse — the merits of stare decisis notwithstanding — for continuing to do something wrong. But for another, the fact that some criminal defendants might benefit from a witness list or charging information, or not be indicted through a secret grand jury proceeding, does not mean that all criminal defendants will be so lucky. At the same time, it is axiomatic that in every case the State will have access to the evidence it uses to support its charge. And as Fry’s case in particular shows, the State suffers no undue burden in being required to go first at this stage — here it still achieved the result desired, as Fry was denied bail.
Also, one of the primary benefits of bail — to the defendant — is that it “permits the unhampered preparation of a defense.” Bozovichar,
By placing the burden on the defendant accused of murder or treason in a bail proceeding, we are in effect requiring him, while hampered by incarceration, to disprove the State’s case pre-trial in order to earn the right to be unhampered by incarceration as he prepares to disprove the State’s case at trial. There is no valid justification for such a backwards process.
Moreover, those cases also strongly call into question the reliance upon the grand jury indictment as prima facie evidence — a reliance that is a critical foundation to our jurisprudence on this issue. Grand jury proceedings are secret, with the grand jurors, witnesses, and anyone entering the room forbidden from disclosing the nature or substance of testimony, or decisions or results made during the proceeding. Ind. Code § 35—34—2-4(e),—2(i); cf. Konigsberg,
Exacerbating the matter, once an indictment is endorsed as a true bill we will not permit analysis of the evidence underlying the finding. We therefore have no way of knowing, from just the face of the indictment, whether it reflects merely a finding of probable cause that a crime was committed and the accused committed it or if there is actually the stronger level of proof so as to justify the denial of bail under Article 1, § 17.
We recognize that stare decisis “is a maxim of judicial restraint supported by compelling policy reasons of predictability that we should be ‘reluctant to disturb long-standing precedent,’ and ‘a rule which has been deliberately declared should not be disturbed by the same court absent urgent reasons and a clear manifestation of error.’” Snyder v. King,
Accordingly, today we hold that when a criminal defendant is charged with murder or treason, whether by indictment or information, the burden lies with the State to show that the “proof is evident, or
C. When is the “Proof Evident” or the “Presumption Strong? ”
In the past, we have required the accused to “introduce the evidence of witnesses indicated by the indictment, and he must also introduce such witnesses as the State indicates that it does rely on, or claims it relies on, but it cannot foreclose the inquiry by simply declaring as to any witness that it does not rely on his testimony.” Hedges,
As a starting point, it would be improper to simply relabel this burden as one of our more traditional evidentiary standards like probable cause, preponderance, clear and convincing, or beyond a
Thus, the standard is that the proof must be evident, or the presumption must be strong. We can, however, endeavor to provide some guidance by placing this standard somewhere on the proof spectrum, which is bounded generally at the low end by “reasonable suspicion” and at the high end by “beyond a reasonable doubt.” Whether it parallels one of our other traditional standards, or is something else entirely, is the matter which we now endeavor to resolve.
Clearly this standard requires something more than “probable cause,” or otherwise the exception of Article 1, § 17, would have no meaning. Probable cause is the minimum standard by which an arrest of an individual may be made — there is probable cause that a crime was committed and the defendant is the one who committed it. If this were to be the same standard by which a person arrested for murder is denied the right of bail, Article 1, § 17, would simply say “murder or treason are not bailable.” For this same reason, the State may not simply rest upon the indictment by a grand jury, or a prosecutor’s charging information. There must be something more.
Nor can this standard be as high as “beyond a reasonable doubt.” Despite the importance of the presumption of innocence, we think it apparent that this would present an insurmountable burden on the State because at this stage its evidence would not necessarily be fully coalesced or verified. Setting the bar this high, this early, would effectively require the State to wait to arrest a defendant until their entire case-in-chief was assembled and prepared. Additionally, providing the defendant the full protection of the “beyond a reasonable doubt” standard would necessarily require the evidentiary rules and Due Process requirements attached to a full trial. If that were the standard, we might as well hold the trial right then and there.
The answer, then, must lie somewhere in the middle. And while we note that in Indiana the primary consideration for a trial court in setting monetary bail
For example, a trial court may set bail in a manner calculated “to assure the physical safety of another person or the community,” but only if “the court finds by clear and convincing evidence that the de
So it is clear that in the bail arena, trial courts, defense counsel, and prosecutors are familiar with applying at least those two burdens. But to determine whether either of those — or something else — is appropriate in this particular context, we start by looking again to our sister states that have addressed this issue. Like Goldilocks in the home of the three bears, we search for a formulation that is not too low, and not too high, but instead is just right.
The New Jersey Supreme Court said that “bail should be denied when the circumstances disclosed indicate a fair likelihood that the defendant is in danger of a jury verdict of first degree murder.” Konigsberg,
In Haynes, the Oregon Supreme Court rejected the “fair likelihood” test, saying that formulation “illustrates the risk of the common temptation to explain one set of adjectives by a different one.” Id. at 636. In its view, “strong” and “evident” could be said “to demand more than ‘a fair likelihood.’ ” Id. (noting that “fair likelihood” language was considered for inclusion in revised bail statutes by Oregon’s legislature, but rejected as inconsistent with constitutional provision). “The likelihood of guilt must be more than ‘fair,’ it must be ‘strong,’ before release can be denied.” Id. More than that, it must “be guilt specifically of murder, not merely of some degree of culpable homicide.” Id. The Oregon Supreme Court specifically rejected the high standard of “beyond a reasonable doubt,” but said that the evidence must be at least “clear and convincing.” Id.
Like the Haynes court, we are skeptical of the “fair likelihood” test as being too low. The Oregon constitution is identical to our constitutional language in that the proof must be “evident” or the presumption “strong,” and we concur with the Oregon Supreme Court that these terms have a firmer tone than simply “fair.” Also, “fair likelihood” sounds very close to “fair probability,” which is a standard Indiana courts assign to the burden which must be shown before a warrant can be issued — in other words, it equates to probable cause. See, e.g., Kirk v. State,
The Rhode Island Supreme Court settled on a slightly different test, though also rejecting standards as low as probable cause and as high as beyond a reasonable doubt. Fountaine v. Mullen,
The Florida Supreme Court in Arthur used similar language when it said that “[t]he state’s burden, in order to foreclose bail as a matter of right, is to present some further evidence [in addition to the indictment or information] which, viewed in the light most favorable to the state, would be legally sufficient to sustain a jury verdict of guilty.” Arthur,
We think the Rhode Island test — and that used by the Florida Supreme Court in Arthur — is also too low. They are, in effect, asking the trial court to conduct a pre-trial sufficiency of the evidence hearing. Cf. Bailey v. State,
Finally, we look to the well-reasoned opinion from the Arizona Court of Appeals in Simpson. That court, just as we have done, noted that the case law broke down into three main categories: those requiring some variation of probable cause, including “fair likelihood,” those requiring some variation of clear and convincing, or clear and strong, and those requiring some variation of beyond a reasonable doubt. Simpson,
It rejected a direct correlation to a “clear and convincing” standard because that standard was expressly used in statutes permitting the denial of bail in other circumstances. Id. at 491. Instead, it looked more favorably on variations of language used in Texas and Utah, requiring a “substantial showing” or “substantial evidence” from the State. Id. at 491 (citing Ex parte Espinoza,
[T]hat the phrase “proof is evident, or presumption great” provides its own standard: The State’s burden is met if all of the evidence, fully considered by the court, makes it plain and clear to the understanding, and satisfactory and apparent to the well-guarded, dispassionate judgment of the court that the accused committed one of the offensesenumerated in A.R.S. § 13-3961(A). 25 In that case, bail must be denied. The proof must be substantial, but it need not rise to proof beyond a reasonable doubt.
Id. at 491.
The Arizona court’s articulation of its standard is helpful in some ways, but still not something we may easily adopt for Indiana. To begin, though their constitutional language varies slightly — requiring the presumption to be “great” rather than “strong” — that distinction is of no great concern. The two words are synonyms. But at the same time, we believe Arizona’s burden is too high. Specifically, we disagree with the notion that the standard presented by our constitutional language should be higher than clear and convincing — or even as high as clear and convincing at all.
In a murder or treason case in Indiana, the bail process is essentially three-fold. First, the trial court must determine whether the defendant may be let to bail at all. Pursuant to our conclusion in Part LB. of this opinion, that process is driven by the State’s presentation of evidence tending to show that the proof of the defendant’s guilt is evident, or the presumption of that guilt strong. If the State fails to meet this burden, the trial court must then determine the conditions — if any — of pre-trial release that are necessary to guarantee the defendant’s presence at trial or prevent harm to the community.
As we have said, in this second step a trial court may release the defendant on his own recognizance with or without conditions or requirements, and with no financial obligation whatsoever, if it wishes. However, the State may step in and show by only a preponderance of the evidence that the defendant poses either a flight risk or a threat to the physical safety of the community in order to impose monetary bail or other pre-trial release conditions reasonably aimed at ensuring the defendant’s appearance in court — but those conditions may be aimed at protecting the community only upon a showing of clear and convincing evidence that the defendant poses a danger to others.
We think it proper that the standards for the first and second steps are parallel. That is, the State must prove its case by a preponderance of the evidence. At the first step, it would essentially mean that the State must show that the defendant “more likely than not” committed the crime of murder (or treason). Such a showing, at such an early stage of the process, seems sufficient to justify the denial of bail given the severity of the proposed offense and the attendant consequences. After all, at that point the trial court — while not pre-judging the ultimate guilt or innocence of the defendant — can reasonably say “the defendant most likely did it.”
The inverse is also true. If the State cannot carry this burden at this stage, then the resulting finding is that — at that point — the evidence shows that the defendant more likely than not did not commit the crime. Again, it does not foreclose the possibility that the State will produce more and greater evidence in the course of its case in chief at trial and prove the defen
Moreover, in addition to placing the standard on equal footing as one with which trial judges and practitioners are already familiar, our result aligns well with the language of our Article 1, § 17: that the proof must be evident
As we have already made clear, this burden cannot be satisfied with the charging indictment or information alone. Rather, the State must also present competent evidence either upon which those charging documents relied or upon which the State intends to rely at trial. Additionally, the evidence cannot simply be statements by the prosecutor as to what the proof will — or might — be at trial. “A prosecutor’s assertions about evidence that he ‘feels’ he ‘may be able to introduce’ are not ‘proof.’ ” Haynes,
Finally, we caution that our opinion today should not be construed to modify— either to enhance or diminish — the due process protections we have always required at bail hearings. See Phillips,
II. Denial of Bail for Fry
These holdings do not end the matter, though, because in Fry’s case the trial court directed the State to proceed first and present its evidence showing that the proof was evident or the presumption strong. Seeking review of the ultimate outcome in that proceeding as well, Fry challenges the trial court’s subsequent order denying him bail.
In these sorts of cases it has always been our practice to avoid specific commentary on this issue, to avoid influencing the outcome of the trial with an elaborate presentation and public assessment of the evidence for and against the defendant. See Heffren,
Nevertheless, “it is the duty of the supreme court to weigh the evidence and determine its sufficiency to require that the petitioner should be admitted to bail.” Schmidt,
We have exercised our appellate duty here, reviewing the evidence presented by the parties before the trial court and considering their arguments and presented authorities. This review leads us to conclude that the trial court did not abuse his discretion in denying Fry bail.
We hold today that when a defendant charged with murder or treason seeks bail, the burden is on the State, if it seeks to deny bail, to show — by a preponderance of the evidence — that the proof is evident or the presumption strong. This change notwithstanding, we also affirm the trial court’s denial of Fry’s bail in this case.
RUSH, J., concurs.
Notes
. In certain instances, bail may be set with the goal of preventing physical harm to the community. See Ind.Code § 35-33-8-1; see also U.S. v. Salerno,
. There is no corresponding Federal “right to bail,” only the Eighth Amendment's prohibition against excessive bail. U.S. Const. amend. VIII. That means when the Government's aim is the prevention of the defendant's flight, “bail must be set by a court at a sum designed to ensure that goal, and no more.” Salerno,
. We acknowledge the State’s point that the citizens of Indiana have not undertaken to establish a different interpretation through an amendment to Article 1, § 17, and the General Assembly’s codification of our case law indicates a degree of legislative acquiescence. But at the same time, the State concedes that "Indiana Code Section 35-33-2-8 simply reit
. See, e.g., Hyatte v. Lopez,
. Lumm v. State,
. See, e.g., Hobbs v. Lindsey,
. See, e.g., Woodford v. Visciotti,
.Even at the time it was decided, the assigning of the burden to the defendant was a matter of some dispute. See Heffren,
Justice Massa's separate opinion notes that the majority members in Heffren were longstanding attorneys in the Indiana Bar and probably deeply involved in the drafting of the 1851 Constitution and therefore may know better than most what the intent behind Article 1, § 17, really was. But we note that Chief Justice Charles Ray, the lone dissenter, was no slouch himself — he is described in the same text as "an erudite man of letters who rubbed shoulders with the titans of the state's history and closed his lengthy career as a renowned legal scholar,” David J. Remondini, “Charles A. Ray,” in Justices of the Indiana Supreme Court 76 (Linda C. Gugin & James E. St. Clair eds., 2010).
. Fry was charged by information, which means the assessment of probable cause did not first go through the grand jury’s protective responsibilities.
. See Ala. Const. Art. I, § 16 (excepting capital crimes when "proof is evident or the presumption great”); Alt. Const. Art. 1, § 11 (excepting capital crimes when "proof is evident or the presumption great”); Ariz. Const. Art. 2, § 22 (excepting capital offenses, sexual assault, sex crimes where victim is less than fifteen years of age, felonies committed when on bail for a separate felony, felonies where offender poses a substantial risk to community, and certain serious felonies committed by illegal aliens, when "proof is evident or the presumption great”); Ark. Const. Art. 2, § 8 (excepting capital offenses when "proof is evident or the presumption great”); Calif. Const. Art. 1, § 12 (excepting capital crimes when "the facts are evident or the presumption great,” and violent felonies, sexual assaults, and felonies where offender poses a threat to others when "the facts are evident or the presumption great” and court finds "based on clear and convincing evidence” that there is a "substantial likelihood” that harm would result); Colo. Const. Art. 2, § 19 (excepting capital offenses and felonies placing public in significant peril "when proof is evident or presumption is great”); Conn. Const. Art. 1, § 8 (excepting capital offenses when "proof is evident or the presumption great”); Del. Const. Art. 1, § 12 (excepting capital offenses when "proof is positive or the presumption great”); Fla. Const. Art. 1, § 14 (excepting capital offenses or offenses punishable by life imprisonment when "proof of guilt is evident or the presumption is great”); Idaho Const. Art. I, § 6 (excepting capital offenses when "the proof is evident or the presumption great”); Ill. Const. Art. 1, § 9 (excepting capital offenses, offenses or offenses punishable by life imprisonment, and felonies in which release poses threat to community, when "proof is evident or the presumption great”); Iowa Const. Art. 1, § 12 (excepting capital offenses when "the proof is evident, or the presumption great”); Kan. Const. Bill of Rights, § 9 (excepting capital offenses when "the proof is evident or the presumption great”); Ky. Const. § 16 (excepting capital offenses when "proof is evident or the presumption great”); La. Const. Art. 1, § 18 (excepting capital offenses when "proof is evident and the presumption of guilt is great”); Me. Const. Art. 1, § 10 (excepting capital offenses "when the proof is evident or the presumption great”); Mich. Const. Art. I, § 15 (excepting certain habitual offenders, murder, treason, certain sexual offenses, and felonies
. See Ga.Code Ann. § 17-6-1 (unqualified right to bail only in most misdemeanor cases); Haw.Rev.Stat. § 804-3 (excepting "serious crimes” when there is "serious risk” that defendant will flee, obstruct justice, endanger the community, or engage in illegal activity); N.H.Rev.Stat. § 597:l-c (excepting offenses punishable by life imprisonment "where the proof is evident or the presumption great”); N.C. Gen.Stat. § 15A-533 (trial court has discretion to deny bail to defendant charged with capital offense); Va.Code Ann. § 19.2-120 (bail may be denied when probable cause exists that defendant will not appear for trial or poses risk to community).
. See Wis. Const. Art. 1, § 8 (permitting denial of bail for short periods of time for certain offenses; prior to 1982 amendment, provision excepted capital offenses from right to bail when "proof is evident or presumption great”)
. See, e.g., Simpson,
. See, e.g., Livingston v. State,
. In some analyses, a third track arose — one in which the indictment on a capital offense was conclusive on the question of whether the proof was evident or the presumption strong. That track of case law has since died out. Compare Konigsberg,
. We acknowledge that in Phillips we said that the seriousness of a murder charge raises the likelihood that no amount of money could persuade a criminal defendant to return to stand trial. See Phillips,
. And that evidence may be founded on hearsay, personal knowledge of the grand juror, or it might have no evidentiary foundation at all — it might even be the product of an illegal search or seizure. While there are valid reasons for these lower hurdles when the question is only whether to formally accuse an individual of criminal conduct, those reasons seem pale when the question is whether to strip the defendant of his personal liberty before he is convicted. See King v. State,
. For that matter, the State makes no argument as to why the alternative method of filing charges — the filing of an information-should carry the same weight. That is to say, Fry was not charged by a grand jury indictment, so why should he be faced with the rebuttable presumption that the proof in his case is evident, or the presumption of his guilt strong?
. Justice Massa’s dissent presents an historical analysis of Article 1, § 17 to support continuing the approach that “only those defendants who could show they were likely innocent — who could show the proof of guilt is not evident, nor the presumption strong— should be let to bail,” and he concludes by noting that "[w]hile my colleagues may disagree with that policy, it is what the framers intended and what the Constitution says, and we are bound to uphold it until such time as the citizens of Indiana see fit to amend it.” We note again that the text of Article 1, § 17 of the 1851 Indiana Constitution says nothing whatsoever about who bears this particular burden and thus there is nothing for the citizens of Indiana to amend. The determination of burden placement is a product purely of this Court's cases.
. Justice Rucker's alternative interpretation of section 35-33-8-2(b) follows our well-respected principle of constitutional avoidance, but it unfortunately runs afoul of the very constitutional provision at issue. Article 1, § 17 states that "Murder or treason shall not be bailable, when the proof is evident, or the presumption strong.” Ind. Const. art. 1, § 17 (emphasis added). Once the State showed the proof was evident, or the presumption strong, then our Constitution compels the process to stop. We cannot then follow his second step and allow the statutory provision to require the defendant to show that he should be admitted to bail. That defendant could not be constitutionally admitted to bail under any circumstances.
.The dissent raises concerns of "collateral consequences” resulting from this determination. But aside from a change in procedure we do not see this opinion's ramifications stretching far. Today we strike down a single subsection of the bail statutes having no interplay with the rest of the thirty-seven statutory provisions dealing with bail in this state. See Ind.Code 35-33-8, -8.5, -9. Any burden that might fall on the General Assembly to remedy this subsection, should it wish to, is as simple as incorporating the holding of this opinion into a new subsection (b).
Also, in the 2011 fiscal year for Indiana courts there were 244,733 criminal matters filed across the state with bail implications, encompassing everything from murder to misdemeanor. 2012 Indiana Judicial Service Report, Vol. 1: Judicial Year in Review 94 (2012). Of those, only 193 were murder cases — well below .01% of the total (and we could find none for treason). Id. While those particular numbers may ebb and flow from year to year, see id., one thing remains clear: without diminishing the severity or seriousness of those murder cases, the ultimate number of cases impacted by this opinion is small and the burden placed on the State low. And at least in one trial court, the one here, the State has shown that it can shoulder this burden quite well.
. To attain greater success at incentivizing appearance at trial, enhancing public safety, reducing costs of pre-trial custodial detention, and achieving greater economic equity and fairness in the availability of release from pretrial detention, there is growing interest and exploration of pre-trial release programs based on evidence-based practices as an alternative to monetary-based bail. See, e.g., Conference of State Court Administrators, 2012-2013 Policy Paper: Evidence-Based Pretrial Release (2012), available at http://cosca.ncsc. dni .us/WhitePapers/Evidence% 2 OB ased% 20Pre-Trial% 20Release% 20-Final.pdf. Our opinion today should not be read to limit the availability of such practices in Indiana.
. This burden, as we discuss in greater detail below, is too high.
. This does not, however, appear to be the standard followed in Florida courts. See Kirkland v. Fortune,
. Arizona Revised Statute § 13-3961(A), like Indiana Code § 35-33-8-2(a), codifies that state's constitutional provision permitting the denial of bail for certain offenses "if the proof is evident or the presumption great.”
. At the second step, it means the State must show that the defendant is "more likely than not” to be a flight risk. In that instance it also makes sense that the trial court does not simply release the defendant on his own recognizance.
. Again, at the second step this is equally logical. In this inverse, the State is asking a trial court to not release a defendant on his own recognizance even though the defendant is more likely to not be a flight risk.
. See, e.g., Webster’s II New College Dictionary 389 (1995) (“evident” defined as "[easily seen or understood”); Webster's New World Thesaurus 256 (1985) (synonyms for “evident” including "logical” and "reasonable”).
. "A presumption is valid in a criminal case when the fact presumed is more likely than not to flow from the fact on which the presumption is based.” Kindred v. State,
.This is another concern with using a grand jury indictment as prima facie satisfaction of this burden, as an indictment for murder necessarily includes indictments on the lesser-included offenses. See Lumm,
. Additionally, those involved took great pains to avoid poisoning the ultimate outcome of the case during this process. We recognize that they were blazing a new trail, but the record reflects that they all sought to do so in a way that was fair, thorough, and cooperative. For that we commend Judge Rick Maughmer, the Cass County Prosecutor Mr. Kevin Enyeart, and Loren Fry’s attorney, Mr. Jim Brugh.
. Both dissenting opinions agree on this result, but owing to this say that we should not have taken up the question of constitutionality at all. Rather, Loren Fry should have been denied bail regardless of the approach taken, and the dissent would leave the question of whether section 35 — 33—8—2(b) violates the constitutional presumption of innocence until we were faced with "a proper case.”
Most likely a "proper case” would be one in which our review of the evidence put forth by the defendant — because that would still be the law — would be a closer call, and the battle below had been won by the State. We agree
In any event, Loren Fry's case is here and we need not wait. By a 4-0 vote this Court accepted his direct appeal — which, by rule, was only proper because the constitutionality of a statute was called into question — and so it is wholly appropriate to address that issue regardless of any ultimate impact it has on Fry’s bail determination.
Concurrence Opinion
concurring.
I applaud the carefully researched and thoughtful separate opinions of Justices Rucker and Massa. But I find determinative the actual language of the Right to Bail Clause of the Indiana Constitution.
Offenses, other than murder or treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable, when the proof is evident or the presumption strong.
Ind. Const. art. 1, § 17. Put another way, this provision declares a general rule that criminal offenses are bailable, with one exception, for murder and treason, that arises upon satisfaction of a prerequisite— where “the proof is evident or the presumption strong.” When such prerequisite is satisfied, then the exception to the right to bail applies, and murder or treason “shall not be bailable.”
As expressed in the language of our Right to Bail Clause, it is the presence of one of the prerequisite factors (that “the proof is evident or the presumption strong”) not its absence, that must be shown to trigger the exception precluding bail for murder and treason. The Constitution’s text thus places upon the State, as the party seeking to prevent a murder or treason defendant from seeking bail, the burden of showing the existence of one of the prerequisite factors. Ensuing contrary opinions of this Court, or statutory attempts to codify such opinions, are contrary to the text of the Constitution and cannot prevail. For this reason, I concur with the majority.
The separate views of one or a few individual delegates do not necessarily establish the intentions of the majority of the delegates to the Constitutional Convention, and certainly not the understanding of the voters who ratified the Constitution. To ascertain the intentions of the majority of framers and ratifiers, the text of the Constitution remains the essential resource. When, as here, the text directly resolves the question, any contrary views of one or some of the delegates or contemporaneous jurists are irrelevant.
RUSH, J., joins.
Concurrence Opinion
concurring in result and dissenting.
I agree with the majority insofar as it affirms the trial court’s decision to deny Fry bail, but I dissent from the majority holding that Ind.Code § 35-33-8-2(b) is unconstitutional. While I agree with Justice Rucker and join in his dissent, I write separately to reaffirm and support this Court’s past precedent and its long-standing adherence to an originalist interpretation of our state constitution.
We often cite the intent of the framers of our founding documents as a guiding principle of our jurisprudence, see, e.g., Snyder v. King,
Before a vote was taken, Mr. Gibson of Clark County offered an amendment to “perfect” the original language of the 1816 Constitution. Id. at 1381. He proposed the words “capital offenses” be stricken and replaced with the words “murder and treason,” which change was adopted by consent. Id. Mr. Gibson then proceeded to explain why the change proposed by Mr. Thornton was unacceptable. He called it “one of the most startling innovations that had ever been introduced in our system ... that a man who was willing to pay a sufficient price might commit murder with impunity.” Id. All that man would have to do is “pay the price at which the bail was fixed and then he might quietly put up his goods and leave the country.” Id. Mr. Thornton defended his amendment, arguing all offenses should be bailable in order to “advance the cause of personal liberty.” He then asked for a vote,
The majority looks back to the first case in Indiana history to discuss the bail provision and determines it was wrongly decided. Ex parte Heffren,
While several cases discussed the standard trial courts should apply to determine whether a defendant should be let to bail in a murder case, see Ex parte Moore,
The language of the Constitution, the convention debates, and the judicial and legislative history all demonstrate the purpose behind the murder bail provision. The framers specifically excluded those charged with murder or treason from the possibility of bail in most cases because of the seriousness of those crimes. They feared that if a defendant were admitted to bail, he may flee rather than face a judge or jury. Thus, only those defendants who could show they were likely innocent — who
I respectfully dissent.
RUCKER, J., concurs in result.
. Both the majority opinion and the Chief Justice’s concurrence are quite reasonably grounded in a desire to honor and adhere to the presumption of innocence enshrined in our criminal justice system. I agree that "the principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States,
Dissenting Opinion
dissenting.
In one fell swoop, today the Court overrules nearly 150 years of precedent and declares a 30-year-old statute unconstitutional. Because I am not prepared to go that far, I respectfully dissent.
First, the Court need not address the constitutional issue at all. Whatever may be said of the statutory burden of proof, the trial court in this case imposed upon the State the burden of establishing that
As for the merits, I applaud Justice David’s scholarly research and in-depth analysis. But for ill or good, this State has charted a course different from that of some other jurisdictions. We have long held that in a murder case “the presumption is against the right to be admitted to bail, and the burden is on the [defendant] to show that the proof is not evident nor the presumption of his guilt strong.” Phillips v. State,
Essentially, the understanding that a defendant charged with murder has the burden of showing that he is entitled to be admitted to bail has been the accepted and settled law in this jurisdiction for several decades. The doctrine of stare decisis requires that we apply “a principle of law which has been firmly established.” Marsillett v. State,
In any event we need not overrule existing precedent or declare the bail statute unconstitutional in the journey to chart a different course. Instead, again if a proper case were before us, then I would be in favor of harmonizing the statute in a way to uphold its constitutionality, and in the process distinguish rather than overrule existing precedent. This can be accomplished in my view by continuing to read the statute as imposing on the defendant “the burden of proof that he should be admitted to bail.” Ind.Code § 35-33-8-2(b). But clarifying that this burden does not come into play until after the State first introduces evidence demonstrating “more likely than not,” op. at 448, that the proof of the defendant’s guilt is evident or the presumption of guilt strong. In essence, we would accomplish the same end
MASSA, J., concurs.