David, J.
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.
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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 I.B. 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.” [Footnote omitted.]
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 defendant’s guilt beyond a reasonable doubt. But at that early stage it certainly seems wrong to deny even the opportunity to bail when “the defendant most likely didn’t do it.” [Footnote omitted.]
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 [footnote omitted], or the presumption strong. [Footnote omitted.] Likewise, we think it makes sense that there be a higher standard at the third step—that is, to impose additional conditions on a defendant’s bail based on an alleged risk to the community. This is a function of bail not linked to its traditional purpose and it is thus reasonable for the General Assembly to require the greater showing of clear and convincing evidence.
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, 619 P.2d at 642. “The magistrate must be shown information at the hearing from which he can make his own independent determination whether there is admissible evidence against an accused that adds up to strong or evident proof of guilt.” Id. Furthermore, we also agree with the Oregon Supreme Court that the evidence presented by the State must show culpability of the actual capital crime for which bail may be wholly denied—i.e. murder or treason—and not simply implicate a lesser-included offense such as voluntary or involuntary manslaughter. [Footnote omitted.]
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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.
Dickson, C.J., and Rush, J., concur.
Dickson, C.J., concurring with separate opinion which Rush, J., joins:
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.
Massa, J., concurs in result and dissents with separate opinion, in which Rucker, J., concurs in result:
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.
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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 could show the proof of guilt was not evident nor the presumption strong—should be let to bail. [Footnote omitted.] While 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.
Rucker, J., dissents with separate opinion in which Massa, J., concurs:
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 Fry should be denied bail. And the trial court determined that the State carried its burden. The record supports the trial court’s judgment, which this Court correctly affirms. In my view that should be the end of the matter. We need not inquire any further.
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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,” slip op. at 26, that the proof of the defendant’s guilt is evident or the presumption of guilt strong. In essence, we would accomplish the same end result the majority reaches today, but without the collateral consequences.