[ Music. Image of the John Adams Courthouse with on screen text that says, "Judicial Independence in Massachusetts: Bail" ]
[On screen text that says "Introduction"]
[Justice David Lowy seated in a courtroom. On screen text that says "Hon. David Lowy, Justice, Supreme Judicial Court"]
Justice David Lowy: Hello. My name is David Lowy and I serve as a Justice on the Supreme Judicial Court. Today we are going to have a conversation about the law of bail in Massachusetts. We will talk about the purpose of setting or denying bail, what factors the judge may consider in making a bail decision. In the overwhelming majority of cases, the only purpose the judge may consider in setting bail is the defendant's risk of flight.
In other words, the purpose of bail is to make sure a person accused of a crime will return to court. There are certain types of cases, however, in which the prosecutor may request that the judge consider dangerousness that the defendant will pose to society if the defendant is released on bail.
Remember, whenever a person is charged with a crime, that person is presumed to be innocent. And every time a person is kept in prison before being found guilty, that person has lost his or her liberty even though the person is presumed innocent.
The judge is only allowed to consider a defendant's dangerousness in a limited number of crimes which the law allows dangerousness to be considered, and only if the prosecutor requests that the judge conduct what's called a dangerousness hearing.
A defendant may be kept in jail before trial based on dangerousness only if the judge finds, by clear and convincing evidence, no conditions of release will reasonably assure the safety of the community.
When the judge is limited to considering the defendant's risk of flight in setting bail, there are certain factors the judge may consider in making that decision, such as, how many times in the past has the defendant failed to appear in court to answer to criminal charges, how much time in prison might the defendant serve if the defendant is found guilty, how serious is the crime alleged and how strong is the government's case, what are the defendant's financial resources, and what is the defendant's criminal record.
There are many other factors the judge considers, but you get the point. The factors and the bail statute are there to guide the judge in determining what bail to set. The judge, when making a bail decision, is attempting to set an amount that will reasonably assure the defendant's appearance in court throughout the case, so the judge should not set, and the District Attorney should not ask, for a bail high enough to hold the defendant in custody; that misses the point.
There is a presumption that people charged with crimes, other than first degree murder, be released. Many times, they're not released because they cannot afford the bail the judge believes is necessary to assure the defendant's return to court. When a bail is set that the defendant cannot pay due to financial resources, the judge must explain his or her reasons for setting a bail beyond the amount the defendant can post.
So a person charged with a crime may be released on personal recognizance, meaning a promise to return.
The defendant may be held in custody because of the bail he or she cannot afford. The defendant may be held because he or she is dangerous. He or she may be released on pre-trial probation with certain strict conditions that he or she must abide by in order to remain at liberty.
The decision whether individuals charged with crimes and protected by the presumption of innocence should be held in a jail until their trial is completed is complicated and important.
You will have the opportunity to observe three different bail arguments. Pay careful attention to the lawyers and arguments, and then you be the judge.
[ Music. On screen text that says, "Produced by The Massachusetts Trial Court Public Outreach Committee & Suffolk University"]
[On screen text that says, "Executive Producers: Hon. Mark D. Mason & Brian J. McDermott. Director: Chris Dwyer. This production would not have been possible without the support of the Executive Office of the Trial Court. Paula M. Carey, Chief Justice, the Massachusetts Superior Court, the Massachusetts District Court, the Boston Municipal Court and the generous time of the Assistant District Attorneys, attorneys, probation officers, court officers, the Administrative Office of the District Court and the Administrative Office of the Housing Court staff members who appear. For general questions regarding bail in Massachusetts, please contact Catherine M. Coughlin, Esq., Massachusetts State Bail Administrator, (617) 788-7312. The characters and events depicted in this video are entirely fictitious. Any similarity to actual events or persons, living or dead, is purely coincidental."]