Wednesday, October 30, 2019

Pretrial release: the weight of the evidence


How exactly does the weight of the evidence of guilt influence a pretrial release decision? An interesting opinion from the District of Utah recently explored that question.

In United States v. Lizardi-Maldanado, 275 F.Supp.3d 1284, 1292 (D. Utah 2017), Judge Furst concluded that the weight of the evidence is relevant only to the extent that it demonstrates your client will be a danger to the community or a serious risk of flight. She explained that to “avoid falling down the rabbit-hole into the world of ‘[s]entence first—verdict afterwards’  the Court should consider the strength of the evidence only in terms of how that evidence bears on the risk of nonappearance and the risk of harm to the community.” Id. at 1272. And Judge Furst isn’t alone in this view. See, e.g., United States v. Hunt, 240 F.Supp.3d 128, 134 (D. D.C. 2017); United States v. Stone, 608 F.3d 939, 948 (6th Cir. 2010). To obtain detention, the government can’t just assert that the evidence of guilt is strong; it has to link that assertion to the ultimate questions of danger and flight.

---Kirk Redmond

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