A Quick Look at Bond Revocation Hearings
Most people have heard of bond or bail — in fact, most people can name the different types of bond such as cash, surety, personal recognizance, etc.
While bond is an amazing thing–it is a mechanism to keep you out of custody while your case is pending–it can be a fragile thing. It is a tool that the courts and prosecutors use as leverage if and when they decide to request a revocation of the bond for a reason we will discuss herein. We say leverage because when a defendant is put back in custody, they often are forced to resolve their cases more quickly in order to get out of custody.By revoking a bond through a hearing, the defendant is put back in custody (often without a bond), and they remain there until the case is over.
So, while many people may realize that bond is often available to most defendants to remain free, many are shocked to hear that bond can be revoked for a whole host of reasons — and, unfortunately, it isn’t too hard to do for the prosecutor’s office. Let’s take a look at a typical revocation hearing and the laws behind how they work.
When a defendant is on bond, Indiana Code allows for the state and/or court to request a revocation of bond under IC 35-33-8-5. That statute specifically states that upon a showing of “good cause,” the State (a.k.a. the prosecutor) can request an alteration and/or revocation of bond/bail. That request must be made in writing by way of a pleading and must be filed in the court where the matter is pending. Once that request is made, the court will typically set a hearing in relatively short order. The court can decide based on the request contained in the pleading whether or not the defendant can appear in due course, by summons, or by arrest warrant.
BURDEN OF PROOF:
So once the hearing is set and all parties are present, you might be wondering what the standard of proof is. Obviously, the burden is on the moving party (or one that filed the motion) to prove that an alteration/revocation is merited. However, what is not always so obvious to many, the standard of proof is not beyond a reasonable doubt. While the standard is not as low as a probation violation hearing (read about those here) requiring only a preponderance of the evidence (more likely than not), the standard is only slightly higher. It’s called “clear and convincing evidence.”
To read about the different standards of proof, click here.
While that standard is a bit harder for the prosecutor to meet, the statute also says that “credible hearsay” is allowed as evidence — something different than is typical in a criminal procedure. So, for example, the State can introduce labs, business documents, reports, etc., and many times without laying the proper foundation, authenticating the materials, and/or regardless of if they contain hearsay. In practice, judges rarely keep evidence out in these hearings so long as there is an indicia of reliability.
TYPES OF FACTORS THE COURT CAN CONSIDER:
There are two typical approaches to a request for an alteration/revocation of bond by a prosecutor:
One, they are looking to show the defendant is a flight risk based on factors set out in 4(b). Those are: (1) defendant’s ties to the community, (2) defendant’s employment history/status, (3) defendant’s family ties and support, (4) defendant’s character/reputation/habits/mental conditions, (5) defendant’s criminal history, (6) the nature and gravity of the pending offense, (7) defendant’s previous failure to appears, (8) the source of the defendant’s funds and/or property to ensure they return, (9) the defendant’s status in the country, and (10) any evidence that is relevant to show the defendant has distain for the system.
Secondly, the prosecutor will look to show by clear and convincing evidence that the defendant: (1) threatened a victim/witness/juror, (2) attempted to destroy or conceal evidence related to the pending matter, (3) violated a condition of their release, (4) failed to appear for a court proceeding, (5) committed a new offense that “demonstrates instability and a disdain for the court’s authority,” (6) threatened the victim and the prosecutor believes there to be merit in the threat and/or (7) the defendant is proven to be a risk to the physical safety of another person or the community.
REST OF THE HEARING:
After the state has laid out the facts they believe to be relevant and asks the court to modify, alter in some way, and or revoke the defendant’s bond, the defendant and defendant’s counsel have their opportunity to rebut the assertions made. This can be done by witnesses, challenging evidence, presenting additional evidence, etc. After that is done, the judge makes the ultimate determination of whether or not bond will be adjusted, if at all. The judge can also decide to add additional conditions of the defendant’s release instead of adjusting the bond.
As anyone can tell, these hearings are crucial. If the state is successful, the defendant often times ends up back behind bars and many times without bond. That’s why it’s important to hire a knowledgeable attorney who has handled these types of hearings before. A skilled and experienced defense attorney should have performed tens if not hundreds of these hearings — so be sure to do your homework prior to hiring an attorney. The experienced Indianapolis criminal defense lawyers at Banks & Brower have the experience you need to fight at these hearings. Give us a call today at 317.870.0019 or email us firstname.lastname@example.org.