The Baltimore Sun's recent article on a man charged, arrested and detained pending trial for a robbery that occurred while he was in jail on a different charge ("Man charged with street robbery that happened while he was in jail Aug. 14) highlights a serious and pervasive problem with the way pretrial release determinations are made in Maryland — namely that judges erroneously believe they are required to accept the prosecution's allegations as true for the purpose of determining whether to detain or release a defendant. The result has been fundamentally unfair pretrial release hearings and the unnecessary pretrial incarceration of countless people.

Here's why this matters. In most cases, the state must prove that the court needs to detain an arrestee or impose a bail or other restrictions on release in order to protect public safety or ensure that he or she shows up for trial. If the state does not carry this burden, the court is supposed to release the person.


At a typical pretrial release hearing, an affidavit filed by the arresting officer or a complaining witness — called a "statement of probable cause" or an "application for statement of charges" — is read into the record. The affidavit typically contains a narrative account of the accusations made against the arrestee. This affidavit is often the main evidence the state uses to attempt to establish that the defendant poses a threat to public safety that warrants detention or a high bail.

If a defense attorney points out that the accusations are internally inconsistent or implausible, argues that they are based on hearsay by unidentified witnesses whose reliability is unknown, or attempts to present evidence that contradicts or casts doubt upon the accusations — like the fact that the defendant was locked up when the robbery occurred — the judge often will respond that he or she is required to accept the prosecution's version of events as true for the purpose of the pretrial release determination, and that challenges to that version should wait until trial. The result is that judges find dangerousness and detain people or hold them on high bails based on accusations that the defense lacks any meaningful ability to challenge.

And here's the most disturbing part: Though invoked by judges and prosecutors for years, there is no statute, no court rule, no appellate opinion that requires or authorizes judges to assume the truth of the prosecution's version of events at pretrial release hearings.

To the contrary, the rule that governs such hearings requires the court to consider factors that include "the nature of the evidence against the defendant," "any information presented by the defendant or defendant's counsel" and "any other factor bearing on the risk of a willful failure to appear and the safety of the alleged victim, another person, or the community." Maryland's intermediate appellate court has made clear that the prosecution must prove by clear and convincing evidence that detention, bail or other restrictions on release are necessary to protect public safety before the court can impose them.

The notion that judges must accept the prosecution's version as true renders these important procedural protections meaningless. If the judge can simply take the state's accusations against the defendant at face value, it would make no sense to require a judge to consider the nature of the evidence against a defendant or information presented by the defense. Nor would there be any point in requiring the state to prove dangerousness by clear and convincing evidence, as the prosecution would merely need to accuse a person of committing a crime involving violent or reckless behavior, and the judge would assume the truth of the accusation.

More fundamentally, the view that a judge must assume the truth of the prosecution's accusations is inconsistent with fundamental American principles like the presumption of innocence and the right to remain free unless the government convinces a neutral court that detention is necessary. When judges take the position that they are bound by the prosecution's version of events, they fail to fulfill one of the most important functions of an impartial judiciary in a free society: ensuring that individuals are not deprived of liberty without due process of law.

As long as judges continue to maintain that they must accept the accusations against defendants as true at pretrial release hearings, defendants who might have been released after a fair hearing will instead be detained for weeks, months or years awaiting trial. It is long past time to abandon this grossly unfair and legally baseless practice.

Brian Saccenti is chief attorney of the Maryland Office of the Public Defender's Appellate Division. His email is bsaccenti@opd.state.md.us

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