39 Me LRev 391

DATE DOWNLOADED: Sat Sep 4 03:13:16 2021
SOURCE: Content Downloaded from HeinOnline
Citations:
Bluebook 21st ed.

Maureen Dea, The Denial of Bail under Maine's Proof Evident or Presumption Great
Standard, 39 ME. L. REV. 391 (1987).
ALWD 6th ed.

Dea, M. ., The denial of bail under maine's proof evident or presumption great
standard, 39(2) Me. L. Rev. 391 (1987).
APA 7th ed.

Dea, M. (1987). The denial of bail under maine's proof evident or presumption great
standard. Maine Law Review, 39(2), 391-442.
Chicago 17th ed.

Maureen Dea, "The Denial of Bail under Maine's Proof Evident or Presumption Great
Standard," Maine Law Review 39, no. 2 (1987): 391-442
McGill Guide 9th ed.

Maureen Dea, "The Denial of Bail under Maine's Proof Evident or Presumption Great
Standard" (1987) 39:2 Me L Rev 391.
AGLC 4th ed.

Maureen Dea, 'The Denial of Bail under Maine's Proof Evident or Presumption Great
Standard' (1987) 39(2) Maine Law Review 391.
MLA 8th ed.

Dea, Maureen. "The Denial of Bail under Maine's Proof Evident or Presumption Great
Standard." Maine Law Review, vol. 39, no. 2, 1987, p. 391-442. HeinOnline.
OSCOLA 4th ed.

Maureen Dea, 'The Denial of Bail under Maine's Proof Evident or Presumption Great
Standard' (1987) 39 Me L Rev 391
-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
THE DENIAL OF BAIL UNDER MAINE'S
"PROOF EVIDENT OR PRESUMPTION
GREAT" STANDARD
Maureen Dea*
I INTRODUCTION
When the framers of the Maine Constitution gathered in Portland

in the fall of 1819, they decided that the document, unlike the Mas-
sachusetts Constitution1 on which it was based, should guarantee a
right to bail2 pending trial. The convention adopted, apparently
without debate or dissent, 3 the following provision as part of the
* Associate, Smith & Elliott, Saco, Me. B.A., Notre Dame of Maryland; J.D., Uni-
versity of Maine School of Law.
1. The Massachusetts Constitution of 1780 did not guarantee a right to bail, al-
though it contained a prohibition against excessive bail. "No magistrate or court of
law, shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or
unusual Punishments." MASS. CONST., Declaration of Rights, art. XXVI. The Maine
Constitution also provided that "excessive bail shall not be required .. ... M. CoNsr.
art. I, § 9. That provision remains part of the Maine Constitution.
2. The word "bail" is derived from the French, either from the noun "bail," mean-
ing a guardian, keeper, or jailer, or from the verb "bailer," meaning "to deliver." A.
IGhHMORE, A DIGEST OF THE DOCTmINE OF BAIL v-vi (Garland Series facsimile ed.
1978) (originally published in 1783).
Historians believe the practice of bail has origins in Germanic tribal customs which
the Anglo-Saxons brought to England. E DE HASs. ANTIQUrrIES OF BAIL 1-29 (1966).
The earliest recordings of bail following the Norman conquest "are fragmentary....
The procedure entailed the actual transfer of the accused to those who would present
him again when the judicial machinery required his presence." Id. at 76-77.
Bail procedure in England was first outlined in the Statute of Westminster I, 3
Edw. 1, ch. 15. Id. at 57. The statute aimed to curb abuses by sheriffs who sometimes
extracted bribes to release people on bail or refused to release people on bail who
should have been released. The statute specified certain crimes that were irreplevisa-
ble, crimes for which the sheriffs could not release the accused, and those that were
replevisable, crimes for which the sheriffs must release the accused on sufficient sure-
ties without requiring additional payment. Duker, The Right to Bail: A Historical
Inquiry, 42 ALB. L REV. 33, 45-46 (1977). This statute, however, did not restrict the
powers of the higher justices or the king, who could release or refuse to release any-
one no matter the crime involved. Id. at 48-49. For other discussions of the historical
development of bail, see Lermack, The Law of Recognizances in ColonialPennsylvha-
nia, 50 TEMP. LQ. 475 (1977); Meyer, Constitutionality of PretrialDetention, 60
GEO. LJ. 1139 (1972).
3. Section 10 of article I, embodying the bail provision, "passed without amend-
ment," THE JOURNAL OF THE CONSTITUTIONAL CONVEariON OF THE DISTRICT OF MAINE
WITH THE ARTICLES OF SEPARATION AND GOVERNOR BROOKS' PROCLAMATION PREFIxED
46 (1819-1820) (1894) [hereinafter JOURNAL], and "without a division," TIHE DEBATES.
RESOLUTIONS, AND OTHER PROCEEDINGS, OF THE CONVENTION OF DELEGATES. ASSEMBLED
AT PORTLAND ON THE 11TH, AND CONTINUED UNTIL THE 29TH DAY OF OCTOBER, 1819.
FOR THE PURPOSE OF FORMING A CONSTITUTION FOR THE STATE OF MAINE 119 (Portland
1820) [hereinafter DEBATES]. Both the JOURNAL and DEBATES have been reprinted in
DEBATES AND JOURNAL OF THE CONSTITUTIONAL CONVENTION OF THE STATE OF MAINE
MAINE LAW REVIEW [Vol. 39:391
Declaration of Rights in article I:

Sect. 10 All persons, before conviction, shall be bailable, except
for capital offences, where the proof is evident or the
presumption great. And the privilege of the writ of
Habeas Corpus shall not be suspended, unless when in
cases of rebellion or invasion the public safety may re-
quire it.'
Voters of the new state overwhelmingly approved the proposed
constitution on December 6, 1819.' The bail guarantee in section 10
remained unchanged until 1838, when the Legislature's desire to
abolish the death penalty prompted it to recommend an amendment
to the constitution's bail provision so that people charged with
crimes formerly punishable by death would continue to be non-bail-
able.' The new article I, section 10 provides in part:
No person before conviction shall be bailable for any of the crimes
which now are, or have been denominated capital offenses since the
adoption of the Constitution, when the proof is evident or the pre-
sumption great, whatever the punishment of the crimes may be.
And the privilege of the writ of habeas corpus shall not be sus-
pended, unless when in cases of rebellion or invasion the public
safety may require it.7
Section 10, as amended in 1838, remains part of Maine's constitu-
tion today. In recent years, disparate groups have called for changes
in the bail guarantee provision. Some Mainers have proposed
amending section 10 to authorize preventive detention without the
possibility of bail for certain crimes that were never capital offenses.
Others have suggested that section 10 be rewritten to provide explic-
ity a right to bail for those accused of most crimes.8 This could be
1819-20 (1894). For a brief survey of the historical literature on the Maine Constitu-
tion, see Comment, The Primacy Method of State Constitutional Decisionmaking:
Interpreting the Maine Constitution, 38 MAINE L. REV. 491, 546 n.214 (1986).
4. Ms. CONST. art. I, § 10 (1819, amended 1838).
5. R. BANKS, MAINE BECOMES A STATE 182 (1970). The constitutional convention
reconvened on January 5, 1820 and officially recorded the vote: 9,040 in favor of the
proposed constitution and 797 against it (with 1,062 votes declared invalid). Id. at
182-83.
6. Resolves 1837, ch. 74. See also Report of the Joint Select Committee on the
Resolution to Amend the Constitution (1838) (available in Box 172, L Envelope 11,
Legislative Graveyard, Maine State Archives, Augusta, Me.).
7. ME CONsT. art. I, § 10.
8. In 1982, Governor Joseph Brennan appointed the Commission to Study the
Laws Relating to Bail in Criminal Cases, headed by Attorney General James Tierney.
The Committee included district attorneys and criminal defense lawyers. The Com-
mission issued its report in December 1983, recommending in addition to changes in
post-conviction bail procedures the following change in section 10:
Every person before adjudication shall have the right to reasonable bail or
other conditions of release, except when the offense charged is a serious
crime against the person and it is probable that conviction or adjudication
1987] DENIAL OF BAIL
done by readopting the language of the 1819 version of section 10,

that "[all persons, before conviction, shall be bailable . . . " The
112th Legislature, however, on the recommendation of its Judiciary
Committee, which had studied the issue for several years, decided in
1986 against changing section 10.9
This Article examines section 10 to highlight several major un-
resolved issues about the constitutional right to bail. Although sec-
tion 10 has been part of the constitution since Maine became a state
in 1820, the Maine Supreme Judicial Court did not construe the
provision until 1981 when it decided Fredette v. State.'0 In that
case, the court found that section 10 provides an absolute right to
bail to those accused of any crime, except crimes that once carried
the death penalty in the state. Furthermore, even those persons ac-
cused of once-capital crimes have a constitutional right to bail un-
less the proof is evident or the presumption great," If the proof is
evident or the presumption great, the defendant has no constitu-
tional right to bail; but even in such cases, judges may, in their dis-
2
cretion, release such defendants on bail.'
The Fredette court left some issues unresolved. First, it did not
decide who bears the burden of proving whether "the proof is evi-
dent" or the "presumption great." Maine judges faced with motions
for bail have developed their own answers, but their approaches
have not been uniform. While many judges, for example, believe the
for the offense charged will result and there is clear and convincing evi-
dence that no combination of bail or other release conditions will reasona-
bly minimize the substantial risk of non-appearance for court proceedings,
the commission of another such offense, or a threat to the integrity of the
judicial process.
REPORT OF THE GOVERNOR'S COMMISSION TO STUDY THE LAWs RELATING TO BAI. IN
CRmlwNAL CAsES 2 (Dec. 1983) (available in the University of Maine Law School Li-
brary). The Commission's proposed amendment was referred to the Judiciary Com-
mittee of the Legislature in the form of L.D. 2253 (111th Legis. 1984).
9. In 1986, the Legislature granted the Judiciary Committee's requested "Leave to
Withdraw" the two proposed constitutional amendments. Instead, the Committee
recommended, and the Legislature enacted, changes in the statute governing release
on bail after conviction, pending appeal. Telephone interview with Martha Freeman,
Senior Attorney in the Legislature's Office of Policy and Legal Analysis and Advisor
to the Judiciary Committee, Nov. 20, 1986. See ME. REV. STAT. ANm tit. 15, § 1701-B
(Supp. 1986-1987) (embodying state law for post-conviction bail).
The recent United States Supreme Court decision upholding federal pre-trial de-
tention based on the potential future dangerousness of the arrested person has rein-
vigorated the bail reform movement in Maine. See United States v. Salerno,107 S. Ct.
2095 (1987). Maine Attorney General Tierney has indicated that, as a result of the
Salerno decision, he will propose bail reform measures, including a constitutional
amendment, to the Legislature in January 1988. Maine Sunday Telegram, May 31,
1987, at 31A.
10. 428 A.2d 395 (Me. 1981).
11. Id. at 404-405.
12. Id. at 405.
state has the burden of proving that the proof is evident or the pre-
sumption great,13 at least one
1
superior court judge believes the de-
fendant bears that burden. 4
Second, the Fredette court did not decide what legal standard
should be applied in evaluating the evidence. A number of judges
evaluate the bail-hearing evidence by the same standard used in de-
ciding whether to grant a motion for acquittal, that is, whether a
reasonable jury could be convinced beyond a reasonable doubt of
the defendant's guilt. 5 If so, they consider the proof to be evident or
the presumption great. On the other hand, at least one judge applies
the preponderance of the evidence standard, 16 while another re-
quires the state to show only that there is probable cause to believe
the defendant committed the crime.17 These differences among
Maine judges reflect the variety of approaches adopted in other ju-
risdictions with similar constitutional provisions. Today, forty states
in addition to Maine have constitutional provisions similar to
Maine's article I, section 10.18
13. This information is based on responses to an informal survey of Maine Supe-

rior Court and Supreme Judicial Court justices conducted in the fall of 1986 for this
Article. See also State v. Thiboutot, No. CR-83-49 (Me. Super. Ct., Sag. Cty., Mar.
25, 1983); State v. Parker, No. CR-86-1579 (Me. Super. Ct., Cum. Cty., Oct. 24, 1986).
14. Superior Court Justice Alexander believes a defendant indicted for murder
has the burden of proof because, in his opinion, the indictment raises a rebuttable
presumption that the "proof is evident ... the presumption great." Telephone con-
versation with Justice Alexander (Fall, 1986).
15. Based on informal survey, supra note 13. Telephone conversation with Justice
Wernick (Nov. 1986). Justice Perkins believes the state must show a strong likelihood
of conviction. Telephone interview with Justice Perkins (Fall, 1986). Some judges,
including Justice Wernick, who wrote the Fredette opinion and is now an Active Re-
tired Justice of the Maine Supreme Judicial Court, believe the state should meet a
higher standard. In Justice Wernick's opinion, the defendant has a constitutional
right to bail unless the state shows a strong likelihood that the defendant will be
convicted of a once-capital crime. The Law Court is currently considering the appro-
priate burden of proof under article 1, section 10. The issue has reached the court on
an appeal of an order denying a writ of habeas corpus. Harnish v. State, No. SJC-86-3
(Dec. 29, 1986) (Wathen, J.). See infra note 266.
16. Superior Court Justice Chandler applies this standard, according to the infor-
mal survey, supra note 13.
17. Superior Court Justice Pierson applies this standard, according to informal
survey, supra note 13.
18. Constitutions that provide a right to bail for all but capital offenses when the
proof is evident or the presumption great, without expressly limiting the right to the
pre-conviction period are: ALASKA CONsT. art. I, § 11; Amuz. CoNST. art. II, § 22
(amended in 1970 and 1982 to deny the right to bail to certain defendants accused of
a felony while out on bail for other charges, or to defendants who pose a substantial
danger to the community and for whom no alternative conditions of release would
reasonably assure the community's safety, as long as the proof is evident, the pre-
sumption great); CAL. CoNsT. art. I, § 12 (amended in 1982 to deny the right to bail to
persons accused of a felony involving violence on another person if there is a substan-
tial danger of bodily harm to others and the proof is evident, the presumption great);
COLO. CONST. art. II, § 19 (amended in 1983 to allow preventive detention for some
In addition to considering who should have the burden of proof in
offenders accused of violent crimes); DEL CONsT. art. I, § 12; IDAHO CONST. art. I, § 6;
I.LCONST. art. II, § 9; KAN. CONST.Bill of Rights, § 9; Ky. CONsT. Bill of Rights § 16;
Mo. CONsT. art. I, § 20; MONT.CONsT. art. II, § 21; NEv.CoNsT. art. I, § 7 (amended in
1980 to allow preventive detention of those accused of murders punishable by life
imprisonment without possibility of parole when proof is evident); N.J. CoNsTr. art. I,
§ 11; N.M. CONST. art. II, § 13 (amended in 1980 to allow preventive detention of a
defendant accused of a felony who has already been convicted of two prior felonies
and of a defendant accused of a felony with a deadly weapon who has a prior felony
conviction); N.D. CONsT. art. I, § 11; OHIO CONsT. art. I, § 9; OKL. CONsT. art. I, § 8;
PA. CONST. art. I, § 14; S.D. CONST. art. VI, § 8; TENN. CoNS?. art. I, § 15; UTAH CONsr.
art. I, § 8 (amended to allow pre-trial detention of one accused of a felony while on
probation parole or while free on bail awaiting trial on a prior felony charge where
the proof is evident or the presumption is great regarding the current charge); WASH.
CONsT. art. I, § 20; WYO. CONsT. art. I, § 14.
Louisiana provides the same right to bail for those convicted of certain felonies
pending appeal. LA. CONsT. art. I, § 18. Rhode Island provides that "[aill persons
imprisoned ought to be bailed by sufficient surety, unless for offenses punishable by
death or by imprisonment for life, when the proof of guilt is evident or the presump-
tion great." RI CONsT. art. I, § 9.
Three states exclude those accused of treason, as well as murder, from the right to
bail when the proof is evident or the presumption great. IND. CONST.art. I, § 17; O.
CONST. art. I, § 14; NEB. CONST. art. I, § 9. In 1978, Nebraska amended its bail provi-
sion to negate a constitutional right to bail for those accused of "sexual offenses in-
volving penetration by force or against the will of the victim" when proof is evident
or the presumption great. The Eighth Circuit Court of Appeals subsequently held the
provision unconstitutional, as violating the "excessive bail" clause of the eighth
amendment of the United States Constitution. Hunt v. Roth, 648 F.2d 1148 (8th Cir.
1981). The court said the "fatal flaw in the Nebraska constitutional amendment is
that the state has created an irrebuttable presumption that every individual charged
with this particular offense is incapable of assuring his appearance by conditioning it
upon reasonable bail or is too dangerous to be granted release." Id. at 1164. Prior to
Hunt v. Roth, the Nebraska Supreme Court unanimously upheld the constitutionality
of the sexual offense amendment. Parker v. Roth, 202 Neb. 850, 278 N.W.2d 108, cert.
denied, 444 U.S. 920 (1979).
Other state constitutions provide for a right to bail before conviction for all persons
except those accused of capital offenses when the proof is evident, the presumption
great. FLA. CONsT. art. I, § 14 (amended in 1982 to allow pretrial detention for those
accused of crimes punishable by life imprisonment and other defendants when there
is a danger to the community, to the integrity of the judicial process, or a danger that
the defendant will not appear for trial and no reasonable conditions of bail to prevent
those occurrences.); ARK. CONST. art. II, § 8; CONN. CONST. art. 1, § 8; IowA CONs!. art.
I, § 12; MINN. CONsT. art. I, § 7; MISs. CONsT. art. III, § 29. Vermont provides a right
to bail for "all prisoners, unless in execution, or committed for capital offences, when
the proof is evident or presumption great ...." VT.CONST. ch. II, § 40.
Texas provides a right to bail for all prisoners, except for those charged with capi-
tal offenses when the proof is evident, and allows pre-trial detention for those accused
of felonies with two prior felony convictions if there is substantial evidence of guilt.
TFx CONsT. art. I, § 11, 11-a. South Carolina provides a constitutional right to bail
before conviction, but allows denial of bail to those accused of "capital offenses or
offenses punishable by life imprisonment, giving due weight to the evidence and to
the nature and circumstances of the event." S.C. CONST. art. I, § 5. Wisconsin in 1982
revised its constitution. As now written it provides that all persons before conviction
shall be eligible for release under reasonable conditions but authorizes the legislature
bail hearings and what should be the proper legal standard for eval-
uating the evidence, this Article discusses the meaning of "bailable"
in section 10 as determined by the Fredette court, and what crimes
are included in the phrase "which now are or have been denomi-
nated capital offenses since the adoption of the Constitution."
II. STATUS OF THE RIGHT TO BAIL IN MAINE
A. HistoricalBackground
1. Adoption of Article I, Section 10.
On October 11, 1819, 274 men representing communities through-
out the District of Maine convened in Portland to draft a constitu-
tion for the new state.' William King of Bath, who would become
Maine's first governor, was elected president of the convention, and
quickly appointed a committee of thirty three to do the initial draft-
ing.20 Lawyer and politician John Holmes2 of Alfred chaired the
committee.
The task was not as overwhelming as it might have been, because
leaders of the movement to separate the District of Maine from
Massachusetts had been formulating ideas for a constitution for
some time. Two years earlier, King had solicited suggestions from
political thinkers around the country, including Thomas Jefferson
and James Madison. Before the Portland convention, King had sug-
gested that the drafters begin on a clean slate, rather than base their
work on the Massachusetts Constitution. Other separationist lead-
to enact statutes allowing, but not requiring, circuit courts to deny release for a lim-
ited period to those accused of murder punishable by life imprisonment, a sexual
assault, or felonies involving bodily harm. WIs. CONsT. art. I, § 8.
The Michigan Constitution provides a right to bail prior to conviction for all people
except, when the proof is evident or the presumption great, those accused of violent
felonies with two prior felony convictions within the past 15 years; those accused of
murder; those accused of certain major crimes unless the court finds the defendant is
not likely to flee or present a danger to anyone; and those accused of a violent crime
while awaiting trial for another violent crime or while on probation or parole as the
result of a prior conviction for a violent felony. MICH. CONsT. art. I, § 15.
Utah provides a right to bail to all persons except those accused of a capital offense
or those accused of a felony while on probation, parole, or released on bail for another
felony where the proof is evident or the presumption strong. UTAH CONST. art. I, § 8.
19. R. BANKS, supra note 5, at 150. At least 37 of the delegates were lawyers, many
of whom were professional politicians. Id. at 151.
20. See JOURNAL, supra note 3, at 22, 24, 26.
21. Holmes had served in the Massachusetts Senate and as a Massachusetts rep-
resentative to Congress. R. BANKS, supra note 5, at 71-72. In 1818, he represented
Dartmouth College before the United States Supreme Court, arguing against Daniel
Webster. While Webster's argument brought him fame, Holmes by most accounts did
poorly. One observer is quoted as saying, "Holmes went up like a rocket and down
like a stick." R. BANKS, supra note 5, at 72. Webster wrote to a friend that "upon the
whole [Holmes] gave us three hours of the merest stuff that was ever uttered in a
county court." Id.
1987l DENIAL OF BAIL
ers, however, prevailed in their view that the convention, for lack of
time, should use the Massachusetts Constitution as its blueprint, de-
22
viating from that document where necessary
The drafting committee worked quickly and by October 14 had
completed work on the preamble and article I, the Declaration of
Rights. King ordered 500 copies of the proposals printed for the del-
egates to study over the weekend, and on the following Monday the
full convention began working its way through them. At Holmes's
suggestion, the delegates eliminated the words "Great Legislator of
the Universe," a phrase in the Massachusetts Constitution, from the
proposed preamble. They substituted "Sovereign Ruler of the Uni-
verse." By the end of the day, the convention had agreed on a pre-
amble and the first two sections of the Declaration of Rights.2
The following day, the convention heatedly debated section 3, the
freedom of religion provision. Some argued that it should contain a
statement that all men "have an absolute duty" to worship God, as
did the Massachusetts Constitution. Holmes, vehemently opposed to
such language, argued that "to make it a duty to exercise such a
' 24
right is preposterous. The delegates eventually killed that propo-
sal and rejected another that would have given the Legislature the
power to support religious establishments. 2' The delegates, after
some discussion, agreed to the fourth section providing that in all
indictments for libels "the Jury, after having received the direction
of the Court, shall have a right to determine, at their discretion, the
law and the fact." The convention then enacted the fifth and sixth
sections, which include the right to be free from unreasonable
searches and seizures and, for criminal defendants, the right to jury
trials, representation by counsel, and the privilege against self-
26
incrimination.
The delegates next turned their attention to section 7 of the Dec-
laration of Rights, mandating that no one would be charged with
capital or infamous crimes except by grand jury presentment or in-
dictment (military offenses excluded). Judge George Thacher, Sr., a
delegate from Biddeford and an associate justice of the Massachu-
setts Supreme Judicial Court, asked why the proposal did not re-
quire grand jury consideration of all criminal charges. Holmes re-
sponded by noting that the Massachusetts Constitution did not
require grand jury consideration of any criminal charges.27 "But it
22. Id. at 153.

23. DEBATES, supra note 3, at 69-92.
24. Id. at 94-100. It should be noted that Jeremiah Perley, who attended the con-
vention as an observer and recorded the DEBATES, "submitted his notes to King, who
revised or corrected them" before publication. P. BANKs, supra note 5, at 394-95 n.3.
25. DEBATES, supra note 3, at 97-114. George Thacher, Sr., spoke in favor of the
proposal to allow the Legislature to support religious establishments.
26. Id. at 109, 115-18.
27. Id. at 118.
seemed highly necessary that capital and infamous offenses should

be investigated by a grand jury," Holmes reportedly told the dele-
gates. "There are other minor crimes which it is not so important
should undergo this investigation." The delegates, noting that some
infamous crimes, such as petty larceny, had always been handled by
magistrates, added wording to exempt those crimes 28
from the grand
jury requirement and then approved the section.
Then the delegates, overwhelmingly and apparently without de-
bate, approved section 10, the right-to-bail provision, as drafted by
the committee. According to the official record of the convention,
which does not include any of the debates, "[s]ections eighth, ninth
and tenth, passed without amendment. '29 In an account that in-
cluded convention debates, the reference to section 10 merely stated:
"The 7th section then passed without a division; as did the 8th, 9th
and 10th sections." 30 Section 9 also dealt with bail, providing,
'31
among
other rights, that "excessive bail shall not be required.
After completing its work on October 29, 1819, the convention
published an eight-page pamphlet to explain the highlights of the
proposed constitution to Maine voters, who were to decide its fate in
December.3 2 The pamphlet explained that the document was based
on the Massachusetts Constitution, "deviating in those cases only,
where the experiences of this and of other States in the Union
seemed to justify and require it." The pamphlet discussed some of
those deviations, such as the elimination of a religious requirement
to hold public office and the allowance of truth as a defense in libel
cases involving public men. Yet, although the Massachusetts Consti-
tution did not include a right to bail, the pamphlet made no men-
tion of the new right in Maine's proposed constitution. In conclud-
ing the pamphlet, the authors wrote:
Such are the principal provisions in the Constitution submitted to
you by your delegates, which embrace the material variances from
the Constitution under which you have so long and happily lived.
We say principal provisions, because there are others, believed to
be wholesome and salutary, which however are not deemed 2of3 suffi-
cient importance to be particularly noticed in this address.
The delegates' failure to debate section 10, and the decision not to
explain it in the pamphlet, are not as surprising as they might ap-
pear. Although the Massachusetts Constitution did not guarantee a
right to bail, Massachusetts statutory and decisional law had, from
28. Id. at 118-19.

29. JOURNAL, supra note 3, at 46.
30. DEBATES, supra note 3, at 119.
31. ME. CONST. art. I, § 9.
32. AN ADDRESS TO THE PEOPLE OF MAINE FROM THE CONVENTION OF DELEGATES
ASSEMBLED AT PORTLAND (1819), reprinted in JOURNAL, supra note 3, at 105.
33. Id. at 8.
colonial times, provided a right to bail for all criminal defendants

before conviction, except those charged with capital crimes and con-
tempts in open court 2 4 The rationale in England and the colonies
34. The Body of Liberties of the Massachusetts Colonie of 1641 contained the
first statutory right to bail in the colonies. Meyer, supra note 2, at 1162. The bail
provision provided:
No mans person shall be restrained or imprisoned by any Authority what-
soever, before the law hath sentenced him thereto, if he can put in suffi-
cient securitie, bayle or mainprise, for his appearance, and good behaviour
in the meane time, unlesse it be in Crimes Capital and Contempts in open
Court, and in such cases where some expresse act of Court... doth allow it.
Id. at n.132 (quoting THE COLONIAL LAWS OF MASSACHUSETrS § 18, at 37 (W. Whit-
more ed. 1889)). The court in Commonwealth v. Baker, 343 Mass. 162, 177 N.E.2d
783 (1961), discussed the history of bail in Massachusetts and concluded: "From early
colonial times bail appears to have been allowable in the court's discretion in capital
cases and contempts committed in open court, and as a matter of right in all other
cases." Id. at 165, 177 N.E.2d at 785.
Only the Supreme Judicial Court, and the judges thereof, could grant bail in capi-
tal cases. See Act of March 16, 1785, ch. 72, 1784 Mass. Acts 178, 180 ("[Njothing in
this act contained shall be construed to hinder or restrain the said Supreme Judicial
Court... or any one or more Judges thereof ... from bailing any person wherever
and for whatever offence committed .... "), noted in Commonwealth v. Baker, 343
Mass. at 166, 177 N.E.2d at 785.
Maine Superior Court Justice Silsby believes district court judges and bail commis-
sioners in Maine today have no authority to set bail for murder defendants under Ma.
REv. STAT. ANN. tit. 15, § 942 (1980 & Supp. 1986-1987); or under ME. Rm. STAT. AN.
tit. 14, §§ 5542, 5544 (1980 & Supp. 1986-1987). State v. Trott, No. CR-78-40 (Me.
Super. Ct., Cure. Cty., Apr. 7, 1978). ME. Rav. STAT. ANN. tit. 14, § 5544 (1980 &
Supp. 1986-1987) authorizes bail commissioners to set bail for those accused of minor
"bailable" crimes. ME. REV. STAT. ANN. tit. 15, § 942 (1980 & Supp. 1986-1987) pro-
vides, in pertinent part:
Any person charged with an offense, other than an offense punishable by
life imprisonment, shall at his appearance before a judge of the District
Court, or bail commissioner, be ordered released pending trial on his per-
sonal recognizance or on execution of an unsecured bond which shall be in
writing signed by the person on forms approved by the Chief Judge of the
District Court, unless the judge or bail commissioner determines in the ex-
ercise of his discretion that the release will not reasonably assure the ap-
pearance of the person as required. The official having custody of the ac-
cused shall promptly notify a judge or bail commissioner. The judge or bail
commissioner shall interview the accused prior to making his determination
as to release on personal recognizance or bond. In making that determina-
tion, he shall, on the basis of an interview with the accused and other relia-
ble information which can be obtained, take into account the following
factors:
A. The nature and circumstances of the offense charged;
B. The accused's family ties in the State of Maine;
C. The accused's length of residence in the community,
D. Employment of the accused in the State of Maine;
E. Any previous flight by the accused to avoid arrest or prosecution for
this or any prior alleged offense;
F. Any previous unexcused failure to appear as required to answer prior
criminal charges;
G. The accused's financial ability to give bail;
for denying a right to bail to those accused of capital crimes was the
belief that defendants facing the death penalty had a strong motiva-
tion for fleeing before trial, no matter how much bail they would
forfeit by doing So. 35 Although they had no right to bail, defendants
charged with capital crimes or contempts apparently could be bailed
H. The accused's record of convictions;

I. The fact that the offense is alleged to have been committed while the
person charged was on probation or parole from a previous sentence as a
reason for requiring more stringent bail; and
J. The fact that such offense is alleged to have been committed while the
person charged was released under this section pending further court pro-
ceedings for the alleged commission of another felony offense as a reason
for requiring more stringent bail.
The judge or bail commissioner shall inform the accused of the penalties
provided by subsection 4 if he should fail without just cause to appear
before any court or judicial officer as required.
Id. (emphasis added). Murder is the only crime punishable by life imprisonment in
Maine today. According to Justice Silsby, only Superior and Supreme Judicial Court
judges may set pre-trial bail for murder defendants. See State v. Trott, No. CR-78-40,
at 4-5. See also ME. REV. STAT. ANN. tit. 14, § 5540 (1980 & Supp. 1986-1987). Section
5540 provides:
Nothing in this chapter shall restrain the Supreme Judicial Court or the
Superior Court in term time, or any justice thereof in vacation, from bailing
a person for any offense when the circumstances of the case require it;
except persons committed by the Governor and Council, Senate or House of
Representatives for causes mentioned in the Constitution.
Id. (emphasis added). But see ME. REV. STAT. ANN. tit. 15, § 814 (Supp. 1986-1987)
which provides:
A Judge of the District Court or Justice of the Supreme Judicial or Supe-
rior Courts or bail commissioner, before making a determination as to
whether or not to admit a person accused of murder or a Class A, Class B,
or Class C crime to bail, shall afford the attorney for the State or a law
enforcement officer familiar with the charges to present any information
relevant to bail considerations.
On its face, this language could be read as allowing district court judges and bail
commissioners to set bail for murder defendants as well as those accused of Class A,
B, or C crimes.
35. As Blackstone explained: "For what is there that a man may not be induced to
forfeit to save his own life? and what satisfaction or indemnity is it to the public to
seize the effects of them who have bailed a murderer, if the murderer himself be
suffered to escape with impunity?" 4 W. BLACKSTONE, COMMENTARIES, *297. In their
1836 opinion regarding the proposed amendment to article 1, section 10, the Justices
of the Maine Supreme Judicial Court stated:
The object of bail, in criminal cases before conviction, is, to secure the ap-
pearance of the party charged, before the competent tribunal for trial. If
the charge be for an offence, punishable with death, and the proof is evi-
dent or the presumption great, this object can be effected by nothing short
of close and safe custody. To allow bail therefore in such cases, is to afford
to the accused facilities for eluding public justice, of which they could not
fail to avail themselves.
Opinion of the Justices (Me. 1836) (Opinion to the 16th Maine Legislature) (This
opinion does not appear in the Maine Reports. It is available at the Maine State
Archives, Augusta, Me.).
at the discretion of the Massachusetts supreme court justices.3 This

was the Massachusetts bail scheme in effect in 1820 when Maine
separated from Massachusetts and became a state.3 7 Massachusetts
laws developed from English common law. England, however, never
guaranteed an absolute right to release on bail before trial-" Some
American colonies adopted statutes establishing an absolute right to
bail in non-capital crimes.3 9 In addition, the federal Judiciary Act of
178940 mandated that bail be set for defendants accused of any non-
capital crime. In addition, the Judiciary Act provided that judges
could set bail for those charged with capital crimes, although such
defendants had no right to bail. Judges using their discretionary
power in capital cases were required under the Judiciary Act to con-
sider "the nature and circumstances of the offence and of the evi-
1'
dence and the usages of law.'
Maine's constitutional bail guarantee, however, differed in one
major respect from the federal Judiciary Act and Massachusetts bail
laws. Section 10 distinguished between two types of capital crime
cases, providing that defendants accused of capital crimes were not
"bailable" only if "the proof is evident or the presumption great."
The federal Judiciary Act and Massachusetts statutes made no such
distinction but merely provided that defendants accused of capital
crimes had no right to bail.
The distinction in Maine's section 10 between capital crimes
where the proof is evident or the presumption great and those where
it is not, did not originate with the Portland delegates. Pennsylva-
nia, 2 Connecticut,"3 Vermont," and North Carolina' already had
36. "From early colonial times bail appears to have been allowable in the court's
discretion in capital cases and contempts committed in open court, and as a matter of
right in all other cases." Commonwealth v. Baker, 343 Mass. 162, 165, 177 N.E.2d
783, 785 (1961).
37. Fredette v. State, 428 A.2d 395, 401 (Me. 1981).
38. "As far as an absolute right to release on bail before trial is concerned, such a
right has never been recognized in England.... [U]nder the Statute of Westminster I
no right to release on bail existed for any major crimes. In those cases, bail could not
be allowed by any sheriff and-later-justice of the peace but only by the King or the
justices of the High Court in their discretion. With respect to lesser crimes, there was
a right to be bailed by the justices of the peace, but the King and those delegated by
him could always make a person nonbailable in a particular case. Subsequently, the
absolute powers of the king passed to Parliament." Meyer, supra note 2, at 1177.
39. See Duker, supra note 2, at 77-83; Lermack, supra note 2, at 493-99; Meyer,
supra note 2, at 1178.
40. See infra text accompanying note 125.
41. See infra text accompanying note 125.
42. "That all prisoners shall be bailable by sufficient sureties, unless for capital
offences, when the proof is evident or the presumption great... . ."PA.CoNsr. of 1790,
art. IX, § 14.
43. "All prisoners shall, before conviction, be bailable by sufficient sureties, except
for capital offences, where the proof is evident, or the presumption great ... " Co..
CON5T. of 1818, art. I, § 14.
constitutions that divided capital crimes in the same way. The bail
guarantees in the Pennsylvania constitutions of 1776 and 17900
were taken almost verbatim from the Pennsylvania Charter of Lib-
erty of 1682, which provided: "That all prisoners shall be bailable by
sufficient sureties, unless for capital offences, where the proof is evi-
dent, or the presumption great. ' 47 Also, a mere two years before
Maine's constitution took effect, Connecticut residents approved a
state constitution that provided, in article I, section 14: "All prison-
ers shall, before conviction, be bailable by sufficient sureties, except
for capital offences, where the proof is evident, or the presumption
great .... 48
2. Amendment of Article I, Section 10 in 1838.

Article I, section 10, adopted with little fanfare, remained as origi-
nally written until 1838 when Maine citizens amended it to its cur-
rent form. The seeds of change took root in 1836, when the Legisla-
ture was considering abolishing capital punishment, which by that
time attached only to treason, murder, and arson. 49 Lawmakers,
worried about the effect of such a change on the bail guarantee,
asked the justices of the Supreme Judicial Court whether elimina-
tion of the death penalty would result in all crimes becoming "baila-
ble" under section 10.50 The justices answered in the affirmative:
We are not aware that capital punishment, as understood by Ju-
rists, or in the common acception of the term, has ever had any
other meaning, than the taking of human life, in the regular ad-
ministration of Justice, by the appointment of law, for the commis-
sion of crimes, for which the infliction is prescribed ....
[If] the legislature should abolish the punishment of death,

the crime of murder, which is now a capital offense, would cease to
be such; and being no longer capital, it would ...before conviction,
become a bailable offense by the constitution."
44. "And all prisoners, unless in execution, or committed for capital offences,
when the proof is evident or presumption great, shall be bailable by sufficient sureties
.... VT. CONST. of 1793, ch. 2, § 33.
45. "All prisoners shall be bailable by sufficient sureties, unless for capital of-
fences, when the proof is evident, or the presumption great." N.C. CONST. of 1776, §
39.
46. PA. CONST. of 1776, § 28; PA. CONST. of 1790, art. IX, § 14.
47. The Pennsylvania Charter of Liberty of 1682, § 11 (of Laws Agreed Upon in
England).
48. CONN. CONST. of 1818, art. I, § 14.
49. See supra note 6 and accompanying text.
50. See Resolves 1837, ch. 74.
51. Opinion of the Justices (Me. 1836) (this opinion, issued to the 16th Maine
Legislature, does not appear in the Maine Reports, but is available at the Maine
State Archives, Augusta, Me.).
The Legislature, to avoid that result, passed a resolve on March

30, 1837 proposing a constitutional amendment that was later to be
adopted:
WHEREAS the Judges of the Supreme Judicial Court have given it
as their opinion, in answer to a question propounded to them by
the Legislature, that if the punishment of death should be abol-
ished by the Legislature the crimes of Treason, Murder and Arson,
would become bailable offences by the Constitution, in conse-
quence of the phrase "capital offences" being construed to mean
those offences only which are punishable with death; AND WHEREAS
the crimes of Rape, Robbery with intent to kill and Burglary which
were punishable by the Statute laws with death prior to their re-
peal by an Act approved.., in [1829] are now by this construction
bailable offences; Therefore;
RESOLVED by the Senate and House of Representatives in Legis-
lature assembled, That the tenth section of Article first of the Con-
stitution shall be so altered and amended as to read, That no per-
son before conviction shall be bailable for any of the crimes which
now are, or have been denominated capital offences since the adop-
tion of the Constitution "when the proof is evident, or the pre-
sumption
52
is great" whatever the punishment of the crimes may
be.
3. Superior Court Interpretations of Article I, Section 10 Prior

to Fredette v. State.
Although the wording of section 10 has remained unchanged since
the 1838 amendment, the Maine Supreme Judicial Court did not
construe it until 1981 in Fredette v. State. " In the decade before
Fredette, however, several superior court cases had raised major is-
sues concerning the constitutional provision and its application to
murder defendants."
For many years, Maine judges routinely refused to set bail for any
murder defendant awaiting trial.55 On the other hand, judges auto-
52. Resolves 1837, ch. 74.

53. 428 A.2d 395 (Me. 1981).
54. See, e.g., State v. Nichols, No. CR-73-679 (Me. Super. Ct., Cum. Cry., Aug. 23,
1973) (Justice Harry Glassman denied murder defendant's application for bail after
finding the proof is evident); State v. Lewisohn, No. CR-74-930 (Me. Super. CL, Cum.
Cty., July 1, 1974) (Justice Goffam denied murder defendant's bail application);
Lewisohn v. State, No. AD-5065 (Me. App. Div. July 9, 1974) (murder defendant's
application for writ of habeas corpus denied); State v. Alexander, No. SJC-5621 (Me.
Sup. Jud. Ct., July 30, 1980) (Wernick, J.) (refusing to order Superior Court Justice
Alexander to reverse his decision setting bail for murder defendant even though there
was proof evident or presumption great).
55. See State's Supplementary Brief, Apps. A, C, Fredette v. State, 428 A.2d 395
(Me. 1981). The state surveyed court records in Kennebec, Cumberland, Androscog-
gin, and Penobscot Counties for certain periods between 1887 and 1929 (Appendix
A). The state studied only Kennebec County criminal docket entries for certain years
matically set pre-trial bail for defendants accused of all other

crimes,"8 even though five other offenses were at one time capital
crimes in Maine (treason, rape, arson, burglary; and robbery).7 Al-
though all these offenses might fall within the bail exception of arti-
cle I, section 10 if the proof were evident or the presumption groat,
Superior Court Justice Silsby wrote in State v. Trott: "[T]he tradi-
tion and practice in Maine for a great many years has been to con-
strue the six offenses, except murder as not coming within the non-
bailable provision of section 10, and indeed the Legislature has so
construeds it. Such legislative construction has presumptive
'
weight." "
No court explained the rationale for automatically denying bail in
murder cases. Most judges, prosecutors, and defense attorneys seem
to have believed, prior to Fredette, that section 10 mandated that
defendants accused of murder be held without bail when the proof
was evident or the presumption great, that is, that judges had no
discretionary authority to release such defendants on bail. For ex-
ample, Justice Silsby wrote:
At common law and during our colonial period bail in any case
was a matter of judicial discretion. The Maine Constitution guar-
anteed bail originally in Article I, Section 10. When Section 10 was
amended the express guarantee was taken out and the present Sec-
tion 10 substituted, which is a straight forward statement that "no
person . . . shall be bailable ... when the proof is evident or the
presumption great.. . ." It is not a discretionary standard. It is not
an exception to anything in the constitution. If, in a murder case,
the proof is evident and the presumption great-no bail.5 9
Furthermore, Maine judges, prosecutors, and defense attorneys
may also have believed that the murder indictment itself established
"proof evident" or "presumption great," and, therefore, that judges
must deny bail automatically once a defendant had been indicted. 0
between 1930 and 1965 (Appendix C).

Deputy Attorney General LaRochelle and Maine Supreme Judicial Court Justice
Wernick also verified, in telephone interviews for this Article in October 1986, that
bail was routinely denied for murder defendants until 20 or 25 years ago.
56. See ME.REV. STAT. ANN. tit. 15, § 942 (1980 & Supp. 1986) (authorizing bail
procedures for offenses not punishable by life-imprisonment).
57. State v. Trott, No. CR-78-40, at 2 (Me. Super. Ct., Was. Cty., Apr. 7, 1978).
58. See id. at 3 (citation omitted).
59. Id. (citation omitted).
60. See, e.g., State v. Trott, No. CR-78-40 (Me. Super. Ct., Was. Cty., Apr. 7,
1978). See also State v. Caouette, No. CR-81-371 (Me. Super. Ct., And. Cty., Dec. 7,
1981). In Caouette, then Superior Court Justice Scolnik set bail for two murder de-
fendants based on his discretionary authority to do so as decided in Fredette.Justice
Scolnik had previously refused to set bail for the two defendants after finding the
proof was evident. In deciding to set bail, he explained that the Fredette decision
"dispelled the broadly accepted notion that the court was without discretion to grant
bail if the 'proof is evident or the presumption great.'" Id. at 2.
The only guidance on the right to bail provided by the Maine

Rules of Criminal Procedure, as adopted in 1965, was Rule 46(a): "A
defendant shall be admitted to bail before conviction and may be
admitted to bail after conviction and pending appeal in accordance
with the constitution and statutes of this State." "
State v. Nichols6 2 appears to be the first written superior court
decision construing the application of section 10 to murder defend-
ants. The defendant, who was being held pending trial,"3 argued that
article I, section 10 of the Maine Constitution no longer had any
application in Maine since capital punishment had been abolished."
Therefore, even murder defendants had a constitutional right to be
admitted to bail. Although the language of section 10 could be con-
strued as applying to any crimes that had ever carried the death
penalty in Maine, Nichols argued that such an interpretation would
result in the "ludicrous" conclusion that other crimes, such as bur-
glary, were not bailable offenses if the proof were evident or the pre-
sumption great.6 5 If the offenses were non-bailable the defendants
could not be released on bail under the widespread belief, before
Fredette, that judges had no discretionary authority if there was
proof evident or presumption great. Nichols argued:
[Tihe result of such a construction is not only would murder never
be a bailable offense in the future, but neither would arson, rape,
robbery with intent to kill, or burglary be offenses for which an
accused has the right to baiL All these crimes were "capital of-
fenses" in the pertinent time periods referred to in the amend-
ment. It seems ludicrous that burglary is not a bailable offense
where the presumption of guilt is great or the proof is evident.
Therefore, it would be a more reasonable construction that since
61. 3 H. GLASSmAN, MmNE PRAcTicE. RULEs OF CIMINAL PROCEDURE ANNorATED

404 (1967). The late Harry P. Glassman, who became a superior court judge and then
Associate Justice of the Supreme Judicial Court, was the reporter for the Advisory
Committee on the Rules of Criminal Procedure and the author of Maine Criminal
Practice.In the Reporter's Notes to Rule 46(a), Justice Glassman wrote that it was
"similar to the corresponding Federal Rule. This provision does not seem to substan-
tially change Maine practice." Id. Subsequently, Rule 46 was rewritten several time.
Today it refers only to bail before verdict, while a new Rule 46A governs post-convic-
tion bail. Rule 46(a) today states: "A defendant shall be released before verdict or
finding of guilt in accordance with the Constitution and statutes of this State." M.R.
Cium P. 46(a).
As a superior court judge, Justice Glassman issued what appears to be the first
written opinion discussing the burden of proof and legal standard to be used in deter-
mining if the proof is evident and the presumption great. State v. Nichols, No. CR-
73-679 (Me. Super. Ct., Cur. Cty., Aug. 23, 1973).
62. No. CR-73-679 (Me. Super. CL, Cur. Cty., Aug. 23, 1973).
63. Id.
64. Defendant's Memorandum of Law, State v. Nichols, No. CR-73-679 (Me.
Super. Ct., Cum. Cty, Aug. 23, 1973).
65. Id. at 2.
murder is not now a capital offense, and was not denominated a

capital offense after the adoption of the Constitution (it being cap-
ital at common law), it is presently a bailable offense.00
Therefore, Nichols maintained,
67
she had the "unquestionable right to
be admitted to bail.
In addition, Nichols continued, even if section 10 were still appli-
cable to murder, she would have a right to bail because neither the
proof was evident nor the presumption great that she had murdered
her daughter.6 Noting that the Maine Law Court had never con-
strued section 10,69 Nichols argued that the state, rather than the
defendant, had the burden of proving that the proof was evident or
the presumption great because, in order to deny bail, the state must
rebut "the unquestionable legal principle that one accused of a
crime.., is presumed to be innocent until proven guilty. '70 In addi-
tion, Nichols argued, the state was trying to show an exception to
the general rule that defendants are bailable prior to trial and,
under the ordinary evidentiary rules, the party trying to show the
exception must bear the burden of proof.7 1 Finally, Nichols argued,
the state had the burden of proving that Nichols should not be
bailed because the American legal system dislikes imposing sanc-
tions before trial, and it favors giving defendants the maximum op-
portunity to prepare their defense prior to trial.7 2 Nichols also main-
tained that the state must produce more proof than the indictment
alone to meet its burden, since the indictment is "a product of an
accusatorial ex parte proceeding. 7 3 Noting that other jurisdictions
had adopted a variety of legal standards for evaluating the evidence
in bail cases, Nichols urged the court to require the state to produce
evidence that the court is satisfied "would entitle a jury to find be-
yond a reasonable doubt all of the essential elements of the crime of
' 74
murder.
In opposing bail for Nichols, the state argued that it was obvious
from the 1837 resolve of the Maine House of Representatives that
the Legislature intended that all crimes that had been subject to
capital punishment since Maine became a state would remain non-
bailable offenses within the meaning of section 10 even if capital
punishment were abolished.7 5 The state acknowledged that it had
66. Id. at 3 (emphasis in the original).

67. Id.
68. Id. at 5.
69. Id. at 1.
70. Id. at 3.
71. Id. at 4.
72. Id.
73. Id.
74. Id.
75. Memorandum of Law in Opposition to Motion for Bail at 3, State v. Nichols,
No. CR-73-679 (Me. Super. Ct., Cum. Cty., Aug. 23, 1973).
19871 DENIAL OF BAIL
stipulated at the oral hearing on Nichols's bail that the state had
the burden of proof, so "further discussion of it is irrelevant for pur-
poses of this case."'76 The state noted, however, that "the question of
who has the burden of proof on this issue is far from resolved.'" As
to the legal standard, the state appeared to agree with the
defendant:
[T]he State feels that it must produce such evidence as will satisfy
the court that a jury would be entitled to find beyond a reasonable
doubt, that the defendant is guilty of the crime of homicide pun-
ishable as murder. The quantum of proof necessary to do this must
be analogous to the quantum necessary for the State to avoid a
directed verdict at trial. That is, not proof beyond a reasonable
doubt in and of itself, but such evidence as would enable a jury to
find beyond a reasonable doubt that the defendant is guilty of the
crime charged. In other words, the State does not have to prove
that the factfinder will find guilt, or that the evidence amounts to
guilt, but rather, that the evidence would permit the finding of
guilt by the factfinder. In making such a consideration, the use of
terms such as "evidence beyond a reasonable doubt" and "prepon-
derance of the evidence" become relatively useless. In making such
a determination the judge is not considering the ultimate fact to be
determined, i.e. guilt or innocence, but rather is considering
whether the quantity of proof will permit the finding of that fact
by the factfinder. Thus it is probably impossible to set down a
guideline as to the quantum of proof necessary for the judge to
make this determination. It must, of necessity, remain one of7 8those
areas which we have entrusted to sound, judicial discretion.
The state did not discuss whether it had met its burden of proof in
the Nichols case, nor did it address Nichols's argument as to the
non-bailability of once-capital crimes other than murder.
In his opinion, Justice Glassman rejected Nichols's argument that
section 10 no longer had any applicability in Maine because capital
punishment had been abolished. Rather, the legislative history of
section 10 as amended "reveals quite clearly that the intent behind
the amendment was to limit the circumstances under which bail
would be permitted when a defendant was charged with an offense
which was at any time since the adoption of the Maine Constitution
a 'capital offense.' ,,7" This language indicates that Justice Glassman,
like many other judges prior to Fredette, believed that judges did
not have the discretion to set bail for defendants accused of murder
76. Id.
77. Id. (citing Annotation, Upon Whom Rests the Burden of Proof, Where Bail Is
Sought Before Judgment but After Indictment in Capital Case, As to Whether
Proof is Evident or the Presumption Great, 89 A.LR.2d 355 (1963)).
78. Id. at 3-4 (emphasis in the original).
79. State v. Nichols, No. CR-73-679, at 2 (Me. Super. CL, Cum. Cty., Aug. 23.
1973).
if the proof was evident or the presumption great. Justice Glassman

concluded that the state has the burden of persuasion on the issue
of whether the proof is evident or the presumption great.80 His only
explanation for this allocation of the burden was that "it is apparent
from the language of the constitutional provision."8 1 As to the legal
standard to be applied in evaluating the evidence, Justice Glassman
adopted the standard used for a motion for acquittal, that is,
"whether a reasonable jury could be convinced beyond a reasonable
doubt of the defendant's guilt of the offense charged. ' 82 He ex-
plained, "Although some jurisdictions have applied a stricter stan-
dard before denying bail, this court is of the opinion that the appli-
cation of a more strict standard of proof would render the
constitutional provision meaningless. '83 At the bail hearing, Justice
Glassman reviewed a transcript of the grand jury proceedings that
led to Nichols's indictment, medical reports, and other evidence that
the state had developed in its case against Nichols. He also reviewed
the transcript of testimony at Nichols's trial for the crime.8 4 After
reviewing the evidence, Justice Glassman denied the defendant's
motion to be admitted to bail, saying he could not have granted a
motion for judgment of acquittal based on the evidence "and that,
therefore, in the words of the Constitution 'The proof is evident.' ,8
The Nichols case prompted other murder defendants to assert a
right to bail under section 10 rather than to assume, as most had in
the past, that bail would be denied automatically. 8 For example, in
June 1974, James E. Lewisohn, a nationally known poet and profes-
sor at the University of Maine, was arrested in connection with the
murder of his wife and imprisoned at the Cumberland County jail in
Portland. 7 After his indictment for murder, Lewisohn moved that
he be admitted to bail.8 8 The state and defense presented their evi-
dence through oral arguments at a closed hearing. 9 In his decision
denying bail, 0 Justice Goffam stated that the state had met its bur-
den of showing the proof was evident or the presumption great
under the same legal standard used in considering a motion for
80. Id.
81. Id.
82. Id. at 3.
83. Id.
84. Id. at 3-4.
85. Id. at 4.
86. Telephone interview with Deputy Attorney General LaRochelle (Oct., 1985).
(Mr. LaRochelle is the head of the Criminal Division of the Maine Department of
Attorney General).
87. See Petition for Writ of Habeas Corpus, Lewisohn v. State, No. SJC-5065
(Me. Sup. Jud. Ct., July 1, 1974).
88. State v. Lewisohn, No. CR-74-930 (Me. Super. Ct. Cum. Cty., July 1, 1974).
89. Id. at 1.
90. Id.
judgment of acquittal.9' Justice Goffam did not state why he so allo-

cated the burden of proof or adopted that legal standard. He said:
This decision in no way is an indication of ultimate guilt or inno-
cence. The evidence brought forward by the State is such that this
court would not grant a motion for judgment of acquittal under
these circumstances and, therefore, the words of the Constitution
"the proof is evident" has [sic] been satisfied. 2
Lewisohn then filed a petition for a writ of habeas corpus with the
Supreme Judicial Court.9 3 In his petition, Lewisohn argued that he
was bailable within the meaning of section 10 since the state failed
to show that the proof of the charge was evident or the presumption
great. Furthermore, Lewisohn argued, Maine judges apply section 10
to deny bail only to murder defendants, "which is an unreasonable
classification bearing no proper relation to the valid state interest in
setting and regulating bail."" This discriminatory application of
section 10, he argued, violated the equal protection clause of the
fourteenth amendment. Finally, Lewisohn argued that section 10 on
its face violates the eighth and fourteenth amendments of the
United States Constitution, which mandate that excessive bail not
be set. Justice Wernick rejected these arguments, noting that he
need not decide if the superior court, in concluding that the proof
was evident or the presumption great, must find merely that there
was sufficient evidence against Lewisohn to present the case to a
jury, or whether the superior court was required to determine that
Lewisohn was likely to be convicted of the crime charged.05 Under
either standard, Justice Wernick concluded, "the decision of the jus-
tice of the Superior Court was well within the bounds of
rationality." 98
In January 1975, another murder defendant, Truman Dongo, ap-
plied to the Supreme Judicial Court for a writ of habeas corpus on
the ground that he was being deprived of his right to bail. At the
hearing on that petition,97 the court stated that an indictment by a
grand jury was not sufficient alone to justify denying bail to murder
defendants. Rather, the state must present sufficient evidence to
show probable cause that the defendant committed the crime, evi-
dence which the defendant could attempt to rebut. 8 A murder de-
91. Id. at 1-2.

92. Id. at 2.
93. Petition for Writ of Habeas Corpus, Lewisohn v. State, No. SJC-5065 (July 1.
1974).
94. Id.
95. Lewisohn v. State, No. SJC-5065 (July 8, 1974) (Wernick, J.).
96. Id. at 2.
97. Transcript of Testimony and Proceedings, Dongo v. State, Hearing on Appli-
cation for Writ of Habeas Corpus (Jan. 6-7, 1975) (Wernick, J., presiding).
98. Id. at 5-6.
fendant is only "bailable" under section 10, the court said, if the
state fails to present evidence of probable cause, or if "there is no
rational possibility that the case could go to the jury in terms of
felonious homicide punishable as murder... ."99 Once the state has
produced sufficient evidence of probable cause, then the defendant
must carry the ultimate burden of proof that "there is no rational
basis on which a jury could find defendant guilty of felonious homi-
cide punishable as murder."100 After reviewing the evidence, the
court concluded that the state had "a basis for making the charge
against Mr. Dongo," and was not making the charge with "oppres-
siveness or persecution toward him."' 01 Therefore, Mr. Dongo was
"not eligible for bail under the constitutional provision he has
invoked."'' 2
In 1978, Justice Silsby granted an imprisoned defendant's motion
for a hearing to set bail pending trial 0 3 and held that the state had
the burden of proof. Although he noted the diverse approaches
taken in other jurisdictions on this issue, Justice Silsby said, "The
best opinions put the burden on the State to show 'the proof is evi-
dent or the presumption great.' ,o104 The basic rule in Maine and in
other states is:
[B]efore conviction every defendant is entitled to bail and not in
an excessive amount, unless the constitution otherwise directs. The
only exception to the general rule in Maine is the provision in Arti-
cle I, Section 10. If the State of Maine wants a defendant held
before trial without bail, then the State must carry the burden of
proof.105
But, unlike Justice Glassman, Justice Silsby did not adopt the
judgment-of-acquittal standard. Rather, he held, just as the Con-
99. Id. at 5.
100. Id. at 6. Justice Wernick was later to take a much stronger stand in favor of
the rights of defendants to bail in such cases. He now believes that unless the state
proves a strong likelihood that the defendant will be convicted of murder, the defend-
ant has a constitutional right to bail under section 10. Telephone interview with Jus-
tice Wernick, Active Retired Justice of the Maine Supreme Judicial Court (Nov.,
1986). Justice Wernick explained that prior to researching the issues in Fredette v.
State, he did not believe article I, section 10 as amended in 1838 gave defendants a
right to bail even absent proof evident or presumption great. Rather, he believed
judges had discretion as to whether to set bail in such cases. At the time, Justice
Wernick also believed defendants could not be released on bail if the proof was evi-
dent, or the presumption great. Id.
101. Transcript of Testimony and Proceeding at 265, Dongo v. State, Hearing on
Application for Writ of Habeas Corpus (Jan. 6-7, 1975) (Wernick, J., presiding).
102. Id. at 266. The court also rejected Dongo's claim that denial of bail in his
case violated the equal protection clause of the fourteenth amendment of the U.S.
Constitution. Id. at 266-67.
103. State v. Trott, No. CR-78-40 (Me. Super. Ct., Was. Cty., Apr. 7, 1978).
104. Id. at 3.
105. Id. at 4.
198'7] DENIAL OF BAIL
necticut 0 5 and New Jersey 07 courts had held, that "'bail should be
denied when the circumstances disclosed indicate a fair likelihood
that the defendant is in danger of a jury verdict of first degree
murder.' "10s
As these cases indicate, and as a number of judges have said, there
was a widespread belief among judges, prosecutors, and defense at-
torneys that judges had no authority to set bail for murder defend-
ants if they found the proof was evident or the presumption great. 100
In other words, they interpreted "not bailable" under section 10 as
meaning not able to be bailed. In 1980, however, Superior Court
Justice Alexander challenged that assumption when he set bail for a
Brunswick woman accused of murder, even though he found the
proof was evident. 110
Linda Anaya was arrested on April 10, 1980 on a charge that she
murdered Frank Williams, Jr. A district court judge ordered her
held in Cumberland County jail without bail pending a probable-
cause hearing. Following a finding of probable cause on April 17,
1980, another district court judge ordered her held without bail in
Cumberland County jail. On April 24, 1980, Anaya filed a petition
for a review of the refusal of bail order, which was heard by Superior
Court Justice McCarthy."" Justice McCarthy11 2
subsequently denied
Anaya's motion to be admitted to bail.
On May 6, 1980, a Cumberland County grand jury indicted Anaya
for murder. She was arraigned two days later before Superior Court
Justice Alexander and pled not guilty and not guilty by reason of
106. State v. Menillo, 159 Conn. 264, 270, 268 A.2d 667, 670 (1970).
107. State v. Konigsberg, 33 N.J. 367, 377, 164 A.2d 740, 745 (1960).
108. State v. Trott, No. CR-78-40, at 4 (Me. Super. CL, Was. Cty., Apr. 7, 1978)
(quoting State v. Konigsberg, 33 N.J. at 377, 164 A.2d at 745; State v. Menillo, 159
Conn. at 270, 268 A.2d at 670). Today, Justice Silsby believes the state must prove a
strong likelihood that the defendant will be convicted of the crime charged. Tele-
phone interview with Justice Silsby (Fall, 1986).
109. See supra text accompanying note 59.
110. See Transcript of Hearing on State's Motion for Reconsideration of Bail Or-
der at 16-18, State v. Anaya, No. CR-80-559 (Me. Super. CL, Cum. Cty., May 12,
1980).
In 1981, a Cumberland County jury found Ms. Anaya guilty of manslaughter, but
the Law Court ordered a new trial after finding that the trial judge erroneously ex-
cluded "battered wife" syndrome evidence. At her second trial in Cumberland
County, Ms. Anaya was again found guilty of manslaughter and sentenced to three
years at the Maine Correctional Center.
111. For a discussion of the procedural background of this case see Complaint (In
the Nature of Mandamus), State v. Alexander, No. SJC-5621 (Me. Sup. Jud. CL,
June 4, 1980).
112. Order Denying Bail, State v. Anaya, No. CR-80-566 (Me. Super. CL, Cum.
Cty., Apr. 28, 1980). Justice McCarthy denied bail because the state had "satisfied
this court that the facts adduced by the state through a transcribed record of the
bindover hearing warrant the conclusion that if believed by a jury they furnish a
reasonable basis for a verdict of guilty of murder." Id. at 1-2.
insanity. At the arraignment Justice Alexander ordered bail set at

$25,000 double surety with a special condition that Anaya report in
person to the Brunswick District Court Probation Department twice
a week." 3 After Anaya made bail, the state requested Justice Alex-
ander to reconsider his bail order. Justice Alexander held the hear-
ing and reaffirmed his decision setting bail.1 4 Based on his review of
the transcript of the prior bail hearing, Justice Alexander found the
proof was evident, the presumption great; but Justice Alexander also
found that Anaya was a good bail risk and concluded he had discre-
tion to grant bail under the Maine Constitution, the eighth amend-
ment of the United States Constitution, and Rule 46 of the Maine
Rules of Criminal Procedure." 5 He therefore denied the state's re-
quest for reconsideration and continued bail for Anaya. Justice Al-
exander told the prosecutor:
I admit that this is an open point of law. I think it's a matter which
might be useful [sic] appealed to get the matter clarified. In my
view I have authority to grant bail. I'm doing so. It might be well to
take the appropriate action to get this clarified if you116desire to do
that .... I would not be embarrassed by an appeal.
Subsequently the state brought a mandamus action in the Maine
Supreme Judicial Court against Justice Alexander in his capacity as
a justice of the superior court." 7 The state maintained that Justice
Alexander had violated the mandate of article I, section 10 by set-
ting bail for a murder defendant after finding that the proof was
evident or the presumption great. According to the state, section 10
"expressly prohibits bail under such circumstances."' "8 The com-
plaint asked Justice Wernick, who was assigned to the case, to order
Justice Alexander to rescind his bail order and to order Anaya re-
turned to the Cumberland County jail pending trial." 9
The state argued that "the plain language" of article I, section 10
mandated that once Justice Alexander found that the proof was evi-
dent or the presumption was great that Anaya committed murder
the judge did not have the discretion to set bail but was required to
remand her to the custody of appropriate state officials. 20 In the
alternative, the state argued that, even if Justice Alexander had dis-
113. See Complaint (In the Nature of Mandamus), State v. Alexander, No. SJC-
5621, at 3-4 (Me. Sup. Jud. Ct., June 4, 1980).
114. Transcript of Hearing on State's Motion for Reconsideration of Bail Order at
18, State v. Anaya, No. CR-80-559 (Me. Super. Ct., Cum. Cty., May 12, 1980).
115. Id. at 16-18.
116. Id. at 18.
117. Complaint (In the Nature of Mandamus), State v. Alexander, No. SJC-5621
(Me. Sup. Jud. Ct., June 4,1980).
118. Id. at 6.
119. Id. at 6-7.
120. Plaintiff's Memorandum of Law at 7, State v. Alexander, No. SJC-5621 (Me.
Sup. Jud. Ct., June 30, 1980).
cretion to set bail in this case, he had abused his discretion.'2 '
Justice Alexander did not file a memorandum in the case, but
Anaya, as the real party in interest, argued that Justice Alexander
had the discretionary authority to admit her to bail.122 Anaya con-
tended that in order to interpret article I, section 10, one must con-
sider the English common law regarding bail. At common law, the
King's Bench "always had discretion to bail defendants even in
'non-bailable' capital offenses." 2 3 Although some states in this
country continued to follow that common law rule, Anaya noted, a
number of states codified the rule authorizing judicial discretion in
121. Id. at 9. The state disputed Justice Alexander's conclusion that the prohibi-
tion against excessive bail in the eighth amendment of the United States Constitution
requires courts to "review bail questions on a case by case basis without applying
hard and fast rules." See Transcript of Hearing on State's Motion for Reconsidera-
tion of Bail Order at 17, State v. Anaya, No. CR-80-599 (Me. Super. Ct., Cum. Cty.,
May 12, 1980). The state argued that the United States Supreme Court had yet to
rule on whether the excessive bail clause applies to the state, Plaintiff's Memorandum
of Law at 10, State v. Alexander, No. SJC-5621 (Me. Sup. Jud. CL, June 30, 1980),
and that there was no support for Justice Alexander's "suggestion that the Eighth
Amendment, whose relevant language appears in Article I § 9 of the Maine Constitu-
tion, imposes a standard which invalidates Article I, § 10 ...."Id.
The state further noted that the Supreme Court "has never squarely confronted
the issue of whether the prohibition against excessive bail implies a right to bail in
non-capital criminal cases." Id. The Court has suggested in dicta, the state argued,
"that Congress has the power under the Eighth Amendment to determine what clas.
ses of criminal cases are not bailable." Id. (citing Carlson v. Landon, 342 U.S. 524,
545-46 (1952)). If Congress has such power, the state concluded, then the states also
have power to decide that defendants may not be bailed if charged with certain of-
fenses. Id. at 11. The state also argued that Justice Alexander's reliance on Stack v.
Boyle, 342 U.S. 1 (1951) was misplaced because the Court in that case was dealing
with a federal law that required courts to set bail for those accused of non-capital
offenses. Id. at 11.
The Maine Supreme Judicial Court, in Fredette v. State, 428 A.2d 395, 399 (Me.
1981), interpreted article I, section 9 of the Maine Constitution to provide "only that
where a defendant in a criminal prosecution must, or may, be admitted to bail, the
bail shall not be excessive." In other words, article I, section 9 does not provide a
right to bail. The Law Court said this interpretation was in accord with the United
States Supreme Court's interpretation of the "excessive bail" clause of the eighth
amendment of the United States Constitution as expressed in Carlson v. Landon, 342
U.S. 524 (1952). Fredette v. State, 428 A.2d at 399, n.8. Carlson, however, did not
involve criminal proceedings, but civil deportation proceedings to which the eighth
amendment does not apply. Thus, the language in Carlson is merely dicta, which
appears to conflict with dicta in Stack v. Boyle, 342 U.S. 1 (1951), which emphasized
the importance of the right to bail before trial.
For a discussion of the varying interpretations of the eighth amendments "exces-
sive bail" clause regarding a right to bail, see generally United States v. Edwards, 430
A.2d 1321 (D.C. 1981) and cases cited therein. See also United States v. Salerno, 107
S. Ct. 2095 (1987).
122. Memorandum of Real Party in Interest at 3-8, State v. Alexander, No. SJC-
5621 (Me. Sup. Jud. Ct., July 30, 1980).
123. Id. at 7.
statutes or in their constitutions. 12' Likewise, the federal Judiciary

Act of 1789 provided:
[U]pon all arrests in criminal cases, bail shall be admitted, except
where the punishment may be death, in which cases it shall not be
admitted but by the supreme or a circuit court, or by a justice of
the supreme court, or by a judge of a district court, who shall exer-
cise their discretion therein, regarding the nature and circum-
stances
125
of the offense, and of the evidence, and the usages of the
law.
Thus, Anaya argued, the provision of section 10 regarding bail in

capital cases, and now in once-capital cases, was merely intended to
exclude an absolute right to bail for defendants accused of such
crimes if the proof was evident, the presumption great; but section
10 was not intended to abolish the courts' 1traditional
2
discretionary
power to grant bail in any case whatsoever. 1
Justice Wernick dismissed the state's complaint,1 27 finding that
the meaning and effect of article I, section 10 had not yet been de-
finitively established and that Justice Alexander had adopted a "ra-
tionally arguable" opinion as to what a subsequent interpretation of
the law might be.
Where, as here, a Superior Court Justice in the good faith dis-
charge of his judicial function has thus reached a conclusion re-
garding an issue of law rationally arguable as being one not yet
definitively settled, and the conclusion itself is a rationally argua-
ble view of what the law may be declared to be when it is defini-
tively settled, mandamus 128
will not lie to compel the judge to adopt
some other conclusion.
Although not deciding whether Justice Alexander's view was cor-
rect, Justice Wernick noted that under English common law the
King's Bench justices could set bail in all cases, pointing out the
distinction made in early federal statutes between a defendant's
right to bail in non-capitalcases, and the possibility of a defendant
being "bailable," at the judge's discretion, in capital cases. 12 9 Justice
Wernick wrote:
[I]t is an unsettled issue whether Article I, § 10 relates only to the
matter of "bailability as of right", and leaves entirely untouched
124. Id.
125. Judiciary Act of 1789, ch. 20, § 33, 1 Stat. 73, 91 (1789) (current version at 18
U.S.C. § 3141 (1970)).
126. Memorandum of Real Party in Interest at 8, State v. Alexander, No. SJC-
5621 (Me. Sup. Jud. Ct., July 30, 1980).
127. State v. Alexander, No. SJC-5621 (Me. Sup. Jud. Ct., July 30, 1980) (Wer-
nick, J.).
128. Id. at 8-9 (footnote omitted). Justice Wernick stated that Fredette v. State
was on appeal to the Law Court and was to be argued soon. Id. at 4 n.1.
129. Id. at 4-5.
the common law authority of various judges to act in their discre-

tion to bail a particular defendant on the basis of his individual
circumstances, not withstanding that defendant is charged with a
capital offense."'3
Justice Wernick further explained that the history of section 10,
as amended in 1838, could support Justice Alexander's interpreta-
tion. 31 He noted that, as originally written, section 10 stated: "'All
persons, before conviction, shall be bailable except for capital of-
fences, where the proof is evident or the presumption great... .' "'
This original provision, Justice Wernick said,
declared the right of a defendant to compel that he be evaluated
for release on bail on the basis of his individual circumstances. Not
addressed at all, as it was appropriate that a "Declaration of
Rights" should not address it, was the discretionary authority of
judges so to evaluate the accused in any criminal case, including
even, those cases involving accusations of capital offenses.'1
Thus, there was a good argument that the only purpose of the
1838 amendment was to expand the crimes for which a defendant
had no right to bail, and that the Legislature did not intend to elim-
inate the right to bail guaranteed by the original provision."3
For these reasons, I conclude that Justice Alexander gave at least a
rationally supportable interpretation of the meaning and effect of
Article I, § 10, when he took the position that even though the
"proof is evident or the presumption great" regarding whether
Linda Anaya would be found guilty of murder as charged, Article I,
§ 10 is nevertheless without effect upon his authority to exercise
discretion to bail her on the basis of her individual circumstances.
135
B. Fredette v. State
1. Background.
On July 1, 1980, Nancy Fredette was convicted of murdering her
husband. Following the conviction, the trial judge revoked
Fredette's pre-trial bail."16 Fredette filed a petition for a writ of
habeas corpus and an application for bail pending appeal. '"
130. Id. at 5.
131. See id. at 6.
132. Id. at 6-7 (emphasis supplied by the court).
134. Id.
136. Decision and Order on Petition for Writ of Habeas Corpus at 1, Fredette v.
State, No. CV-80-425 (Me. Sup. Jud. Ct., July 11, 1980) (McKusick, C.J.).
137. See id. MF. REv. STAT. ANN. tit. 14, § 5501 (1980) provides the right to a writ
of habeas corpus for anyone unlawfully deprived of his liberty by another. Section
5524 provides that a person detained and imprisoned for a bailable offense should be
Fredette argued that defendants have no absolute right to bail after

conviction, but that judges have the discretion to release such de-
fendants to bail pending appeal
13
under Rule 46(a)(2) of the Maine
Rules of Criminal Procedure.
Chief Justice McKusick denied both the petition and the bail ap-
plication, 139 stating that, under section 10, murder is a non-bailable
offense before conviction when the proof is evident or the presump-
tion great. In such circumstances, the Chief Justice explained, sec-
tion 10 "divests the judiciary of this state of all discretion to admit
the accused to bail" before and after conviction.1 40 Fredette subse-
quently appealed this denial to the full court.
2. The Meaning of "Bailable"-aConstitutionalRight to Bail.

In Fredette v. State,"" the Law Court reviewed Maine's bail stat-
utes and found that at least until 1860 the statutes "absolutely
divested" judges of any power to admit anyone convicted of a capi-
tal crime to bail.'4 2 The court noted that from 1869 until the Maine
Rules of Criminal Procedure were promulgated in 1965, the bail
statutes authorized judges, in their discretion, to set bail pending
appeal "'in all cases where the offence charged is bailable.' "M43 The
court reasoned that the Legislature intended the word "bailable"
within the statutes authorizing post-conviction bail to carry the
same meaning as "bailable" in article I, section 10 of the Maine
Constitution. Therefore, the Law Court concluded that it must de-
termine the meaning of "bailable" under article I, section 10 in or-
der to decide whether Maine judges have discretion
4
to set bail for
those convicted of murder pending appeal. 4
The Fredette court examined the meaning of section 10 when it
took effect in 1820: "All persons, before conviction, shall be bailable,
except for capital offences, where the proof is evident or the pre-
sumption great."' "45 That provision, according to the court, guaran-
teed an absolute right to bail before conviction for those accused of
admitted to bail if he offers sufficient bail. Once a habeas petition is filed, the Chief
Justice of the Supreme Judicial Court is to assign it to a Justice of the Superior or
the Supreme Judicial Courts. See ME. REV. STAT. ANN. tit. 14, § 5524 (1980 & Supp.
1986-1987). The decision of the single justice may be appealed to the Supreme Judi-
cial Court sitting as the Law Court under section 5508.
138. Memorandum in Support of Bail at 1, State v. Fredette, No. CV-80-425 (Me.
Sup. Jud. Ct., July 11, 1980).
139. Decision and Order on Petition for Writ of Habeas Corpus, Fredette v. State,
No. CV-80-425 (Me. Sup. Jud. Ct., July 11, 1980) (McKusick, C.J.).
140. Id. at 2.
141. 428 A.2d 395 (Me. 1981).
142. Id. at 400.
143. Id. (quoting statutory language).
144. Id. at 401.
145. Id. at 402 (quoting ME. CONsT. art. I, § 10 (1820, amended 1838)).
most crimes, a right that had been provided by Massachusetts law

since colonial times. The right to bail was absolute for all defend-
ants accused of non-capital crimes. But the right was conditional for
defendants accused of capital crimes, who had a constitutional right
to bail only if there were no "'proof... evident or... presumption
great.' "146 According to the Law Court, those accused of capital
crimes did not have an absolute right to bail when the proof was
evident or the presumption great. Thus a person was "bailable"
within the meaning of section 10 only when he had an absolute right
to bail. 147 The court further concluded that this meaning was not
changed by the 1838 amendment to section 10, even though the
amendment removed the words "[a]ll persons shall be bailable
before conviction." 148 The amendment preserved the original bail
guarantee of section 10 for most crimes. The only change was to in-
clude all once-capital crimes among the offenses that did not carry
an absolute right to bail. 149 In support of this interpretation, the
court pointed out that section 10, even after the 1838 amendment
was left within the "Declaration of Rights" section of the Maine
Constitution:
Were the change in the language structure of Article I, § 10 remov-
ing the affirmative words "[a]U persons shall be bailable before
conviction" intended to eliminate the constitutional right of an ac-
cused to be admitted to bail before conviction, it seems anomalous
that the negation of such right of the individual as against govern-
ment would be retained as a part of a constitutional "Declaration
of Rights."'"
Furthermore, the 1838 amendment only mandated that those ac-
cused of once-capital crimes would not be "bailable" if the proof
were evident or the presumption great. Thus, such defendants had a
constitutional right to bail absent proof evident or presumption
51
1
great.
3. DiscretionaryBail When the Proof Is Evident, the Presump-

tion Great.
The Law Court next considered whether Maine judges could, in
their discretion, admit defendants to bail even though they were not
"bailable" because there was proof evident or presumption great
that they had committed a once-capital offense. The state argued
that the framers of the Maine Constitution intended, by article I,
section 10, to divest the courts of discretionary power once they
146. Id. (quoting M. CONsT. art. I, § 10 (1820, amended 1838)).

147. Id. at 406.
148. Id. at 405.
149. Id. at 404.
150. Id. (emphasis in the original).
151. Id. at 404-405.
found the proof evident, the presumption great. 152 In England, the
state acknowledged, King's Bench had always had discretionary
power to admit all defendants to bail, even those accused of "irre-
plevisable" crimes whom the inferior courts could not release in bail,
but the framers of the constitution had expressly intended to bar
153
Maine judges from having such discretion.
The Maine Law Court rejected the state's argument, 154 however,
pointing out that in Commonwealth v. Baker'5 5 the Massachusetts
Supreme Judicial Court stated that it had, since colonial times, the
152. Supplementary Brief to Brief of Appellee, State of Maine, at 21-24, Fredette

v. State, 428 A.2d 395 (Me. 1981).
153. Id. at 23. The state maintained, however, that the Court of King's Bench
exercised its discretion only in special cases, particularly where the evidence against
the defendant was weak. The state concluded that the drafters of the 1682 Pennsyl-
vania Charter of Liberty, the forerunner of the bail provision in the Pennsylvania
constitutions of 1776 and 1790, as well as drafters of the various other state constitu-
tional bail provisions similar to Maine's, were familiar with the King's Bench prac-
tices regarding bail.
The conclusion is inescapable that what the drafters of these bail provisions
were trying to accomplish was to state, as positive law, what had become
the ultimate limits of the discretion of the Court of King's Bench to bail. In
other words, the constitutional provisions like Article I, § 10 were intended
to be the exclusive standards to determine when bail would be granted or
denied.
Id. at 24 (quoting Appellee's main brief).
The state cited Commonwealth ex rel. Chauncey v. Keeper of the Prison, 2
Ashmead's Report 227 (Philadelphia County Ct. of Common Pleas 1838), to support
its position that provisions such as section 10 were intended to bar judges from set-
ting bail for those accused of once-capital crimes if the proof was evident or the pre-
sumption great. Supplementary Brief of Appellee, State of Maine at 24, Fredette v.
State, 428 A.2d 395 (Me. 1981). The Chauncey court concluded that Pennsylvania
judges had no power to set bail for those charged with capital crimes if the proof was
evident or the presumption great under Pennsylvania constitutional provision: "All
prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the
proof is evident, or presumption great." PA. CONST. of 1776, § 28. See also PA. CONST.
of 1790, Art. 9, § 14. The Pennsylvania court said the purpose of the constitutional
provision
was to limit, not to enlarge, the judicial discretion on questions of bail,
which at common law existed without stint in the higher tribunals, such as
King's Bench. While on the one hand, it was deemed inconsistent with civil
liberties to leave the right of bail, in minor offences, dependent on mere
judicial discretion, it was, on the other hand, esteemed inconsistent with
the certainty of punishment due to atrocious offenders, to allow the exercise
of such a discretion, on capital accusations of an urgent character. The re-
sulting rule therefore, is this: where the crime charged is short of a felony,
the judges are bound to admit to bail; but, where a capital felony is
charged, and the proof is evident, or the presumption great, no power exists
anywhere to allow it.
Commonwealth ex rel. Chauncey v. Keeper of the Prison, 2 Ashmead's Report at 232-
33.
154. Fredette v. State, 428 A.2d 395, 402, 405 (Me. 1981).
155. 343 Mass. 162, 177 N.E.2d 783 (1961).
discretion to set bail for those accused of any crimes, including mur-
der.""6 This was the bail scheme in effect when the framers of the
Maine Constitution gathered in Portland in 1819 and drafted article
I, section 10.157 Therefore, the Law Court concluded:
Article I, § 10 addressed only the accused's right to be admitted to
bail, whether as existing absolutely (in relation to all non-capital
offenses) or conditionally (in relation to capital offenses where
"proof... evident or ... presumption great" is lacking). Thus,
rather than prohibiting the exercise of judicial discretion to admit
an accused to bail for all offenses whatever, including those capital,
Article I, § 10 left entirely intact judicial power, as authorized by
the common law, to exercise discretion to admit an accused to bail
for any offense whatever, capital or otherwise.'"
Although the Fredette case concerned the right to bail after con-
viction, the language on pre-conviction bail may be viewed as the
holding of the case and not merely dicta because the interpretation
of section 10 was essential to the court's determination of post-con-
viction bail rights.""' As Justice Scolnik explained in a superior court
opinion 60 a few weeks after Fredette:
The explanation of the meaning of Art. I § 10, relevant only to pre-
conviction bail, is not dicta even though the Fredette Court was
faced with a question of post-conviction bail, governed by Rule
46(a)(2), M.R.Crim.P. The Court found that the Legislature which
156. Id. at 165, 177 N.E.2d at 785.

157. See Fredette v. State, 428 A.2d at 401-402.
158. Id. at 402 (emphasis in the original). The Fredette decision on judicial dis-
cretion appears to contradict the interpretation of section 10 contained in an 1836
Opinion of the Justices. Opinion of the Justices (Me. 1836) (this opinion to the 16th
Maine Legislature does not appear in the Maine Reports, but is available at the
Maine Archives, Augusta, Me.). In that opinion, the justices advised the Legislature
that "capital offences" within the meaning of the 1820 version of article I, section 10
referred only to crimes that carried the death penalty. The justices further explained:
The object of bail, in criminal cases before conviction, is, to secure the ap-
pearance of the party charged, before the competent tribunal for trial. If
the charge be for an offence, punishable with death, and the proof is evi-
dent or the presumption great, this object can be effected by nothing short
of close and safe custody. To allow bail therefore in such cases, is to afford
to the accused facilities for eluding public justice, of which they could not
fail to avail themselves.
Id. at 3.
This language strongly indicates that in 1836 the justices did not believe there was
judicial discretion to bail defendants when the proof was evident or the presumption
great that the defendant had committed a capital crime. Although such opinions of
the justices do not set binding precedents, this opinion should carry substantial
weight in interpreting the historical meaning of article I, section 10, since the Legisla-
ture solicited the opinion prior to proposing the 1838 amendment to article I, section
10 and apparently never disputed the justices' interpretation of bailability.
159. This is the view taken by Justice Wernick. Telephone interview with Justice
Wernick, Active Retired Justice of Maine Supreme Judicial Court (Nov., 1986).
160. State v. Caouette, No. CR-81-371 (Me. Super. CL, And. Cty., Dec. 7, 1981).
had enacted the various predecessors of Rule 46(a)(2), permitting a

court to set post-conviction bail only for "bailable" offenses, in-
tended to incorporate the meaning of "bailable" found in Art. I §
10. Thus, it was necessary to settle the meaning of Art. I § 10 in
order to discern the scope of a court's discretion under Rule
46(a)(2).111
Superior Court Justice Silsby disagrees, believing Fredette con-
tains only dicta in regard to judicial discretion on pre-conviction bail
because the issue before the court was post-conviction bail.10 2 Fur-
thermore, Justice Silsby "violently" disagrees that section 10 allows
judges discretion to set bail for those accused of capital crimes when
the proof is evident or the presumption great. That conclusion by
the Fredette court, he said, was "just dictum and just plain
wrong."' ' According to Justice Silsby, the plain language of article
I, section 10 mandates that judges may not set bail for those accused
of once-capital crimes if the proof is evident or the presumption
great. Justice Silsby does not believe there ever was a common law
rule in Maine or Massachusetts authorizing judicial discretion to re-
lease defendants in murder cases. But even if there were such 0
a rule,
the constitutional provision would preempt it, he believes.' 4
C. Issues Unresolved by Fredette v. State

The Fredette court decided that section 10 provides an absolute
right to bail for most defendants before conviction. The only de-
fendants without such a right to bail are those accused of once-capi-
tal crimes if the proof is evident or the presumption great. Although
Justice Silsby disagrees with the court's decision on judicial discre-
tion, most Maine judges apparently follow the court's lead and
sometimes set bail for murder defendants
165
even when the proof is
evident or the presumption great.
The Maine Law Court, however, has never resolved some issues
involving section 10 and its application to defendants accused of
crimes that were once capital. The court has not clearly established,
for example, whether judges may refuse to set bail for defendants
accused of crimes other than murder that were once capital if the
proof is evident or the presumption great. Nor has the court decided
161. Id. at 2-3 n.2.

162. Telephone interview with Justice Silsby (Nov., 1986).
163. Id.
164. Id.
165. Based on responses to an informal survey of Maine judges, supra note 13.
See also State v. Thiboutot, No. CR-83-49, at 2 (Me. Super. Ct., Sag. Cty., Mar. 25,
1983) (denying bail to homicide defendant but noting that the decision was within
court's discretion, notwithstanding proof evident or presumption great); State v.
Caouette, No. CR-81-371 (Me. Super. Ct., And. Cty., Dec. 7, 1981) (bail granted to
murder defendants despite finding of proof evident, presumption great, under author-
ity of Fredette v.State).
whether the state or the defendant has the burden of showing that
the proof is evident or the presumption great, or what legal standard
the court should use in evaluating the evidence on the issue of
whether the proof is evident or the presumption great.
1. Bail for Crimes, Other than Murder, that Were Once Capital.
In Fredette, the Law Court stated that the only change in section
10 effected by the 1838 amendment was to enlarge the class of of-
fenses for which there was no absolute constitutional right to bail.lcO
In 1838, treason, 67 arson,16 and willful murder 06 were the only
crimes still punishable by death. Rape,170 burglary,' 7 ' and armed
robbery 17 21 had been capital crimes, but in 1829 the Legislature sub-
stituted life imprisonment as the penalty.
Maine is the only state with a constitutional provision excepting
from the right to bail crimes that at any time carried the death pen-
alty as opposed to crimes currently considered capital offenses or
felonies. 173 Under section 10, as construed in Fredette, defendants
accused of such crimes apparently do not have a right to bail if the
proof is evident or the presumption great. According to a survey of
court records from four counties conducted by the state in the
Fredette case, however, most Maine judges have set bail routinely
for defendants accused of all these crimes except murder, at least
since 1887.174 The state also examined available court records from
several Maine counties between 1829 and 1886 and found that
judges apparently routinely denied bail for murder defendants, al-
though those early court records were too incomplete to draw con-
clusions about bail policy for defendants accused of other capital, or
once-capital, offenses. 17 5 A 1986 survey reveals that most Maine Su-
perior Court judges routinely set ball for all defendants pending
trial except those accused of murder.17 Justice Scolnik, now Associ-
ate Justice of the Supreme Judicial Court, said that when he was a
166. Fredette v. State, 428 A.2d at 404-405.

167. P.L. 1821, ch. 1, § 1.
168. Id. ch. 4, § 1.
169. Id. ch. 2, § 1.
170. Id. ch. 3, § 1.
171. Id. ch. 6, § 1. At the time, burglary was defined as entering a house at night
armed with a dangerous weapon intending to commit a felony against a person inside
or actually committing an assault on a person inside. Id.
172. Id. ch. 7, § 8.
173. See supra note 18.
174. Supplementary Brief of Appellee, State of Maine, apps. A, C, Fredette v.
State, 428 A.2d 395 (Me. 1981). The state surveyed court records in Kennebec, Cum-
berland, Penobscot, and Androscoggin Counties for certain periods between 1887 and
1929. Id. app. A. The state studied Kennebec County criminal docket entries for cer-
tain years from 1930 to 1965. Id. app. C.
175. Id. app. B.
176. Based on responses to informal survey, supra note 13.
superior court judge no prosecutor ever insisted that he deny bail

for defendants accused of crimes other than murder. "I don't know
what we would have done" had the state insisted bail be denied for
other once-capital crimes, he said." 7
Justice Silsby, however, recently denied bail to three defendants
in a rape case178 after finding the proof was evident, the presump-
tion great. He did so because rape was a capital offense at one time
and the prosecutor had asked him to deny bail. "The state routinely
does not object to bail in other than murder cases. This rape case
was the only case in which I have seen an objection," Justice Silsby
17 9
said.
On the other hand, Justice Alexander believes judges have no au-
thority to deny bail to any but murder defendants under the "con-
stitutional practice" that has developed in Maine and under the fed-
eral constitution.180 In addition, section 942 of title 15 of the Maine
Revised Statutes Annotated 81 appears to require judges to release
on personal recognizance or set bail for all defendants accused of
crimes not punishable by life imprisonment-in effect, all crimes ex-
cept murder.
2. The Burden of Proof.

The Law Court has never decided whether the state or the de-
fendant accused of a once-capital crime bears the burden of proving
whether the proof is evident or the presumption great. Jurisdictions
with constitutional provisions similar to Maine's have taken one of
three basic approaches to the question of who has the burden of
proof after a defendant has been charged by indictment or informa-
tion. 182 The three basic approaches are:
First, the indictment or information alone is conclusive evidence
that the state's case is strong enough to preclude the defendant ac-
177. Telephone interview with Justice Scolnik (Nov., 1986).

178. See State v. Sturtevant, No. CR-84-07 (Me. Super. Ct., York Cty., Jan. 19,
1984).
179. Telephone interview with Justice Silsby (Nov., 1986).
180. Telephone interview with Justice Alexander (Nov., 1986). Whatever the
scope of authority under the Maine Constitution to deny bail, it must be no greater
than that permitted by the United States Constitution. Denial of bail is a deprivation
of liberty subject to the due process clause of the fourteenth amendment. For a dis-
cussion and application of the substantive and procedural facets of this provision, see
United States v. Salerno, 107 S. Ct. 2095 (1987). In addition, there may be a limited
right to bail under the excessive bail clause of the eighth amendment that is applica-
ble to the states. See id. at 2108-2109 (Marshall, J., dissenting), It seems unlikely,
however, that such a right would be broader than the procedural due process protec-
tions. See id. at 4667-68. See generally Duker, supra note 2, at 86-101.
181. See supra note 34 for text of ME. REV. STAT. ANN. tit. 15, § 942.
182. In Maine all murder charges must be prosecuted by indictment. All Class A,
B, and C crimes must be prosecuted by indictment unless the defendant waives in-
dictment, in which case prosecution may be by information. M.R. CraM. P. 7(a).
cused of a capital offense from having a constitutional right to bail.

Thus, once a defendant is indicted for a capital crime, it is estab-
lished that the proof is evident or the presumption great, absent ex-
traordinary circumstances.18 Second, the indictment or information
raises a rebuttable presumption that the proof is evident or the pre-
sumption great. At a bail hearing in these jurisdictions, the state
merely puts the indictment or information on the record, then the
defendant has the burden of proving the absence of proof evident or
presumption great.184 Third, the indictment does not raise a pre-
sumption that the proof is evident or the presumption great. In
some jurisdictions it carries no evidentiary weight on that issue; in
other jurisdictions, the indictment may be used as evidence, but the
state has the burden of producing additional evidence that the de-
fendant does not have a constitutional right to bail. It is not always
clear from these cases whether the state merely must produce evi-
dence in addition to the indictment, with the defendant then having
the burden of proof, or whether the state has the burden of produc-
tion and persuasion.8 5
This Article surveys the major arguments for each approach and
then considers their possible application in Maine.
a. The indictment is conclusive evidence. Early cases in several

jurisdictions held that an indictment raised an irrebuttable pre-
sumption that the proof was evident or the presumption great that
the defendant committed the capital crime of which he was accused,
absent special and extraordinary circumstances.'8 0 The California
Supreme Court adopted this rule in 1862 in the case of People v.
Tinder.8 7 It explained that an indictment is
something more than a mere accusation based upon probable
cause; it is an accusation based upon legal testimony, of a direct
and positive character, and is the concurring judgment of at least
twelve of the grand jurors .... Such being the case, an indictment
for a capital offense does of itself furnish a presumption of the
guilt of the defendant too great to entitle him to bail as a matter of
right under the Constitution .... It creates a presumption of guilt
183. See, e.g., People v. Tinder, 19 Cal. 539 (1862). No states today hold this posi-
tion. See infra note 186-206 and accompanying text
184. See Annotation, Upon Whom Rests Burden of Proof, Where Bail is Sought
Before Judgment but After Indictment in Capital Case, as to Whether Proof is Evi-
dent or the Presumption Great, 89 A.L.R.2d 355 (1963) (Later Case Service 1979 &
Supp. 1986).
185. See Annotation, supra note 184.
186. See, e.g., People v. Tinder, 19 Cal. 539 (1862) (indictment raised conclusive
presumption of proof evident, presumption great though exception perhaps allowable
in extraordinary cases). See generally Annotation, supra note 184, at 357-58.
187. 19 Cal. 539 (1862).
for all purposes except the trial before a petit jury.188
This rule that the indictment, except under extraordinary circum-

stances, creates a conclusive presumption, was based on English
practice.'89 In England, the higher courts with authority to bail in
murder cases generally would not even consider setting bail for a
defendant indicted for murder by a grand jury.19 0 On the other
hand, English courts would consider evidence developed at a coro-
ner's inquest and sometimes bail a defendant accused of murder by
inquest or by a magistrate rather than by a grand jury. 19 These dif-
ferences developed because grand jurors were bound to absolute se-
crecy and courts could not inquire into the evidence they consid-
ered, while the courts could obtain the written depositions used at
the coroner's inquests.9 2 In People v. Tinder, the California Su-
preme Court adopted this position, even though California grand ju-
ries were not as fully bound to secrecy as English grand juries.193
All of the jurisdictions that originally adopted the rule that the
indictment raises a conclusive presumption eventually rejected that
position.1 9 4 Today, some jurisdictions hold that the indictment
188. Id. at 543.

189. For discussions of the English rule that the indictment raises a conclusive
presumption, see Ford v. Dilley, 174 Iowa 243, 255-57, 156 N.W. 513, 517-18 (1916);
In re Losasso, 15 Colo. 163, 164-65, 24 P. 1080, 1080 (1890); People v. Tinder, 19 Cal.
539, 544-45 (1862).
190. Ford v. Dilley, 174 Iowa at 255, 156 N.W. at 517; People v. Tinder, 19 Cal, at
544.
191. Ford v. Dilley, 174 Iowa at 255, 261-62, 156 N.W. at 521; People v. Tinder, 19
Cal. at 544.
192. Ford v. Dilley, 174 Iowa at 255-56, 156 N.W. at 517-18; People v. Tinder, 19
Cal. at 544.
193. People v. Tinder, 19 Cal. at 545. The court explained that California statutes
provided that grand jurors could disclose the testimony of witnesses before them only
in limited circumstances. Therefore, generally, the California courts at bail hearings
could not review the grand juries' findings. Furthermore, the court said, as a matter
of public policy the California courts should not accept affidavits or oral testimony
regarding a defendant's guilt or innocence to rebut the presumption created by the
indictment. "To permit such a procedure in ordinary cases ... would result in render-
ing the application for bail in the majority of cases, in effect, a trial upon the merits."
Id. at 546.
The court, however, held that the defendant could present evidence to rebut the
presumption raised by the indictment if there were special and extraordinary circum-
stances, just as English common law permitted. Id. at 545-46. One such circumstance,
the court said, would occur if there were, at the time of the indictment, "great popu-
lar excitement with reference to the prisoner, or the offense charged against him,
likely to bias and warp the judgment of the grand jurors. .. ." Id. at 548-49. Another
example of extraordinary circumstances, the court said, would be "a clear confession
by another of the commission of the offense for which the defendant is indicted." Id.
194. See 8 AM. Jua. 2d Bail and Recognizance § 46 n.55 (1980). For example, after
People v. Tinder, the California legislature enacted a law, now CAL. PENAL CODE §
1270.5 (West Supp. 1987), providing that defendants charged with capital crimes can-
not be admitted to bail if the proof is evident or the presumption great, but that the
raises a rebuttable presumption that the proof is evident and the

presumption is great that the defendant committed the crime with
which he has been charged; 19 5 other jurisdictions hold that the in-
dictment raises no presumption at all, and that the state has the
burden of proving, by other evidence, or by the indictment and
other evidence, that the proof is evident or the presumption is
198
great.
The Iowa Supreme Court in Ford v. Dilley'9 7 rejected the argu-
ment that an indictment gives rise to a conclusive presumption and
explained that the historical reasons for accepting the indictment as
raising such a presumption no longer existed in Iowa. The major
reason for the presumption, the secrecy of grand jury proceedings,
had been eliminated by Iowa statutes that allowed courts to require
grand jurors to testify about the evidence presented to them. Fur-
thermore, there was no right to bail under English common law, but
Iowa had adopted a constitutional provision that established a right
to bail at all times prior to conviction, even after indictment, unless
the proof was evident or the presumption great. 08 The Iowa court
also stressed the importance of the presumption that one is innocent
until proven guilty. If the indictment were allowed to raise a pre-
sumption of the defendant's guilt at his bail hearing it then would
be reasonable to allow the use of the indictment as evidence of guilt
at the defendant's trial. 99
The Colorado Supreme Court also rejected the rule that the in-
dictment creates a conclusive presumption. In In re Losasso,2'0 the
court reasoned that since the various state constitutional provisions
changed the common law by conferring an absolute right to bail in
non-capital cases, it was reasonable to assume that the provisions
were intended to change the effect of the indictment. The court said
that the language of the Colorado constitutional provision
clearly implies an investigation by some tribunal into the suffi-
ciency of the proofs. Bail as a matter of right is denied; but, when
some competent authority ascertains by inquiry that the proof is
not evident and the presumption not great, its allowance is impera-
tively commanded. That the tribunal, or authority possessing the
power of admitting to bail, should make this inquiry, is not an un-
indictment carries no evidentiary weight on that issue. In Ford v. Dilley, 174 Iowa
243, 156 N.W. 513 (1916), the Iowa Supreme Court adopted the view that the indict-
ment raises no presumption as to proof evident or presumption great.
195. See infra notes 207-24 and accompanying text.
196. See infra notes 225-39 and accompanying text.
197. 174 Iowa 243, 156 N.W. 513 (1916).
198. Id. at 256-72, 156 N.W. at 519-25. The court held that the indictment is no
evidence that the proof is evident or the presumption is great.
199. Id. at 268, 156 N.W. at 523.
200. 15 Colo. 163, 24 P. 1080 (1890).
reasonable deduction.20'
In rejecting the conclusiveness of the indictment, courts also rea-
son that sometimes the grand jury's findings may not establish that
the proof is evident or the presumption is great.20 2 In some states,
grand juries only consider evidence presented by the state, the pros-
ecutor usually directs the entire proceeding, and the accused is not
present and cannot be represented by counsel or testify about the
legality or weight of the evidence adduced against him.2 0 3 It is some-
times difficult or impossible for the defendant even to obtain a tran-
script of the proceedings. 20 4 In addition, indictments for capital of-
fenses may, in some states, include several lesser offenses for which
a defendant has an absolute right to bail under the state constitu-
tion.20 5 As the Colorado Supreme Court said, "Why should the pris-
oner not be permitted to show,
20 6
if he can, that his offense belongs to
one of the lower grades?1
b. The indictment raises a rebuttable presumption. Under this

approach, the defendant has the burden of rebutting the presump-
tion. The cases, however, are not always clear as to what this burden
201. Id. at 168, 24 P. at 1081. The court adopted the position that the indictment
raises a strong but rebuttable presumption that the proof is evident. Id. at 172, 24 P.
at 1082. In 1963, however, the Colorado Supreme Court said that a trial court could
not rely merely on an information, or presumably an indictment, to deny bail to a
murder defendant, because the trial court must" 'determine for itself' from any com-
petent evidence ...[whether], 'the proof is evident, or the presumption great' that
the accused was guilty of the crime charged." Shanks v. District Court, 153 Colo.332,
337, 385 P.2d 990, 992 (1963) (quoting In re Losasso, 15 Colo. 169, 24 P. at 1082). A
concurring opinion expressed the view that the state should bear the burden of proof
because the issue involves an exception to the constitutional right to bail, and be-
cause the constitutional provision is couched in "positive, affirmative language." Id.
at 338, 385 P.2d at 993 (Frantz, C.J., concurring). The dissent argued that the de-
fendant charged with a capital crime, "not the People acting through the district
attorney-let alone the trial court itself(!), has 'the burden of overcoming the pre-
sumption' and thus establishing that ...(the prisoner) is entitled to bail." Id. at 343,
385 P.2d at 995 (McWilliams, J., dissenting) (quoting In re Losasso, 15 Colo. at 172,
24 P. at 1082).
202. See, e.g., State v. Konigsberg, 33 N.J. 367, 373, 164 A.2d 740, 743 (1960);
State v. Menillo, 159 Conn. 264, 273-82, 268 A.2d 667, 671-75 (1970); Ford v. Dilley,
174 Iowa at 260-67, 156 N.W. at 520-23; In re Losasso, 15 Colo. at 170-71, 24 P. at
1082.
203. See, e.g., State v. Konigsberg, 33 N.J. at 374, 164 A.2d at 743; In re Losasso,
15 Colo. at 170, 24 P. at 1082.
204. In Maine, for example, grand jury proceedings are not normally recorded.
They may be recorded in the judge's discretion if the defendant shows "good cause."
Even if the proceedings are recorded, the defendant can only get a copy if he shows
"particularized need." M.R. CRIM. P. 6(f)-(g).
205. See, e.g., State v. Konigsberg, 33 N.J. at 373, 164 A.2d at 743; Ford v. Dilley,
174 Iowa at 265-66, 156 N.W. at 522-23.
206. In re Losasso, 15 Colo. at 170, 24 P. at 1082.
entails. 0 7 In some jurisdictions this means the defendant has the

burden of producing evidence and persuading the court that the
proof is not evident and the presumption is not great. If he fails to
carry the burden, he has no right to bail and, in states that do not
recognize judicial discretion to bail in such cases, he must be jailed
pending trial. In other jurisdictions, however, the defendant has the
burden of producing evidence to rebut the presumption, but the
state bears the ultimate burden of proof once the defendant has
8
20
gone forward with his evidence.
The official draft of the American Law Institute, Code of Criminal
Procedure of 1930, recommended that the state have the burden of
proof prior to indictment for capital offenses, but after indictment
the defendant have the burden of proving the absence of proof evi-
dent, presumption great.2 0 9 Why the Institute recommended this ap-
proach is not explained in the commentary or in the official report of
the Institute's 1930 meeting at which it considered the proposed fi-
nal draft of the Code of Criminal Procedure. 20" Approximately
twelve states adopted this position.2 1 1 In recent years, however, Ne-
vada2 12 and Florida2 13 have expressly rejected this approach in favor
207. The court in some of these cases may mean by "burden of proof" merely
burden of going forward with the evidence. This is clearly what the court
means in Ex parte Hammock, 78 Ala. 414 (1885), where it was held that the
indictment was prima facie evidence of guilt, but that if on the whole evi-
dence the court was in doubt, it should bail.
CODE OF CRMINAL PROCEDURE § 68 commentary at 261 (Tent. Draft No. 1, 1928).
208. Id.
209. CODE OF CRIMINAL PROCEDURE § 68 (Proposed Final Draft 1930).
210. 8 A.LL PROC. (1930).
211. See Annotation, supra note 184, at 362-63.
212. In re Wheeler, 81 Nev. 495, 406 P.2d 713 (1965) (rejecting the earlier view,
expressed in State v. Teeter, 65 Nev. 584, 200 P.2d 657 (1948), that the defendant has
the burden of proof after the indictment. In Wheeler, the court emphasized the pre-
sumption of innocence and the Nevada constitutional rule that defendants should, in
most cases, be bailed before trial, and held that the state has the burden of proof. Id.
at 498-99, 406 P.2d at 715-16. The Nevada Constitution provides: "All persons shall
be bailable by sufficient sureties; unless for Capital Offenses or murders punishable
by life imprisonment without possibility of parole when the proof is evident or the
presumption great" Nav. CONST. art. I, § 7 (1864, amended 1980). The Wheeler court
ruled that no weight should be given to the indictment or information in deciding
whether there is proof evident, because the indictment and information are "not
proof as contemplated by the constitution, nor [do they] create a presumption of
guilt" In re Wheeler, 81 Nev. at 500, 406 P.2d at 716.
213. The Supreme Court of Florida, in State v. Arthur, 390 So. 2d 717 (Fla. 1980),
overturned a long line of Florida cases that held that the defendant had the burden
of showing that the proof was not evident and the presumption was not great The
old rule was first espoused in Rigdon v. State, 41 Fla. 308, 26 So. 711 (1899), and was
based on the fact that at common law "after an indictment for a capital offence the
accused was presumed guilty for all purposes, except that of a trial before a petit
jury, and this presumption was so strong as to preclude the party to bail unless in
very exceptional cases." Id. at 312, 26 So. at 712. The Arthur court explained that the
of the rule that the state cannot rely solely on the indictment, but
must produce other evidence to show that the proof is evident or the
presumption is great. The Connecticut Supreme Court in State v.
Menillo2"4adopted the rule that the indictment raises no presump-
tion when the defendant is barred from the grand jury proceed-
ings.2 15 The court stressed, however, that the effect of the indict-
ment may vary depending on the defendant's right to be present
and cross-examine the witnesses at the grand jury or to obtain a
transcript of the grand jury proceedings. 216
The Menillo court indicated that under Connecticut's usual grand
jury procedures, by which the defendant is allowed to attend the
grand jury proceedings and to question witnesses, and by which the
prosecutor submits a list of witnesses but is not himself present, the
indictment may be sufficient to raise a presumption that the proof is
evident or the presumption is great:
[I]n Connecticut the fact of indictment by the grand jury for mur-
der in the first degree is some evidence that there is probable cause
to believe that the accused is in danger of conviction of that crime.
This is especially so since in Connecticut the State's attorney must
lay before the constitutional grand jury an indictment specifying
whether the crime charged is murder in the first or second degree..
. . A constitutional grand jury is concerned solely with the charge
of murder in the2first
17
or second degree. It does not act on a charge
of manslaughter.
Therefore, the court said, under usual Connecticut procedures
"there is little reason for rejecting the grand jury's indictment as
having no evidential value on the issue of fact at the bail hearing."2 1
The court went on to say, however, that the indictment did not cre-
ate a presumption that the proof was evident or the presumption
great in situations where the state had excluded the defendant from
the grand jury proceedings.2 19
state should bear the burden because the Florida Constitution

embodies the principle that the presumption of innocence abides in the ac-
cused for all purposes while awaiting trial....
Furthermore, as a matter of convenience, fairness, and practicality, it is
preferable that the state have the burden of coming forward when the ac-
cused seeks release on bail. Presumably the state is in better position to
present to the court the evidence upon which it intends to rely.
State v. Arthur, 390 So. 2d at 719-20.
214. 159 Conn. 264, 268 A.2d 667 (1970).
215. Id. at 281-82, 268 A.2d at 675.
216. Id. at 278-79, 268 A.2d at 674.
217. Id. at 275-76, 268 A.2d at 672-73 (citations omitted).
218. Id. at 277, 268 A.2d at 673.
219. The accused has no right to be present at grand juries in Connecticut, but
the court normally grants the privilege of attending. Id. at 274, 268 A.2d at 672, In
Menillo, however, the defendant was excluded because of allegations that some of the
state's witnesses had been threatened. Id. at 278, 268 A.2d at 673-74.
In Shaw v. State,220 the Tennessee Supreme Court placed the bur-

den of rebutting the presumption raised by the indictment on the
defendant. The court explained that return of the indictment autho-
rizes the arrest of a murder defendant, absent a court order admit-
ting him or her to bail:
An application for bail invokes affirmative action of the court to
change an existing legal status or condition, and in a capital case,
an exercise of judicial discretion in the determination of the
probability of the defendant's guilt. This discretion can only be ex-
ercised by the consideration of evidence presented to the court or
judge. If no order of bail is made, the existing status continues and
the defendant remains in lawful custody. In this situation, no rule
of procedure having been prescribed by the constitution or by stat-
ute, it seems clear to us that the court or judge entertaining the
application may rightfully require the applicant to offer evidence
to establish his right to the relief sought. If no such evidence is
offered, the indictment, authorizing the custody of the defendant
before the application, will support its continuation; and, to that
extent, the indictment supplies the presumption of guilt required
by the constitutional provision concerning bail. 2 '
States imposing the burden of proof on the defendants reject the
contention that such an approach conflicts with the presumption of
innocence of criminal defendants. For example, according to the
Louisiana Supreme Court, if the presumption of innocence "were
absolute and operative at every stage of a prosecution, the defend-
ant could never be jailed until conviction. It does not prevent arrest.
. . . [The presumption of innocence] is operative and protects
against conviction, not against arrest (which is taking into
222
custody).
220. 164 Tenn. 192, 47 S.W.2d 92 (1932).

221. Id. at 196-97, 47 S.W.2d at 93.
222. State v. Green, 275 So. 2d 184, 186 (La. 1973) (citations omitted) (emphasis
in the original). The United States Supreme Court, however, has linked the right to
bail with the presumption of innocence:
This traditional right to freedom before conviction permits the unhampered
preparation of a defense, and serves to prevent the infliction of punishment
prior to conviction .... Unless this right to bail before trial is preserved,
the presumption of innocence, secured only after centuries of struggle,
would lose its meaning.
The right to release before trial is conditioned upon the accused's giving
adequate assurance that he will stand trial and submit to sentence if found
guilty.
Stack v. Boyle, 342 U.S. 1, 4 (1951) (citation omitted) (emphasis added).
Twenty-eight years later, however, the Court held that the presumption of inno-
cence does not provide pre-trial detainees-whose detention itself is not chal-
lenged-with the right to be free from conditions of confinement that are not justified
by compelling necessity. Bell v. Wolfish, 441 U.S. 520, 533-34 (1979) (reversing lower
court decision enjoining, on constitutional grounds, a federal custodial facility for pre-
trial detainees from housing two inmates in rooms intended for single occupants). In
MAINE LAW REVIEW [Vol. 39:391 .
Jurisdictions placing the burden on the defendant have taken va-

rying approaches as to how the defendant may rebut the presump-
tion created by the indictment. The Tennessee Supreme Court in
Shaw v. State said,
[W]e think it a reasonable requirement that the applicant offer the
witnesses upon whose testimony the grand jury found that indict-
ment. Or, as is the practice followed by some of the judges of the
State, the judge may on his own motion call the witnesses endorsed
on the indictment, and require that they be examined by the attor-
ney-general for the enlightenment of the court. We think the
course 2of
23
the inquiry may be left safely to the discretion of the trial
courts.
The Shaw court added that the evidence at the bail hearing should
not be limited to the evidence presented to the grand jury, but
should include "all material and relevant evidence offered by either
party, including the testimony
'224
of witnesses whose names may not
appear on the indictment.
c. Despite an indictment, the state bears the burden of proof.225

In
adopting this position, the Iowa Supreme Court in Ford v. Dilley
explained:
The only difference between putting the burden on the State, in-
stead of the defendant, is that, if the burden is on the first, and all
the evidence for the State which is in sight is insufficient to war-
rant the denial of bail, bail should be allowed; while, if the burden
is on the detained, then, though he does produce all the State has
reversing the lower court's decision, the Supreme Court held, among other things,
that the presumption of innocence does not provide a basis for the compelling neces-
sity standard.
The presumption of innocence is a doctrine that allocates the burden of
proof in criminal trials; it also may serve as an admonishment to the jury to
judge an accused's guilt or innocence solely on the evidence adduced at trial
and not on the basis of suspicions that may arise from the fact of his arrest,
indictment, or custody, or from other matters not introduced as proof at
trial.... Without question, the presumption of innocence plays an impor-
tant role in our criminal justice system.... But it has no application to a
determination of the rights of a pre-trial detainee during confinement
before his trial has even begun.
Id. at 533. Compare United States v. Salerno, 107 S.Ct. 2095 (1987) (upholding de-
nial of bail without discussing presumption of innocence) with id. at 2109 (Marshall,
J., dissenting) (presumption of innocence goes to "essence of this case").
The Court of Appeals for the Third Circuit has distinguished the presumption of
innocence "as an evidentiary rule which comes into operation at trial from the gen-
eral presumption that one should not be deprived of liberty without due process of
law. Bail of course functions to preserve the latter principle." Sistrunk v. Lyons, 646
F.2d 64, 67 n.11 (3d Cir. 1981).
223. Shaw v. State, 164 Tenn. at 197-98, 47 S.W.2d at 94.
224. Id. at 198, 47 S.W.2d at 94.
225. 174 Iowa 243, 156 N.W. 513 (1916).
disclosed, and although that is utterly insufficient to detain him

without bail, yet he must thus be detained,
2
unless he adds suffi-
cient affirmative proof of innocence. 11
The court reasoned that the indictment claims only that the accused
is guilty of a capital offense and does not assert that the proof is
evident or the presumption great against the defendant. Therefore,
the indictment alone fails to meet the constitutional requirement
that bail may be denied only to one accused of a capital offense if
the proof is evident or the presumption great.227
Iowa and other jurisdictions adopting this position also rely on the
importance of the presumption of innocence and point out that
under constitutional provisions bail is the general rule while denial
of bail is the exception. As the New Jersey Supreme Court said,
"The burden should rest on the party relying on the exception. That
is the logical and natural rule and the one which conforms with the
pervasive presumption of innocence attending all criminal
charges. '228 The Delaware Supreme Court, in rejecting the position
that the indictment raises a prima facie case that the defendant ac-
cused of a capital crime should be denied bail, stated:
We think... the rule... offends against a basic concept of our
criminal law-the presumption of innocence until found guilty af-
ter trial. There is something inherently contradictory in maintain-
ing the presumption of innocence until final conviction and, at the
same time, presuming probable guilt from the fact of indictment
when the accused seeks to exercise his constitutional right to
229
bail.
The secret and ex parte nature of grand jury proceedings is also a

major reason why some jurisdictions require the state to produce
more than the indictment as evidence that the proof is evident and
presumption great. 230 Among other factors considered important by
courts are the following- First, the defendant has no opportunity to
226. Id. at 273, 156 N.W. at 525.

227. Id. at 264, 156 N.W. at 522. Grand juries are directed to indict unly if they
find probable cause to believe the defendant committed the crime of which he is ac-
cused. Thus, the question becomes whether evidence of probable cause equals "proof
evident" or "presumption great."
228. State v. Konigsberg, 33 N.J. 367, 374-75, 164 A.2d 740, 744 (1980).
229. In re Steigler, 250 A.2d 379, 382 (Del. 1969). In Taglianetti v. Fontaine, 105
R.I. 596, 599-600, 253 A.2d 609, 611 (1969), the Rhode Island Supreme Court als-o
emphasized the presumption of innocence as the foundation for the right to bail.
"The rationale... is that incarceration should follow conviction-not precede it...
We deem it just and proper to place the burden of proof upon the state at a hearing
for bail. The presumption of innocence protects an accused from the moment of in-
dictment until adjudication .... " Id. at 600, 253 A.2d at 611.
230. See generally State v. Menillo, 159 Conn. 264. 268 A.2d 667 (1970); Ford v.
Dilley, 174 Iowa 243, 156 N.W. 513 (1916); State v. Konigsberg, 33 N.J. 367, 164 A.2d
740 (1960); Taglianetti v. Fontaine, 105 R.. 596, 253 A.2d 609 (1969).
present any evidence to the grand jury, which in many states is

largely controlled by prosecutors. At the most, the defendant, but
not his lawyer, may be allowed to listen to testimony by the state's
witnesses and to question them. Second, the grand jury is not asked
to decide whether "the proof is evident or the presumption greet."
Therefore, the indictment should not be considered evidence that
such is the case.231 Third, in some states, the indictment does not
indicate the degree of the charge, a task left to the trial jury. There-
fore, a grand jury, for example, might merely return an indictment
for murder, while the trial jury could find the defendant guilty of
either first or second degree murder. Yet a defendant charged with
second degree murder might have an absolute right to bail under the
state constitution, while one charged with first degree murder would
only have a constitutional right to bail absent proof evident or pre-
sumption great.23 2 Fourth, in some states, such as Maine, neither the
defendant nor counsel is allowed to attend grand jury proceedings,
the session may not be recorded, and the defendant may not be al-
lowed access to the transcript if one is made. Thus, the defendant
may not know the evidence presented2 33
and would have a very diffi-
cult time rebutting the unknown.
As the Connecticut Supreme Court has noted, however, grand jury
proceedings vary from state to state. In State v. Menillo,23 the
court suggested that an indictment could serve as prima facie evi-
dence if certain grand jury procedures were followed. In Connecti-
cut, unlike some other states, the prosecutor is not present and does
not entirely direct the grand jury proceedings, the grand jury has to
specify the degree of the charge in the indictment, and the grand
jurors can call any witnesses they choose. The defendant may also
ordinarily attend the proceedings and ask the witnesses questions.
Thus, if the state has a very weak case against the defendant, it
should be easy for him to disprove it, and the grand jury in such a
case would not return an indictment for a capital crime. 230 The
231. In Connecticut the defendant normally is permitted to attend the grand jury
proceedings and question witnesses but not to present his own evidence. See State v.
Menillo, 159 Conn. 264, 278-80, 268 A.2d 667, 674-75 (1970). Yet most states do not
allow the defendant to attend the grand jury proceedings. See, e.g., State v. Konigs-
berg, 33 N.J. 367, 374, 164 A.2d 740, 743 (1960): "The accused is not present nor can
he be represented by counsel, and it is probably fair to say that in some instances he
is not even aware that allegations against him are being considered."
232. See, e.g., Ford v. Dilley, 174 Iowa at 264-65, 156 N.W. at 522: "[Tjho degree
of the charge is usually a mere matter of trial policy determined on by the prosecu-
tion, and not a judicial finding .... Prosecuting attorneys are . . . tempted, as a
matter of policy, to draw their indictments covering the highest offense, thus includ-
ing the inferior, rather than for either of the lower, which do not include the supe-
rior." (citations omitted).
233. See M.R CRIM. P. 6(c), (f), (g).
234. 159 Conn. 264, 268 A.2d 667 (1970).
235. Id. at 277, 268 A.2d at 673.
Menillo court explained:

It is easy to see how, especially in cases where the police have
apprehended the wrong person and a simple question of identity is
involved, an accused, by a few questions to the state's witnesses,
might so weaken the state's case as to induce the grand jury to fail
to return a first degree murder indictment. And of course as far as
the constitutional right to bail is concerned, this would be suffi-
cient, since an indictment for second degree murder is not an in-
dictment for a crime punishable by death.2"
The court said, however, that when the defendant is excluded
from the grand jury, the indictment should not raise a presumption.
Since the grand jury proceedings are secret, the accused, unless
permitted to listen to the state's witnesses before the grand jury,
would not know what the state's evidence was which he would be
called upon to meet in the bail hearing. This is entirely different
from the practice of furnishing the accused with a transcript of the
evidence before the grand jury as appears to be the current proce-
dure in Nevada.
Indeed, it would border on the absurd to hold that the state, af-
ter its deliberate and planned exclusion of an accused from the
privilege ordinarily accorded him under our practice of being in the
grand jury room, could still force upon him in a bail hearing, the
burden of producing evidence (to say nothing of the burden of the
risk of non-persuasion) that the unheard and unknown evidence
adduced against him before the grand jury was insufficient to dis-
entitle him to bail.2 "
The concurring opinion in Menillo argued that the indictment
should never serve as prima facie evidence of likelihood of convic-
tion, and that the state should always bear the burden of producing
additional evidence before bail may be denied.2 38 For one thing, the
grand jury does not consider the strength of the state's case against
the defendant, but solely whether there is enough evidence to take
the case to trial. Therefore, even if the grand jurors believed there
was little likelihood of conviction, they might return an indictment
if they felt the state had made out a prima facie case. Furthermore,
even if the defendant is allowed to attend the grand jury proceed-
ings, he is not allowed to introduce any evidence of his own. "Thus,
the indictment procedure in Connecticut, even when the accused is
present, does not provide adequate safeguards and opportunity for
him to exculpate himself so as to fairly produce a finding of likeli-
23 9
hood of conviction.
The Maine Law Court has never decided who bears the burden of
236. Id.
237. Id. at 278-79, 268 A.2d at 674 (citations omitted).
238. Id. at 283-84, 268 A.2d at 676 (Thim, J., concurring).
239. Id. at 283, 268 A.2d at 676 (Thim, J., concurring).
proof of whether the proof is evident or presumption great. In the

superior court decision in State v. Trott, Justice Silsby said a find-
ing of probable cause or the return of an indictment should not have
any
evidentiary or presumptive weight or force whatsoever in the pro-
ceeding on setting bail. The central issue involved in each of the
three proceedings is different. The tests of "probable cause" and
"prima facie case" are each different from the test of "the proof is
evident or the presumption great." A case may very well be suffi-
cient to go to the jury, but with no reasonable expectation of a
finding of guilt. The constitution speaks of a great presumption
and evident proof, not mere presumption or mere proof.
In addition as noted above, the hearing on setting bail, is the
first judicial intervention of a court having jurisdiction to consider
setting bail in a murder case, and for that reason alone any prior
240
proceedings have no evidentiary weight.
Most Maine superior court justices today agree that the state, not
the defendant, has the burden of proof after indictment and that
the indictment does not give rise to a presumption.2 4 1 Superior
Court Justice Chandler explained, "the general rule [is] that in any
criminal matter involving the freedom of the defendant, the state
appears to have the burden and... I would put this type of hearing
in the same general category as suppression hearings where the de-
fendant brings the motion but the state proceeds and has the bur-
den. 24 2 Superior Court Justice Brodrick believes, "[a]s a matter of
theory... the defendant has the burden of going forward and the
State has the burden of persuasion. As a practical matter, the State
2 43
accepts the burden of going forward and calls its witnesses first.
Superior Court Justice Alexander, however, disagrees with his col-
leagues. 24 4 Justice Alexander believes that the defendant bears the
burden of proof after being indicted for murder. The murder indict-
ment, in his opinion, raises a presumption that the proof is evident
or the presumption great, but the defendant can rebut the presump-
tion. 245 According to Deputy Attorney General LaRochelle, head of
the Attorney General's Criminal Division, Justice Alexander never-
theless admits more murder defendants to bail than do some judges
who place the burden on the state.246 For example, Justice Silsby
requires that the state prove the proof is evident or the presumption
240. State v. Trott, No. CR-78-40, at 5 (Me. Super. Ct., Was. Cty., Apr. 7, 1978).
241. Based on results of an informal survey of Maine judges, supra note 13. This
position was espoused by the late Justice Harry Glassman in State v. Nichols, No.
CR-73-679, at 2 (Me. Super. Ct., Cum. Cty., Aug. 23, 1973).
242. Justice Chandler's response to informal survey, supra note 13.
243. Justice Brodrick's response to informal survey, supra note 13.
244. Justice Alexander's response to informal survey, supra note 13.
245. Id.
246. Telephone interview with Deputy Attorney General LaRochelle (Dec., 1985).
great by showing a "high likelihood" the defendant will be convicted

of murder., 7 Yet, in recent years, Justice Silsby has granted bail in
only one murder case, where he found the state failed to meet its
burden. 248 Once he finds the proof evident or the presumption great,
Justice Silsby will not set bail because he does not believe section 10
24 9
allows him to do So.
3. The Legal Standard to be Applied in Determining Whether

the Proof is Evident or the Presumption Great.
Another major issue unresolved by the Fredette court is the
proper legal standard to be applied in determining whether "the
proof is evident or the presumption great." States have adopted va-
rying tests for deciding if this burden has been met. The New Jersey
Supreme Court noted, in State v. Konigsberg, that in such a prelim-
inary hearing the prosecution obviously "should not be required to
show the existence of proof which will establish the guilt of the ac-
cused beyond a reasonable doubt. In no jurisdiction is that re-
' 250
quired. The court emphasized that the judge at a bail hearing
should not evaluate the evidence to decide if the defendant is guilty
or innocent-an issue that must be decided by the trial jury. Thus,
the judge at a bail hearing should not attempt to resolve "direct
conflicts as to inculpatory and exculpatory facts .... 21" The court
concluded, without further explanation, that the just rule is "that
bail should be denied when the circumstances disclosed indicate a
fair likelihood that the defendant is in danger of a jury verdict of
first degree murder. For only in instances where such likelihood ex-
ists is his life in jeopardy and the well recognized urge to abscond
25 2
present.
The Iowa Supreme Court in Ford v. Dilley adopted a more bur-
densome standard than the New Jersey Supreme Court. The court
said:
[P]roof of capital guilt is evident only when the evidence, on its
face and unexplained, excludes any other reasonable conclusion.
The presumption of such guilt is great when the circumstances tes-
tified to are such that inference of guilt naturally to be drawn
therefrom is strong, clear and convincing to the unbiased judgment
and is such as to exclude all reasonable probability of any other
conclusion.25
The Arizona Supreme Court has held that a murder defendant
247. Justice Silsby's response to informal survey, supra note 13.

248. Telephone interview with Justice Silsby (Fall, 1986).
249. Id.
250. State v. Konigsberg, 33 N.J. 367, 376-77, 164 A.2d 740, 745 (1960).
251. Id. at 377, 164 A.2d at 745.
252. Id.
253. 174 Iowa 243, 293, 156 N.W. 513, 532 (1916).
may be detained without bail if the state presents enough evidence

to show probable cause that he committed the offense. 2 4
The court
defined probable cause as "such a state of facts as would lead a man
of ordinary caution or prudence to believe, and conscientiously en-
tertain a strong suspicion of the guilt of the accused." 2 5
The Rhode Island Supreme Court has rejected the probable cause
standard, stating that it is clear from the language of the state's con-
stitutional provision for proof evident or presumption great that
more than probable cause is required.2 5 "For if it were to be read in
such a manner, the guarantee would add nothing to the accused's
rights, since a suspect may not be held without a showing of proba-
ble cause in any instance. ' '257 The Rhode Island court also rejected
the beyond-a-reasonable-doubt standard for bail hearings because
that degree of proof is reserved for trial and is not what the writers
of our constitution had in mind in providing for bail. Not only is it
highly improbable that the framers intended the bail hearing to
determine the precise question to be answered at the trial itself,
but such duplication obviously wastes judicial resources
2 8
and might
prejudice a defendant's opportunity for a fair trial.
Maine judges who believe the state has the burden of demonstrat-
ing that the proof is evident or that the presumption is great have
applied a variety of standards of proof. A number of judges agree
that the standard should be the same as that which courts use in
deciding whether to grant a judgment of acquittal.25 Thus, they
evaluate the evidence presented by the state and the defendant to
determine "whether a reasonable jury could be convinced beyond a
26 0
reasonable doubt of the defendant's guilt of the offense charged.
Superior Court Justice Silsby believes that the words of the consti-
tutional provision calling for proof evident and presumption great
require a higher standard. Justice Silsby requires the state to prove
a "high likelihood of conviction" before he will deny bail to a de-
fendant accused of a once-capital crime. 2 1 He compares the stan-
254. Hafenstein v. Burr, 92 Ariz. 321, 376 P.2d 782 (1962).

255. Id. at 322, 376 P.2d at 783 (quoting Dodd v. Boles, 88 Ariz. 401, 404, 357 P.2d
144, 146 (1960)).
256. Fountaine v. Mullen, 117 R.I. 262, 366 A.2d 1138 (1976).
257. Id. at 265, 366 A.2d at 1141.
258. Id.
259. Justice Scolnik, for example, has adopted this test, Telephone interview with
Justice Scolnik (Oct. 31, 1986), as has Superior Court Justice Bradford, see State v.
Thiboutot, No. CR-83-49, at 2 (Me. Super. Ct., Sag. Cty., Mar. 25, 1983).
260. See, e.g., State v. Nichols, No. CR-73-679, at 3 (Me. Super. Ct., Cum. Cty.,
Aug. 23, 1973).
261. Telephone interview with Justice Silsby (Fall, 1986). This is a stricter test
than Justice Silsby adopted in State v. Trott, No. CR-78-40 (Me. Super. Ct., Was.
Cty., Apr. 7, 1978). In that case, decided three years before Fredette, Justice Silsby
required the state to prove "a fair likelihood that the defendant is in danger of a jury
verdict . . . ." Id. at 4 (quoting State v. Konigsberg, 33 N.J. 367, 377, 164 A.2d 740,
dard to the "good case" showing required before the courts will
grant a pre-judgment motion to attach real estate. 0 3
Apparently, no Maine judge requires the state to prove beyond a
reasonable doubt that the defendant will be convicted.? ° One judge
simply requires the state to produce enough evidence to show there
is probable cause that the defendant will be convicted,"- while an-
other believes that the state must demonstrate by a preponderance
of the evidence that the proof is evident or the presumption great 20 5
Superior Court Justice Perkins believes the terms "proof evident" or
"presumption great" establish the standard. Although the state need
not prove beyond a reasonable doubt that the defendant will be con-
victed, in the absence of "strong evidence of guilt" the defendant
has a right to bail.2""
D. The Need for Uniformity on Issues Unresolved by Fredette

v. State
In addition to the issues of the burden and standard of proof at
bail hearings for once-capital offenses, the Supreme Judicial Court
has yet to decide whether judges may refuse to set bail for defend-
ants accused of once-capital crimes other than murder if they find
the proof is evident or the presumption great. Superior court jus-
tices have reached no consensus on this issue. Although most judges
automatically set bail in all but murder cases, including cases in
which the crimes were once capital, this standard has not been uni-
formly followed in Maine. 267 Because there is a constitutional right
at stake, Maine judges should adopt a uniform approach so that all
defendants accused of once-capital crimes-or if the courts should
745 (1960); State v. Menillo, 159 Conn. 264, 270, 268 A.2d 667, 670 (1970)). Justice
Wernick also maintains that the "proof evident or presumption great" standard re-
quires a higher likelihood of conviction. For Justice Wernick's position on this point,
see supra notes 15, 100.
262. Telephone interview with Justice Silsby (Fall, 1986).
263. Based on answers provided by those superior court judges who responded to
informal survey of Maine judges, supra note 13.
264. Superior Court Justice Pierson's response to informal survey, supra note 13.
265. Superior Justice Chandler's response to informal survey, supra note 13.
266. Telephone interview with Justice Perkins (Fall, 1986). The Law Court is cur-
rently considering the appropriate burden of proof under article 1, section 10. The
issue has reached the court on an appeal of an order denying a writ of habeas corpus.
In Harnish v. State, No. SJC-86-3 (Dec. 29, 1986) (Wathen, J.), Justice Wathen re-
jected the petitioner's argument that the trial court should require "clear and con-
vincing evidence" of an accused's guilt prior to denying bail. The presiding trial jus-
tice in the case had required that the state demonstrate "a fair likelihood that the
defendant [accused of murder] is in danger of a jury verdict [against him]." Id. Jus-
tice Wathen found adequte, however, the lower standard applied by many Maine jus-
tices of a demonstration that "a reasonable jury could be convinced beyond a reason-
able doubt of the defendant's guilt." Id. The issue is on appeal.
267. See supra notes 176-79 and accompanying text.
so decide, all murder defendants-are treated equally.
1. The Burden of Proof.

No superior court justice today holds that the indictment raises a
conclusive presumption that the proof is evident or the presumption
great. Furthermore, it appears unlikely that the framers of the
Maine Constitution intended the indictment to have such an effect.
In addition to approving article I, section 10, guaranteeing a right to
bail "except for capital offenses, where the proof is evident or the
presumption great," the delegates approved article I, section 7, pro-
viding that no one may be charged with a capital offense unless the
grand jury returns an indictment or presentment. If the framers in-
tended the indictment to create a conclusive presumption that the
proof is evident or the presumption great, they could have easily so
stated.
Under the Maine Constitution as construed by Maine superior
court justices, there are two possible approaches to the burden of
proof at bail hearings for defendants charged with once-capital
crimes. First, the state could be required to produce more than the
indictment to show that the proof is evident, the presumption great.
Under this approach, either the defendant or the state could then be
given the burden of persuasion. Most superior court justices today
believe the state has the burden of production and persuasion.20 8 Al-
ternatively, the courts could accept the indictment as raising a re-
buttable presumption that the proof is evident or the presumption
great. The defendant would then have to introduce evidence suffi-
cient to rebut that presumption to establish a constitutional right to
bail.
In Fredette, the Law Court noted that the right to bail, as estab-
lished for most crimes in 1820, was "the logical implementation of
the presumption of innocence."26 9 Furthermore, grand jury proceed-
ings in Maine are entirely ex parte and very secretive. No transcript
is made as a matter of course, but only by special court order based
on a showing of "good cause. 27 0
1 Even if the accused knows about
the grand jury proceedings, and often the accused does not, and
even if he or she convinces a judge that there is good cause to order
that a transcript be made of the proceedings, a defendant may be
268. See supra note 13.

269. Fredette v. State, 428 A.2d 395, 403 (Me. 1981). This affirmative right to bail,
the court determined, was retained in the 1838 amendment to section 10. The nega-
tion of that right, as expressed in the 1838 amendment, is operative "only if 'the
proof is evident or the presumption great.'" Id. at 404 (emphasis in the original).
Thus, the Maine Constitution provides a general right to bail and the denial of the
right to bail in certain capital cases is the exception to the general rule that one is
presumed innocent before trial.
270. M.R CRIM. P. 6(f). See generally 1 D. CLUCHEY & M. SEITZINGER, MAINE
CRIMINAL PRACTICE § 6.6-6.8 (1985) (discussing the rules pertaining to grand juries).
denied access to the transcript. In order to obtain access to the tran-

script, the defendant must convince the judge that there is a "par-
ticularized need" to see it.27 The defendant and counsel are not al-
lowed to attend the grand jury session, unless the defendant is
called as a witness. The prosecutor, however, is present except dur-
ing the deliberations and voting. 27 2 Thus, grand jury proceedings in
Maine make it possible for the grand jury to return an indictment
although the state does not have a strong case against the defend-
ant.2 " Such proceedings also make it difficult for the defendant to
rebut a presumption raised by the indictment since the defendant
often 4does not know what evidence was presented to the grand
27
jury.
Based on the importance of the presumption of innocence, the
fact that denial of bail is an exception to the general constitutional
right guaranteeing bail, and the structure of grand jury proceedings
in Maine, the state should be required to bear the burden of produc-
ing evidence in addition to the indictment and should also bear the
burden of proving that the proof is evident, the presumption great.
2. The Legal Standard.

A major issue left unresolved by the Fredette court is the legal
standard to be applied in evaluating whether the proof is evident or
the presumption great. A uniform standard should be adopted to
ensure that defendants accused of murder, and possibly other once-
capital crimes, are treated equally when they claim a constitutional
right to bail under section 10.
As the Rhode Island Supreme Court 27" has said, the probable
cause standard is insufficient. Such a standard would add nothing to
a defendant's rights, since no one can be indicted for a crime unless
the grand jury finds there is probable cause. On the other end of the
spectrum, the state should not be required to prove beyond a rea-
sonable doubt that the defendant will be convicted of a once-capital
crime since that, in effect, would turn the bail hearing into a trial on
the issue of guilt or innocence. The test adopted should be at least
the same standard used in deciding whether to grant a judgment of
271. M.U CRI.. P. 6(g).

272. M R CRim. P. 6(d).
273. Cf. State v. Konigsberg, 33 N.J. 367, 374, 164 A.2d 740, 743-44 (1960) (grand
jury indictment does not establish proof evident or presumption great); Taglianetti v.
Fontaine, 105 RI. 596, 600, 253 A.2d 609, 612 (1969) (noting indictment has no evi-
dentiary value relative to accused's guilt).
274. Although modem discovery procedures allow defendants to obtain access to
much of the state's evidence, this can be a time-consuming practice if the prosecutor
does not have an open-file rule of his own. For instance, a court order and a showing
of reasonableness may be required to obtain information about the state's non-expert
witnesses. See M.IR CRim P. 16(c)(1).
275. Fountaine v. Mullen, 117 R.I. 262, 266-67, 366 A.2d 1138. 1141 (1976).
acquittal, that is, whether a reasonable jury could be convinced be-

yond a reasonable doubt of the defendant's guilt of the offense
charged. Since, under the authority of Fredette, Maine judges have
discretionary power to admit defendants to bail even after finding
the proof is evident or the presumption great,7 6 this test may pro-
vide sufficient protection for a defendant. On the other hand, strong
arguments have been advanced to the effect that the very language
of section 10,.calling for evident proof or great presumption, re-
quires that the state prove that it has a good, strong case against the
defendant. This is a higher standard than that used in deciding
whether to grant a judgment of acquittal.
3. Once-Capital Crimes Other than Murder.

Whether judges may deny bail for crimes other than murder that
once were capital is an issue the Law Court is likely to face in the
future if prosecutors start demanding that bail be denied in such
cases, as they did in a recent rape case.277 The plain language of the
Maine Constitution states that no defendant accused of any once-
capital crime has a right to bail if the proof is evident or the pre-
sumption great. On the other hand, when the Legislature amended
the constitution in 1838, crimes that had once been capital but no
longer carried the death penalty did carry the punishment of life
imprisonment.2 7 8 The Legislature presumably intended, if it were to
abolish the death penalty, to substitute life imprisonment as the
punishment. A person facing a likelihood of life imprisonment, like a
person facing the death penalty, has a strong incentive to flee rather
than face trial even if he thus forfeits bail. Today, however, none of
the once-capital crimes, except murder, is punishable by life impris-
onment. 279 Therefore, it appears the historical reason bail was to be
denied in such cases no longer exists.
III. CONCLUSION
Maine's constitution has provided a right to bail for nearly all
criminal defendants ever since Maine became a state. Under article
I, section 10, Maine judges must set bail for all criminal defendants
prior to conviction, except those accused of once-capital crimes if
the "proof is evident or the presumption great" against them. Even
if the court finds no absolute right to bail, the judge has discretion-
ary power to admit a defendant to bail, according to the Law
Court's decision in Fredette v. State.
Several major issues involving determination of this constitutional
276. Fredette v. State, 428 A.2d at 405.

277. See supra note 178 and accompanying text.
278. See supra notes 167-172 and accompanying text.
279. ME. REV. STAT. ANN. tit. 17-A, § 1251, 1252 (1983 & Supp. 1986-1987).
right to bail for those accused of once-capital crimes have never

been decided by Maine's highest court. As a result, Maine superior
court justices have applied different standards in resolving such is-
sues as who has the burden of proof at bail hearings and what is the
proper legal standard to be applied to the evidence. Thus, a murder
defendant who seeks bail in one court may have to introduce evi-
dence to rebut a presumption created by the indictment, while in
another court the state must introduce evidence in addition to the
indictment or the defendant will be admitted to bail. Likewise, in
some courts the evidence must establish merely that a reasonable
jury could be convinced beyond a reasonable doubt of the defend-
ant's guilt before bail will be denied, while in another court the evi-
dence must establish a high likelihood of conviction before bail will
be denied. Finally, while most superior court justices always set bail
for every defendant except those accused of murder, bail has been
denied in at least one recent rape case. Prosecutors and defense at-
torneys should take the first opportunity to have these issues re-
solved by the Maine Law Court so that a defendant's state constitu-
tional guarantee of bail will be uniformly applied throughout
Maine's judicial system.

39 Me LRev 391

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

39 Me LRev 391

Uploaded by

Copyright:

Available Formats

DATE DOWNLOADED: Sat Sep 4 03:13:16 2021

SOURCE: Content Downloaded from HeinOnline

Bluebook 21st ed.

ALWD 6th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 8th ed.

OSCOLA 4th ed.

When the framers of the Maine Constitution gathered in Portland

Declaration of Rights in article I:

done by readopting the language of the 1819 version of section 10,

13. This information is based on responses to an informal survey of Maine Supe-

In addition to considering who should have the burden of proof in

II. STATUS OF THE RIGHT TO BAIL IN MAINE

22. Id. at 153.

seemed highly necessary that capital and infamous offenses should

28. Id. at 118-19.

colonial times, provided a right to bail for all criminal defendants

H. The accused's record of convictions;

at the discretion of the Massachusetts supreme court justices.3 This

2. Amendment of Article I, Section 10 in 1838.

[If] the legislature should abolish the punishment of death,

The Legislature, to avoid that result, passed a resolve on March

3. Superior Court Interpretations of Article I, Section 10 Prior

52. Resolves 1837, ch. 74.

matically set pre-trial bail for defendants accused of all other

between 1930 and 1965 (Appendix C).

The only guidance on the right to bail provided by the Maine

61. 3 H. GLASSmAN, MmNE PRAcTicE. RULEs OF CIMINAL PROCEDURE ANNorATED

murder is not now a capital offense, and was not denominated a

66. Id. at 3 (emphasis in the original).

if the proof was evident or the presumption great. Justice Glassman

judgment of acquittal.9' Justice Goffam did not state why he so allo-

91. Id. at 1-2.

insanity. At the arraignment Justice Alexander ordered bail set at

statutes or in their constitutions. 12' Likewise, the federal Judiciary

Thus, Anaya argued, the provision of section 10 regarding bail in

the common law authority of various judges to act in their discre-

Fredette argued that defendants have no absolute right to bail after

2. The Meaning of "Bailable"-aConstitutionalRight to Bail.

most crimes, a right that had been provided by Massachusetts law

3. DiscretionaryBail When the Proof Is Evident, the Presump-

146. Id. (quoting M. CONsT. art. I, § 10 (1820, amended 1838)).

152. Supplementary Brief to Brief of Appellee, State of Maine, at 21-24, Fredette

156. Id. at 165, 177 N.E.2d at 785.

had enacted the various predecessors of Rule 46(a)(2), permitting a

C. Issues Unresolved by Fredette v. State

161. Id. at 2-3 n.2.

166. Fredette v. State, 428 A.2d at 404-405.

superior court judge no prosecutor ever insisted that he deny bail

2. The Burden of Proof.

177. Telephone interview with Justice Scolnik (Nov., 1986).

cused of a capital offense from having a constitutional right to bail.

a. The indictment is conclusive evidence. Early cases in several

for all purposes except the trial before a petit jury.188

This rule that the indictment, except under extraordinary circum-

188. Id. at 543.

raises a rebuttable presumption that the proof is evident and the

b. The indictment raises a rebuttable presumption. Under this

entails. 0 7 In some jurisdictions this means the defendant has the