# United States v. Edwards

> District of Columbia Court of Appeals · May 8, 1981 · 430 A.2d 1321

URL: https://www.frixlaw.com/law-library/cases/9760354

## Case

- **Full name:** UNITED STATES, Appellant, v. Marvin L. EDWARDS, Appellee; Marvin L. EDWARDS, Appellant, v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** May 8, 1981
- **Citations:** 430 A.2d 1321; 7 Media L. Rep. (BNA) 1324; 1981 D.C. App. LEXIS 278
- **Precedential status:** Published
- **Opinion:** Concurring in part by Ferren
- **Judges:** Newman, Kelly, Kern, Gallagher, Nebeker, Harris, MacK, Ferren, Pryor
- **Cited by:** 163 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9760354

## How later opinions describe it (automated extraction)

- stating that “pretrial detention is -4- regulatory rather than penal in nature,” and even though “detention pending trial invokes an affirmative restraint, historically it has not been regarded as punishment where the purpose has been to prevent flight or to prevent the coerci…
- explaining that sheriffs “exercised a broad and ill-defined discretionary power to bail” prisoners and that this “power was widely abused by sheriffs who extorted money from individuals entitled to release without charge” and who “accepted bribes from those who were not otherw…

## Opinion text

FERREN, Associate Judge,
concurring in part and dissenting in part:
After devoting so much attention to the Eighth Amendment, this court lowered its *1351 sights on the second, equally important issue concerning bail: Fifth Amendment due process. While I concur in Chief Judge NEWMAN’S Eighth Amendment analysis in Part II of his opinion for the court, I cannot accept his treatment of due process in Part III.
I.
Specifically, this court confronts the question whether the Eighth Amendment guarantees a right to bail to every person accused of a noncapital crime. We hold that it does not. We rule that the right to bail, as such, is a matter for the legislature, and that the bail protection clause of the Eighth Amendment is directed to the courts: a judge may not impose “excessive bail” in cases the legislature deems bailable. All the more important, therefore, is the question whether an accused has other constitutional protections in the event the legislature authorizes pretrial detention without bail. We answer yes, holding that Fifth Amendment due process constrains the legislature and the committing magistrate. We then apply due process and sustain both the validity of the pretrial detention statute, D.C.Code 1973, § 23-1322, 1 and its use to detain appellant Edwards.
Although I agree that § 23-1322 is constitutional when properly interpreted and applied, I respectfully dissent because I perceive a looseness of analysis that could lead to misunderstandings of due process in the future. I have three concerns.
First, as to the government’s burden of proof, the majority upholds the statute with an analysis that strongly hints the protections afforded the defendant in § 23-1322 are higher than they need to be. More specifically, by premising their analysis primarily on Gerstein v. Pugh, 420 U.S. 103 , 95 S.Ct. 854 , 43 L.Ed.2d 54 (1975), my colleagues apparently would permit pretrial detention without right to bail merely on findings of probable cause to believe that (1) an accused, “charged with a dangerous crime,” has “committed the offense” and that (2) no condition of pretrial release “will reasonably assure the safety of the community,” given the accused’s “past and present conduct.” D.C. Code 1973, §§ 23-1322(a)(2), (b)(2); see ante at 1339-1340. In contrast, I believe due process mandates the much stricter requirement, contained in the statute, that the findings be premised on clear and convincing evidence.
Second, as to the defendant’s right to confront adverse witnesses, the majority interprets the statute in a way that affords lower protections than the Constitution, I believe, requires. According to the majority, the government can accomplish pretrial detention, consistent with due process, solely on the basis of proffer or other hearsay evidence “subject to the discretion of the judge as to the nature of. the proffer and the need for admissible evidence.” Ante at 1337. Thus, in effect, unless the accused sustains the burden of casting doubt on the sufficiency of the government’s proffer, the accused at this stage has no right to confront and cross-examine any government witness. To the contrary, I believe the Constitution entitles the accused to confront and cross-examine every witness whose testimony the government intends to proffer, unless the government sustains the burden of showing good cause why the witness should not be called.
Third, in declining to rule on the notice issue in the case before Judge Bowers, my colleagues leave doubts about that important due process right. See ante at 1339-1341. I believe it must be made clear that due process entitles the accused to notice of all the charges about past and present conduct he or she will face at the pretrial detention hearing.
It affronts our constitutional heritage to say that due process is satisfied when an *1352 accused can be held for two months in jail, without right to bail, based on procedures as one-sided and findings as flimsy as those the majority apparently would permit. In my view, the very strictness of the statute is its salvation; in fact, elementary notions of due process require judicial amplification of the statute in the three critical respects where the majority is lax. 2
As a consequence, I dissent from reversal in the rape case, No. 80-294; I would affirm Judge Bowers’ order denying the government’s first application for detention. I concur, however, in the result reached in the burglary case, No. 80-401; I would affirm Judge Norman’s pretrial detention order.
II.
The majority principally relies on Gerstein, supra, a Fourth Amendment case, for analysis of due process, properly a Fifth Amendment concern. By doing so, my colleagues afford less constitutional protection to an accused at a pretrial detention hearing than the Supreme Court has granted convicted felons facing possible revocation of probation or parole. See Gagnon v. Scar-pelli, 411 U.S. 778, 782 , 93 S.Ct. 1756, 1759 , 36 L.Ed.2d 656 (1973) (probation); Morrissey v. Brewer, 408 U.S. 471, 484-89 , 92 S.Ct. 2593, 2601-04 , 33 L.Ed.2d 484 (1972) (parole). That is not the law.
In Gerstein, supra, the Supreme Court considered “whether a person arrested and held for trial under a prosecutor’s information is constitutionally entitled to a judicial determination of probable cause for pretrial restraint of liberty.” Id. 420 U.S. at 105 , 95 S.Ct. at 858 . Under state criminal procedure, the government had to bring every person arrested before a judicial officer within 24 hours, but the magistrate made no determination of probable cause to believe the suspect had committed a crime. Id. 420 U.S. at 109 . The Court held that “the prosecutor’s assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial,” id. at 118-19 , 95 S.Ct. at 865-66 ; rather, “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” Id. at 114 , 95 S.Ct. at 863 . The Court stressed: “[W]e limit our holding to the precise requirement of the Fourth Amendment. ...” Id. at 123 , 95 S.Ct. at *1353 867 . Justice Stewart, joined by three others, concurred separately to emphasize that limitation. See id. at 127 , 95 S.Ct. at 869 (Stewart, J., with Douglas, Brennan & Marshall, JJ., concurring).
For three reasons I believe my colleagues’ heavy reliance on Gerstein is misplaced. First, the decision to hold an accused without bail is an entirely different determination from the probable cause finding Ger-stein requires before the court may impose any significant pretrial restraint on liberty. See id. at 125 , 95 S.Ct. at 868 . A probable cause finding under Gerstein relates solely to the question whether there is reasonable ground to believe the accused committed a crime. It is the test traditionally applied at “only the first stage” of the criminal justice system, id. at 125 n.27, 95 S.Ct. at 868 n.27, to justify pretrial restraint no greater than the setting of bail. See id. at 114 , 95 S.Ct. at 863 . Indeed, probable cause is the standard used upon arraignment to hold the accused for a separate pretrial detention hearing up to five days later. See D.C.Code 1973, § 23-1322(c)(3). In contrast, pretrial detention without bail is premised not only on a showing that the accused may have committed a particular crime, but also on a far more complex, inherently speculative prediction that the accused is likely to be dangerous in the future, based on past and present conduct. This kind of evaluation was not before the court in Gerstein and, given its predictive nature, requires a more carefully focused, Fifth Amendment analysis. 3
Second, four years after Gerstein , the Supreme Court in Bell v. Wolfish, 441 U.S. 520 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979), held that the government’s needs for effective prison management and institutional security were “regulatory” purposes valid enough to justify uncomfortable, even offensive, jail conditions for pretrial detainees without offending due process. See id. at 540, 544-48 , 99 S.Ct. at 1876-79 . Such conditions, accordingly, could not be called “punishment,” even though they ranged, for example, from double-bunking to visual inspections of the inmates’ anal and genital cavities every time they had received outside visitors. See id. at 540-60 , 99 S.Ct. at 1874-85 . Citing Gerstein , the Court assumed the detention itself (which the appellants had not challenged) was valid, based on a finding of probable cause coupled with bail set to prevent flight. See id. at 536, 99 S.Ct. at 1872 . The Court stressed that it had “no occasion to consider whether other governmental objectives may constitutionally justify pretrial detention.” Id. at 534 n.15, 99 S.Ct. at 1871 n.15. While the Court took no position on pretrial detention without bail, the statement reflects the Court’s recognition that no-bail detention is a serious, separate issue.
Finally, the Supreme Court has emphasized that “due process is flexible and calls for such protections as the particular situation demands.” Morrissey, supra 408 U.S. at 481 , 92 S.Ct. at 2600 . A year after Gerstein , in Mathews v. Eldridge, 424 U.S. 319, 335 , 96 S.Ct. 893, 903 , 47 L.Ed.2d 18 (1976) (a decision permitting a prehearing cut-off of Social Security disability benefits), the Court outlined three considerations applicable to due process in every context:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of *1354 additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See, e. g., Goldberg v. Kelly, supra, 397 U.S. at 263-271, 90 S.Ct. at 1018-1022.
See Greenholtz v. Inmates of the Nebraksa Penal & Correctional Complex, 442 U.S. 1, 12-13 , 99 S.Ct. 2100, 2106-2107 , 60 L.Ed.2d 668 (1979); In re Kossow, D.C.App., 393 A.2d 97, 104 (1978). I perceive no legitimate way for the majority to ignore this basic interest analysis in favor of a unique Gerstein shortcut.
In summary, Gerstein mandates at least a judicial finding of probable cause before imposing any extended pretrial restraint, including a “five-day hold” for a pretrial detention hearing; Bell permits pretrial confinement short of “punishment” on the assumption that the detention itself is valid; and Mathews requires a distinct, three-part analysis for every context in which the government would impinge on constitutionally protected private interests. There is, accordingly, a gulf between an initial finding of probable cause under Gerstein and an approval of pretrial jail conditions under Bell — a gulf that can be bridged only by a Mathews analysis of the pretrial detention statute, on its face and as applied.
III.
In applying due process to probation and parole revocation, the Supreme Court imposed certain procedural safeguards to protect conditional liberty. See Gagnon, supra 411 U.S. at 782 , 93 S.Ct. at 1759 ; Morrissey, supra 408 U.S. at 484-89 , 92 S.Ct. at 2601-04 . “A fortiori, pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners.” Bell, supra 441 U.S. at 545 , 99 S.Ct. at 1877 . By apparently providing pretrial detainees with less protection than probationers and parolees receive (as we shall see), the majority has set the constitutional hurdle for pretrial detention decidedly too low.
A. The Liberty Interest of the Potential Detainee
All parties — and all judges of this court— agree: pretrial detention affects a clear and vital liberty interest. Indeed, “[ljiberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Greenholtz, supra 442 U.S. at 18 , 99 S.Ct. at 2109 (Powell, J., concurring in part and dissenting in part). 4 Pretrial liberty is all the more precious because constitutional protection drops off sharply once pretrial detention is properly imposed. At that point, due process bars only “punishment,” a term the Supreme Court now defines by reference to the government’s purpose, not to impact on the accused. See Bell, supra, 441 U.S. at 538 , 99 S.Ct. at 1873 . An accused, therefore, may have to live in a grim prison environment for months and months before trial, see Bell, supra 441 U.S. at 541—43, 548-60, 99 S.Ct. at 1875-76, 1879-85, shielded *1355 against only egregious delays by “speedy trial” guarantees. See Barker v. Wingo, 407 U.S. 514, 530 , 92 S.Ct. 2182, 2191 , 33 L.Ed.2d 101 (1972); United States v. Marion, 404 U.S. 307 , 315 n.8, 318 n.9, 319, 324, 92 S.Ct. 455 , 460 n.8, 462 n.9, 462, 465, 30 L.Ed.2d 468 (1971).
Although not necessarily “punishment,” but see note 12 infra, pretrial detention is likely to have substantially the same, painful impact on the individual as incarceration for a criminal offense. See Campbell v. McGruder, 188 U.S.App.D.C. 258, 267 , 580 F.2d 521, 530 (1978). The accused is likely to lose employment, strain relationships with family and friends, and suffer indignities of the sorts already described; but, of even greater significance, a number of studies indicate that “the defendant at liberty pending trial stands a better chance of not being convicted or, if convicted, of not receiving a prison sentence.” Ares, Rankin & Sturz, The Manhattan Bail Project: An Interim Report on the Use of Pre-Trial Parole, 38 N.Y.U.L.Rev. 67, 86 (1963); see McGinnis v. Royster, 410 U.S. 263, 281-83 , 93 S.Ct. 1055, 1065-66 , 35 L.Ed.2d 282 (1973) (Douglas, J., with Marshall, J., dissenting); Campbell, supra 188 U.S.App.D.C. at 268-69 , 580 F.2d at 531-32 ; Vera Institute of Justice, Programs in Criminal Justice Reform: Ten-Year Report 1961-1971, at 31 (1972). This disparity may be attributable to “[conditions of confinement that impede a defendant’s preparation of his defense (apart, of course, from the fact of confinement itself), or that are so harsh or intolerable as to induce him to plead guilty, or that damage his appearance or mental alertness at trial.” Campbell, supra, 188 U.S.App.D.C. at 269 , 580 F.2d at 532 .
To say the very least, an accused has a substantial interest in not being arbitrarily classified as dangerous, and thus nonbaila-ble as a matter of law. 5
B. The Interests of the Government (the Public)
The public has two principal interests in the availability of pretrial detention: (1) the need to ensure that the defendant appears at trial, see Stack v. Boyle, 342 U.S. 1, 4-5 , 72 S.Ct. 1, 3-4 , 96 L.Ed. 3 (1951); Jones v. United States, D.C.App., 347 A.2d 399, 401 (1975); Villines v. United States, D.C.App., 312 A.2d 304, 306 (1973); D.C. Code 1973, § 23-1321(a) (reproduced in the Appendix), and (2) the need to protect society against dangerous individuals who may continue to commit serious crimes while other charges are pending. See Jones, supra, 347 A.2d at 401 ; D.C. Code 1973, § 23-1321(a). 6
*1356 The government also has an efficiency interest in not having to make two substantially similar, extensive presentations: one for pretrial detention, the other at trial itself. Cf. Morrissey, supra 408 U.S. at 483 , 92 S.Ct. at 2601 (state has interest in being able to return parole violator to prison without burden of new adversary criminal trial). This interest in avoiding, in effect, two trials is even greater when government witnesses might suffer severe emotional trauma (as alleged in this case) if they had to testify twice as to brutal treatment by the defendant.
On the other hand, as strong as the government’s interests may be in having available a manageable pretrial detention system, the government has a countervailing interest in assuring basic fairness, including accuracy of findings — in short, an interest in not imprisoning anyone unnecessarily. Greenholtz, supra 442 U.S. at 13 , 99 S.Ct. at 2107 ; Gagnon, supra 411 U.S. at 785 , 93 S.Ct. at 1761 ; Morrissey, supra 408 U.S. at 484 , 92 S.Ct. at 2601 .
C. The Risk of Error from the Procedures Used; Probable Value of Additional or Substitute Safeguards
Pretrial detention under § 23-1322 inherently involves a substantial risk, of error. Like parole and probation decisions, pretrial detention requires a predictive judgment about future conduct that depends on imperfect evaluative techniques. See Greenholtz, supra 442 U.S. at 8, 13 , 99 S.Ct. at 2104, 2107 ; Morrissey, supra, 408 U.S. at 480 , 92 S.Ct. at 2599 . The Supreme Court repeatedly has recognized the risk of error in similar determinations. See, e. g., Vitek v. Jones, 445 U.S. 480, 495 , 100 S.Ct. 1254, 1264 , 63 L.Ed.2d 552 (1980); Greenholtz, supra, 442 U.S. at 13 , 99 S.Ct. at 2107 ; Addington v. Texas, 441 U.S. 418, 426-27 , 99 S.Ct. at 1809-10 (1979); Morrissey, supra, 408 U.S. at 484 , 92 S.Ct. at 2601 . See generally Note, Preventive Detention: An Empirical Analysis, 6 Harv.C.R.-C.L.L.Rev. 289 (1971). Under my colleagues’ position on due process, however, “the risk of an erroneous deprivation” of liberty, Mathews, supra 424 U.S. at 335 , 96 S.Ct. at 903 , is enormous. Given the private and public interests involved, coupled with the substantial risk of error, I conclude that the Fifth Amendment demands are considerable. In my view, the statute cannot survive constitutional scrutiny unless it contains— by word or imputation — three additional safeguards which, taken together, will make the risk of error acceptably low.
1. Notice
The majority’s discussion of the right to notice, ante at 1339-1341, is incomplete. Any person accused of a “dangerous crime” needs to know the precise instances of “past and present conduct” on which the government proposes to rely to demonstrate a threat to the community. D.C. Code 1973, § 23-1322(a)(1), (b)(2)(B). Timely notice is vital if the accused is to have a meaningful opportunity to defend at the pretrial detention hearing. Even when lesser liberty interests are at stake, the Supreme Court has held that notice of the specific charge is essential to due process. See Wolff v. McDonnell, 418 U.S. 539, 564 , 94 S.Ct. 2963, 2978 , 41 L.Ed.2d 935 (1974) (prison disciplinary proceeding); Gagnon, supra, 411 U.S. at 782 , 93 S.Ct. at 1759 (probation revocation); Morrissey, supra, 408 U.S. at 486-87 , 92 S.Ct. at 2602-03 (parole revocation); cf. Goldberg v. Kelly, 397 U.S. 254, 267-68 , 90 S.Ct. 1011, 1020-21 , 25 L.Ed.2d 287 (1970) *1357 (notice required before preliminary suspension of welfare benefits). 7
Furthermore, the government has no interest in declining to reveal the charges it will allege at the hearing, although the expedited nature of the proceeding naturally will preclude notice much in advance. See Greenholtz, supra, 442 U.S. at 14 n.6, 99 S.Ct. at 2107 n.6; Wolff, supra, 418 U.S. at 564 , 94 S.Ct. at 2978 ; Goldberg, supra 397 U.S. at 267-68 , 90 S.Ct. at 1020-21 . Because the accused is held pending the hearing, however, the government ordinarily will not have a strong interest in denying a defense continuance 8 if the accused wants additional time to evaluate the government’s allegations. I conclude that due process requires the right to advance (even if short) notice of all charges, facilitated by the right to a reasonable continuance. The statute should be so interpreted.
2. Confrontation and Cross-Examination
With an exception not applicable here, the pretrial detention statute provides that no person shall be ordered detained unless “on the basis of information presented by proffer or otherwise to the judicial officer there is a substantial probability that the person committed the offense .. .. ” D.C. Code 1973, § 23-1322(b)(2)(C). My colleagues interpret the statute to say the government as a general rule may use proffer and other hearsay testimony to establish sufficient support for the findings required under § 23-1322, subject to the trial court’s discretion to require better proof, presuman -blyat'“fche defcndantVreqtiire-bcUci piuof, presumably at the defendant’s urging. See ante at 1337-1339. I disagree. To save the constitutionality of the statute, I would establish the opposite presumption by interpreting § 23-1322 to grant the accused the right, as a general rule, to confront and cross-examine those individuals who have provided adverse information. Thus, I would allow the government to proceed by proffer or hearsay only when it can show good cause why a witness should not be called to give live testimony.
“In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg, supra 397 U.S. at 269 , 90 S.Ct. at 1021 . Although the pretrial detention hearing does not necessitate the comprehensive examination of witnesses required when the court or the jury must resolve guilt or innocence, credibility and veracity remain at issue. In Goldberg , for example, the Court held that even the temporary loss of welfare benefits pending a more complete hearing was severe enough to require confrontation rights. See id. at 270 , 90 S.Ct. at 1021 . In the case of pretrial detention, where the accused has so much more at stake, I do not believe we should downplay such a basic, due process right — as the majority does — by presumptively authorizing proffer and other hearsay to sustain the necessary showing.
The public’s interest in pretrial detention, however, on occasion will justify an exception to the general right of confrontation. In Morrissey, supra, although recognizing that individuals faced with preliminary revocation of parole have a basic confrontation right, the Supreme Court articulated a limitation: when “the hearing officer determines that an informant would be subjected to risk of harm if his identity were disclosed, he need not be subjected to confron *1358 tation and cross-examination.” Id. 408 U.S. at 487 , 92 S.Ct. at 2603; see Vitek, supra 445 U.S. at 494-96 , 100 S.Ct. at 1264-65 . 9 Thus, concerns for the safety or well-being of government witnesses and their ability to testify both before and at trial dictate a similar limitation for pretrial detention hearings. If, for example, the government can present evidence, such as a doctor’s testimony, that a rape victim would suffer emotional harm when forced to testify so soon after the event, this reason probably should suffice to justify a proffer of her testimony instead.
In summary, I would follow the Court’s approach in Morrissey, supra, and announce as a general rule the right of the defense to confront and cross-examine all government witnesses essential to the case for detention, see id. 408 U.S. at 487, 489 , 92 S.Ct. at 2603, 2604, except that the government may proceed instead by proffer if it can show “good cause” (as in the example given above) why it should not call the witness personally. Id. at 489, 92 S.Ct. at 2604; accord, Vitek, supra 445 U.S. at 495-96 , 100 S.Ct. at 1264-65 . 10 I believe this suggested approach to confrontation and cross-examination is sufficiently compatible with a statute requiring “information presented by proffer or otherwise” to save its constitutionality if so construed. 11
3. The Burden of Proof
Although a close question, I agree that pretrial detention without bail for 60 days (or somewhat longer if the accused asks for a continuance) is not “punishment,” as defined in Bell, supra, 441 U.S. at 535-39, 99 S.Ct. at 1872-74 , and Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 , 83 S.Ct. 554, 567-68 , 6 L.Ed.2d 644 (1963). The government has a valid regulatory purpose in protecting the community against a predictably dangerous person during the period the government needs to prepare for trial. 12 All the safeguards of a criminal trial, moreover, will follow detention within a reasonably short period of time. See note 12 supra. Accordingly, I conclude that at a *1359 pretrial detention hearing the government need not bear the burden of proof required for a criminal trial, i. e., proof beyond a reasonable doubt. However, I cannot agree with the majority’s implication that a probable cause showing is enough. See ante at 1339.
Traditional Fourth Amendment analysis generally stops with the question whether any government intrusion is warranted; it does not focus on how much intrusion the state then can impose. See Gerstein, supra 420 U.S. at 125 & nn. 26-27, 95 S.Ct. at 868 & nn. 26-27. Thus, the courts have developed the Fourth Amendment probable cause standard primarily to evaluate what is reasonable conduct for a police officer on the street — an officer who must act quickly on the basis of facts and circumstances available at the time. See e. g., Draper v. United States, 358 U.S. 307, 313 , 79 S.Ct. 329, 333 , 3 L.Ed.2d 327 (1959); Crawford v. United States, D.C.App., 369 A.2d 595, 600-01 (1977); Arrington v. United States, D.C.App., 311 A.2d 838, 839 (1973). Probable cause is “a plastic concept” justifying an officer’s reasonable conclusion that an arrest and related search are warranted even though, in retrospect, the officer’s perceptions may prove incorrect, or another course of action may seem preferable. Id.
In reality, therefore, Fourth Amendment probable cause barely can be characterized as a burden of proof at all. Rather, it is a test for reasonable conduct — a standard where “room [is] allowed for the mistakes of reasonable officers when acting on facts which lead to conclusions of probability.” Crawford, supra 369 A.2d at 600 ; see Brinegar v. United States, 338 U.S. 160, 176 , 69 S.Ct. 1302, 1311 , 93 L.Ed. 1879 (1949). 13
We accept a relatively high risk of error in a probable cause determination because the intrusion — arrest—is limited. We even accept that high risk of error (discounted by post-arrest information) for the greater pretrial restraint of the imposition of bail. In my judgment, however, before the state can jail someone for two months without even a right to bail, the Fifth Amendment compels much greater accuracy. The injustice of a mere probable cause standard for 60-day pretrial detention is sharply reflected by the fact that this is the same standard required for the preliminary hearing and detention of alleged parole and probation violators who — by virtue of a criminal conviction — stand to lose only conditional liberty. See Gagnon, supra 411 U.S. at 781-82 , 93 S.Ct. at 1759-60 ; Morrissey, supra 408 U.S. at 480, 485, 487 , 92 S.Ct. at 2599, 2602, 2603 . The final decision on revocation of this conditional liberty can come only after the alleged violator has had an opportunity for a second hearing, which “must be the basis for more the determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation.” Id. at *1360 488 , 92 S.Ct. at 2603 (emphasis added). 14 In contrast, a potential pretrial detainee stands to lose presumptively unconditional liberty because of criminal charges yet to be proved. This substantially greater liberty interest requires substantially greater protection.
I would hold that the burden of proof for all findings under § 23-1322(b)(2) is greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. In so holding, I would rely on the approach in Addington, supra, where the Supreme Court held that clear and convincing evidence is sufficient for imposing involuntary civil commitment. Id. 441 U.S. at 431-33, 99 S.Ct. at 1812-13. The Court reasoned that although only “punitive” (criminal) proceedings demand proof beyond a reasonable doubt, id. at 427-31, 99 S.Ct. at 1810-12 the risk of erroneous involuntary civil commitment is significant enough, and its consequences severe enough, to require more than a preponderance standard. Id. at 425-27, 99 S.Ct. at 1809-10. Weighing the liberty and public interests at stake, I believe that the risk and consequences of erroneous pretrial detention are similarly grave and thus mandate a similar standard of proof.
In adopting a clear and convincing evidence standard, the Court in Addington was less concerned with precise wording than with its message to the factfinder “that the proof must be greater than the preponderance of the evidence standard applicable to other categories of civil cases.” Id. at 433 , 99 S.Ct. at 1813. In adopting standards for pretrial detention, Congress has taken a similar approach. Thus, the government must show by “clear and convincing evidence” that the accused is a person subject to pretrial detention under D.C.Code 1973, § 23-1322(a). Id. § 23-1322(b)(2)(A). The government also must demonstrate “a substantial probability” that the accused “committed the offense.” Id. § 23-1322(b)(2)(C). 15 The statute is silent on the degree of evidentiary support required for the most elusive, and thus critical, factual findings, namely those evaluating the “present and past conduct” necessary to sustain a prediction that pretrial detention is necessary to assure community safety. See id. § 23-1322(b)(2)(B). We implicitly have construed the statute, however, to require “clear and convincing evidence” for all findings. See Blunt v. United States, D.C.App., 322 A.2d 579, 586 (1974); D.C.Code 1973, § 23-1322(b)(2)(A). I would make that ruling explicit here.
I conclude, accordingly, that the pretrial detention statute satisfies due process because — and only because — it requires the government to meet a heavy burden of proof, “clear and convincing evidence,” which falls between a preponderance of the evidence and proof beyond a reasonable doubt. 16
D. Conclusion as to Due Process
Having compared the private and public interests at stake, evaluated the risk of *1361 error, and considered the corrective value of additional safeguards, I conclude that D.C.Code 1973, § 23-1822 can survive constitutional scrutiny by the trial court’s strict enforcement of specified defense rights to notice, confrontation, and cross-examination and by the imposition of a burden on the government to prove each statutory requirement by clear and convincing evidence. In failing to make clear that these requirements are inherent in a constitutional pretrial detention scheme, my colleagues in the majority implicitly have compromised the Fifth Amendment right to due process of law.
IV
Applying these requirements of due process, I dissent from the reversal in the rape case, No. 80-294, and thus would affirm Judge Bowers’ order denying the government’s first application for detention. I concur, however, in the result reached in the burglary case, No. 80-401, affirming Judge Norman’s detention order.
In the rape case, No. 80-294, the government did not satisfy the notice and confrontation requirements. It failed to inform appellant in a specific and timely manner about the “past and present conduct” on which it intended to rely. The government, moreover, proffered the victim’s testimony without substantiating its claim that she would be harmed if she were to appear and testify at the hearing. Thus, the government did not satisfy the “good cause” exception to the defense right of confrontation. Accordingly, the trial court properly refused to order pretrial detention.
The burglary case, No. 80-401, is different; appellant’s right to notice of “past and present conduct” was satisfied. In the hearing before Judge Norman, the court relied on appellant’s confession to the burglary and rape and to 17 other recent robberies; on corroboration by testimony of investigating officers; and on eight adjudications of delinquency in appellant’s juvenile social file. Defense counsel received a copy of the confession one-half hour before the hearing; counsel had attended the lineup soon after the arrest at which numerous robbery victims had identified appellant; and, knowing that prior convictions were relevant under the statute, counsel had received access to appellant’s juvenile social file at the earlier hearing before Judge Bowers. Under these circumstances, although formal notice may have been lacking in some respects, any error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824, 828 , 17 L.Ed.2d 705 (1967); D.C.Code 1973, § 11-721(e).
Furthermore, the government’s mode of proof in the burglary case did not prejudice appellant’s confrontation and cross-examination rights. The government relied on appellant’s confession, testimony by investigating officers, and the delinquency adjudications in appellant’s social file. The trial court excluded hearsay of the complaining witness. Although the court admitted the hearsay of two victims of the 17 other robberies to which appellant had confessed, that error also was harmless. See Chapman, supra at 24 , 87 S.Ct. at 828 ; D.C.Code 1973, § 11-721(e).
Finally, in accordance with the statutory standards, the court found “substantial probability” that appellant had committed the charged offense of burglary; found that that offense is a “dangerous crime”; and found “by clear and convincing evidence” that appellant was a person subject to pretrial detention and that “no condition or combination of conditions of release . . . will reasonably assure the safety of other persons and the community.” The evidence viewed in the light most favorable to the government supports the court’s conclusions.
V.
I believe Chief Judge NEWMAN’s opinion for the court does an exceptional job of sorting out from a myriad of historical documents and scholarly works the meaning of *1362 the Eighth Amendment clause prohibiting excessive bail. I agree that the Eight Amendment does not bar pretrial detention without bail. At the same time, I cannot accept how easily the majority moves from this conclusion to an apparent conclusion that the state constitutionally can detain an individual for 60 days, without right to bail, on the slim basis of “probable cause” to believe that the individual committed a crime and is too dangerous to remain at large pending trial. Given the much stricter standards in the pretrial detention statute itself, the majority’s approach is unnecessary and mischievous. It undermines the statute and the Fifth Amendment.
APPENDIX
D.C.Code 1973, § 23-1321, provides in part:
(a) Any person charged with an offense, other than an offense punishable by death, shall, at his appearance before a judicial officer, be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the judicial officer, unless the officer determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person as required or the safety of any other person or the community. When such a determination is made, the judicial officer shall, either in lieu of or in addition to the above methods of release, impose the first of the following conditions of release which will reasonably assure the appearance of the person for trial or the safety of any other person or the community, or, if no single condition gives that assurance, any combination of the following conditions:
(1) Place the person in the custody of a designated person or organization agreeing to supervise him.
(2) Place restrictions on the travel, association, or place of abode of the person during the period of release.
(3) Require the execution of an appearance bond in a specified amount and the deposit in the registry of the court, in cash or other security as directed, of a sum not to exceed 10 per centum of the amount of the bond, such deposit to be returned upon the performance of the conditions of release.
(4) Require the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof.
(5) Impose any other condition, including a condition requiring that the person return to custody after specified hours of release for employment or other limited purposes.
No financial condition may be imposed to assure the safety of any other person or the community.
(b) In determining which conditions of release, if any, will reasonably assure the appearance of a person as required or the safety of any other person or the community, the judicial officer shall, on the basis of available information, take into account such matters as the nature and circumstances of the offense charged, the weight of the evidence against such person, his family ties, employment, financial resources, character and mental conditions, past conduct, length of residence in the community, record of convictions, and any record of appearance at court proceedings, flight to avoid prosecution, or failure to appear at court proceedings.
D.C. Code 1973, § 23-1322 provides in full:
(a) Subject to the provisions of this section, a judicial officer may order pretrial detention of—
(1) a person charged with a dangerous crime, as defined in section 23-1331(3), if the Government certifies by motion that based on such person’s pattern of behavior consisting of his past and present conduct, and on the other factors set out in section 23-1321(b), there is no condition *1363 or combination of conditions which will reasonably assure the safety of the community;
(2) a person charged with a crime of violence, as defined in section 23-1331(4), if (i) the person has been convicted of a crime of violence within the ten-year period immediately preceding the alleged crime of violence for which he is presently charged; or (ii) the crime of violence was allegedly committed while the person was, with respect to another crime of violence on bail or other release or on probation, parole, or mandatory release pending completion of a sentence; or
(3) a person charged with any offense if such person, for the purpose of obstructing or attempting to obstruct justice, threatens, injures, intimidates, or attempts or threaten, injure, or intimidate any prospective witness or juror.
(b) No person described in subsection (a) of this section shall be ordered detained unless the judicial officer—
(1) holds a pretrial detention hearing in accordance with the provisions of subsection (c) of this section;
(2) finds—
(A) that there is clear and convincing evidence that the person is a person described in paragraph (1), (2), or (3) of subsection (a) of this section;
(B) that—
(i) in the case of a person described only in paragraph (1) of subsection (a), based on such person’s pattern of behavior consisting of his past and present conduct, and on the other factors set out in section 23-1321(b), or
(ii) in the case of a person described in paragraph (2) or (3) of such subsection, based on the factors set out in section 23-1321(b),
there is no condition or combination of conditions of release which will reasonably assure the safety of any other person or the community; and
(C) that, except with respect to a person described in paragraph (3) of subsection (a) of this section, on the basis of information presented by proffer or otherwise to the judicial officer there is a substantial probability that the person committed the offense for which he is present before the judicial officer; and
(3)issues an order of detention accompanied by written findings of fact and the reasons for its entry.
(c) The following procedures shall apply ■ to pretrial detention hearings held pursuant to this section:
(1) Whenever the person is before a judicial officer, the hearing may be initiated on oral motion of the United States attorney.
(2) Whenever the person has been released pursuant to section 23-1321 and it subsequently appears that such person may be subject to pretrial detention, the United States attorney may initiate a pretrial detention hearing by ex parte written motion. Upon such motion the judicial officer may issue a warrant for the arrest of the person and if such person is outside the District of Columbia, he shall be brought before a judicial officer in the district where he is arrested and shall then be transferred to the District of Columbia for proceedings in accordance with the section.
(3) The pretrial detention hearing shall be held immediately upon the person being brought before the judicial officer for such hearing unless the person or the United States attorney moves for a continuance. A continuance granted on motion of the person shall not exceed five calendar days, unless there are extenuating circumstances. A continuance on motion of the United States attorney shall be granted upon good cause shown and shall not exceed three calendar days. The person may be detained pending the hearing.
(4) The person shall be entitled to representation by counsel and shall be entitled to present information by proffer or *1364 otherwise, to testify, and to present witnesses in his own behalf.
(5) Information stated in, or offered in connection with, any order entered pursuant to this section need not conform to the rules pertaining to the admissibility of evidence in a court of law.
(6) Testimony of the person given during the hearing shall not be admissible on the issue of guilt in any other judicial proceedings under sections 23-1327, 23-1328, and 23-1329, in perjury proceedings, and for the purposes of impeachment in any subsequent proceedings.
(7) Appeals from orders of detention may be taken pursuant to section 23-1324.
(d) The following shall be applicable to persons detained pursuant to this section:
(1) The case of such person shall be placed on an expedited calendar and, consistent with the sound administration of justice, his trial shall be given priority.
(2) Such person shall be treated in accordance with section 23-1321—
(A) upon the expiration of sixty calendar days, unless the trial is in progress or the trial has been delayed at the request of the person other than by the filing of timely motions (excluding motions for continuances); or
(B) whenever a judicial officer finds that a subsequent event has eliminated the basis for such detention.
(3) The person shall be deemed detained pursuant to section 23-1325 if he is convicted.
(e) The judicial officer may detain for a period not to exceed five calendar days a person who comes before him for a bail determination charged with any offense, if it appears that such person is presently on probation, parole, or mandatory release pending completion of sentence for any offense under State or federal law and that such person may flee or pose a danger to any other person or the community if released. During the five-day period, the United States attorney or the Corporation Counsel for the District of Columbia shall notify the appropriate State or Federal probation or parole officials. If such officials fail or decline to take the person into custody during such period, the person shall be treated in accordance with section 23-1321, unless he is subject to detention under this section. If the person is subsequently convicted of the offense charged, he shall receive credit toward service of sentence for the time he was detained pursuant to this subsection.
D.C. Code 1973, § 23-1331 provides in part:
As used in this subchapter:
* * * * * *
(3) The term “dangerous crime” means (A) taking or attempting to take property from another by force or threat of force, (B) unlawfully entering or attempting to enter any premises adapted for overnight accommodation of persons or for carrying on business with the intent to commit an offense therein, (C) arson or attempted arson of any premises adaptable for overnight accommodation of persons or for carrying on business, (D) forcible rape, or assault with intent to commit forcible rape, or (E) unlawful sale or distribution of a narcotic or depressant or stimulant drug (as defined by any Act of Congress) if the offense is punishable by imprisonment for more than one year.
(4) The term “crime of violence” means murder, forcible rape, carnal knowledge of a female under the age of sixteen, taking or attempting to take immoral, improper, or indecent liberties with a child under the age of sixteen years, mayhem, kidnaping, robbery, burglary, voluntary manslaughter, extortion or blackmail accompanied by threats of violence, arson, assault with intent to commit any offense, assault with' a dangerous weapon, or an at *1365 tempt or conspiracy to commit any of the foregoing offenses as defined by any act of Congress or any State law, if the offense is punishable by imprisonment for more than one year.
. The District of Columbia pretrial detention statute, D.C. Code 1973, § 23-1322, is reproduced in the Appendix to this opinion. Related definitional provisions, id. §§ 23-1311(3)-(4), also are included.
. As to Part III.D. of the majority opinion, I agree that the pretrial detention statute offends no principle of substantive due process. Ante at 1341. I also agree that the statute, as applied to appellant, is not overbroad (typically a First Amendment concern). See Broadrick v. Oklahoma, 413 U.S. 601, 613-15 , 93 S.Ct. 2908, 2916-18 , 37 L.Ed.2d 830 (1973); ante at 1341-1342. Nor does the law create an irrational classification that violates the equal protection aspect of Fifth Amendment due process. See Estate of French v. Doyle, D.C.App., 365 A.2d 621, 623-24 (1976), appeal dismissed sub nom. Key v. Doyle, 434 U.S. 59 , 98 S.Ct. 280 , 54 L.Ed.2d 238 (1977); ante at 1342. Finally, although I agree with the majority that the pretrial detention statute is not void for vagueness as applied to appellant, ante at 1342-1343, our decision does leave open the possibility of a constitutional attack on grounds of vagueness of § 23-1322 as applied to a defendant for whom the prediction of dangerousness is premised on “past and present conduct” of a sort less conclusive than the conduct of appellant Edwards. See Lanzetta v. New Jersey, 306 U.S. 451, 453 , 59 S.Ct. 618, 619 , 83 L.Ed. 888 (1939).
I also concur in Part IV. of the majority opinion on closure of the courtroom. I disagree with Judge NEBEKER’s statement that the government “has no standing which entitles it to appellate review of a First Amendment issue.” Ante at 1348. Although “the institutional press is the likely, and fitting, chief beneficiary of a right of access because it serves as the ‘agent’ of interested citizens,” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 , 100 S.Ct. 2814 , 2832 n.2, 65 L.Ed.2d 973 (1980) (Brennan, J., with Marshall, J., concurring in the judgment), it is also true that “[t]he responsibility of the prosecutor as a representative of the public surely encompasses a duty to protect the societal interest in an open trial.” Gannett Co. v. DePasquale, 443 U.S. 368 , 384 n.12, 99 S.Ct. 2898, 2908, n.12 , 61 L.Ed.2d 608 (1979). Furthermore, contrary to Judge NEBEKER’s view, see ante at 1349, I conclude that the closure issue is properly before us through an appealable collateral order. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 , 69 S.Ct. 1221, 1225-26 , 93 L.Ed. 1528 (1949).
. In Gerstein, supra 420 U.S. at 125 n.27, 95 S.Ct. at 868 n.27, in response to Justice Stewart’s concurring opinion, the Court called the probable cause determination a “threshold right,” emphasized the historical application of the Fourth Amendment in the criminal process, and added that the Fourth Amendment’s “balance between individual and public interests always has been thought to define the ‘process that is due’ for seizures of person or property in criminal cases, including the detention of suspects pending trial.” Pretrial detention without bail, however, is not part of this traditional criminal process (except in connection with capital crimes). See D.C. Code 1973, §§ 23-1321, -1325(a), and the Court’s dicta does not foreclose Fifth Amendment analysis.
. Some will maintain that this pretrial liberty interest is derived, self-evidently, from explicit recognition of “liberty” in the Fifth Amendment. See Bell, supra 441 U.S. at 580, 99 S.Ct. at 1895 (Stevens, J., with Brennan, J., dissenting); Meachum v. Fano, 427 U.S. 215, 230 , 96 S.Ct. 2532, 2541 , 49 L.Ed.2d 451 (1976) (Stevens, J., with Brennan & Marshall, JJ., dissenting). The Eighth Amendment also reflects a deep constitutional concern that imprisonment before trial is a substantial deprivation of liberty. See Stack v. Boyle, 342 U.S. 1, 4-5 , 72 S.Ct. 1, 3-4 , 96 L.Ed. 3 (1951). Others, however, will characterize the pretrial liberty interest as a creation of positive law reflected in the bail statute’s rebuttable presumption of “release[ ] pending trial on . .. personal recognizance or upon the execution of an unsecured appearance bond.” D.C. Code 1973, § 23-1321(a) (reproduced in the Appendix); see Greenholtz, supra 442 U.S. at 12 , 99 S.Ct. at 2106 (majority opinion). Whatever the source, Constitution or statute, the interest of every person accused of crime in liberty before trial — before conviction of any wrong — is of the highest order.
. The right to bail, of course, is often illusory. It is true that “under our local bail provisions ... money bond may not be used to assure detention,” Villines v. United States, D.C.App., 312 A.2d 304, 306 (1973), and that bail accordingly “may be used only to prevent flight of the appellant or to assure his appearance for trial.” Jones v. United States, D.C.App., 347 A.2d 399, 401 (1975); accord, Villines, supra 312 A.2d at 306 ; see D.C. Code 1973, § 23-1321(a). Nonetheless, even when not constitutionally excessive, bail in fact may be set too high for the accused to afford. See, e. g., Villines, supra at 305. Not uncommonly, an accused remains incarcerated before trial for months because of an unaffordable right to bail, coupled with uncorrectable congestion in the courts (it is said) and other systemic delays falling short of Sixth Amendment speedy trial violations. See, e. g., United States v. Calhoun, D.C.App., 363 A.2d 277, 278-82 (1976); United States v. Jones, D.C.App., 254 A.2d 412, 414 (1969). While it is true that under the pretrial detention statute failure to bring the accused to trial within 60 days generally results in the automatic right to bail, not dismissal of the indictment, see D.C.Code 1973, § 23-1322(d)(2)(A), there nonetheless is every incentive for the government to bring the trial with dispatch. See id. § 23-1322(d)(1). As a practical matter, therefore, the pretrial detention statute may afford greater protection of liberty, in some instances, than the statutory right to bail, id. § 23-1321, coupled with the Sixth Amendment right to a speedy trial. See Barker, supra 407 U.S. at 530 , 92 S.Ct. at 2191 . The deficiencies in the bail and court systems, however, coupled with the statutory impetus to a speedy trial under § 23-1322, cannot properly serve to undermine the importance of the right to bail. Any impediment to its exercise should be no excuse for its compromise.
. Cf. Vitek v. Jones, 445 U.S. 480, 495 , 100 S.Ct. 1254, 1264 , 63 L.Ed.2d 552 (1980) (state has interest in segregating and treating mental *1356 ly ill prisoners); Addington v. Texas, 441 U.S. 418, 426 , 99 S.Ct. 1804, 1809 , 60 L.Ed.2d 323 (1979) (state has interest in protecting community from dangerous tendencies of some who are mentally ill); Gagnon, supra, 411 U.S. at 785 , 93 S.Ct. at 1761 (state has interest in not prejudicing safety of community through parole and probation decisions); Morrissey, supra 408 U.S. at 483 , 92 S.Ct. at 2601 (state has *1357 interest in being able to return to prison parolee who commits antisocial acts).
. But cf. Vitek, supra, 445 U.S. at 494-96 , 100 S.Ct. at 1264-65 (written notice of contemplated transfer from prison to mental hospital, followed by hearing at which authorities disclose evidence relied on for transfer, satisfies due process).
. Under the statute the accused is entitled to a continuance of up to five days — and even longer, in the court’s discretion, if “there are extenuating circumstances.” D.C. Code 1973, § 23-1322(c)(3).
. Cf. Wolff, supra 418 U.S. at 566-69 , 94 S.Ct. at 2979-81 (inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence when not unduly hazardous to institutional safety or correctional goals; due process does not require rights of confrontation and cross-examination of adverse witnesses).
. Conceivably, the government, on occasion, may be able to establish its case for pretrial detention without calling or even proffering its principal witnesses. If, for example, the government can present a defendant’s confession (absent evidence of coercion) that is sufficiently reliable to establish the required substantial probability of committing the charged offense, the government may not be required to call or proffer the complaining witness to testify at the detention hearing. It is important to add, however, that although there may be good cause why the testimony of a witness to the crime at issue should be proffered, rather than presented live, it is much more difficult to conceive of a good reason for merely proffering the testimony required to establish or interpret relevant past conduct of the accused.
. I agree with the majority that the defendant’s right to call witnesses on his or her behalf, see D.C.Code 1973, § 23-1322(c)(4), does not include compulsory process directed at government witnesses unless the defendant proffers how such testimony will tend to negate the probability that he or she committed the offense. Ante at 1338. Such a proffer, of course, could undermine the government’s effort to show good cause why it should not have to produce its witnesses.
.The majority opinion states that “pretrial detention to prevent repetition of dangerous acts under § 23-1322(a)(l) by incapacitating the detainee seeks to curtail reasonably predictable conduct, not to punish for prior acts.” Ante at 1332-1333. Later, the majority states: “Significantly, pretrial detention is closely circumscribed so as not to go beyond the need to protect the safety of the community pending the detainee’s trial. Such detention is not to exceed 60 days, by which time either the detainee must be brought to trial, or bail must be set. D.C.Code 1973, § 23-1322(d)(2)(A).” Ante at 1333. I read the latter statement as a constitutional limitation on the former. Pretrial detention beyond 60 days, without right to bail, arguably takes on the aura of punishment, for, unless the accused asks for a continuance, the government will be hard pressed to justify longer detention on the ground it needs time to prepare for trial.
. The facts of Arrington, supra, demonstrate how low the threshold for probable cause can be. This court held the police officer had probable cause to make an arrest for theft based on the following facts:
1. He had seen appellant in an open, public, walk-in, reception room in the Old Senate Office Building. Appellant was standing in the area behind the receptionist’s desk, bending over and “looking down behind the desk or the area under the desk.”
2. He had seen appellant leave the room, walking at a normal pace.
3. He had examined the room after appellant left and determined that everything appeared normal and particularly that nothing on or behind the desk had been disturbed.
4. He had inquired of people in the adjoining offices whether they knew of a “colored man, or a messenger” in the reception room; these people had indicated they had no knowledge of such a person.
5. He had asked appellant what he was doing in the office; appellant had said, “[N]oth-ing.”
6. He had not received any report that a crime had been committed or that any property was missing. [Id. 311 A.2d at 840 (emphasis in original).]
It is inconceivable to me that the state constitutionally could detain an individual in prison, without right to bail, for up to 60 days on facts as inconclusive as these.
.The Supreme court has outlined the “minimum requirements of due process” for parole revocation:
They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. [Morrissey, supra at 489 , 92 S.Ct. at 2604.]
. The standard is equivalent to the threshold of probability required “to secure a civil injunction — likelihood of success on the merits.” H.R.Rep.No. 91-907, 91st Cong., 2d Sess. 182 (1970).
. Although proffered testimony can contribute toward establishing clear and convincing evidence, there may be occasions when a trial court concludes that live testimony will be required, subject to cross-examination, if the government is to sustain this burden of proof.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9760354. Public record. Not legal advice.