The opinion
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jim Brugh Gregory F. Zoeller
Logansport, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
In the Jun 25 2013, 9:57 am
Indiana Supreme Court
No. 09S00-1205-CR-361
LOREN HAMILTON FRY,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
Appeal from the Cass Superior Court, No. 09D02-1109-MR-2
The Honorable Rick Maughmer, Judge
On Direct Appeal Pursuant to Indiana Appellate Rule 4(A).
June 25, 2013
David, Justice.
The Indiana Constitution provides a qualified right to bail, exempting murder and treason
from that right when “the proof is evident, or the presumption strong.” For nearly 150 years,
every time we have addressed the issue in the context of a murder charge, this Court has held
that the defendant must carry the burden of demonstrating that the proof is not evident and the
presumption not strong, and that he is thus entitled to bail. And the Indiana General Assembly
has codified this constitutional provision and our jurisprudence into the Indiana Code.
A criminal defendant now charged with murder challenges the constitutionality of the
statutory provision assigning him the burden of showing he is entitled to bail. After due
consideration, today we hold that the burden must be placed upon the State to prove the
defendant should be denied bail. Nevertheless, given the facts and circumstances of this
particular case we affirm the trial court’s decision denying the defendant bail.
Facts and Procedural History
In September 2011, Loren Fry was arrested in Cass County, Indiana, and charged with
the murder of David Schroder. Fry filed a motion seeking bail, claiming that the State’s
evidence against him was circumstantial and therefore the presumption of his guilt was not
strong. He simultaneously filed a motion seeking a declaration that Indiana Code § 35-33-8-
2(b), which places on a defendant charged with murder the burden of proving why he or she
should be admitted to bail, is unconstitutional.
Judge Maughmer ordered the State to present evidence that the proof was evident, or the
presumption strong, that Fry committed the murder; thereafter, the statutory burden would shift
to Fry to convince the court that he should be admitted to bail. To the extent the statute might
operate otherwise, Judge Maughmer said, it would be unconstitutional.
After a hearing pursuant to his instructions, Judge Maughmer denied Fry bail. Fry
appealed directly to this Court, seeking review as to both the constitutionality of § 35-33-8-2(b)
and the denial of his request for bail. See Ind. Appellate Rule 4(A)(1)(b) (providing Supreme
Court mandatory and exclusive jurisdiction over appeals of final judgments declaring state
statutes unconstitutional).
2
Standard of Review
When reviewing a challenge to the constitutionality of a statute, we observe a high level
of deference to the legislature’s decision-making. Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994).
The statute or regulation is presumed to be constitutional “until clearly overcome by a contrary
showing.” Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996); see also Collins, 644
N.E.2d at 80. The challenging party bears the considerable burden of proving this contrary
showing, and any doubts are resolved against that challenge. Ledbetter v. Hunter, 842 N.E.2d
810, 815 (Ind. 2006); Boehm, 675 N.E.2d at 321.
I. Constitutionality of Indiana Code § 35-33-8-2(b)
The right to bail is “a traditional and cherished right.” Bozovichar v. State, 230 Ind. 358,
361, 103 N.E.2d 680, 681 (1952). It “prevents the infliction of punishment prior to an
adjudication of guilt and permits the unhampered preparation of a defense.” Id. Its purpose is
therefore not punitive, but instead it guarantees a defendant will be present to stand trial on his
charges.1 Phillips v. State, 550 N.E.2d 1290, 1294 (Ind. 1990). “The right to freedom by bail
pending trial is an adjunct to that revered Anglo-Saxon aphorism which holds an accused to be
innocent until his guilt is proven beyond a reasonable doubt.” Hobbs v. Lindsey, 240 Ind. 74,
79, 162 N.E.2d 85, 88 (1959). “Unless that right is preserved, the presumption of innocence,
secured only after centuries of struggle, will lose its meaning.” Bozovichar, 230 Ind. at 361, 103
N.E.2d at 681.
1
In certain instances, bail may be set with the goal of preventing physical harm to the community. See
Ind. Code § 35-33-8-1; see also U.S. v. Salerno, 481 U.S. 739, 753–54 (1987) (“Nothing in the text of the
Bail Clause [of the Eighth Amendment] limits permissible Government considerations solely to questions
of flight.”).
3
That the right to bail is so deeply valued, however, does not mean that it is unqualified.
The Indiana Constitution specifically provides that “[o]ffenses, other than murder or treason,
shall be bailable by sufficient sureties. Murder or treason shall not be bailable, when the proof is
evident, or the presumption strong.” Ind. Const. art. 1, § 17.2 We have thus said that “as a
general rule, murder and treason shall not be bailable,” except “in either one of two cases: 1st.
When the proof is not evident; 2d. When the presumption is not strong.” Ex parte Jones, 55 Ind.
176, 179 (1876). “In either one of these two separate and distinct cases, the offence shall be
bailable.” Id.
This qualification was proper because murder is “the most serious charge that can be
lodged by this state against an individual and carries with it the possibility of the imposition of a
sentence of death, society’s harshest penalty,” Phillips, 550 N.E.2d at 1294–95, and the purpose
of bail would likely be disserved by an unqualified right in such a case. “Given the seriousness
of the charge and the severity of the consequences that could potentially attach, the likelihood
that an accused person would appear for trial if let to bail is sufficiently doubtful that an initial
presumption that no monetary sum could provide an adequate assurance of attendance at trial” is
appropriate. Id. at 1295.
We have also long-held that the burden is placed upon the defendant to show that either
of those two separate and distinct circumstances exist—i.e., to show that in his murder case the
proof is not evident, or the presumption not strong. Bozovichar, 230 Ind. at 366, 103 N.E.2d at
2
There is no corresponding Federal “right to bail,” only the Eighth Amendment’s prohibition against
excessive bail. U.S. Const. amend. VIII. That means when the Government’s aim is the prevention of the
defendant’s flight, “bail must be set by a court at a sum designed to ensure that goal, and no more.”
Salerno, 481 U.S. at 754. However, when pretrial detention is based on an interest other than ensuring the
defendant’s appearance at trial—such as when the defendant poses a threat to the community—even the
Eighth Amendment does not require the grant of bail. Id. at 754–55.
4
683; see also Ex parte Jones, 55 Ind. at 180; Ex parte Heffren, 27 Ind. 87, 88 (1866). However,
the presumption against bail in a murder case—and the defendant’s corresponding burden to
show otherwise—is only permissible under the Constitution “so long as that person is afforded
the type of procedural due process hearing that will guarantee that bail is not denied
unreasonably or arbitrarily.” Phillips, 550 N.E.2d at 1295.
In 1981, the General Assembly codified this case law into § 35-33-8-2, which states, “(a)
Murder is not bailable when the proof is evident or the presumption strong. In all other cases,
offenses are bailable. (b) A person charged with murder has the burden of proof that he should
be admitted to bail.” Ind. Code § 35-33-8-2. Fry challenges subsection (b) of this statute, and,
by extension, our prior case law.
He argues that the subsection is unconstitutional because “there is a constitutional
presumption in favor of innocence and in favor the right to bail, while this statute removes those
presumptions by placing the burden upon the person charged.” (Appellant’s Br. at 10–11.) In
essence, he disagrees with the premise that there is an inherent presumption against a right to
bail in murder or treason cases under Article 1, § 17. Instead, he argues, the provision’s second
sentence simply states that murder and treason shall not be bailable when the proof is evident or
the presumption strong—but it says nothing about who carries the burden of showing that to be
the case. His view is that this burden should be on the State, just as it is to ultimately prove guilt
beyond a reasonable doubt.
A. The Indiana Approach
A cold reading of the plain language of Article 1, § 17, shows that Fry is at least partly
correct: the provision makes no allocation of the burden for either showing that the proof is
5
evident or the presumption strong, or showing that it is not. That interpretation—and the
resulting codification in § 35-33-8-2(b)—is almost purely a result of this Court’s cases.3
However, a review of those cases shows two important features that explain why we
reached that result. First, our analysis was composed in the context of criminal cases that began
with an indictment of the defendant by a grand jury. See Heffren, 27 Ind. at 87; see also Caudill
v. State, 262 Ind. 40, 40, 311 N.E.2d 429, 429 (1974); Bozovichar, 230 Ind. at 360, 103 N.E.2d
at 681; McAdams v. State, 196 Ind. 184, 185, 147 N.E. 764, 764 (1925); State v. Hedges, 177
Ind. 589, 589, 98 N.E. 417, 417 (1912); Brown v. State, 147 Ind. 28, 29, 46 N.E. 34, 35 (1897);
Schmidt v. Simmons, 137 Ind. 93, 93, 36 N.E. 516, 516 (1894); Ex parte Kendall, 100 Ind. 599,
600 (1885); Jones, 55 Ind. at 177. And it was in that context that we first said that a grand jury
indictment for murder was, prima facie, sufficient to overcome what otherwise might be a
presumptive right to bail. Heffren, 27 Ind. at 88; Jones, 55 Ind. at 180.
In our country, the grand jury has an “ancient role” in “determining if there is probable
cause to believe that a crime has been committed” and a related responsibility of “protecting
citizens against unfounded criminal prosecutions.” Branzburg v. Hayes, 408 U.S. 665, 686–87
(1972). “[I]ts task is to inquire into the existence of possible criminal conduct and to return only
well-founded indictments.” Id. at 688. “Historically, this body has been regarded as a primary
security to the innocent against hasty, malicious and oppressive persecution; it serves the
invaluable function in our society of standing between the accuser and the accused.” Wood v.
Georgia, 370 U.S. 375, 390 (1962). Its responsibility is “to determine whether a charge is
3
We acknowledge the State’s point that the citizens of Indiana have not undertaken to establish a
different interpretation through an amendment to Article 1, § 17, and the General Assembly’s codification
of our case law indicates a degree of legislative acquiescence. But at the same time, the State concedes
that “Indiana Code Section 35-33-2-8 simply reiterates what this Court has said with regard to Section
17.” (Appellee’s Br. at 17.)
6
founded upon reason or was dictated by an intimidating power or by malice and personal ill
will.” Id.
Because of this protective function, grand juries are afforded a special level of deference
in our judicial process. Grand jurors are charged by oath and have broad statutory powers to
investigate potential criminal conduct—either at their own direction or at the direction of the
county prosecutor. Coons v. State, 191 Ind. 580, 589, 134 N.E. 194, 197 (1922). They have the
power to compel evidence and witnesses, and when an indictment is returned as a true bill in
open court “it is conclusive evidence of the regularity of the finding, and that the proper number
concurred therein, and the same cannot be controverted by plea, and it is not competent to
inquire into the amount or kind of evidence upon which they acted.” State v. Comer, 157 Ind.
611, 615, 62 N.E. 452, 453 (1902). Thus, that we afforded great weight to indictments for
murder in analyzing bail requests is not surprising.
But regardless of the great weight we gave to grand jury indictments, such indictments
could not, standing alone, support a complete assignment of the burden of proof to the defendant.
That determination, we believe, also originated in the second distinct feature of the cases: that
our analysis was made in the context of habeas corpus proceedings in which the defendants had
filed petitions seeking release from pre-trial detention. See Ex parte Richards, 102 Ind. 260, 260,
1 N.E. 639, 640 (1885); Kendall, 100 Ind. at 600; Jones, 55 Ind. at 177; Heffren, 27 Ind. at 88.
Habeas corpus “is an ancient common law remedy for imprisonment without just cause,
the origin of which is obscure by reason of its great antiquity.” State ex rel. Allen v. Fayette Cir.
Ct., 226 Ind. 432, 434, 81 N.E.2d 683, 683 (1948). “By virtue of its recognition in the Bill of
Rights of the Constitution of Indiana, the privilege of the writ exists independent of the statute
and flows from our constitution for the protection of all whose liberty may be restrained under
unlawful authority,” although its functioning may be reasonably regulated by the Legislature. Id.
at 435, 81 N.E.2d at 684. A petitioner is entitled to the writ only if he is entitled to be
7
immediately released from unlawful incarceration. Jennings v. State, 270 Ind. 699, 700, 389
N.E.2d 283, 284 (1979).
Although it is obvious that the habeas petitioner initiates the action, just who bears the
burden of proof in the actual proceeding itself depends somewhat upon the nature of the claim
being made. In some instances, the burden is on the responding party.4 And certainly the habeas
procedures allow—and always have—for a trial judge to hear the petition and, on its own
authority, investigate the case and order witnesses to testify.5 Most frequently, however, the
burden is initially placed upon the one seeking release.6 This is also true for federal habeas
petitions.7
The Heffren Court either took this latter view and assigned the defendant the burden of
proof from the outset as a habeas petitioner or, in light of the weight given to the grand jury
indictment, impliedly found that the State carried the initial burden and that burden was satisfied
4
See, e.g., Hyatte v. Lopez, 174 Ind. App. 149, 155, 366 N.E.2d 676, 680 (1977) (when natural father
petitions for habeas relief releasing child from custody of grandparent, burden fell on grandparent to
prove custody was in best interest of child).
5
Lumm v. State, 3 Ind. 293, 294 (1852); cf. Ind. Code § 34-25.5-5-2.
6
See, e.g., Hobbs v. Lindsey, 240 Ind. 74, 81, 162 N.E.2d 85, 89 (1959) (“Having thus made a prima
facie case of excessiveness, the petitioner could rest and the burden then shift to the state to show the
necessity or justification for the unusual amount of bail required.”); see also Ind. Code § 34-25.5-2-1
(habeas petition must state with particularity the nature of detention’s unlawfulness).
7
See, e.g., Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (burden on petitioner to show state court
incorrectly applied Strickland test for ineffective assistance of counsel); Hawk v. Olson, 326 U.S. 271,
279 (1945) (habeas petitioner carries burden in post-conviction collateral attack on judgment); Adams v.
U.S. ex rel. McCann, 317 U.S. 269, 281 (1942) (burden on habeas petitioner to show waiver of jury trial
resulted in essential unfairness); South Carolina v. Bailey, 289 U.S. 412, 421–22 (1933) (defendant
arrested on extradition warrant bears burden in habeas corpus proceeding of showing he was not in lawful
custody).
8
by the indictment.8 See Heffren, 27 Ind. at 89 (“The views already expressed seem to us
necessarily to result from the nature of the question to be examined, the effect of the indictment,
justifying the imprisonment in the first instance, and the demands of fairness in the
investigation.”). Regardless, it has remained ensconced in our jurisprudence for the past 150
years. And under either rationale, the questions going forward are whether that analysis was—or
still is—correct, and if still viable, does it also apply in a case like Fry’s, where he was not
charged pursuant to an indictment?9
B. Treatment by Other States
Our constitutional qualification on the presumptive right to bail is not unique to Indiana.
As far back as 1682, the Pennsylvania charter permitted bail for capital crimes except “where the
proof is evident, or the presumption great.” Simpson v. Owens, 85 P.3d 478, 485 (Ariz. Ct. App.
2004) (citing Charter of Liberties and Frame of Government of the Province of Pennsylvania in
America (May 5, 1682), reprinted in Colonial Origins 271, 281–83). In 1818, Connecticut’s
constitution became the first to incorporate such language, providing for a right of bail by
8
Even at the time it was decided, the assigning of the burden to the defendant was a matter of some
dispute. See Heffren, 127 Ind. at 92 (Ray, C.J., dissenting) (“I do not feel prepared to concur in so much
of the ruling in this case as requires the petitioner to assume the burden of showing that he is entitled to be
admitted to bail.”).
Justice Massa’s separate opinion notes that the majority members in Heffren were long-standing attorneys
in the Indiana Bar and probably deeply involved in the drafting of the 1851 Constitution and therefore
may know better than most what the intent behind Article 1, § 17, really was. But we note that Chief
Justice Charles Ray, the lone dissenter, was no slouch himself—he is described in the same text as “an
erudite man of letters who rubbed shoulders with the titans of the state’s history and closed his lengthy
career as a renowned legal scholar,” David J. Remondini, “Charles A. Ray,” in Justices of the Indiana
Supreme Court 76 (Linda C. Gugin & James E. St. Clair eds., 2010).
9
Fry was charged by information, which means the assessment of probable cause did not first go through
the grand jury’s protective responsibilities.
9
sufficient sureties “except for capital offenses, where the proof is evident, or the presumption
great.” State v. Konigsberg, 164 A.2d 740, 742 (N.J. 1960) (quoting Conn. Const. art. 1, § 14
(1818)). By the late twentieth century, the majority of the State constitutions contained similar
provisions. See id. (forty states with such provisions by 1960); see also In re Humphrey, 601
P.2d 103, App. I (Okla. Crim. App. 1979) (forty-one states with similar—or more expansive—
provisions by 1979). Our current research shows that thirty-nine states have a qualified right to
bail in their constitutions, most using language similar to that found in Article 1, § 17, of the
Indiana Constitution.10 Others make this a statutory determination11 or permit the denial of bail
for certain offenses but only for a short duration.12
10
See Ala. Const. Art. I, § 16 (excepting capital crimes when “proof is evident or the presumption
great”); Ak. Const. Art. 1, § 11 (excepting capital crimes when “proof is evident or the presumption
great”); Ariz. Const. Art. 2, § 22 (excepting capital offenses, sexual assault, sex crimes where victim is
less than fifteen years of age, felonies committed when on bail for a separate felony, felonies where
offender poses a substantial risk to community, and certain serious felonies committed by illegal aliens,
when “proof is evident or the presumption great”); Ark. Const. Art. 2, § 8 (excepting capital offenses
when “proof is evident or the presumption great”); Calif. Const. Art. 1, § 12 (excepting capital crimes
when “the facts are evident or the presumption great,” and violent felonies, sexual assaults, and felonies
where offender poses a threat to others when “the facts are evident or the presumption great” and court
finds “based on clear and convincing evidence” that there is a “substantial likelihood” that harm would
result); Colo. Const. Art. 2, § 19 (excepting capital offenses and felonies placing public in significant peril
“when proof is evident or presumption is great”); Conn. Const. Art. 1, § 8 (excepting capital offenses
when “proof is evident or the presumption great”); Del. Const. Art. 1, § 12 (excepting capital offenses
when “proof is positive or the presumption great”); Fla. Const. Art. 1, § 14 (excepting capital offenses or
offenses punishable by life imprisonment when “proof of guilt is evident or the presumption is great”);
Idaho Const. Art. I, § 6 (excepting capital offenses when “the proof is evident or the presumption great”);
Ill. Const. Art. 1, § 9 (excepting capital offenses, offenses or offenses punishable by life imprisonment,
and felonies in which release poses threat to community, when “proof is evident or the presumption
great”); Iowa Const. Art. 1, § 12 (excepting capital offenses when “the proof is evident, or the
presumption great”); Kan. Const. Bill of Rights, § 9 (excepting capital offenses when “the proof is
evident or the presumption great”); Ky. Const. § 16 (excepting capital offenses when “proof is evident or
the presumption great”); La. Const. Art. 1, § 18 (excepting capital offenses when “proof is evident and the
presumption of guilt is great”); Me. Const. Art. 1, § 10 (excepting capital offenses “when the proof is
evident or the presumption great”); Mich. Const. Art. I, § 15 (excepting certain habitual offenders,
murder, treason, certain sexual offenses, and felonies committed while on bail for prior felony, when
10
“proof is evident or the presumption great”); Minn. Const. Art. 1, § 7 (excepting capital offenses when
“proof is evident or the presumption great”); Miss. Const. Art. 3, § 29 (excepting capital offenses when
“proof is evident or presumption great” or when defendant has prior conviction for capital offense); Mo.
Const. Art. 1, § 20 (excepting capital offenses when “proof is evident or the presumption great”); Mont.
Const. Art. 2, § 21 (excepting capital offenses when “proof is evident or the presumption great”); Neb.
Const. Art. I, § 9 (excepting treason, violent sexual offenses, and murder when “proof is evident or the
presumption great”); Nev. Const. Art. 1, § 7 (exception capital offenses or murders punishable by life
imprisonment when “proof is evident or the presumption great”); N.J. Const. Art. 1, § 11 (excepting
capital offenses when “proof is evident or presumption great”); N.M. Const. Art. 2, § 13 (excepting
capital offenses when “proof is evident or the presumption great,” and in particular enumerated
circumstances); N.D. Const. Art. 1, § 11 (excepting capital offenses when “proof is evident or the
presumption great”); Ohio Const. Art. I, § 9 (excepting capital offenses and felonies where defendant
poses risk to community when “proof is evident or the presumption great”); Ok. Const. Art. 2, § 8
(excepting capital offenses and other particular enumerated circumstances when “proof of guilt is evident,
or the presumption thereof is great”); Or. Const. Art. I, § 14 (excepting murder and treason when “proof is
evident, or the presumption strong”); Penn. Const. Art. 1, § 14 (excepting capital offenses when “proof is
evident or presumption great”); R.I. Const. Art. 1, § 9 (excepting offenses punishable by life
imprisonment and certain habitual offenders when “proof of guilt is evident or the presumption great”);
S.C. Const. Art. I, § 15 (excepting capital offenses, offenses punishable by life imprisonment, or certain
violent offenses “giving due weight to the evidence and to the nature and circumstances of the event”);
S.D. Const. Art. 6, § 8 (excepting capital offenses when “proof is evident or presumption great”); Tenn.
Const. Art. 1, § 15 (excepting capital offenses when “proof is evident, or the presumption great”); Tex.
Const. Art. 1, § 11 (excepting capital offenses when “proof is evident”); Utah Const. Art. 1, § 8
(excepting capital offenses and felonies committed while on probation or bail for a previous felony when
“there is substantial evidence to support the charge”); Vt. Const. Ch. II, § 40 (excepting offenses
punishable by death or life imprisonment when “evidence of guilt is great”); Wash. Const. Art. 1, § 20
(excepting capital offenses when “proof is evident, or the presumption great”); Wy. Const. Art. 1, § 14
(excepting capital offenses when “proof is evident or the presumption great”).
11
See Ga. Code Ann. § 17-6-1 (unqualified right to bail only in most misdemeanor cases); Haw. Rev.
Stat. § 804-3 (excepting “serious crimes” when there is “serious risk” that defendant will flee, obstruct
justice, endanger the community, or engage in illegal activity); N.H. Rev. Stat. § 597:1-c (excepting
offenses punishable by life imprisonment “where the proof is evident or the presumption great”); N.C.
Gen. Stat. § 15A-533 (trial court has discretion to deny bail to defendant charged with capital offense);
Va. Code Ann. § 19.2-120 (bail may be denied when probable cause exists that defendant will not appear
for trial or poses risk to community).
12
See Wis. Const. Art. 1, § 8 (permitting denial of bail for short periods of time for certain offenses; prior
to 1982 amendment, provision excepted capital offenses from right to bail when “proof is evident or
presumption great”)
11
Some states have placed the burden of proving the exception on the State,13 whereas
others—like Indiana—have used an indictment on a capital offense as a prima facie presumption
of guilt that the defendant must rebut.14 15 Quite understandably, Fry points us to that first camp
and urges that Indiana join them. The State, in turn, points out that Indiana is not alone in its
view and that many of these contrary decisions precede our cases on this matter; they did not
sway us then, the State claims, so they should not sway us now.
As the State says, those cases to which Fry points us tend to rely on two primary points:
the presumption of innocence and the practicality of which party is better positioned to present
evidence at this stage of the criminal proceeding. We explore the merits of those points in turn.
First, the cases highlight the link between the presumptive right to bail and the
presumption of innocence—something our case law also emphasizes. See Simpson, 85 P.3d at
486 (“Ultimately, though, the criminal jurisprudence of the United States and any discussion of
13
See, e.g., Simpson, 85 P.3d 478; Renton v. State, 577 S.W.2d 594 (Ark. 1979); Yording v. Walker, 683
P.2d 788 (Colo. 1984); State v. Carter, 268 A.2d 677 (Conn. 1970); In re Steigler, 250 A.2d 379 (Del.
1969); State v. Arthur, 390 So.2d 717 (Fla. 1980); Bates v. Hawkins, 478 P.2d 840 (Haw. 1970); People
v. Purcell, 778 N.E.2d 695 (Ill. 2002); Ford v. Dilley, 156 N.W. 513 (Iowa 1916); Commonwealth v.
Stahl, 35 S.W.2d 563 (Ky. 1931); Serrano v. State, 429 P.2d 831 (Nev. 1967); Konigsberg, 164 A.2d at
740; State v. Roth, 482 P.2d 740 (Or. 1971), modified on other grounds, In re Haynes, 619 P.2d 632 (Or.
1980); Commonwealth v. Heiser, 478 A.2d 1355 (Pa. 1984); Fountaine v. Mullen, 366 A.2d 1138 (R.I.
1976); Ex parte Thrash, 320 S.W.2d 357 (Tx. Ct. Crim. App. 1959).
14
See, e.g., Livingston v. State, 116 So.2d 396 (Ala. Ct. App. 1959); State v. Green, 275 So.2d 184 (La.
1973); Fischer v. Ball, 129 A.2d 822 (Md. 1957); Huff v. Edwards, 241 So.2d 654 (Miss. 1970); Ex parte
Towndrow, 151 P. 761 (N.M. 1915); Shaw v. State, 47 S.W.2d 92 (Tenn. 1932); State v. Crocker, 40 P.
681 (Wyo. 1895).
15
In some analyses, a third track arose—one in which the indictment on a capital offense was conclusive
on the question of whether the proof was evident or the presumption strong. That track of case law has
since died out. Compare Konigsberg, 164 A.2d at 743 and Roth, 482 P.2d 740 at 741 with Purcell, 778
N.E.2d at 699. See also Ford, 156 N.W. at 517–18 (explaining the history of this common law rule).
12
bail is founded on a presumption of individual innocence.”); cf Bozovichar, 230 Ind. at 361, 103
N.E.2d at 681. Moreover, those cases find—correctly, we think—that in an even weighing
between the purpose of bail and the presumption of innocence, the presumption of innocence
must trump. “[L]iberty is the norm, and detention prior to trial or without trial is the carefully
limited exception.” Simpson, 85 P.3d at 486 (quoting Salerno, 481 U.S. at 755). “Refusal of
freedom in violation of the mandate of our organic law would constitute punishment before
conviction, a notion abhorrent to our democratic system.” Konigsberg, 164 A.2d at 743.
The State argues that the presumption of innocence is not the only factor at issue in bail
decisions, which is quite correct. As we have said, the determination must primarily consider the
likelihood that the accused will be present to stand trial and, in some instances, any potential
danger to the community. In fact, as the State correctly continues, guilt or innocence is not a
factor at all in the bail decision, which is why appellate courts avoid laying out the evidence in
opinions reviewing pre-trial denial of bail. Doing so would risk improperly influencing a later
trial and jeopardizing the presumption of innocence. Rather, the presumption against bail in a
murder case is—as we said in Phillips—based on a presumptive likelihood that one accused of
such a crime is unlikely to appear for trial no matter what the monetary consequences.
Nevertheless, we do not find the State’s arguments availing. For one thing, we read
Article 1, § 17, to grant a right to bail for all offenses “other than murder or treason,” and those
two crimes “shall not be bailable, when the proof is evident, or the presumption strong.” Ind.
Const. art. 1, § 17. We do not see this in any way other than murder and treason—when the
proof is evident, or the presumption strong—being exceptions to the presumptive right to bail.
We think it only fair that the party seeking to apply that exception—the State—should be the one
required to prove it. Cf. Konigsberg, 164 A.2d at 744 (“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.”).
13
Additionally, contrary to the State’s argument that guilt or innocence is not at issue in a
bail hearing, those matters are very much at issue in a bail hearing where the defendant is
accused of murder. In fact, the “proof” and “presumption” that Article 1, § 17, refers to are the
“proof” and “presumption” of guilt. What the State is seeking—and what we acknowledge that
we have always required—is for a criminal defendant accused of murder (and who is presumed
innocent until found guilty beyond a reasonable doubt) to get bail only by carrying the burden of
proving that he is probably not guilty. This flies in the face of “the principle that the
presumption of innocence abides in the accused for all purposes while awaiting trial.” Arthur,
390 So.2d at 719.
Second, in considering whether the State or defendant should carry the burden of proof in
these matters, these cases tend to hold that “as a matter of convenience, fairness, and practicality,
it is preferable that the state have the burden of coming forward when the accused seeks release
on bail. Presumably the state is in a better position to present to the court the evidence upon
which it intends to rely.” Id. at 720; cf. Simpson, 85 P.3d at 487 (“Indeed, apart from the
presumption in favor of bail, the State is in a position superior to that of the accused to produce
evidence during a hearing because it already will have presented evidence in the process of
charging the person.”); Purcell, 778 N.E.2d at 700 (“As a practical matter, the State is in a better
position to present such evidence during a bail hearing. In most cases, the State will have
already presented some evidence against the accused in order to secure an indictment from the
grand jury.”). And as the Iowa Supreme Court said,
Let us see at what point the theory of the minority is stopped by
logic, a decent regard for the rights of the accused, and the
limitations upon the powers of mere human beings. The state
avers that the accused is guilty of a charged crime. In all
arguments for the claim that the indictment makes prima facie
proof the major premise is that the grand jury would not indict if
there were not evidence justifying indictment. It follows that the
prosecution knows what and where the justifying evidence is. It
certainly does seem more natural that the one who affirms guilt,
and that there is evidence which makes the proof of guilt evident or
14
the presumption thereof great, should, in the first instance, be held
to point out what that evidence is, rather than that the accused,
saying there is and should be no evidence, should go into the wide
world in search of that which he says does not and should not
exist; and this for the purpose of cross-examining and
overthrowing it after he has gathered it.
Ford, 156 N.W. at 524 (emphasis added); see also Konigsberg, 164 A.2d at 744 (quoting Ford,
156 N.W. at 524).
The State downplays this concern, saying that defendants have carried this burden in
Indiana since 1866 and the process has not been unworkable. Moreover, the State says, the more
liberal discovery rules for criminal cases—and less reliance on the secretive grand jury
process—mean that the process is even less problematic. By way of example, the State says that
“[a]s a general rule, most defendants now receive a witness list with the charging information
and discovery of the evidence against them very quickly after charging,” and it is therefore
unpersuasive to argue that the defendant has not heard the State’s evidence. (Appellee’s Br. at
15, 15 n.7.)
Again, we find the State’s arguments unavailing. For one thing, “because that’s the way
we’ve always done it” is a poor excuse—the merits of stare decisis notwithstanding—for
continuing to do something wrong. But for another, the fact that some criminal defendants might
benefit from a witness list or charging information, or not be indicted through a secret grand jury
proceeding, does not mean that all criminal defendants will be so lucky. At the same time, it is
axiomatic that in every case the State will have access to the evidence it uses to support its
charge. And as Fry’s case in particular shows, the State suffers no undue burden in being
required to go first at this stage—here it still achieved the result desired, as Fry was denied bail.
Also, one of the primary benefits of bail—to the defendant—is that it “permits the
unhampered preparation of a defense.” Bozovichar, 230 Ind. at 361, 103 N.E.2d at 681; cf.
Purcell, 778 N.E.2d at 700 (“The accused, on the other hand, is often in a very poor position to
15
gather and present evidence at a bail hearing, as he is incarcerated and facing charges in a
criminal proceeding only recently initiated against him.”).
By placing the burden on the defendant accused of murder or treason in a bail
proceeding, we are in effect requiring him, while hampered by incarceration, to disprove the
State’s case pre-trial in order to earn the right to be unhampered by incarceration as he prepares
to disprove the State’s case at trial. There is no valid justification for such a backwards
process.16
Moreover, those cases also strongly call into question the reliance upon the grand jury
indictment as prima facie evidence—a reliance that is a critical foundation to our jurisprudence
on this issue. Grand jury proceedings are secret, with the grand jurors, witnesses, and anyone
entering the room forbidden from disclosing the nature or substance of testimony, or decisions or
results made during the proceeding. Ind. Code § 35-34-2-4(e), -2(i); cf. Konigsberg, 164 A.2d
743. “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.” Id.; cf. Ind. Code §§ 35-34-2-5.5 (target of grand jury may be subpoenaed, in
which case he may be represented by counsel, but counsel may not address grand jurors or
prosecutor, object, argue, question any person, or participate in any way), -9 (target shall be
given right to testify provided he waives immunity, but prosecutor need not notify target of that
16
We acknowledge that in Phillips we said that the seriousness of a murder charge raises the likelihood
that no amount of money could persuade a criminal defendant to return to stand trial. See Phillips, 550
N.E.2d at 1295. But the same could be said of defendants accused of committing many heinous crimes—
for example, a series of child molestations, or rapes, or even large-scale financial crimes. Put simply,
there is no calculus by which one can weigh the fear of conviction and punishment against the likelihood
of flight and establish a bright-line rule that applies to some crimes (and some criminals), but not others.
Even if this were possible, we disagree that this presumption, when weighed against the other
considerations we have discussed above but unstated in Phillips, justifies “the allocation of the burden
showing entitlement to bail on the accused.” Id.
16
right if it might result in flight of target). “The prosecutor ordinarily selects the witnesses to
testify; usually he gives the only legal advice, the court being rarely called upon during
deliberations; and he generally directs the entire proceeding to a considerable extent.”
Konigsberg, 164 A.2d 743–44; cf. Ind. Code § 35-34-2-4(k) (“The court and the prosecuting
attorney shall be the legal advisors of the grand jury, and the grand jury may not seek or receive
legal advice from any other source.”).
Exacerbating the matter, once an indictment is endorsed as a true bill we will not permit
analysis of the evidence underlying the finding. We therefore have no way of knowing, from
just the face of the indictment, whether it reflects merely a finding of probable cause that a crime
was committed and the accused committed it or if there is actually the stronger level of proof so
as to justify the denial of bail under Article 1, § 17.17 How then can we expect a defendant to
effectively challenge the prima facie presumption if he has no way of knowing how it was
reached? And if, as the State suggests, the grand jury proceeding is being used less and less
frequently, we think that is even less of a reason why our jurisprudence should be based upon
such a shaky foundation.18 In any event, “[t]o say that a formal accusation of murder under such
circumstances sufficiently establishes, even prima facie, that the proof of a capital offense is
17
And that evidence may be founded on hearsay, personal knowledge of the grand juror, or it might have
no evidentiary foundation at all—it might even be the product of an illegal search or seizure. While there
are valid reasons for these lower hurdles when the question is only whether to formally accuse an
individual of criminal conduct, those reasons seem pale when the question is whether to strip the
defendant of his personal liberty before he is convicted. See King v. State, 236 Ind. 268, 277, 139 N.E.2d
547, 552 (Ind. 1957) (because of presumption of innocence, it is proper to instruct the jury “that no
inference of guilt is to be drawn from the fact that a grand jury has returned an indictment against the
defendant”).
18
For that matter, the State makes no argument as to why the alternative method of filing charges—the
filing of an information—should carry the same weight. That is to say, Fry was not charged by a grand
jury indictment, so why should he be faced with the rebuttable presumption that the proof in his case is
evident, or the presumption of his guilt strong?
17
evident or the presumption great to justify the denial of bail is to . . . fail in the discharge of our
judicial duty.” Konigsberg, 164 A.2d at 744.
We recognize that stare decisis “is a maxim of judicial restraint supported by compelling
policy reasons of predictability that we should be ‘reluctant to disturb long-standing precedent,’
and ‘a rule which has been deliberately declared should not be disturbed by the same court
absent urgent reasons and a clear manifestation of error.’” Snyder v. King, 958 N.E.2d 764, 776
(Ind. 2011) (quoting Marsillett v. State, 495 N.E.2d 699, 704–05 (Ind. 1986)) (internal citations
omitted). And it is not without great consideration and hesitation that we undertake to do so
today—particularly when we face a rule of law going back to the Civil War era. Nevertheless, as
our colleagues on the Florida Supreme Court said in examining this same issue in 1980, “We can
no longer ascribe to this procedure.” Arthur, 390 So.2d at 719.
Accordingly, today we hold that when a criminal defendant is charged with murder or
treason, whether by indictment or information, the burden lies with the State to show that the
“proof is evident, or the presumption strong,” if it seeks to deny bail to that defendant.19 More
than for the purely practical reasons provided above, we find the contrary procedure used in the
past to be incompatible with the fundamental guarantee presuming an accused’s innocence until
proven guilty beyond a reasonable doubt.20 Because Indiana Code § 35-33-8-2(b) follows that
19
Justice Massa’s dissent presents an historical analysis of Article 1, § 17 to support continuing the
approach that “only those defendants who could show they were likely innocent—who could show the
proof of guilt is not evident, nor the presumption strong—should be let to bail,” and he concludes by
noting that “[w]hile my colleagues may disagree with that policy, it is what the framers intended and what
the Constitution says, and we are bound to uphold it until such time as the citizens of Indiana see fit to
amend it.” We note again that the text of Article 1, § 17 of the 1851 Indiana Constitution says nothing
whatsoever about who bears this particular burden and thus there is nothing for the citizens of Indiana to
amend. The determination of burden placement is a product purely of this Court’s cases.
20
Justice Rucker’s alternative interpretation of section 35-33-8-2(b) follows our well-respected principle
of constitutional avoidance, but it unfortunately runs afoul of the very constitutional provision at issue.
18
past case law, it is similarly incompatible on its face and we must therefore affirm the trial
court’s finding that it is unconstitutional.21
C. When is the “Proof Evident” or the “Presumption Strong?”
In the past, we have required the accused to “introduce the evidence of witnesses
indicated by the indictment, and he must also introduce such witnesses as the State indicates that
it does rely on, or claims it relies on, but it cannot foreclose the inquiry by simply declaring as to
any witness that it does not rely on his testimony.” Hedges, 177 Ind. at 592. Because that is no
longer the case, we feel it necessary to articulate what is contemplated by the burden we have
now assigned to the State.
Article 1, § 17 states that “Murder or treason shall not be bailable, when the proof is evident, or the
presumption strong.” Ind. Const. art. 1, § 17 (emphasis added). Once the State showed the proof was
evident, or the presumption strong, then our Constitution compels the process to stop. We cannot then
follow his second step and allow the statutory provision to require the defendant to show that he should
be admitted to bail. That defendant could not be constitutionally admitted to bail under any
circumstances.
21
The dissent raises concerns of “collateral consequences” resulting from this determination. But aside
from a change in procedure we do not see this opinion’s ramifications stretching far. Today we strike
down a single subsection of the bail statutes having no interplay with the rest of the thirty-seven statutory
provisions dealing with bail in this state. See Ind. Code 35-33-8, -8.5, -9. Any burden that might fall on
the General Assembly to remedy this subsection, should it wish to, is as simple as incorporating the
holding of this opinion into a new subsection (b).
Also, in the 2011 fiscal year for Indiana courts there were 244,733 criminal matters filed across
the state with bail implications, encompassing everything from murder to misdemeanor. 2012 Indiana
Judicial Service Report, Vol. 1: Judicial Year in Review 94 (2012). Of those, only 193 were murder
cases—well below .01% of the total (and we could find none for treason). Id. While those particular
numbers may ebb and flow from year to year, see id., one thing remains clear: without diminishing the
severity or seriousness of those murder cases, the ultimate number of cases impacted by this opinion is
small and the burden placed on the State low. And at least in one trial court, the one here, the State has
shown that it can shoulder this burden quite well.
19
As a starting point, it would be improper to simply relabel this burden as one of our more
traditional evidentiary standards like probable cause, preponderance, clear and convincing, or
beyond a reasonable doubt. “The language of each provision of the Constitution must be treated
with particular deference, as though every word had been hammered into place.” Embry v.
O’Bannon, 798 N.E.2d 157, 160 (Ind. 2003); see also Simpson, 85 P.3d at 487–88 (“The history
of the phrase alone suggests that it is unique and that it establishes its own standard since there is
no comparison for recourse. To state otherwise would be to put a 21st century gloss on or give a
modern substitute definition to an historic legal phrase.”).
Thus, the standard is that the proof must be evident, or the presumption must be strong.
We can, however, endeavor to provide some guidance by placing this standard somewhere on the
proof spectrum, which is bounded generally at the low end by “reasonable suspicion” and at the
high end by “beyond a reasonable doubt.” Whether it parallels one of our other traditional
standards, or is something else entirely, is the matter which we now endeavor to resolve.
Clearly this standard requires something more than “probable cause,” or otherwise the
exception of Article 1, § 17, would have no meaning. Probable cause is the minimum standard
by which an arrest of an individual may be made—there is probable cause that a crime was
committed and the defendant is the one who committed it. If this were to be the same standard
by which a person arrested for murder is denied the right of bail, Article 1, § 17, would simply
say “murder or treason are not bailable.” For this same reason, the State may not simply rest
upon the indictment by a grand jury, or a prosecutor’s charging information. There must be
something more.
Nor can this standard be as high as “beyond a reasonable doubt.” Despite the importance
of the presumption of innocence, we think it apparent that this would present an insurmountable
burden on the State because at this stage its evidence would not necessarily be fully coalesced or
verified. Setting the bar this high, this early, would effectively require the State to wait to arrest
a defendant until their entire case-in-chief was assembled and prepared. Additionally, providing
20
the defendant the full protection of the “beyond a reasonable doubt” standard would necessarily
require the evidentiary rules and Due Process requirements attached to a full trial. If that were
the standard, we might as well hold the trial right then and there.
The answer, then, must lie somewhere in the middle. And while we note that in Indiana
the primary consideration for a trial court in setting monetary bail22 is to set an amount no higher
“than that amount reasonably required to assure the defendant’s appearance in court.” Ind. Code
§ 35-33-8-4(b), under certain circumstances some of the middle burdens of proof already apply
in our bail statutes.
For example, a trial court may set bail in a manner calculated “to assure the physical
safety of another person or the community,” but only if “the court finds by clear and convincing
evidence that the defendant poses a risk to the physical safety of another person or the
community.” Id.; see also Ind. Code § 35-33-8-3.2(a). Or a trial court may release a defendant
on his own personal recognizance, unless the state shows evidence of a flight risk or danger to
the public and “the court finds by a preponderance of the evidence that the risk exists.” Id. at
–3.2(a)(7).
So it is clear that in the bail arena, trial courts, defense counsel, and prosecutors are
familiar with applying at least those two burdens. But to determine whether either of those—or
something else—is appropriate in this particular context, we start by looking again to our sister
22
To attain greater success at incentivizing appearance at trial, enhancing public safety, reducing costs of
pre-trial custodial detention, and achieving greater economic equity and fairness in the availability of
release from pre-trial detention, there is growing interest and exploration of pre-trial release programs
based on evidence-based practices as an alternative to monetary-based bail. See, e.g., Conference of State
Court Administrators, 2012-2013 Policy Paper: Evidence-Based Pretrial Release (2012), available at
http://cosca.ncsc.dni.us/WhitePapers/Evidence%20Based%20Pre-Trial%20Release%20-Final.pdf. Our
opinion today should not be read to limit the availability of such practices in Indiana.
21
states that have addressed this issue. Like Goldilocks in the home of the three bears, we search
for a formulation that is not too low, and not too high, but instead is just right.
The New Jersey Supreme Court said 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.” Konigsberg, 164 A.2d at 745. The Oregon Supreme Court followed Konigsberg,
holding that “[b]ail should be denied when the circumstances disclosed indicate ‘a fair
likelihood’ that the defendant is in danger of being convicted of murder or treason,” Roth, 482
P.2d at 743, but this formulation was later modified by the same court in In re Haynes, 619 P.2d
632 (Or. 1980).
In Haynes, the Oregon Supreme Court rejected the “fair likelihood” test, saying that
formulation “illustrates the risk of the common temptation to explain one set of adjectives by a
different one.” Id. at 636. In its view, “strong” and “evident” could be said “to demand more
than ‘a fair likelihood.’” Id. (noting that “fair likelihood” language was considered for inclusion
in revised bail statutes by Oregon’s legislature, but rejected as inconsistent with constitutional
provision). “The likelihood of guilt must be more than ‘fair,’ it must be ‘strong,’ before release
can be denied.” Id. More than that, it must “be guilt specifically of murder, not merely of some
degree of culpable homicide.” Id. The Oregon Supreme Court specifically rejected the high
standard of “beyond a reasonable doubt,” but said that the evidence must be at least “clear and
convincing.” Id.23
Like the Haynes court, we are skeptical of the “fair likelihood” test as being too low. The
Oregon constitution is identical to our constitutional language in that the proof must be “evident”
23
This burden, as we discuss in greater detail below, is too high.
22
or the presumption “strong,” and we concur with the Oregon Supreme Court that these terms
have a firmer tone than simply “fair.” Also, “fair likelihood” sounds very close to “fair
probability,” which is a standard Indiana courts assign to the burden which must be shown before
a warrant can be issued—in other words, it equates to probable cause. See, e.g., Kirk v. State,
974 N.E.2d 1059, 1072 (Ind. Ct. App. 2012) (“In deciding whether to issue a search warrant, the
issuing magistrate’s task is simply to make a practical, common-sense decision whether, given
all the circumstances set forth in the affidavit, there is a fair probability that evidence of a crime
will be found in a particular place.”), trans. denied. And whatever the standard, we know it must
be greater than probable cause.
The Rhode Island Supreme Court settled on a slightly different test, though also rejecting
standards as low as probable cause and as high as beyond a reasonable doubt. Fountaine v.
Mullen, 366 A.2d 1138, 1141–42 (R.I. 1976). After examining a number of the tests used by
other courts, it described the burden of proof as “whether the facts adduced by the state, viewed
in the light most favorable to the state (i.e. notwithstanding contradiction of them by defense
proof), are legally sufficient to sustain a verdict of guilty.” Id. at 1142.
The Florida Supreme Court in Arthur used similar language when it said that “[t]he
state’s burden, in order to foreclose bail as a matter of right, is to present some further evidence
[in addition to the indictment or information] which, viewed in the light most favorable to the
state, would be legally sufficient to sustain a jury verdict of guilty.” Arthur, 390 So.2d at 720
(citing Fountaine, 366 A.2d at 1138).24
24
This does not, however, appear to be the standard followed in Florida courts. See Kirkland v. Fortune,
661 So.2d 395, 397 (Fla. 1995). Instead an earlier line of case law, requiring a standard higher than
“beyond a reasonable doubt” is followed almost universally by courts of that state. Id. (citing Russell v.
State, 71 So. 27 (Fla. 1916)). If the State’s evidence, “although not insufficient to convict for a capital or
23
We think the Rhode Island test—and that used by the Florida Supreme Court in Arthur—
is also too low. They are, in effect, asking the trial court to conduct a pre-trial sufficiency of the
evidence hearing. Cf. Bailey v. State, 979 N.E.2d 133 (Ind. 2012) (outlining test for challenge to
sufficiency of evidence underlying conviction). And we are unwilling to deny a defendant’s
opportunity for pre-trial liberty on the basis of proof so presumptively favorable to the State
because, unlike a post-trial defendant raising a traditional sufficiency challenge, the defendant in
a pre-trial bail hearing is still presumed innocent.
Finally, we look to the well-reasoned opinion from the Arizona Court of Appeals in
Simpson. That court, just as we have done, noted that the case law broke down into three main
categories: those requiring some variation of probable cause, including “fair likelihood,” those
requiring some variation of clear and convincing, or clear and strong, and those requiring some
variation of beyond a reasonable doubt. Simpson, 85 P.3d at 488. For reasons similar to ours, it
rejected the formulations in the first and third categories. Id. at 488–89. Like us, it believed the
answer lay between those two poles.
It rejected a direct correlation to a “clear and convincing” standard because that standard
was expressly used in statutes permitting the denial of bail in other circumstances. Id. at 491.
Instead, it looked more favorably on variations of language used in Texas and Utah, requiring a
“substantial showing” or “substantial evidence” from the State. Id. at 491 (citing Ex parte
Espinoza, 90 S.W.3d 906, 908 (Tex. App. 2002) (“substantial showing,” but “far less” than
beyond a reasonable doubt) and State v. Kastanis, 848 P.2d 673, 676 (Utah 1993) (“substantial
life offense,” is in some respect impeached or rendered doubtful, “the proof is not stronger than beyond a
reasonable doubt and, accordingly, the accused is entitled to pretrial bail as a matter of right for such
offense.” Id. (quoting State v. Perry, 605 So.2d 94, 96–97 (Fla. Dist. Ct. App. 1992)). For all the reasons
we reject the standard of beyond a reasonable doubt, we must also reject Florida’s view applying an even
higher burden.
24
evidence” satisfied if evidence presented showed reasonable basis for jury finding guilty
verdict)). Ultimately, the court concluded
[T]hat the phrase “proof is evident, or presumption great” provides
its own standard: The State’s burden is met if all of the evidence,
fully considered by the court, makes it plain and clear to the
understanding, and satisfactory and apparent to the well-guarded,
dispassionate judgment of the court that the accused committed
one of the offenses enumerated in A.R.S. § 13-3961(A).25 In that
case, bail must be denied. The proof must be substantial, but it
need not rise to proof beyond a reasonable doubt.
Id. at 491.
The Arizona court’s articulation of its standard is helpful in some ways, but still not
something we may easily adopt for Indiana. To begin, though their constitutional language
varies slightly—requiring the presumption to be “great” rather than “strong”—that distinction is
of no great concern. The two words are synonyms. But at the same time, we believe Arizona’s
burden is too high. Specifically, we disagree with the notion that the standard presented by our
constitutional language should be higher than clear and convincing—or even as high as clear and
convincing at all.
In a murder or treason case in Indiana, the bail process is essentially three-fold. First, the
trial court must determine whether the defendant may be let to bail at all. Pursuant to our
conclusion in Part I.B. of this opinion, that process is driven by the State’s presentation of
evidence tending to show that the proof of the defendant’s guilt is evident, or the presumption of
25
Arizona Revised Statute § 13-3961(A), like Indiana Code § 35-33-8-2(a), codifies that state’s
constitutional provision permitting the denial of bail for certain offenses “if the proof is evident or the
presumption great.”
25
that guilt strong. If the State fails to meet this burden, the trial court must then determine the
conditions—if any—of pre-trial release that are necessary to guarantee the defendant’s presence
at trial or prevent harm to the community.
As we have said, in this second step a trial court may release the defendant on his own
recognizance with or without conditions or requirements, and with no financial obligation
whatsoever, if it wishes. However, the State may step in and show by only a preponderance of
the evidence that the defendant poses either a flight risk or a threat to the physical safety of the
community in order to impose monetary bail or other pre-trial release conditions reasonably
aimed at ensuring the defendant’s appearance in court—but those conditions may be aimed at
protecting the community only upon a showing of clear and convincing evidence that the
defendant poses a danger to others.
We think it proper that the standards for the first and second steps are parallel. That is,
the State must prove its case by a preponderance of the evidence. At the first step, it would
essentially mean that the State must show that the defendant “more likely than not” committed
the crime of murder (or treason). Such a showing, at such an early stage of the process, seems
sufficient to justify the denial of bail given the severity of the proposed offense and the attendant
consequences. After all, at that point the trial court—while not pre-judging the ultimate guilt or
innocence of the defendant—can reasonably say “the defendant most likely did it.”26
The inverse is also true. If the State cannot carry this burden at this stage, then the
resulting finding is that—at that point—the evidence shows that the defendant more likely than
26
At the second step, it means the State must show that the defendant is “more likely than not” to be a
flight risk. In that instance it also makes sense that the trial court does not simply release the defendant
on his own recognizance.
26
not did not commit the crime. Again, it does not foreclose the possibility that the State will
produce more and greater evidence in the course of its case in chief at trial and prove the
defendant’s guilt beyond a reasonable doubt. But at that early stage it certainly seems wrong to
deny even the opportunity to bail when “the defendant most likely didn’t do it.”27
Moreover, in addition to placing the standard on equal footing as one with which trial
judges and practitioners are already familiar, our result aligns well with the language of our
Article 1, § 17: that the proof must be evident28, or the presumption strong.29 Likewise, we
think it makes sense that there be a higher standard at the third step—that is, to impose additional
conditions on a defendant’s bail based on an alleged risk to the community. This is a function of
bail not linked to its traditional purpose and it is thus reasonable for the General Assembly to
require the greater showing of clear and convincing evidence.
As we have already made clear, this burden cannot be satisfied with the charging
indictment or information alone. Rather, the State must also present competent evidence either
upon which those charging documents relied or upon which the State intends to rely at trial.
Additionally, the evidence cannot simply be statements by the prosecutor as to what the proof
will—or might—be at trial. “A prosecutor’s assertions about evidence that he ‘feels’ he ‘may be
27
Again, at the second step this is equally logical. In this inverse, the State is asking a trial court to not
release a defendant on his own recognizance even though the defendant is more likely to not be a flight
risk.
28
See, e.g., Webster’s II New College Dictionary 389 (1995) (“evident” defined as “[e]asily seen or
understood”); Webster’s New World Thesaurus 256 (1985) (synonyms for “evident” including “logical”
and “reasonable”).
29
“A presumption is valid in a criminal case when the fact presumed is more likely than not to flow from
the fact on which the presumption is based.” Kindred v. State, 524 N.E.2d 279, 302 (Ind. 1988).
Moreover, here the particular presumption the State is seeking to demonstrate must be strong enough to
adequately rebut another presumption—that of the defendant’s innocence.
27
able to introduce’ are not ‘proof.’” Haynes, 619 P.2d at 642. “The magistrate must be shown
information at the hearing from which he can make his own independent determination whether
there is admissible evidence against an accused that adds up to strong or evident proof of guilt.”
Id. Furthermore, we also agree with the Oregon Supreme Court that the evidence presented by
the State must show culpability of the actual capital crime for which bail may be wholly
denied—i.e. murder or treason—and not simply implicate a lesser-included offense such as
voluntary or involuntary manslaughter.30
Finally, we caution that our opinion today should not be construed to modify—either to
enhance or diminish—the due process protections we have always required at bail hearings. See
Phillips, 550 N.E.2d at 1295. Neither does it impact the methodology a trial court would use to
later set bail if the State fails to meet this burden, nor does it change the standard of appellate
review in a case like this, where bail was denied outright, or in a case in which the defendant
later appeals the monetary bail amount or pre-trial conditions set by the trial court. Nor should it
color the factfinder’s ultimate conclusion on the guilt or innocence of the defendant after a full
and fair trial on the merits.
II. Denial of Bail for Fry
These holdings do not end the matter, though, because in Fry’s case the trial court
directed the State to proceed first and present its evidence showing that the proof was evident or
30
This is another concern with using a grand jury indictment as prima facie satisfaction of this burden, as
an indictment for murder necessarily includes indictments on the lesser-included offenses. See Lumm, 3
Ind. at 295 (“and further, upon an indictment for murder in the first degree, the accused may be convicted
of murder in the first, on the second, degree, or of manslaughter”). However, only murder is
constitutionally excepted from the presumptive right to bail.
28
the presumption strong. Seeking review of the ultimate outcome in that proceeding as well, Fry
challenges the trial court’s subsequent order denying him bail.
In these sorts of cases it has always been our practice to avoid specific commentary on
this issue, to avoid influencing the outcome of the trial with an elaborate presentation and public
assessment of the evidence for and against the defendant. See Heffren, 27 Ind. at 89 (“In
alluding to the evidence it is desirable, though difficult, and perhaps impossible, to exhibit the
reasons which conduct us to a conclusion, without pre-occupying ground which, upon the final
trial, must necessarily be traversed by the jury.”); see also Bozovichar, 230 Ind. at 366, 103
N.E.2d at 683 (“We think no good purpose would be served by reciting the evidence. Inasmuch
as the appellant is yet to be tried on the indictment it seems more proper not to do so.”); Hedges,
177 Ind. at 593, 98 N.E. at 418 (“We do not set out the evidence in this case upon which the
court acted, for the reason that it covers very much the ground which must be covered upon a
trial of the offense . . . .”); Richards, 102 Ind. at 261–62 (“No good purpose could be subserved
by our setting out, in this opinion, even the substance of the evidence, and it would seem to be
improper for us to comment thereon, as the case is yet to be tried.”). And the outcome of this
issue should in no way bear on a trier of fact’s later determination of whether Fry committed the
offense of murder beyond a reasonable doubt.
Nevertheless, “it is the duty of the supreme court to weigh the evidence and determine its
sufficiency to require that the petitioner should be admitted to bail.” Schmidt, 137 Ind. at 94.
And though today we have clarified the evidentiary standard for the proof to be evident, or the
presumption strong, our responsibility in this appellate review is “to weigh the evidence and pass
upon it as a trial court.” McAdams, 196 Ind. at 187, 147 N.E. at 765. Given this, and in light of
the exceptional lengths gone to by Judge Maughmer, the prosecutor, and Fry’s counsel to
29
develop a full evidentiary record on this question, we see no need to remand for an additional
hearing in this case.31
We have exercised our appellate duty here, reviewing the evidence presented by the
parties before the trial court and considering their arguments and presented authorities. This
review leads us to conclude that the trial court did not abuse his discretion in denying Fry bail.32
31
Additionally, those involved took great pains to avoid poisoning the ultimate outcome of the case
during this process. We recognize that they were blazing a new trail, but the record reflects that they all
sought to do so in a way that was fair, thorough, and cooperative. For that we commend Judge Rick
Maughmer, the Cass County Prosecutor Mr. Kevin Enyeart, and Loren Fry’s attorney, Mr. Jim Brugh.
32
Both dissenting opinions agree on this result, but owing to this say that we should not have taken up the
question of constitutionality at all. Rather, Loren Fry should have been denied bail regardless of the
approach taken, and the dissent would leave the question of whether section 35-33-8-2(b) violates the
constitutional presumption of innocence until we were faced with “a proper case.”
Most likely a “proper case” would be one in which our review of the evidence put forth by the
defendant—because that would still be the law—would be a closer call, and the battle below had been
won by the State. We agree that we could wait for such an occurrence, and under certain jurisprudential
theories that would be advisable. But the procedure as currently in place is wrong. It is offensive to the
constitutional guarantees afforded to criminal defendants in Indiana. So waiting for a “proper case”
would be waiting for a criminal defendant to be constitutionally wronged enough that we are finally
willing to step in and remedy that wrong for all such defendants. And in the meantime, that
presumptively innocent defendant would sit in pretrial detention, denied bail and limited in his ability to
formulate his defense—all the while waiting for us to reach the same conclusion that we do today.
In any event, Loren Fry’s case is here and we need not wait. By a 4-0 vote this Court accepted
his direct appeal—which, by rule, was only proper because the constitutionality of a statute was called
into question—and so it is wholly appropriate to address that issue regardless of any ultimate impact it
has on Fry’s bail determination.
30
Conclusion
We hold today that when a defendant charged with murder or treason seeks bail, the
burden is on the State, if it seeks to deny bail, to show—by a preponderance of the evidence—
that the proof is evident or the presumption strong. This change notwithstanding, we also affirm
the trial court’s denial of Fry’s bail in this case.
Dickson, C.J., concurs with separate opinion which Rush, J., joins.
Rush, J., concurs.
Massa, J., concurs in result and dissents with separate opinion.
Rucker, J., dissents with separate opinion in which Massa, J., concurs.
31
Dickson, Chief Justice, concurring.
I applaud the carefully researched and thoughtful separate opinions of Justices Rucker
and Massa. But I find determinative the actual language of the Right to Bail Clause of the Indi-
ana Constitution.
Offenses, other than murder or treason, shall be bailable by sufficient sureties. Murder or
treason shall not be bailable, when the proof is evident or the presumption strong.
Ind. Const. art. 1, § 17. Put another way, this provision declares a general rule that criminal of-
fenses are bailable, with one exception, for murder and treason, that arises upon satisfaction of a
prerequisite—where "the proof is evident or the presumption strong." When such prerequisite is
satisfied, then the exception to the right to bail applies, and murder or treason "shall not be
bailable."
As expressed in the language of our Right to Bail Clause, it is the presence of one of the
prerequisite factors (that "the proof is evident or the presumption strong") not its absence, that
must be shown to trigger the exception precluding bail for murder and treason. The Constitu-
tion's text thus places upon the State, as the party seeking to prevent a murder or treason defend-
ant from seeking bail, the burden of showing the existence of one of the prerequisite factors. En-
suing contrary opinions of this Court, or statutory attempts to codify such opinions, are contrary
to the text of the Constitution and cannot prevail. For this reason, I concur with the majority.
The separate views of one or a few individual delegates do not necessarily establish the
intentions of the majority of the delegates to the Constitutional Convention, and certainly not the
understanding of the voters who ratified the Constitution. To ascertain the intentions of the ma-
jority of framers and ratifiers, the text of the Constitution remains the essential resource. When,
as here, the text directly resolves the question, any contrary views of one or some of the dele-
gates or contemporaneous jurists are irrelevant.
The Court today announces a measured approach that fully implements the requirements
of the Right to Bail Clause of our Constitution while at the same time honoring and adhering to
the presumption of innocence. To obtain pre-trial detention without bail of a person charged
with murder or treason, the State need only show that the accused more likely than not commit-
ted the charged crime. Only if the State cannot make this minimal showing may the trial court
establish monetary bail or other conditions of pre-trial release. I am convinced that the standard
established today represents a proper understanding and application of the Indiana Constitution's
Right to Bail Clause, and I thus concur.
Rush, J., joins.
2
Massa, Justice, concurring in result and dissenting.
I agree with the majority insofar as it affirms the trial court’s decision to deny Fry bail, but I
dissent from the majority holding that Ind. Code § 35-33-8-2(b) is unconstitutional. While I agree
with Justice Rucker and join in his dissent, I write separately to reaffirm and support this Court’s past
precedent and its long-standing adherence to an originalist interpretation of our state constitution.
We often cite the intent of the framers of our founding documents as a guiding principle of our
jurisprudence, see, e.g., Snyder v. King, 958 N.E.2d 764, 772 (Ind. 2011), Spickermon v. Goddard,
182 Ind. 523, 525, 107 N.E. 2, 3 (1914), State v. Denny, 118 Ind. 449, 458, 21 N.E. 274, 276 (1889),
but rarely are we afforded the benefit of knowing exactly what the framers of our constitution were
thinking when they penned the words to a specific provision. Indiana’s 1816 Constitution provided:
“That all persons shall be bailable by sufficient sureties, unless for capital offenses, when the proof is
evident, or the presumption great.” Ind. Const. of 1816, art. 1, § 14. When it came time to amend our
Constitution 35 years later, the convention delegates discussed this provision extensively. See 2
Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the
State of Indiana 1379 (1850). One member, Mr. Thornton of Floyd County, sought to amend it
substantially. Id. He opposed the death penalty, disliked the implication connoted by the word
“capital,” and hoped that one day the new General Assembly would abolish the death penalty entirely.
Id. at 1379–80. Until that day, he believed, “bail should always be available,” but the “magnitude of
the offense and circumstances of the crime” and of the offender should dictate the amount of bail set.
Id.
Before a vote was taken, Mr. Gibson of Clark County offered an amendment to “perfect” the
original language of the 1816 Constitution. Id. at 1381. He proposed the words “capital offenses” be
stricken and replaced with the words “murder and treason,” which change was adopted by consent.
Id. Mr. Gibson then proceeded to explain why the change proposed by Mr. Thornton was
unacceptable. He called it “one of the most startling innovations that had ever been introduced in our
system . . . that a man who was willing to pay a sufficient price might commit murder with impunity.”
Id. All that man would have to do is “pay the price at which the bail was fixed and then he might
quietly put up his goods and leave the country.” Id. Mr. Thornton defended his amendment, arguing
all offenses should be bailable in order to “advance the cause of personal liberty.” He then asked for a
vote, and his amendment was defeated ninety votes to nine. One of the nays came from delegate
Horace Biddle, id. at 1382, about whom we will hear more later. Douglas B. Morton, “Horace P.
Biddle,” in Justices of the Indiana Supreme Court 101–04 (Linda C. Gugin & James E. St. Clair eds.,
2010). The murder bail provision, in its finally adopted form, read as follows: “Offenses, other than
murder or treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable,
when the proof is evident, or the presumption strong.” Ind. Const. art. 1, § 17 (1851). And so it still
reads today.
The majority looks back to the first case in Indiana history to discuss the bail provision and
determines it was wrongly decided. Ex parte Heffren, 27 Ind. 87 (1866) was handed down just fifteen
years after the adoption of Indiana’s 1851 Constitution. Its author, Justice James Somerville Frazer,
had been admitted to the Indiana bar for twenty-one years when he drafted Heffren and served in
Indiana’s House of Representatives both before and after the adoption of the 1851 Constitution.
Donald B. Kite, Sr., “James S. Frazer,” in Justices, supra, at 69. Of the two justices that joined his
opinion in full, Justice Jehu Tindle Elliott had served on the bench for twenty-two years at various
levels and had spent three years in Indiana’s Senate. Greta Morris Scodro, “Jehu T. Elliott,” in
Justices, supra, at 74–75. Justice Robert Crockett Gregory spent three years in the Senate and
practiced law all his life. Bradford W. Sample, “Robert C. Gregory,” in Justices, supra, at 82. These
men knew the framers of Indiana’s constitution and were intimately familiar with the discussions and
debates of 1850–51, and they decided that the murder bail provision places the burden on the
defendant to show the proof of guilt is not evident nor the presumption of guilt strong. Heffren, 27
Ind. at 88–89.
While several cases discussed the standard trial courts should apply to determine whether a
defendant should be let to bail in a murder case, see Ex parte Moore, 30 Ind. 197 (1868); Ex parte
Halpine, 30 Ind. 254 (1868); Ex parte Colter, 35 Ind. 109 (1871), none addressed Heffren’s holding
that a defendant had the burden to produce evidence to show the proof was not evident nor the
presumption strong until Ex parte Jones, 55 Ind. 176 (1876). Jones held that the defendants, who were
2
charged with murder and seeking to be admitted to bail, “assumed the burden of showing, by the
evidence, that the proof of their guilt was not evident, and that the presumption of their guilt was not
strong.” Id. at 180. Justice Howk drafted the opinion reaffirming Heffren. Id. at 176. Justice Horace
P. Biddle, a lawyer, poet, and delegate to Indiana’s 1850 Constitutional Convention, joined Howk’s
opinion and was one of the ninety votes to reject Mr. Thornton’s proposal to allow bail in all cases at
an amount commensurate with the magnitude of the crime and circumstances of the defendant.
Justice Biddle’s vote with the majority in Jones to reaffirm Heffren further evinces the framers’ intent
that in cases of murder or treason, the burden of proof of entitlement to bail, should rest upon the
defendant.
The language of the Constitution, the convention debates, and the judicial and legislative
history all demonstrate the purpose behind the murder bail provision. The framers specifically
excluded those charged with murder or treason from the possibility of bail in most cases because of
the seriousness of those crimes. They feared that if a defendant were admitted to bail, he may flee
rather than face a judge or jury. Thus, only those defendants who could show they were likely
innocent—who could show the proof of guilt was not evident nor the presumption strong—should be
let to bail.1 While my colleagues may disagree with that policy, it is what the framers intended and
1
Both the majority opinion and the Chief Justice’s concurrence are quite reasonably grounded in a desire
to honor and adhere to the presumption of innocence enshrined in our criminal justice system. I agree
that “the principle that there is a presumption of innocence in favor of the accused is the undoubted law,
axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal
law.” Coffin v. United States, 156 U.S. 432, 453 (1895). I note, however, that the federal Supreme Court
has held that the presumption of innocence “has no application to a determination of the rights of a
pretrial detainee during confinement before his trial has even begun.” Bell v. Wolfish, 441 U.S. 520, 533
(1979). In fact, in United States v. Salerno, 481 U.S. 739 (1987), the Court upheld several provisions of
the Bail Reform Act of 1984 allowing for preventive pretrial detention without bail for certain federal
defendants and noted several instances in which “the Government’s regulatory interest in community
safety can, in appropriate circumstances, outweigh an individual’s liberty interest.” Id. at 751; see also
Ludecke v. Watkins, 335 U.S. 160, 173 (1948) (approving unreviewable executive power to detain enemy
aliens in wartime); Moyer v. Peabody, 212 U.S. 78, 84–85 (1909) (rejecting due process claim of
individuals jailed without probable cause by Governor in time of insurrection); Addington v. Texas, 441
U.S. 418, 432–33 (1979) (holding the government may detain mentally unstable individuals who present
3
what the Constitution says, and we are bound to uphold it until such time as the citizens of Indiana see
fit to amend it.
I respectfully dissent.
Rucker, J., concurs in result.
a danger to the public upon a showing of clear and convincing evidence); Jackson v. Indiana, 406 U.S.
715, 738 (1972) (holding the government may hold a person charged with a crime and committed solely
due to incapacity for a reasonable period of time to determine whether he will attain the capacity to stand
trial); Schall v. Martin, 467 U.S. 253 (1984) (approving the post-arrest regulatory detention of juveniles
when they present a continuing danger to the community); Gerstein v. Pugh, 420 U.S. 103, 114 (1975)
(holding that if the police suspect an individual of a crime, they may arrest him without a warrant as long
as they promptly bring him before a neutral magistrate to determine whether they have probable cause to
hold him); Bell, 441 U.S. at 534 (noting an arrestee may be incarcerated until trial if he presents a risk of
flight). While I acknowledge today’s question is one of Indiana constitutional law, I find nothing in the
Convention Debates or in our jurisprudence that dictates a contrary holding here. Indeed, where Indiana
appellate courts have considered the interaction between the presumption of innocence and the right to
bail, we have tended to agree with our federal colleagues. See, e.g,, Hobbs v. Lindsey, 240 Ind. 74, 78,
81, 162 N.E.2d 85, 88–89 (1959) (stating that, although the accused enjoys the presumption of innocence
prior to trial, he nevertheless must shoulder the burden to make a prima facie showing that the trial court
has set his bail excessively high in violation of Ind. Const. art. 1, § 16, and only if he meets that burden
must the State “show the necessity or justification for the unusual amount of bail required”); see also Mott
v. State, 490 N.E.2d 1125, 1130 (Ind. Ct. App. 1986) (holding that trial courts are free to consider the
potential penalty when setting bail and that such a consideration “does not impinge the presumption of
innocence”).
4
Rucker, J., dissenting.
In one fell swoop, today the Court overrules nearly 150 years of precedent and declares a
30-year-old statute unconstitutional. Because I am not prepared to go that far, I respectfully
dissent.
First, the Court need not address the constitutional issue at all. Whatever may be said of
the statutory burden of proof, the trial court in this case imposed upon the State the burden of
establishing that Fry should be denied bail. And the trial court determined that the State carried
its burden. The record supports the trial court’s judgment, which this Court correctly affirms. In
my view that should be the end of the matter. We need not inquire any further.
As for the merits, I applaud Justice David’s scholarly research and in-depth analysis. But
for ill or good, this State has charted a course different from that of some other jurisdictions. We
have long held that in a murder case “the presumption is against the right to be admitted to bail,
and the burden is on the [defendant] to show that the proof is not evident nor the presumption of
his guilt strong.” Phillips v. State, 550 N.E.2d 1290, 1294 (Ind. 1990); accord Partlow v. State,
453 N.E.2d 259, 274 (Ind. 1983); Caudill v. State, 311 N.E.2d 429, 430 (Ind. 1974); Bozovichar
v. State, 103 N.E.2d 680, 681 (1952); State v. Hedges, 98 N.E. 417 (Ind. 1912); Schmidt v.
Simmons, 36 N.E. 516 (1894); Ex parte Jones, 55 Ind. 176, 179-80 (1876). This view has not
been without its detractors. In Ex parte Heffren, 27 Ind. 87 (1866), the first reported Indiana
decision addressing who has the burden in these matters, Chief Justice Ray dissented: “I do not
feel prepared to concur in so much of the ruling in this case as requires the petitioner to assume
the burden of showing that he is entitled to be admitted to bail.” Id. at 92. Nonetheless in this
jurisdiction imposing the burden on the defendant has prevailed. The same is true for several
other jurisdictions as well. See, e.g., Ex parte Wilding, 41 So. 3d 75, 76-77 (Ala. 2009); State v.
Green, 275 So. 2d 184, 185-86 (La. 1973); Fischer v. Ball, 129 A.2d 822, 825-27 (Md. 1957);
Huff v. Edwards, 241 So. 2d 654, 655-66 (Miss. 1970); Shaw v. State, 47 S.W.2d 92, 93 (Tenn.
1932).
Essentially, the understanding that a defendant charged with murder has the burden of
showing that he is entitled to be admitted to bail has been the accepted and settled law in this
jurisdiction for several decades. The doctrine of stare decisis requires that we apply “a principle
of law which has been firmly established.” Marsillett v. State, 495 N.E.2d 699, 704 (Ind. 1986).
It is a maxim of judicial restraint supported by compelling policy reasons of continuity and
predictability that we should be “reluctant to disturb long-standing precedent,” id., and “a rule
which has been deliberately declared should not be disturbed by the same court absent urgent
reasons and a clear manifestation of error.” Id. at 704-05 (citation omitted). Although
disagreeing with our long-standing precedent, the majority has not demonstrated any urgent
reason why the precedent should be abandoned. In like fashion the majority in my view has not
shown that our long-standing precedent is clearly erroneous.
In any event we need not overrule existing precedent or declare the bail statute
unconstitutional in the journey to chart a different course. Instead, again if a proper case were
before us, then I would be in favor of harmonizing the statute in a way to uphold its
constitutionality, and in the process distinguish rather than overrule existing precedent. This can
be accomplished in my view by continuing to read the statute as imposing on the defendant “the
burden of proof that he should be admitted to bail.” Ind. Code § 35-33-8-2(b). But clarifying
that this burden does not come into play until after the State first introduces evidence
demonstrating “more likely than not,” slip op. at 26, that the proof of the defendant’s guilt is
evident or the presumption of guilt strong. In essence, we would accomplish the same end result
the majority reaches today, but without the collateral consequences.
Massa, J., concurs.
2