The Burden of Proof at George Zimmerman's Bail Hearing

CNN has an article on today's bail hearing in the case of George Zimmerman, accused of second degree murder with penalty enhancements in the shooting death of Trayvon Martin. CNN reports:

Special prosecutor Angela Corey has the burden of showing why bond should not be set or that it should be high. The burden is referred to as "proof of guilt is evident or presumption of guilt is great." Corey would have to convince [Judge] Lester that a jury would convict Zimmerman.

I think that's an inadequate description. Corey's burden of proof at the bail hearing to establish the "proof of guilt is evident or the presumption great" is not the same burden as applies to a jury. At trial, a jury must find proof beyond a reasonable doubt that Zimmerman committed the charged crime. Under established Florida case law on bail hearings involving capital and life charges, Corey's burden is higher. [More...]

Florida bail hearings in capital and life cases are called "Arthur hearings," after the case State v. Arthur, 390 So. 2d 717(1980.)

In Florida, to establish that "proof of guilt is evident" and the "presumption is great," the state's burden is aptly described in the 2011 ruling in State v. Wyche:

It "is actually a greater degree of proof than that which is required to establish guilt merely to the exclusion of a reasonable doubt." ... Even when the prosecution's evidence is sufficient to convict on a capital or life offense, but there is some doubt arising from other evidence, contradictions, or discrepancies, this exacting standard is not met and the accused is entitled to reasonable bail.

Thus a Florida defendant charged with a crime punishable by death or life imprisonment has a substantive constitutional entitlement to bail unless the prosecution can show that proof of his guilt is evident or presumption of his guilt great, i.e., unless the prosecution can, at a pretrial hearing, establish the defendant's culpability to a standard higher even than that required for a sustainable conviction at trial. (my emphasis.)

This is because Article I, section 14, of the Florida Constitution provides:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

As a Florida appeals court ruled in Elderbroom v. Knowles, 621 So. 2d 518, 520 (Fla. Dist. Ct. App. 4th Dist. 1993):

Indeed, the state is held to a degree of proof greater than that required to establish guilt beyond a reasonable doubt.

Another Florida appeals courts ruling the same way: Stallings v. Ryan, 979 So. 2d 1167 (Fla. Dist. Ct. App. 3d Dist. 2008.)

In State v. Perry, 605 So. 2d 94, 97 (Fla. 3d DCA 1992), the court explained that even if the state's evidence is enough to convict at a jury trial, it may not meet the test for denial of bail.

Further, where the State's evidence is sufficient to convict for a capital or life offense but is arguably impeached in substantial respects by other evidence or is replete with substantial contradictions and discrepancies, the proof does not meet the standard. Accordingly, the accused in such a case would be entitled to pretrial bail as a matter of right for such offense.

The Perry Court, and later decisions, have referred to some of the language in Arthur as merely dicta and not overruling Florida's long and consistent precedent on the topic:

We do not view [the Arthur dicta] as overruling a long line of Florida Supreme Court decisions, not discussed or even involved in Arthur, which have consistently held that (1) "the degree of proof sufficient to deny an accused the right to bail in a capital [or life offense] case under our Constitution, to wit, proof that guilt is evident or the presumption of guilt is great is actually a greater degree of proof than that which is required to establish guilt merely to the exclusion of a reasonable doubt,"... and (2) where the state's evidence, although not insufficient to convict for a capital or life offense, is arguably impeached in substantial respects by other evidence or is rendered doubtful by substantial contradictions and discrepancies in the state's case, 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....

There's also Kirkland v. Fortune, 661 So. 2d 395, 397 (Fla. Dist. Ct. App. 1st Dist. 1995), which cites a 1916 case holding:

The question is not whether the evidence adduced on an application for bail is sufficient to establish guilt beyond a reasonable doubt, but whether the evidence is sufficient to establish that degree of proof where the judge to whom the application is made may say that guilt is evident or the presumption is great, which is a greater degree of proof than that establishing guilt merely to the exclusion of a reasonable doubt.

The word "evident" is defined by Webster as "clear to the understanding and satisfactory to the judgment." Synonyms: "Manifest, plain, clear, obvious, conclusive." The word "manifest" is defined as follows: "To put beyond question of doubt."

In a trial this degree of proof is not required, for it not infrequently happens that upon a conviction the court will refuse to grant a new trial because there is evidence to support the verdict, although to his mind guilt may not have been established to the point of being manifest, obvious, beyond a question of doubt, yet it is to the court to whom application for bail is made, and his judgment is invoked as to the degree of proof established by the evidence, and not what a petit jury not yet impaneled may possibly decide as to the probative force of the evidence.

There are two stages to "Arthur hearings." In the first stage, the Court decides if the proof is evident and presumption great. Even if the judge finds the proof is evident or the presumption great that the accused committed a capital or life imprisonment offense, it only means that bail is not mandated. There may still be a second phase of the Arthur hearing, where the defendant can come forward with a showing as to why the court should exercise its discretion and grant bail.

It is the second phase of the Arthur hearing at which the court considers things like the defendant's ties to the community, resources, and danger that he might flee. If the judge decides bail is appropriate, he cannot set it in an amount that is beyond the defendant's resources to meet. Otherwise, the setting of bail would be no different than the denial of bail.

The purposes of bail are to ensure the appearance of the defendant at subsequent proceedings and protect the community against unreasonable danger from the defendant. According to Florida law, Fla. Stat. § 903.046,the judge considers:

(a) The nature and circumstances of the offense charged.

(b) The weight of the evidence against the defendant.

© The defendant's family ties, length of residence in the community, employment history, financial resources, and mental condition.

(d) The defendant's past and present conduct, including any record of convictions, previous flight to avoid prosecution, or failure to appear at court proceedings.

(e) The nature and probability of danger which the defendant's release poses to the community.

... (i) The nature and probability of intimidation and danger to victims.

....(k) Any other facts that the court considers relevant.

George Zimmerman has no prior convictions. He has substantial ties to the community, lives and works in the community, is married, and had been employed and a student up to the time of arrest. He turned himself in upon learning of the charges.

I've said a few times I won't be surprised if the state agrees to bail to avoid having to show its evidence before the Stand Your Ground hearing. If it does not agree to bail, I think the judge will grant it. If he doesn't, Zimmerman can file a habeas corpus petition to challenge the denial.

< Orlando Sentinel Readers: 65% Say Zimmerman Can't Get a Fair Trial | George Zimmerman's Bail Set at $150k >
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  • Display: Sort:
    Locally I do not see any news of (none / 0) (#1)
    by ruffian on Fri Apr 20, 2012 at 05:57:38 AM EST
    people speaking in opposition to bail. I don't think the prosecutor is under any public pressure to fight it. Seems like it would be a lot of effort for not little to no benefit. I don't see Zimmerman as a flight risk.

    The Fl. test for bail on charges such as these (none / 0) (#2)
    by oculus on Fri Apr 20, 2012 at 08:00:52 AM EST
    is quite stringent. Wondering in what % of such cases prosecution agrees Court may set bail.

    Bail seems appropriate in this case (none / 0) (#3)
    by Big Tent Democrat on Fri Apr 20, 2012 at 08:29:49 AM EST
    For watching Law and Order, it seems the prosecution always opposes bail but I do not understand why.

    When the accused is in jail (none / 0) (#4)
    by me only on Fri Apr 20, 2012 at 08:54:32 AM EST
    does the defense do the "delay, delay, delay" tactic as much?

    Leverage for a plea.... (none / 0) (#12)
    by kdog on Fri Apr 20, 2012 at 10:33:21 AM EST
    cages suck.

    Is the L&O prosecutor (none / 0) (#14)
    by oculus on Fri Apr 20, 2012 at 10:47:17 AM EST
    requestingprosecutor requesting no bail in VfL state court requesting bail on charges similar to these?

    Interesting (none / 0) (#5)
    by TeresaInPa on Fri Apr 20, 2012 at 09:24:45 AM EST
    His lawyer is already making the case against him being racist.  

    Zimmerman on the stand now (none / 0) (#6)
    by gyrfalcon on Fri Apr 20, 2012 at 09:56:03 AM EST

    I like (none / 0) (#7)
    by Makarov on Fri Apr 20, 2012 at 09:56:19 AM EST
    Zimmerman's attorney.

    Out of curiosity, does anyone know why Zimmerman is shackled? Is that common procedure for a defendant in custody during an Arthur hearing in Florida?

    Bond to be issued (none / 0) (#8)
    by Makarov on Fri Apr 20, 2012 at 10:14:03 AM EST
    in the amount of $150K. Zimmerman will not be released today, as the defense wants him to be able to reside outside Florida, and the court is not sure whether that will conflict with electronic monitoring requirements. Restriction on residence to be taken up by defense, prosecutor, and sheriff and if there is a conflict the judge will hear that at a later date.

    Sounds fair to me (none / 0) (#9)
    by ruffian on Fri Apr 20, 2012 at 10:19:12 AM EST
    I am really sorry that a few bad apples have made it at least appear that he is unsafe living in Florida. Was there any testimony about the extent and seriousness of threats against him?

    Did the court order no (none / 0) (#13)
    by oculus on Fri Apr 20, 2012 at 10:40:36 AM EST
    weapons and surrender all firearms and passport?

    See (none / 0) (#15)
    by me only on Fri Apr 20, 2012 at 10:47:56 AM EST
    Circuit Judge Kenneth Lester says Zimmerman cannot have any firearms, drink alcohol or use drugs and must observe a curfew. Zimmerman will also have to wear an electronic monitoring device. The judge says Zimmerman will not be released Friday.

    What time is the curfew? (none / 0) (#16)
    by ruffian on Fri Apr 20, 2012 at 12:39:23 PM EST
    Can't see how a curfew protects anyone from a guy that shoots at 7:20 pm. Seems meaningless if the guns are already forbidden.

    the curfew has nothing to do with (5.00 / 1) (#17)
    by Jeralyn on Fri Apr 20, 2012 at 01:10:26 PM EST
    using a weapon. Its purpose is to reduce the opportunity for flight. It prevents a defendant who may decide to flee from getting a big head start, because he has to be within a certain range of his home phone or the monitoring office gets notified instantly.

    Electronic home monitoring is a widely used bail requirement. Not possessing a weapon, turning in your passport, and not contacting the victims are standard conditions. Most states issue restraining orders preventing contact with victims when bail is posted. Violation of the restraining order results in a separate criminal charge.

    It's a very typical bail order.

    If he can't make the $100k bond he can request it be lowered. Once the court determines he should get bail, it cannot set bail in an amount he can't afford. That's tantamount to a denial of bond.


    I don't exactly follow (none / 0) (#18)
    by me only on Fri Apr 20, 2012 at 02:51:01 PM EST
    I know of people who were unable to make bond because they couldn't come up with a few thousand dollars.  Does that mean that their attorney didn't do a good job getting the bond lowered?