Bail

1. 18 USC § 3142 (c) (2) (1994)
   Court may set bail the defendant cannot meet, but financial conditions may not purposefully be drawn beyond the defendants means.
   
   
2. 18 USC § 3143 (b) (1994)
   Pending appeal defendant must provide clear and convincing evidence to overcome presumption of flight and dangerousness to community. The District Court must act on release application.
   
   
3. Baker v. McCollan, 433 US 137, 144 n.3 (1979)
   The Supreme Court has indicated that excessive bail clause "has been assumed" to apply to the states.
   
   
4. Benson v. California, 328 F.2d 159, 162 (9th Cir. 1964),cert. denied, 380 US 951 (1965)
   Release on bail should be granted to a prisoner pending post-conviction habeas review only when the petitioner has raised substantial constitutional claim upon which he has a high probability of success on the merits or in extraordinary cases involving exceptional circumstances which make granting of bail necessary to the effectiveness of the habeas remedy.
   
   
5. Carlson v. Landon, 342 US 524, 96 L.Ed 547, 72 S.Ct. 525 (1952)
   Strait v. Laird, 406 US 341, 32 L.Ed.2d 141, 92 S.Ct. 1693 (1972)
   Hensley v. Municiple Court, 411 US 345, 36 L.Ed.2d 294, 93 S.Ct. 1571 (1973)
   Extremely restrictive bail may be argued that it merely extends the prison walls, thus defendant is still in the custody of the United States government.
   
   
6. Land v. Deeds, 878 F.2d 159, 162 (9th Cir. 1989)
   Something more than any meritorious claim is required before release on bail is justified.
   
   
7. Lee v. Lawson, (1979 Miss) 375 S.Ct..2d 1019
   Bail system based on monetary bail alone will be unconstitutional, with regard to due process rights of indigent pre-trial detainee. 
   
   
8. Pugh v. Rainwater, (1978 CA5 Fla) 572 F.2d 1053
   Incarceration of those individuals who cannot pay established money bail, without meaningful consideration of other possible alternatives, infringes on due process requirements.
   
   
9. Re Roe, 257 F.3d 1077, 1080 (9th Cir. 2001)
   Assuming arguendo, that a District Court has the authority to release a state prisoner on bail pending resolution of habeas corpus proceedings in extraordinary cases, the petitioner must demonstrate that he is an extraordinary case involving special circumstances or a high probability of success.
   
   
10. Reno v. Koray, 515 US 132 L.Ed.2d 46, 115 S.Ct. (1995)
    Federal prisoner ordered confined to community treatment center, or "halfway house," to await sentencing held not in "official detention" for purposes of receiving sentence credit under Sentencing Reform Act of 1984. (adverse law)
    
    
11. Schilb v. Kuebel, 404 US 357, 365 (1973)
    Three circuits have expressly held that the excessive bail clause applies to the states.
    
    
12. Sistrunk v. Lyons, 646 F.2d 64, 71 (3rd Cir. 1981)
    Excessive bail clause integral to order, liberty and binding on states through fourteenth amendment.
    
    
13. US v. Delker, 757 F.2d 1390, 1394 (3rd Cir. 1985)
    Rule line of the federal rules of appellate procedure requires District Court to provide written reasons for ordering, refusing or imposing conditions of release.
    
    
14. US v. DuBose, 146 F.3d 1141, 1145 (9th Cir. 1998)
    When a court enters an order for pre-trial release containing a financial condition that the defendant in good faith cannot fulfill, the court must explain why the particular requirement is an indispensable component of the conditions for release. See also: Mantecon-Zayas, 949 F.2d at 556.
    
    
15. US v. Figuerola, 58 F3d 502 (9th Cir. 1995)
    Bail bond is contract between government, defendant, and his sureties, and is governed by general contract principles.
    
    
16. US v. Fisher, 55 F.3d 481 (10th Cir. 1995)
    Trial judge refusing release of defendant pending appeal must state in writing reasons for action taken.
    
    
17. US v. Frazier, 772 F.2d 1451, 1452-53 (9th Cir. 1985) (per curiam)
    Condition that property securing bond be unencumbered in order to protect government's ability to collect on security was improper basis for denying release because not reasonably necessary to assure defendants appearance.
    
    
18. US v. Giraldi, 86 F.3d 1368, 1379 (5th Cir. 1996)
    Defendant's application for release pending appeal improperly denied because defendants appeal presented issues raised in substantial likelihood of reduced sentence on new trial.
    
    
19. US v. Hart, 779 F.2d 575,5 76-77 (10th Cir. 1985) (per curiam)
    District Court his duty pursuant to § 3145 (c) and federal rules of appellate procedure P. 9 (b) to act on application for release pending appeal and cannot decline to hear or rule on ground that it is a matter for appeals court to decide.
    
    
20. US v. Himler, 797 F.2d 156 (3rd Cir. 1986)
    There is no per se presumption of flight by reason of charged crime involving production of fraudulent identification, for purposes of determining whether defendant should be subjected to pre-trial detention.
    
    
21. US v. Infelise, 934 F.2d 103 (7th Cir. 1991)
    Government cannot be permitted to defeat Bill of Rights by indefinite delay in bringing defendants to trial.
    
    
22. US v. Leisure, 710 F.2d 422 (8th Cir. 1983)
    Conditions which are impossible to meet are not to be permitted to serve as devices to thwart plain purpose of Bail Reform Act, nor are they to serve as thinly veiled cloak for preventive detention, and amount of bail should not be used as indirect, but effective, method of ensuring continued custody.
    
    
23. US v. Mett, 41 F3d 1281 (9th Cir. 1994)
    Special circumstances justifying bail for habeas petitioners include serious deterioration of health while incarcerated and unusual delay in appeal process.
    
    
24. US v. Montalvo-Murillo, 495 US 711, 721 (1990)
    Court must find in favor of defendants rights. The 9th circuit has announced that it has "not weighed in" on the issue of a District Court's power, to grant bail pending a decision on a habeas corpus petition.
    
    
25. US v. Nelson, 6 F.3d 1049 (4th Cir. 1993)
    Evidence of international flight by defendant immediately after commission of crime may be considered along with other evidence in determining guilt.
    
    
26. US v. Notamedi, 767 F.2d 1403 (9th Cir. 1985)
    Tradition of federal law is that one arrested for a noncapital offense shall be admitted to bail and only in rare circumstances should release be denied.
    
    
27. US v. O'brien, 895 F.2d 810 (1st Cir. 1990)
    Government was not entitled, as matter of right, to hearing after narcotics defendant met conditions set by court for pre-trial release.
    
    
28. US v. Orta, 760 F2d 887 (8th Cir. 1985)
    US v. Gebro, 948 F2d 1118 (9th Cir. 1991)
    Bail Reform Act requires release of person facing trial under least restrictive condition or combination of conditions that will reasonably assure appearance of person as required and safety of community; only in rare circumstances should release be denied, and doubts regarding propriety of release should be resolved in defendant's favor.
    
    
29. US v. Romano, 799 F.2d 17 (2nd Cir. 1986)
    US v. Salerno, 794 F.2d 64 (2nd Cir. 1986)
    Substantive due process prohibits pre-trial detention on the ground of danger to the community, regardless of the duration of the detention.
    
    
30. US v. Rose, 791 F.2d 1477 (11 th Cir. 1986)
    Addition of any condition to appearance bond to effect that it shall be retained by clerk to pay any fine that may subsequently be levied against defendant after criminal trial is over is "excessive" in violation of Eighth Amendment.
    
    
31. US v. Rubenstein, 971 F.2d 288 (9th Cir. 1992)
    Courts should not presume that money posted as bail is defendants.
    
    
32. US v. Snyder, 946 F.2d 1125 (5th Cir. 1991)
    All levels in the Federal Judicial System have jurisdiction to determine bail application while plaintiffs petition for certiorari is pending before the Supreme Court.
    
    
33. US v. Toro, 981 F.2d 1045 (9th Cir. 1992)
    United States forfeiture action accrued and six year statute of limitations began to run, upon breach of bail bond agreement.
    
    
34. US v. Townsend, 897 F.2d 989, 993-94 (9th Cir. 1990)
    Government has burden of proving risk of defendants flight by preponderance of evidence. Release denied only in rare cases when person arrested for non-capital offenses; doubts regarding propriety of release resolved in favor of defendant.

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Brady Violations

1. Anderson v. US, 788 F.2d 517 (8th Cir. 1986)
   Definition of materiality for purposes of BRADY VS. MARYLAND applies to all cases of prosecutorial failure to disclose favorable evidence, whether there was "no request," "general request," or "specific request. "
   
   
2. Bartholomew v. Wood, 34 F.3d 870 (9th Cir. 1994)
   Prosecution's failure to disclose material and favorable evidence to defendant will violate due process under BRADY, even when defendant makes no request for such evidence.
   
   
3. Brady v. Maryland, 373 US 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1963)
   Suppression of favorable evidence violates due process (GRANDADDY CASE)
   
   
4. Canion v. Cole, 208 Ariz. 133, 91 P.3d 355
   It is true that, by its words, Rule 15.1 does not apply to PCR proceedings, but to agree with the State that this is conclusive would allow the prosecution that unlawfully failed to disclose exculpatory information in a timely manner to continue to evade that duty and thwart the due process of law to which an accused is entitled. The Arizona Supreme Court held in State v. Schreiber, 115 Ariz. 555, 556, 566 P.2d 1031, 1032 (1977), that a Rule 32 petition should be granted when the prosecution's non-disclosure of evidence denied the petitioner's right to due process, citing the United States and Arizona Constitutions. Remand was required after defendant showed good cause and made colorable allegations of newly discovered materials.
   
   
5. Edmond v. Collins, 8 F.3d 290 (5th Cir. 1993)
   US v. Brumel - Alverez, 976 F.2d 1235 (9th Cir. 1992)
   Brady doctrine requires prosecution to produce exculpatory evidence and evidence useful for impeachment when requested to do so by defendant.
   
   
6. Kyles v. Whitley, 514 US 131 L.Ed.2d 490, 115 S.Ct. (1995)
   On Writ habeas corpus review, accused who had been convicted of murder and sentenced to death in Louisiana trial held entitled to new trial because of prosecution's failure to disclose material evidence favorable to accused.
   
   
7. Lawrence v. Lansing, 42 F.3d 255 (5th Cir. 1994)
   Under BRADY, prosecution must disclose to defense both exculpatory evidence and evidence that would be useful for impeachment.
   
   
8. Martin-Costa v. Kiger, 235 P.3d 1040
   While the parent of a minor crime victim had limited standing to enforce any right guaranteed to the victim, neither the Victims' Bill of Rights under Ariz. Const. art. 2, § 2.1, Ariz. Rev. Stat. § 13-4401 et seq., nor Ariz. R. Crim. P. 39 granted a crime victim the right to seek disqualification of the trial judge or defense counsel.
   
   
9. Myatt v. US, 875 F.2d 8 (1st Cir. 1989)
   Evidence can be exculpatory, for purposes of compelling disclosure under BRADY, although the evidence is not directly about defendant; there will be many cases in which impeachment evidence concerning witness or codefendants will lead to reasonable doubt about defendant's guilt or innocence.
   
   
10. Smith v. Black, 904 F.2d 950 (5th Cir. 1990)
    US v. Clark, 988 F.2d 1459 (6th Cir. 1993)
    US v. Carson, 9 F.3d 576 (7th Cir. 1993)
    Brady violation occurs where prosecution suppresses evidence that is favorable to defendant and material to issue at trial.
    
    
11. State v. Talmadge, 196 Ariz. 436
    In criminal child abuse case, trial court's ruling preventing Scottish expert on temporary brittle bone disease from testifying as defense expert witness was an abuse of discretion, and the error was reversible.
    
    
12. US v. Aichele, 941 F.2d 761 (9th Cir. 1991)
    To escape BRADY sanction, disclosure must be made at time when disclosure would be of value to accused.
    
    
13. US v. Farley, 2 F.3d 645 (6th Cir. 1993)
    Evidence which may be used to impeach prosecution witness falls within scope of Brady Rule and therefore, must be disclosed upon defense counsel's request.
    
    
14. US v. Griggs, 713 F.2d 672 (11th Cir. 1983)
    Exculpatory evidence could have existed in the prosecutors files which would have indicated the "TIP OF THE ICEBERG" (case remanded for further hearings).
    
    
15. US v. Hanna, 55 F.3d 1456 (9th Cir. 1995)
    "Brady material" is any evidence material either to guilt or punishment which is favorable to accused, irrespective of good faith or bad faith of prosecution.
    Prosecutor's duty to reveal BRADY materials does not depend on request by defense.
    
    
16. US v. Oxman, 740 F.2d 1298 (3rd Cir. 1984)
    When prosecutor receives a specific and relevant request for BRADY material failure to make any response is seldom, if ever, excusable.
    
    
17. US v. Rossy, 953 F.2d 321 (7th Cir. 1992)
    Evidence is "material" under BRADY if there is reasonable probability that, had evidence been disclosed to defense, result of proceeding would have been different.
    
    
18. US v. Severson, 3 F.3d 1005 (7th Cir. 1993)
    Brady requirements that government disclose exculpatory evidence also applies at sentencing.
    
    
19. US v. Zuno - Arce, 44 F.3d 1420 (9th Cir. 1995)
    Under Brady, exculpatory evidence cannot be kept out of hands of defense just because prosecutor does not have it, where investigating agency does.
    
    
20. Williams v. Whitley, 940 F.2d 132 (5th Cir. 1991)
    Prosecution is deemed to have knowledge of information readily available to it, and failure to provide that information, when exculpatory and when requested by defendant, is violation of Brady rule.

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Burden Of Proof

1. Note:The burden of persuasion requires convincing the fact finder that any fact in issue should be decided in a certain way. The due process clause places on the prosecution the burden of persuasion on every element of the crime charged; only rarely does the burden shift to the defendant. Any shifting of the burden of persuasion must withstand constitutional scrutiny.
   
   
2. Patterson v. Gomez, 223 F.3d 959, 967 (9th Cir 2000)
   Instruction creating mandatory presumption for burden of persuasion on element of intent did not comport with due process because rest of charge does not explain or cure the error.
   
   
3. Patterson v. New York, 432 US 197, 210-11 (1997)
   Requirement that defendant proved affirmative defense of "heat of passion" by preponderance of the evidence did not unconstitutionally shift burden of persuasion.
   
   
4. State v. Abdi, 602 Ariz. Adv. Rep. 4
   Trial court erred in instructing the jury, under Ariz. Rev. Stat. § 13-419, to presume the victim had acted reasonably in defense of his residence. A mandatory presumption which shifted the burden of persuasion by requiring defendant to establish affirmatively the negative of an element of the offense was unconstitutional.
   
   
5. State v. Karr, 221 Ariz. 319
   Even though the trial court erred by failing to instruct the jury that defendant bore the burden of proving self-defense, defendant was not prejudiced because he benefited from the omission, as the instructions agreed to by the trial court and counsel and given to the jury shifted the burden of disproving the defense to the State.
   
   
6. State v. Rios, 237 P.3d 1052
   Murder conviction was reversed because the trial court erred in instructing the jury that defendant had the burden of proof on his justification defense; Ariz. Rev. Stat. § 13-205, which retroactively shifted the burden of proof to the State, did not violate the separation of powers clause under Ariz. Const. art. III.
   
   
7. State v. Valverde, 220 Ariz. 171
   In a criminal trial for aggravated assault where defendant claimed that he was acting in self-defense, the trial court committed reversible error by failing to instruct the jury that self-defense was an affirmative defense requiring proof by a preponderance of the evidence under Ariz. Rev. Stat. § 13-205.

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