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Unpublished Paper
WHEN THE EMPEROR HAS NO CLOTHES II: A PROPOSAL FOR A MORE SERIOUS LOOK AT “THE WEIGHT OF THE EVIDENCE”
ExpressO (2011)
  • Carrie Leonetti
Abstract

While the Bail Reform Act and state statutes modeled after it command courts to consider the weight of the evidence in making pretrial release/detention decisions, as a practical matter, courts do not do so – at least not when the weight-of-the-evidence factor cuts in favor of release – and they should. In particular, courts should accord substantially more weight to the “weight of the evidence” factor in making or reviewing pretrial-detention determinations when one or more jury has already refused unanimously to convict the defendant of the crime(s) charged. Unless the prosecution has obtained significant, material new evidence between the mistrial and the review of the detention determination, magistrates should release these defendants, on conditions, if appropriate, pending any retrial.

There are no viable alternatives to pretrial release – the prohibition against double jeopardy, the right to a speedy trial, or substantive due process – to remedy the overcharging problem caused when the prosecution’s evidence is weak but legally sufficient under Jackson. The only remedy left for courts to minimize the prejudice to defendants being held in pretrial detention pending trial on charges that may never result in a final judgment is release from custody and that a weak prosecution case resulting in a hung jury should militate in favor of a defendant’s release from custody pending retrial. Despite statutory and caselaw authorization to do so, courts rarely invoke this mechanism of pretrial release as a remedy for weak cases, even when asked specifically by a defendant to do so. Trial courts should factor the weakness of the prosecution’s evidence of guilt in balancing the need for pretrial detention with its restriction of the defendant’s liberty and use the “weight of the evidence” factor in ordering release of defendants with little prospect of conviction to the same extent that they use the strength of the evidence of guilt in ordering detention.

Keywords
  • overcharging,
  • pretrial detention,
  • mistrial,
  • weight of evidence
Disciplines
Publication Date
September 29, 2011
Citation Information
Carrie Leonetti. "WHEN THE EMPEROR HAS NO CLOTHES II: A PROPOSAL FOR A MORE SERIOUS LOOK AT “THE WEIGHT OF THE EVIDENCE”" ExpressO (2011)
Available at: http://works.bepress.com/carrie_leonetti/33/