8.4Denial of Pretrial Release

A.Generally

“With certain exceptions, a criminal defendant in Michigan is entitled as a matter of constitutional right to have reasonable bail established for pretrial release.” People v Davis, 337 Mich App 67, 74 (2021), citing Const 1963, art 1, § 15. See also MCL 765.5; MCR 6.106(B). This subsection addresses those exceptions.

Although often cited together, MCL 765.5 conflicts with Const 1963, art 1, § 15 and MCR 6.106 insofar as the statute “prohibits the trial court from granting pretrial release to [certain] defendant[s] if the proof of the defendant’s guilt is evident or the presumption of guilt is great,” while the constitutional provision and court rule “permit[] the trial court to deny pretrial release to [those] defendant[s] if proof of the defendant’s guilt is evident or the presumption of guilt is great, but does not mandate denial of bail.” Davis, 337 Mich App at 81, 84-85 (addressing the conflict with respect to defendants charged with murder and finding that although the court rule does not “explicitly state the grounds for denial of pretrial release to a defendant charged with murder,” it references and closely echoes the constitutional provision, which is “paramount to other laws in this state and is the law to which other laws must conform”). Accordingly, under the court rule and constitutional provision, bail may be denied to a defendant when one of the following circumstances applies and when proof of the defendant’s guilt is evident or the presumption of guilt is great:

(1) the defendant is charged with committing a violent felony, and during the 15 years preceding the commission of the violent felony, the defendant had been convicted of two or more violent felonies under the laws of Michigan or substantially similar laws of the United States or another state arising out of separate incidents. Const 1963, art 1, § 15(a); MCR 6.106(B)(1)(a)(ii)(B).

(2) the defendant is charged with murder or treason.  Const 1963, art 1, § 15(b); MCR 6.106(B)(1)(a)(i).

(3) the defendant is charged with CSC-I, armed robbery, or kidnapping with intent to extort money or another valuable thing, “unless the court finds by clear and convincing evidence that the defendant is not likely to flee or present a danger to any other person.” Const 1963, art 1, § 15(c); MCR 6.106(B)(1)(b).

(4) the defendant is charged with committing a violent felony, and at the time of the commission of the violent felony, the defendant was on probation, parole, or released pending trial for another violent felony. Const 1963, art 1, § 15(d); MCR 6.106(B)(1)(a)(ii)(A).

In Davis, the Court found that Const 1963, art 1, § 15 “does not prevent a trial court from granting bail to a defendant charged with murder, nor does the constitutional provision impose upon the trial court the duty to determine whether the proof is evident or the presumption of guilt great before granting bail to a person charged with murder or treason.” Davis, 337 Mich App at 77. However, “failure to determine whether the proof is evident or the presumption is great before denying bail therefore would be an abuse of the trial court’s discretion.”¹ Id (emphasis added).

“Nothing in [MCR 6.106] limits the ability of a jail to impose restrictions on detainee contact as an appropriate means of furthering penological goals.” MCR 6.106(B)(6).

“DNA identification of a suspect in a violent crime provides critical information to the police and judicial officials in making a determination of the arrestee’s future dangerousness[,]” and will thus “inform a court’s determination whether the individual should be released on bail.” Maryland v King, 569 US 435, 439, 453 (2013) (holding that the collection and analysis of an arrestee’s DNA according to Combined DNA Index System (CODIS)² procedures “[a]s part of a routine booking procedure for serious offenses” did not violate the Fourth Amendment where the DNA sample was used to identify the arrestee as the perpetrator of an earlier unsolved rape).

The rules of evidence do not apply to proceedings with respect to release on bail or otherwise. MRE 1101(b)(3).

B.Custody Order

“If the court determines as provided in [MCR 6.106(B)(1)] that the defendant may not be released, the court must order the defendant held in custody for a period not to exceed 90 days after the date of the order, excluding delays attributable to the defense, within which trial must begin or the court must immediately schedule a hearing and set the amount of bail.” MCR 6.106(B)(3). See also Const 1963, art 1, § 15.

The court must state the reasons for an order of custody on the record and on SCAO Form MC 240b, Custody Order. MCR 6.106(B)(4). The completed form must be placed in the court file. Id.

“The court may, in its custody order, place conditions on the defendant, including but not limited to restricting or prohibiting defendant’s contact with any other named person or persons, if the court determines the conditions are reasonably necessary to maintain the integrity of the judicial proceedings or are reasonably necessary for the protection of one or more named persons.” MCR 6.106(B)(5). “If an order under [MCR 6.106(B)(5)] is in conflict with another court order, the most restrictive provisions of the orders shall take precedence until the conflict is resolved.” MCR 6.106(B)(5).³

C.Custody Hearing

“A court having jurisdiction of a defendant may conduct a custody hearing if the defendant is being held in custody pursuant to [MCR 6.106(B)] and a custody hearing is requested by either the defendant or the prosecutor.” MCR 6.106(G)(1). “The purpose of the hearing is to permit the parties to litigate all of the issues relevant to challenging or supporting a custody decision pursuant to [MCR 6.106(B)].” MCR 6.106(G)(1).

“At the custody hearing, the defendant is entitled to be present and to be represented by a lawyer, and the defendant and the prosecutor are entitled to present witnesses and evidence, to proffer information, and to cross-examine each other’s witnesses.” MCR 6.106(G)(2)(a).

“The rules of evidence, except those pertaining to privilege, are not applicable.” MCR 6.106(G)(2)(b). “Unless the court makes the findings required to enter an order under [MCR 6.106(B)(1)], the defendant must be ordered released under [MCR 6.106(C) or MCR 6.106(D)].” MCR 6.106(G)(2)(b). “A verbatim record of the hearing must be made.” Id.

D.Juveniles

“If the proof is evident or if the presumption is great that the juvenile committed the offense, the magistrate or the court may deny bail:

(a) to a juvenile charged with first-degree murder, second-degree murder, or

(b) to a juvenile charged with first-degree criminal sexual conduct, or armed robbery,

(i) who is likely to flee, or

(ii) who clearly presents a danger to others.” MCR 6.909(A)(2).⁴

“The juvenile in custody or detention must be maintained separately from the adult prisoners or adult accused as required by MCL 764.27a.” MCR 6.909(B)(4).

1.Confinement in a Juvenile Facility

“Except as provided in [MCR 6.909(B)(2)] and in MCR 6.907(B), a juvenile charged with a crime and not released must be placed in a juvenile facility while awaiting trial and, if necessary, sentencing, rather than being placed in a jail or similar facility designed and used to incarcerate adult prisoners.” MCR 6.909(B)(1).

2.Confinement in a Jail

“On motion of a prosecuting attorney or a superintendent of a juvenile facility in which the juvenile is detained, the magistrate or court may order the juvenile confined in a jail or similar facility designed and used to incarcerate adult prisoners upon a showing that

(a) the juvenile’s habits or conduct are considered a menace to other juveniles; or

(b) the juvenile may not otherwise be safely detained in a juvenile facility.” MCR 6.909(B)(2).

3.Confinement in a Family Division Operated Facility

“The juvenile shall not be placed in an institution operated by the family division of the circuit court except with the consent of the family division or on order of a court as defined in MCR 6.903(C).” MCR 6.909(B)(3).

4.Speedy Trial

“Within 7 days of the filing of a motion, the court shall release a juvenile who has remained in detention while awaiting trial for more than 91 days to answer for the specified juvenile violation unless the trial has commenced. In computing the 91-day period, the court is to exclude delays as provided in MCR 6.004(C)(1)-(6) and the time required to conduct the hearing on the motion.” MCR 6.909(C).