8.5​Rationale for Decision Regarding Type of Pretrial Release and Conditions

MCR 6.106(F) addresses factors the court must consider when determining which pretrial release option to use and what terms and conditions to impose.

“In deciding which release to use and what terms and conditions to impose, the court is to consider relevant information, including

(a) defendant’s prior criminal record, including juvenile offenses;

(b) defendant’s record of appearance or nonappearance at court proceedings or flight to avoid prosecution;

(c) defendant’s history of substance abuse or addiction;

(d) defendant’s mental condition, including character and reputation for dangerousness;

(e) the seriousness of the offense charged, the presence or absence of threats, and the probability of conviction and likely sentence;

(f) defendant’s employment status and history and financial history insofar as these factors relate to the ability to post money bail;

(g) the availability of responsible members of the community who would vouch for or monitor the defendant;

(h) facts indicating the defendant’s ties to the community, including family ties and relationships, and length of residence[;] and

(i) any other facts bearing on the risk of nonappearance or danger to the public.” MCR 6.106(F)(1).

“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)²⁴ 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).

“If the court orders the defendant held in custody pursuant to [MCR 6.106(B)] or released on conditions in [MCR 6.106(D)] that include money bail, the court must state the reasons for its decision on the record.” MCR 6.106(F)(2). “The court need not make a finding on each of the enumerated factors.” Id.

“Nothing in [MCR 6.106(F)] may be construed to sanction pretrial detention nor to sanction the determination of pretrial release on the basis of race, religion, gender, economic status, or other impermissible criteria.” MCR 6.106(F)(3).

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