8.6Review of Release Decision
“A party seeking review of a release decision may file a motion in the court having appellate jurisdiction over the court that made the release decision.” MCR 6.106(H)(1). “There is no fee for filing the motion.” Id.
“The reviewing court may not stay, vacate, modify, or reverse the release decision except on finding an abuse of discretion.” MCR 6.106(H)(1).
Upon a finding of an abuse of discretion by the lower court in fixing bail, the trial court may only modify the bail provisions (including the amount of the money bail) after having considered the factors mandated by the court rule governing bail (MCR 6.106(F)(1)(a)-(i)). See People v Weatherford, 132 Mich App 165, 170 (1984).
B.Modification of Release Decision
1.Before Arraignment on the Information
“Prior to the defendant’s arraignment on the information, any court before which proceedings against the defendant are pending may, on the motion of a party or its own initiative and on finding that there is a substantial reason for doing so, modify a prior release decision or reopen a prior custody hearing.” MCR 6.106(H)(2)(a).
2.At or Following Arraignment on the Information
“At the defendant’s arraignment on the information and afterwards, the court having jurisdiction of the defendant may, on the motion of a party or its own initiative, make a de novo determination and modify a prior release decision or reopen a prior custody hearing.” MCR 6.106(H)(2)(b).
3.Burden of Going Forward
“The party seeking modification of a release decision has the burden of going forward.” MCR 6.106(H)(2)(c).
The rules of evidence do not apply to proceedings with respect to release on bail or otherwise. MRE 1101(b)(3).
“In reviewing a bail decision, more than perfunctory compliance [with the applicable court rule] is required . . . . Defendants also must be allowed to present any additional material evidence, which could have originally been considered in the setting of bail, if the evidence was not available when bail was originally set.” People v Spicer, 402 Mich 406, 410-411 (1978).
4.Court Forms
If the release order is modified, SCAO Form MC 240, Pretrial Release Order, should be competed.
“If a defendant being held in pretrial custody under [MCR 6.106] is ordered released from custody as a result of a court order or law requiring the release of prisoners to relieve jail conditions, the court ordering the defendant’s release may, if appropriate, impose conditions of release in accordance with [MCR 6.106] to ensure the appearance of the defendant as required and to protect the public.” MCR 6.106(H)(3). “If such conditions of release are imposed, the court must inform the defendant of the conditions on the record or by furnishing to the defendant or the defendant’s lawyer a copy of the release order setting forth the conditions.” Id. Note that bond conditions are addressed on SCAO Form MC 240, Pretrial Release Order, which the defendant should sign.