When the Emperor Has No Clothes II: A Proposal for a More Serious Look at “the Weight of the Evidence”
As its title suggests, this Article is a follow-on piece to When the Emperor Has No Clothes. 3 As that article explained, it takes only probable cause for a prosecutor to bring and maintain charge(s) against a defendant.4 Such a charging decision is essentially unreviewable;5 it takes only charge(s) for a defendant to be detained pending trial, with little-to-no consideration of the strength of the supporting evidence,6 and delays resulting from the administration of a public-defense system count against the defendant in a speedytrial claim.7 In other words, the factual showing of guilt that the prosecution must make to justify the indefinite pretrial detention of a criminal defendant is no greater than the showing required to support an arrest. The result has been a caseload of criminal prosecutions in American courts that has been described as “crushing,”8 and a system that lacks an official remedy for courts to employ when the prosecution charges an offense that it has no chance of proving.
Congress, in enacting the federal Bail Reform Act of 1984 (“BRA”),9 expressed its intent that detention under the BRA reach only a small class of defendants.10 Nonetheless, since the BRA’s enactment, the use of preventive detention of criminal defendants pending trial has dramatically increased, and pretrial detention is now common in criminal cases.11 While much of the debate surrounding preventive detention has focused on the accuracy with which courts could predict whether defendants posed a future risk to the community (i.e., identifying those defendants that are innocent of the temporary dangerousness of which they are accused during the detention hearing),12 very little has focused on the other accuracy problem with pretrial detention: the extent to which courts may be detaining defendants who are innocent of the crimes with which they are charged—the jurisdictional triggering mechanism of the BRA and many state preventive-detention statutes.
