In Denying Bail, What Evidence Can Judge Consider?

Our office receives many calls asking what can be done about bail that is set at a level that the caller (from jail) or his family simply cannot afford.

The conversation usually then proceeds to a discussion of what factors a judge may consider in setting the amount of bail and then a discussion of what evidence the judge may review.

It comes as a shock to many callers that the judge may consider the police report as true when the caller is certain a witness lied or the police misunderstood the facts.  This seems manifestly unfair, particularly when one’s liberty is at issue.

Some folks who call our office are involved or are related to a person accused of extreme violence on another or felony sexual assault.  They are dumbfounded when we tell them that a judge may deny bail entirely for such individuals (as well as a person charged with a crime that has the death penalty possible).  The caller sometimes insists we are wrong.

However, under Article 1, section 12, subsection (b) of the California Constitution, bail may be denied in “[f]elony offenses involving acts of violence on another person or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person’s release would result in great bodily harm to others.”  

We then explain that the judge similarly may evaluate denying bail based upon the police report, which may include inadmissible hearsay.  The caller may again suspect we are incompetent attorneys.

On June 27, 2024, however, the California Supreme Court confirmed this is correct in the case of In re John Harris, Jr.  

On March 4, 1989, the victim awoke to find scarves tied around her ankles.  She saw a man kneeling at the foot of her bed with one scarf on his forehead and another covering his mouth.  The suspect then tied bandanas tightly around the victim’s eyes and neck, held a serrated knife to her throat and ordered her to spread her legs.  The suspect then raped the victim, tried to strangle her with a scarf and sawed at the back of her neck with the knife.  

As the victim struggled, the suspect slashed the victim’s neck and threatened to cut out her eye.  The suspect finally left.

Mr. Harris was arrested on February 24, 2021 after DNA from the victim of the above-described  violent rape committed more than 30 years prior was found to match Mr. Harris’ DNA.  The People charged Mr. Harris with attempted first degree murder (Penal Code §§ 664, 187(a)), 189) and aggravated mayhem (Penal Code § 205) in connection with that incident.  The People alleged that Mr. Harris used a deadly and dangerous weapon in the commission of both offenses (Penal Code § 12022(d)) and that he inflicted great bodily injury in the commissioner of the attempted murder (Penal Code §§ 1203.075, 12022.7(a)).

Mr. Harris filed a petition for a writ of habeas corpus challenging a San Mateo Superior Court judge’s detaining him without bail under Article 1, § 12(b) based upon evidence that would not be admissible at a criminal trial.  In particular, the trial court considered Mr. Harris’ conduct with his former wives and girlfriends that bore similarities to the underlying incident and details of the responding officers’ observations of the victim’s injuries, a summary of Mr. Harris’ statements to police and a statement of the victim to a treating physician.

The California Court of Appeal for the First District affirmed the trial court, but remanded the case to the trial court to make findings on the record whether there were no other less restrictive alternatives to detention that could reasonably protect the government’s interest in pretrial detention (see In re Humphrey (2021) 11 Cal. 5th 135, 156).

The trial court then did so and denied bail.  The First Appellate District affirmed.

The California Supreme Court then affirmed the trial court, holding that when determining whether defendant’s dangerousness merits detaining defendant without bail, trial courts are not limited to the strict evidentiary rules required in criminal trials.  Courts may consider hearsay and documents proffered without full evidentiary foundation but should not base their decision on unreliable evidence.  Moreover, trial courts retain full discretion to demand further evidence, including live testimony when appropriate.

Here, the Supreme Court remanded the matter back to the trial court to fully establish that it conducted the proper evaluation of the evidence’s sufficiency as to Mr. Harris’ guilt; instead, it presumed the truth of the charges, which was an abuse of discretion because it did not evaluate the evidence and explain whether Mr. Harris’ guilty could be presumed.

We present this summary as a bit of a cautionary tale, but also that the evidence suggesting Mr. Harris’ dangerousness was very strong, meaning all other cases following In re Harris must also have very strong evidence of dangerousness, which may be hard to match or exceed.