In some jurisdictions, release on bail pending appeal shall be ordered by the court, if the defendant demonstrates factors such as:
- by clear and convincing evidence, the defendant is not likely to flee;
- by clear and convincing evidence, the defendant does not pose a danger to the safety of any other person or to the community; and
- the appeal is not for the purpose of delay and based upon the record in the case raises a substantial legal question which, if decided in favor of the defendant, is likely to result in a reversal[i].
Some state statutes provide that one awaiting trial for a non-capital offense shall be released pending trial, unless it is found that release will not reasonably assure his/her appearance or will constitute a danger to the public[ii].
Moreover, some state statutes provide that bail may be revoked entirely if the court finds that the accused has:
- intimidated or harassed a victim or potential witness;
- repeatedly violated conditions of release;
- violated conditions of release which constitute a threat to the integrity of the judicial system;
- failed to appear at a time and place ordered by a judicial officer; or
- in violation of a condition of release, been charged with a felony against a person for which, after hearing, probable cause is found[iii].
Keeping an accused in custody pending trial to prevent interference with witnesses or jurors or to prevent the fulfillment of threats has been approved in some jurisdictions[iv].
[i] Dawson v. Merkle, 1995 U.S. Dist. LEXIS 13511 (N.D. Cal. Sept. 1, 1995)
[ii] State v. Pray, 133 Vt. 537 (Vt. 1975)
[iii] State v. Plant, 165 Vt. 617 (Vt. 1996)
[iv] People ex rel. Hemingway v. Elrod, 60 Ill. 2d 74 (Ill. 1975)