Supreme Court Says a Defendant Sort of Has a Due Process Right to Call Witnesses at a Bail Hearing

State v. LeDoux, Minn.S.Ct., 8/13/2009.  The state charged Mr. LeDoux with a cornucopia of crimes:  criminal sexual conduct in the first degree, possession of pornographic works involving minors, possession of a controlled substance in the fifth degree, and furnishing alcohol to a minor.  The district court set a combined bail in the amount of $263,000.00.  Mr. LeDoux thought that amount was a bit much and wanted to present witness testimony to prove it.

The corrections officer who prepared the bail study interviewed several people, after which the officer recommended that the bail amount was supported by the facts, and by the “community reaction” to Mr. LeDoux’s alleged crime spree.  Mr. LeDoux’s attorney then subpoenaed the witnesses whom the corrections officer had interviewed and the corrections officer.  The trial court quashed the subpoenas and ruled that Mr. LeDoux had no right to call witnesses at a bail hearing.  The trial court did, however, permit Mr. LeDoux to make an offer of proof.  It’s worth reproducing the summary of this offer of proof (although you can skip it if you just want to know how it all comes out):

First, LeDoux offered proof to rebut statements by the witnesses in the bail-bond study that they were “terrified” of him or regarded him as a threat to the community. LeDoux offered information that in the years since the alleged sexual assault on the juvenile victim, he and the victim became closer and frequently had non-sexual contact with each other. He also offered proof that the victim’s mother would testify that, despite her desire to avoid contact with LeDoux, she had helped him obtain health insurance and mental health counseling. In addition, LeDoux offered proof that his ex-girlfriend was not terrified of him because, despite the fact that she had obtained an order for protection she had repeatedly contacted him in jail.
LeDoux also made offers of proof as to his good character. LeDoux made an offer of proof that a counseling psychologist who was a friend of his mother would say that LeDoux was a person of good character and was not a threat to the community. He also offered proof that his mother would allow him to live with her, would assist him after his release, and believed that LeDoux did not represent a threat to the community.

Finally, LeDoux attempted to call as a witness the corrections officer who prepared the bail-bond report. LeDoux claimed that the officer would testify as to LeDoux’s lifelong residency in the area, lack of family ties outside the area, and lengthy employment history. LeDoux wanted the opportunity to cross-examine the officer about his conclusions as to LeDoux’s mental condition.

About the only concrete thing that the appellate court did was to say that “community reaction” is not a proper basis on which to establish the amount of bail.  The appellate court next concluded that the bail amount, which Mr. LeDoux could not meet, infringed his liberty interests.  It ducks deciding whether the imposition of pretrial release conditions also infringes a liberty interest, although it refers to a rather old opinion saying that it does.  Finally, it gets to the meat of the opinion, whether Mr. LeDoux can call witnesses at a bail hearing.

The answer is yes, maybe.  Here’s the test that the court enunciates but does not apply to Mr. LeDoux because while all the appeals were going on he went and pleaded guilty:

[W]e hold that at a bail hearing, a defendant may only call a witness if the defendant makes a persuasive offer of proof that the witness’s testimony, when considered in the context of all the other relevant available information, will lead to either release without bail or a reduction in the bail amount to a level that would result in the defendant’s release.

The appellate court lifts this test language from State v. Rud, 359 N.W.2d 573 (Minn. 1984).  That opinion answered the question whether a defendant could call the victim to testify in a probable cause hearing.  Just how trial courts will apply this variation of the Rud test in the bail hearing context doesn’t seem hard to predict and in any event won’t be disturbed absent an abuse of discretion.