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Leonardo Angiulo: The Difference Between MA Law and Oscar Pistorius’ Bail Hearing

Monday, February 25, 2013


The full circumstances surrounding the tragic death in the home of Oscar Pistorius are, as of yet, unknown to us. What I did notice from recent coverage is that the burden was on Pistorius at his bail hearing to explain why he should be released. This is markedly different from how a majority of defendants are treated in Massachusetts.

After quickly using a search engine to investigate the subject, I found a publicly accessible case from South Africa explaining the law of bail hearings in that country. According to their rules of criminal procedure, certain criminal charges are deemed so serious that unless the accused provides evidence of exceptional circumstances they will be held pending the resolution of the case. The significance of this language is that the default position is to hold people without bail.

In Massachusetts the exact opposite is true. In most cases the question of bail is, by statute, supposed to focus on whether or not a cash bail is necessary to ensure the defendant will appear in court. Of course, every case is different and the court has the authority to set certain restrictions on a person's behavior while out on release to ensure safety of a person or the public in general.

In some circumstances, the facts of a case are so inflammatory that a prosecutor may seek to hold a party without bail. One way this can be done is through whats called a “dangerousness hearing.” At such a hearing the court is supposed to consider the evidence and make a determination as to whether or not there are less restrictive terms, other than incarceration of the defendant, that can assure the safety of the community. Such terms may include things like drug testing, GPS monitoring and house arrest. The court holds such authority pursuant to a statute specifically outlining what a prosecutor must show in order for a court to hold a person without bail. Note that the burden is on the Commonwealth to establish the necessary evidence.

So, to restate, in South Africa the burden falls on the defendant in many cases to explain why he should go free. In our state, the burden is on the Commonwealth to show why a defendant should be held. This distinction is explained with a few words but reflects two systems of justice worlds apart.

Many times people who face accusations in Massachusetts may have to post high bails or be subject to restrictions that make them feel like prisoners in their own homes. The reality is, however, that our courts must balance the fundamental principle that release on some kind of bail is the default with the need to ensure the safety of individuals and the community. Our bail statutes, unlike some in the world, places faith in the rule of law and the idea that individual liberty should not be terminated based on mere accusation.  


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