State ex rel. Torrez v. Whitaker

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 13:48:28 2018.02.09

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2018-NMSC-005

Filing Date: January 11, 2018

Docket No. S-1-SC-36379

STATE OF NEW MEXICO ex rel.
RAÚL TORREZ, Second Judicial District Attorney,

Petitioner,

v.

HON. STAN WHITAKER,

Respondent,

PAUL SALAS and
MAURALON HARPER,

Real Parties in Interest.

ORIGINAL PROCEEDING

Office of the Second Judicial District Attorney
Presiliano Raúl Torrez, District Attorney
Kevin P. Holmes, Assistant District Attorney
Albuquerque, NM

for Petitioner

Hector H. Balderas, Attorney General
Joshua Rutledge Granata, Assistant Attorney General
Santa Fe, NM

Jones, Snead, Wertheim & Clifford, P.A.
Jerry Todd Wertheim
Santa Fe, NM

for Respondent

Jason Benjamin Wheeless

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Steven P. Archibeque
Albuquerque, NM

for Real Party in Interest Paul Salas

Bennett J. Baur, Chief Public Defender
C. David Henderson, Appellate Defender
Santa Fe, NM

Jeff Rein, Assistant Public Defender
Albuquerque, NM

for Real Party in Interest Mauralon Harper

Hector H. Balderas, Attorney General
Kenneth H. Stalter, Assistant Attorney General
Santa Fe, NM

for Interested Party

OPINION

DANIELS, Justice.

{1} One of the most significant new tools provided to the New Mexico criminal justice
system as a result of the amendment to the bail provisions in Article II, Section 13 of the
New Mexico Constitution, approved by the New Mexico Legislature in February 2016 and
passed by New Mexico voters in the November 2016 general election, is the judicial
authority to deny pretrial release—for any amount of money—if a prosecutor shows by clear
and convincing evidence that no release conditions a court could impose on a felony
defendant would reasonably protect the safety of any other person or the community.

{2} In this case, we have been requested to address the nature of evidentiary presentation
required by this new detention authority. We agree with courts in all other federal and state
bail reform jurisdictions that have considered the same issues, and we hold that the showing
of dangerousness required by the new constitutional authority is not bound by formal rules
of evidence but instead focuses on judicial assessment of all reliable information presented
to the court in any format worthy of reasoned consideration. The probative value of the
information, rather than the technical form, is the proper focus of the inquiry at a pretrial
detention hearing.

{3} In most cases, credible proffers and other summaries of evidence, law enforcement
and court records, or other nontestimonial information should be sufficient support for an
informed decision that the state either has or has not met its constitutional burden. But we

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also agree with other jurisdictions that a court necessarily retains the judicial discretion to
find proffered or documentary information insufficient to meet the constitutional clear and
convincing evidence requirement in the context of particular cases.

I. PROCEDURAL HISTORY

{4} This case came before us on a petition for writ of superintending control filed by
Second Judicial District Attorney Raúl Torrez. The petition sought to have this Court order
Respondent District Judge Stan Whitaker to conduct new detention hearings in two specific
cases, State v. Salas, D-202-LR-2017-67, and State v. Harper, D-202-LR-2017-68, and
provide guidance on the nature of the evidence required in the pretrial detention hearings
authorized by the 2016 constitutional amendment.

{5} We first review the history of the two cases that are the subject of the petition.

A. State v. Salas

{6} Paul Salas was arrested on March 16, 2017, and charged in a single criminal
complaint with forty-seven separate armed robberies of dozens of Bernalillo County
businesses in a five-month period.

{7} The complaint, prepared and signed under oath by the investigating police case agent,
alleged the facts reported by the separate victims and noted that each of the robberies had
been committed by a person fitting the physical description of Salas, who was dressed
similarly, who brandished a firearm, and who otherwise exhibited the same modus operandi
in each of the robberies; that surveillance video available in most of the robberies confirmed
that the same robber, who walked with the same characteristic gait, appeared to be
responsible; that in the most recent robbery, an electronic tracking device placed in the bag
of stolen cash and merchandise allowed police to immediately chase down and arrest the
fleeing Salas and a codefendant and retrieve the robbery proceeds and other evidentiary
items; and that after his arrest Salas waived his Miranda rights and confessed to each of the
forty-seven charged robberies in a lengthy debriefing with the case agent who had prepared
the sworn criminal complaint, providing a detailed account of each admitted robbery that
was consistent with the victim reports.

{8} The day after Salas’s arrest, the State filed a motion for pretrial detention. The
motion contended that Salas’s alleged five-month crime spree and the fact that he was a
wanted fugitive from another state demonstrated “the ability to elude police and . . . an
unwillingness to abide by law and cooperate [with] law enforcement.” The motion stated that
he “has shown a blatant disregard for the value of a human life and . . . a pattern for
violence,” that because of the nature of his crimes Salas presented “a serious danger to the
community,” and that there were no conditions “other than a no bond hold that would protect
the safety of the public.”

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{9} No probable cause determination had been made by a court or grand jury on any of
the charged offenses by the time of the March 22, 2017, detention hearing, and the district
court made no probable cause determination in connection with the detention hearing.

{10} At the hearing on its detention motion, the State proffered the sworn criminal
complaint in this case and a fugitive complaint on which Salas recently had been arraigned
pending extradition to Arizona on a sex offense but called no live witnesses and introduced
none of the underlying materials relied on by the case agent in preparing the robbery
complaint.

{11} Salas offered no affirmative or rebuttal information concerning the accuracy or
truthfulness of the information presented to the district court by the State and did not
challenge his identity as the Paul Salas reported in the complaint to have been pursued,
arrested, searched, and interrogated.

{12} Accordingly, the hearing consisted primarily of argument concerning the nature,
reliability, and sufficiency of the form of documentary information offered by the State, with
the defense arguing generally that the documentary evidence was insufficient to meet the
State’s clear and convincing evidence burden without a live witness to testify and be cross-
examined about the documents’ accuracy and reliability.

{13} In oral and written rulings, Respondent denied the detention motion, refusing to
admit the criminal complaint on the ground that it was deemed unreliable and violative of
due process in the absence of corroborating or authenticating witnesses that the defense
could cross-examine. After denying detention, Respondent ordered Salas to be placed on
pretrial conditions of release that included close supervision, monitoring, and a cash-only
bond of $100,000, in addition to the $100,000 cash-only bond that had been set earlier on
the Arizona fugitive complaint and in addition to any other applicable money bonds.

B. State v. Harper

{14} Mauralon Harper was charged in a sworn criminal complaint with attempted murder,
aggravated battery with a deadly weapon, shooting at a vehicle resulting in great bodily
harm, and tampering with evidence.

{15} The complaint alleged that Harper shot his girlfriend in the abdomen as she got into
her car after arguing with Harper and ordering him out of her apartment. The investigating
detective who executed the complaint reported that he joined other officers in responding
to a report of a shooting at the victim’s address. There they found several people attending
to the bleeding victim as she lay on the ground. She was able to tell officers, “Mauralon shot
me,” before being transported to the hospital for emergency surgery.

{16} A neighbor who knew both Harper and the victim told police she had heard the two
arguing, had heard the sound of gunshots and the victim screaming, and then saw Harper

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pointing a handgun toward the victim’s car and the victim lying on the ground next to the
car.

{17} Another witness who knew and could identify Harper stated that moments after she
heard the gunshots she observed Harper running from the scene with a gun in his waistband.

{18} The investigating detective recited that he personally observed at least thirteen bullet
holes in a car that was registered to the victim and parked at the scene and that the bullet
holes and casing locations were consistent with the eyewitness accounts that Harper was
standing in the area of the victim’s apartment when he fired toward the victim’s car.

{19} The District Attorney’s office filed a motion to detain Harper pending trial. As in the
Salas case, no determination of probable cause by a court or grand jury had been made either
before or during the detention hearing.

{20} At the hearing, the prosecutor proffered the criminal complaint in support of the
detention motion. The prosecutor also proffered court documents recording Harper’s six
prior convictions, including three felony convictions for bank robbery, assault on a police
officer, and drug possession; documents reflecting three past domestic violence restraining
orders against Harper obtained by three separate complainants; documents reflecting a
pending robbery and evidence-tampering case in which Harper was currently being held
without bond on a release revocation order for failure to appear; documents reflecting six
past bench warrants for failure to appear; and a current district court pretrial services risk
assessment that placed him in the highest risk category, calling for either intensive
supervision or pretrial detention.

{21} In addition to the documentary evidence, the State proffered a video and images of
text messages from the victim’s phone, which the prosecutor represented to contain evidence
that corroborated the State’s version of the charged offenses. Although the defense argued
briefly that the unreliability of the State’s documentary evidence, in the absence of live
testimony, left open to question whether Harper was the same Mauralon Harper referenced
in the documents, the defense never offered affirmative or rebuttal evidence or even denied
that he was the person who had shot at his girlfriend, instead relying on objections to the
admissibility and weight of the State’s submissions.

{22} Respondent denied the request for detention in oral and written rulings but then
ordered Harper to be placed on multiple pretrial conditions of release that included close
supervision, monitoring, and a secured bond in the amount of $100,000.

{23} In the oral bench ruling at the conclusion of the hearing, Respondent stated that he
would not admit the video and text messages because the State did not provide a witness to
testify to their authenticity and reliability and be available for cross-examination. While he
stated in the oral ruling that he was admitting the criminal complaint and the other
documents regarding Harper’s criminal history over defense objections, in the subsequent

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written order Respondent recited that the contents of the criminal complaint were unreliable
and therefore inadmissible and stated that the admission of the complaint’s hearsay contents,
“without more, would deprive the Defendant a meaningful opportunity to challenge the
State’s evidence, which is in violation of his right to due process of law.”

C. The Petition for Writ of Superintending Control

{24} After Respondent denied the State’s detention motions in Salas and Harper,
Petitioner Torrez sought a writ of superintending control from this Court. Respondent,
Defendants Salas and Harper, whom the petition named as real parties in interest, and the
Attorney General filed separate responses to the State’s petition, pursuant to Rule12-504(C)
NMRA (“The respondent, the real parties in interest, and the attorney general may file a
response to the petition [for an extraordinary writ].”).

{25} As framed in the petition, the controversy between the parties was a clash of
absolutist positions that centered on whether the prosecution must always present live
witnesses, as the petition alleged the Respondent was requiring, or whether live witnesses
can never be required, as the petition seemed at times to contend. Petitioner asked this Court
to order the district court to reconsider the State’s motions for pretrial detention and to issue
a written opinion providing guidance to inferior courts on how to interpret and apply the new
pretrial detention provisions recently added to Article II, Section 13 of the New Mexico
Constitution.

{26} In his response to the State’s petition, Respondent took the position that due process
of law may require live witness testimony to satisfy confrontation rights at pretrial detention
hearings and that in these two cases he did not abuse his judicial discretion in denying the
State’s motions for pretrial detention.

{27} Salas and Harper argued that Respondent did not abuse his discretion to require live
witnesses at a pretrial detention hearing when he found the exhibits and proffers insufficient
to meet the State’s burden of proof.

{28} The Attorney General urged this Court to follow federal detention hearing precedents
and hold that a court may rely on proffers and documents alone without violating the due
process rights of an accused but to recognize that the court retains the discretion to require
one or more live witnesses when there is a question about the credibility or authenticity of
nonwitness information.

{29} Following oral argument on the petition, this Court delivered an oral ruling from the
bench granting the writ, providing guidelines for the evaluation of evidence in detention
hearings, directing Respondent to conduct new hearings in light of those guidelines, and
advising the parties that the Court would issue a full precedential opinion amplifying our oral
ruling. This is that opinion.

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II. DISCUSSION

{30} Article VI, Section 3 of the New Mexico Constitution provides that the New Mexico
Supreme Court has the power of superintending control, a long-standing power “to control
the course of ordinary litigation in inferior courts.” State v. Roy, 1936-NMSC-048, ¶ 89, 40
N.M. 397, 60 P.2d 646. We may exercise our power of superintending control when it is “in
the public interest to settle the question involved at the earliest moment.” Kerr v.Parsons,
2016-NMSC-028, ¶ 16, 378 P.3d 1 (internal quotation marks and citation omitted). In
granting a writ of superintending control, we may offer guidance to lower courts on how to
properly apply the law. See New Energy Economy, Inc. v. Vanzi, 2012-NMSC-005, ¶ 25, 274
P.3d 53 (providing guidance to the Court of Appeals with respect to who has the right to
become appellees in administrative rule-making appeals); Dist. Court of Second Judicial
Dist. v. McKenna, 1994-NMSC-102, ¶ 1, 118 N.M. 402, 881 P.2d 1387 (providing guidance
to a district court with respect to convening a grand jury).

{31} While a writ of superintending control should not “be used as a substitute for . . .
appeal,” Chappell v. Cosgrove, 1996-NMSC-020, ¶ 6, 121 N.M. 636, 916 P.2d 836, at the
time the petition was filed in this case we had not yet promulgated our July 1, 2017, rules
providing expedited appeals from detention-hearing decisions. See, e.g., Rule 5-405(A)(3)
NMRA (providing that either party may appeal an order regarding pretrial release or
detention); Rule 12-204 NMRA (providing expedited appellate procedures). Because this
case presents “an issue of first impression . . . without clear answers under New Mexico
law,” Chappell, 1996-NMSC-020, ¶ 6, and because it involves new constitutional provisions
with serious public safety implications, we agree that this is an appropriate case in which to
exercise our superintending control authority.

{32} In order to address the proper interpretation of the new detention authority created
by the November 2016 constitutional amendment and the resulting July 2017 court rules, it
is important to understand the reasons for their creation and the sources and historical
construction of the provisions we are called on to explicate in this case.

{33} In State v. Brown, 2014-NMSC-038, 338 P.3d 1276, this Court conducted a
comprehensive review of the origins and requirements of then-existing United States and
New Mexico bail law. While Brown created no new rules of law, but simply traced the
history and requirements of existing law, it took notice of the “enduring inequalities in our
nation’s system of bail,” which has come to rely heavily on an accused person’s ability to
purchase a bail bond as the determining factor in releasing or detaining a person before a
trial that would decide guilt or innocence. Id. ¶ 35. The combination of those realities
resulted in a system lacking in rational justice, where clearly dangerous defendants or those
who pose substantial flight risks have been able to buy their way out of jail, while large
numbers of poorer, low-risk defendants have been held in jail simply for lack of money, with
substantial harm done to them, their families, and the taxpayers who bear the ultimate burden
of housing, feeding, guarding, medicating, and caring for them. See id.¶¶ 33-35.

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{34} In Brown we traced key features of bail reforms in the United States, including the
movement toward minimizing the detention of low-risk defendants simply for lack of money
to buy a bond, as reflected in the provisions of the federal Bail Reform Act of 1966, Pub. L.
89-465, 80 Stat. 214, 214-17, repealed by Bail Reform Act of 1984, Pub. L. 98-473, 98 Stat.
1837, 1976-85, that “established a presumption of release by the least restrictive conditions,
with an emphasis on non-monetary terms of bail.” Brown, 2014-NMSC-038, ¶ 33 (internal
quotation marks and citation omitted). In 1972, New Mexico like many other American
jurisdictions tracked the provisions of those federal reforms in their own bail laws. Id. ¶ 37.
Those preferences for nonfinancial release conditions remain essentially unchanged in
current federal law and in New Mexico law, including our newest court rules. See 18 U.S.C.
§3142(c)(2) (2012) (requiring that in determining “[r]elease . . . conditions” for an accused
person, “[t]he judicial officer may not impose a financial condition that results in . . . pretrial
detention”); Rule 5-401(E)(1)(c) NMRA (“The court shall not set a secured bond that a
defendant cannot afford for the purpose of detaining a defendant who is otherwise eligible
for pretrial release.”).

{35} Many other jurisdictions have also followed the federal model in explicitly
prohibiting pretrial detention simply for lack of money to buy a bail bond. See D.C. Code
Sec. 23-1321(c)(3) (West 2017) (prohibiting a court from setting a “financial condition” that
would “result in the preventive detention of the person”); Mass. Gen. Laws Ann. ch. 276,
§ 58A(2)(B)(iv) (West 2017) (providing that a “judicial officer may not impose a financial
condition that results in the pretrial detention of the person”); see also N.J. Stat. Ann. §
2A:162-17(c)(1) (West 2017) (providing that a “court shall not impose . . . monetary bail . . .
for the purpose of preventing the release of the eligible defendant”).

{36} A number of states have taken other steps to decrease the justice system’s reliance
on commercial sureties and other monetary bail. See, e.g., Ky. Rev. Stat. Ann. § 431.510
(West 2017) (abolishing by statute the commercial bail bond industry); see also, 725 Ill.
Comp. Stat. Ann. 5/110-7(a) (West 2017) (effectively abolishing the commercial bail bond
industry by requiring any money bail to be paid directly to the court rather than through a
commercial surety); Or. Rev. Stat. Ann. § 135.265 (West 2017) (same); Wis. Stat. Ann. §
969.12(2) (West 2017) (same); cf. Colo. Rev. Stat. § 16-4-103(3)(a)-(b), 4(b) (West 2017)
(instructing courts to consider risk assessment instruments and a person’s financial condition
when setting bond and prohibiting courts from setting bonds based solely on the level of
offense).

{37} While those reforms focused on alleviating one of the worst consequences of using
money to decide who will be released pretrial—jailing people for lack of money instead of
for any real risk they posed—they did little to address the other primary undesirable result
of the money system—releasing dangerous defendants into the community simply because
they could arrange to buy their way out of jail. To address that very serious problem, new
legal authority for judges to deny pretrial release based on findings of dangerousness has
been created in a growing number of federal and state jurisdictions.

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{38} Those community safety reforms began in the District of Columbia four years after
passage of the federal Bail Reform Act of 1966.

A. District of Columbia

{39} Prior to 1970, in the vast majority of jurisdictions defendants had a constitutional or
statutory right, at least on paper if not always in practice, to be released on bail prior to trial
for virtually all crimes not punishable by death. Bail: An Ancient Practice Reexamined, 70
Yale L.J. 966, 967 (1961). As we noted in Brown, Article II, Section 13 of the New Mexico
Constitution, like the constitutions and laws of most American states, followed a 1682
Pennsylvania model and contained an almost absolute right to bail in noncapital cases that
required judges to release virtually all defendants, no matter how significant a threat they
might pose to community safety after their release. Brown, 2014-NMSC-038, ¶¶ 26, 37.

{40} In a significant change from that history, Congress gave new risk-focused pretrial
detention authority to District of Columbia judges as part of the District of Columbia Court
Reform and Criminal Procedure Act of 1970, Pub. L. 91-358, 84 Stat. 473, 642-50 (1970)
(D.C. Act), now codified in relevant part as D.C. Code Sections 23-1321 to -1332. See
Thomas C. French, Is It Punitive or Is It Regulatory? United States v. Salerno, 20 U. Tol.
L. Rev. 189, 194 (1988).

{41} Section 23-1322(b)(2)(B), D.C. Act 644-45, now codified as Section 23-1322(b)(2)
(2013), permitted a court to deny pretrial release on any conditions if the court found by
“clear and convincing evidence that” no conditions of release would “reasonably assure the
safety of any other person or the community.” Significantly for the issues we address in this
opinion, Section 23-1322(c)(5), D.C. Act 645, now codified as Section 23-1322(d)(4), also
provided that “pretrial detention hearings . . . need not conform to the rules pertaining to the
admissibility of evidence in a court of law.”

{42} The constitutionality of pretrial detention and the evidentiary requirements applicable
to detention hearings in the District of Columbia were addressed thoroughly in United States
v. Edwards, 430 A.2d 1321 (D.C. 1981).

{43} In a significant holding for the future of pretrial detention laws, Edwards held that
the language and history of the excessive bail prohibition in the Eighth Amendment to the
United States Constitution made it clear that there has never been an absolute federal
constitutional right to pretrial release like that contained in the Pennsylvania constitutional
model. Id. at 1328.

{44} After resolving the constitutionality of pretrial detention as a general concept,
Edwards addressed arguments relating to the construction and constitutionality of specific
features of the D.C. Act, including the evidentiary procedures at detention hearings. See
Edwards, 430 A.2d at 1334. Considering the statutory language and legislative history of the
D.C. Act, Edwards concluded that detention hearings were not intended to be formal trials

9
where strict rules of evidence controlled. See Edwards, 430 A.2d at 1334. Instead,
information could be presented by hearsay: “‘proffer or otherwise.’” Id. (quoting Section 23-
1322(c)(4), D.C. Act 645). Sworn testimony was intended to be “‘the exception and not the
rule,’” Edwards, 430 A.2d at 1334 (citation omitted), although a court retained the right to
“require direct testimony if dissatisfied with a proffer.” Id.

{45} Edwards also held that neither the Confrontation Clause nor the Due Process Clause
precludes reliance on hearsay and proffers at bail and detention hearings. See Edwards, 430
A.2d at 1337. In considering what process is due in a detention proceeding, Edwards relied
on Gerstein v. Pugh, 420 U.S. 103 (1975), in which the United States Supreme Court held
that, while a prompt judicial determination of probable cause is required to justify restraints
on the liberty of a defendant pending judicial resolution of criminal charges, using hearsay
and written information to make that determination did not violate a defendant’s federal
constitutional rights. See Edwards, 430 A.2d at 1335. Because the protections provided in
the D.C. Act were greater than those approved in Gerstein, Edwards held that it was
constitutionally permissible to “proceed by the use of proffer and hearsay” at a pretrial
detention hearing, “subject to the discretion of the judge” to require more in particular cases.
Edwards, 430 A.2d at 1336-37.

B. Federal Courts

{46} Encouraged by the experience with the D.C. Act, in 1984 Congress enacted similar
detention authority for all federal courts in the Bail Reform Act of 1984, Pub. L. 98-473, 98
Stat. 1837, 1976-85 (Federal Act). See 18 U.S.C. §§ 3141-3150 (2012); French, supra at
197.

{47} As with the D.C. Act, the Federal Act allowed federal courts to detain defendants
pretrial if clear and convincing evidence at a detention hearing demonstrated that no release
conditions would “reasonably assure . . . the safety of any other person and the community.”
18 U.S.C. § 3142(f), Federal Act 1979. The Federal Act also tracked the provision that the
“rules concerning admissibility of evidence in criminal trials” were not applicable “to the
presentation and consideration of information at the hearing.” Id., Federal Act 1980.

{48} The United States Supreme Court directly addressed the constitutionality of the
Federal Act in United States v. Salerno, 481 U.S. 739 (1987). As had the District of
Columbia Court of Appeals in Edwards, the Supreme Court held that the Eighth Amendment
protected only against setting monetary conditions in an amount higher than necessary to
reasonably secure a defendant’s presence at court proceedings and not against denial of
release to protect public safety. Id. at 754-55 (holding that when the Government’s “only
interest is in preventing flight, bail must be set by a court at a sum designed to ensure that
goal, and no more,” but where detention is based on “a compelling interest other than
prevention of flight,” such as community safety, “the Eighth Amendment does not require
release on bail”).

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{49} Salerno also held that the procedural protections encompassed in the Federal Act,
such as the right to counsel, the right to cross-examine any witnesses who do appear at the
hearing, the right to present information by proffer or otherwise, and the clear and
convincing burden of proof provided “extensive safeguards . . . [that] far exceed” what is
required by the due process standards articulated in Gerstein. Salerno, 481 U.S. at 751-52;
see 18 U.S.C. § 3142(f)(2)(B).

{50} Since Salerno, a number of federal courts have specifically addressed whether the
Federal Act permits a defendant to be detained pretrial based solely on nontestimonial
information proffered by the government. For example, United States v. Gaviria, 828 F.2d
667, 669 (11th Cir. 1987), relied on the District of Columbia holding in Edwards to hold that
“the government as well as the defense may proceed by proffering evidence subject to the
discretion of the judicial officer presiding at the detention hearing.” Accord United States
v. LaFontaine, 210 F.3d 125, 131 (2d Cir. 2000) (stating that “proffers are permissible both
in the bail determination and bail revocation contexts” but that a court “must also ensure the
reliability of the evidence, by selectively insisting upon the production of the underlying
evidence or evidentiary sources where their accuracy is in question” (internal quotation
marks and citation omitted)); United States v. Webb, 238 F.3d 426 (table), 2000 WL
1721060 at 2 (6th Cir. 2000) (unpublished) (“The government may proceed in a detention
hearing by proffer or hearsay.”); United States v. Smith, 79 F.3d 1208, 1209-10 (D.C. Cir.
1996) (holding that the government may proceed by way of proffer instead of presenting live
witnesses); United States v. Winsor, 785 F.2d 755, 756 (9th Cir. 1986) (holding that the
government may present information “by proffer or hearsay” and that the “accused has no
right to cross-examine adverse witnesses who have not been called to testify”); United States
v. Delker, 757 F.2d 1390, 1396 (3d Cir. 1985) (holding that “discretion lies with the district
court to accept evidence by live testimony or proffer”); United States v. Acevedo-Ramos, 755
F.2d 203, 206, 208 (1st Cir. 1985) (acknowledging that often the parties “simply describe
to the judicial officer the nature of their evidence; they do not actually produce it,” while
simultaneously acknowledging a court’s discretion to insist on direct testimony).

C. Massachusetts

{51} Following the federal example, in 1994 the Massachusetts Legislature enacted new
procedures to permit pretrial detention of proven dangerous defendants in prosecutions for
designated felony and domestic abuse cases. See 1994 Mass. Acts 614, 617, now codified
as Mass. Gen. Laws Ann. ch. 276, § 58A(3) (West 2017) (providing that upon motion by the
prosecutor and after a hearing, if a judge “finds by clear and convincing evidence that no
conditions of release will reasonably assure the safety of any other person or the community”
in the designated categories of prosecution, the judge “shall order the detention of the person
prior to trial”). There was no constitutional impediment to this statutory reform because the
Massachusetts Constitution, like the United States Constitution and unlike the Pennsylvania
model, contained a protection against excessive bail but no absolute right to pretrial release.
See Mass. Const., Declaration of Rights Art. XXVI (“No magistrate or court of law, shall
demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual

11
punishments.”).

{52} The Massachusetts pretrial detention statute, like the D.C. Act and the Federal Act,
was promptly subjected to a court challenge. See Mendonza v. Commonwealth, 673 N.E.2d
22, 35 (Mass. 1996) (upholding the constitutionality of detaining a defendant on clear and
convincing proof of dangerousness). The Supreme Judicial Court in Mendonza also
addressed a challenge to the provision of Section 58(A)(4), see 1994 Mass. Acts 617-18, that
allows reliance on hearsay in pretrial detention hearings and provides that “[t]he rules
concerning admissibility of evidence in criminal trials shall not apply to the presentation and
consideration of information at the hearing.” See Mendonza, 673 N.E.2d at 31-32.

{53} Noting that the United States Supreme Court had upheld the “analogous [f]ederal
procedure” against constitutional attack, the Mendonza Court concluded that the
Massachusetts statutory guarantees of the rights of the defense to cross-examine any
witnesses the prosecution does call and to offer hearsay and other information, including
witnesses, were sufficient to comply with due process requirements. Mendonza, 673 N.E.2d
at 32 (citing Salerno, 481 U.S. at 751-52).

{54} While Mendonza settled the lawfulness of considering hearsay information in a
detention hearing, it did not directly address whether a detention order could be entered
without any live testimony at all. That question was directly answered in Abbott A. v.
Commonwealth, 933 N.E.2d 936 (Mass. 2010), which upheld the exclusive use of
nontestimonial evidence that “bore substantial indicia of reliability . . . to warrant a finding
of dangerousness.” Id. at 946-47.

D. Ohio

{55} Ohio faced a greater challenge than the federal government and Massachusetts in
authorizing pretrial detention of dangerous defendants. Since its admission to the Union, the
Ohio Constitution had tracked the Pennsylvania model in guaranteeing that “all persons shall
be bailable by sufficient sureties, unless for capital offenses, where the proof is evident or
the presumption is great.” Ohio Const. of 1803, Art. VIII, § 12; Smith v. Leis, 2005-Ohio-
5125, 835 N.E.2d 5, ¶¶ 18-20; see also State ex rel. Jones v. Hendon, 609 N.E.2d 541, 543
(Ohio 1993) (reaffirming that Section 9, Article I of the Ohio Constitution as worded at that
time “guarantee[d] . . . an absolute right to bail” in noncapital cases); Locke v. Jenkins, 253
N.E.2d 757, 757 (Ohio 1969) (stating that “[t]he right to bail under that section is absolute,
the only exception being for capital offenses. There is no discretion in the trial court in such
matters.”).

{56} As a result of that constitutional guarantee, Ohio had to amend its constitution before
it could promulgate any pretrial detention procedures in noncapital cases. In 1997, the Ohio
Legislature proposed and the voters passed a constitutional amendment to add new pretrial
detention authority to Section 9, Article 1 “for a person who is charged with a felony where
the proof is evident or the presumption great and where the person poses a substantial risk

12
of serious physical harm to any person or to the community.” 1997 Ohio Laws H.J. Res. No.
5; 1997, 147 Ohio Laws Part IV, 9014, 9016; Ohio Const. art. I, § 9.

{57} Subsequent statutory enactments specified enumerated felonies for which a defendant
could be detained and, as have laws in other pretrial detention hearing jurisdictions, provided
that “rules concerning admissibility of evidence in criminal trials do not apply to the
presentation and consideration of information at the hearing” and that the court “shall
consider all available information regarding” the factors relevant to the defendant’s
dangerousness. Ohio Rev. Code Ann. § 2937.222(A), (C) (West 2017).

{58} Although the Ohio appellate courts have not yet squarely addressed the extent to
which live witnesses could be required under their detention laws, appellate affirmances of
detention decisions have included cases in which witnesses personally testified and in which
they did not. See, e.g., State v. Urso, 11th Dist. Trumbull No. T-0042, 2010-Ohio-2151, ¶¶
4, 27, 77 (affirming a detention decision based on testimony of an investigating officer who
summarized facts of the instant case and of the defendant’s dangerous criminal history,
primarily on the basis of hearsay documents), ¶ 70 (characterizing the evidence as not
“weak,” as contended by the defendant, “but rather [as] overwhelming”); State v. Foster,
10th Dist. Franklin No. AP-523, 2008-Ohio-3525, ¶ 8 (affirming a detention decision where
the evidentiary record consisted of proffered representations and summaries by both sides
and observing that the statute might “under other circumstances call for a more elaborate
evidentiary hearing” but that “the facts of this case lend themselves to the approach taken”).

E. New Jersey

{59} New Jersey is the most recent jurisdiction, other than New Mexico, to provide
authority for courts to deny pretrial release to dangerous defendants following a hearing. Its
comprehensive bail reforms “changed the landscape of the State’s criminal justice system
relating to pretrial release” by moving “away from heavy reliance on monetary bail,”
granting judges “the authority to detain defendants prior to trial if they present a serious risk
of danger, flight, or obstruction,” and releasing on nonmonetary conditions “[d]efendants
who pose less risk.” State v. Robinson, 160 A.3d 1, 4 (N.J. 2017).

{60} The New Jersey Constitution, like the old Pennsylvania model, guaranteed that “[a]ll
persons shall, before conviction, be bailable by sufficient sureties, except for capital
offences, when the proof is evident or presumption great.” See N.J. Const. of 1844, art. I, ¶
10; see also N.J. Const. of 1947, art. I, ¶ 11.

{61} Following New Jersey’s legislative abolition of capital punishment in 2007, all
defendants who posted bail had a constitutional right under that provision to be released
before trial. See Robinson, 160 A.3d at 5. The result was that judges had to release
defendants “who posed a substantial risk of flight or danger to the community” while jailing
“poorer defendants accused of less serious crimes, who presented minimal risk,” simply
because they could not afford monetary bail. Id.

13
{62} In 2013, the New Jersey Supreme Court created a broad-based committee to study
the need for reforms, with representation “from all three branches of state government
including the Attorney General, Public Defender, private attorneys, judges, court
administrators, and representatives of the Legislature and the Governor’s Office.” Robinson,
160 A.3d at 6 (internal quotation marks and citation omitted). A key focus of the
committee’s recommendations the following year was to move from a resource-based, or
money-based, system of release and detention to a risk-based system that relies on
individualized evidence of danger or flight risk. Joint Committee on Criminal Justice, Report
( M a r c h 1 0 , 2 0 1 4 ) a t 2 - 4 , a v a i l a b l e a t
https://www.judiciary.state.nj.us/courts/assets/criminal/finalreport3202014.pdf (last visited
January 5, 2017). As the committee recognized, in order to accomplish that shift it would be
necessary to amend the state constitution. Id. at 68.

{63} In 2014, the New Jersey Legislature passed and voters adopted an amendment to the
New Jersey Constitution that was a key to the ability to move from a money-based system
of pretrial release and detention to one based on evidence of risk. Robinson, 160 A.3d at 6.
It provided that a court could deny release if it found that no “conditions would reasonably
assure the person’s appearance in court when required, or protect the safety of any other
person or the community, or prevent the person from obstructing or attempting to obstruct
the criminal justice process.” N.J. Const. art. 1, ¶ 11. In addition, the amendment provided
that “[i]t shall be lawful for the Legislature to establish by law procedures, terms, and
conditions applicable to pretrial release and the denial thereof authorized under this
provision.” Id.

{64} Pursuant to this new authority, new sections of the New Jersey Criminal Justice Act
addressing pretrial release and detention, N.J. Stat. Ann. §§ 2A:162-15 to -26 (West 2017),
and new provisions in the New Jersey Supreme Court rules regulating pretrial detention
procedures, N.J. Rule 3:4A (West 2017), took effect on January 1, 2017. Like other courts
before them, the New Jersey appellate courts quickly found themselves considering the
permissible modes of proof in their new detention hearings.

{65} At 1:08 a.m. on the very day the new statutes and rules became effective, Amed
Ingram, a convicted felon, was arrested on a number of serious firearm charges. State v.
Ingram, 165 A.3d 797, 799-800 (N.J. 2017). The State moved for detention under the new
laws, relying at the hearing on nontestimonial evidence consisting of “the complaint-warrant,
the affidavit of probable cause, the PSA [risk-based public safety assessment], the PLEIR
[preliminary law enforcement incident report], and defendant’s criminal history.” Id. at 800.

{66} The defendant appealed the resulting detention order, arguing that allowing the
prosecutor to proceed by a nontestimonial proffer alone violated the defendant’s
constitutional due process rights as well as the detention statutes. Id. at 801. Both the
intermediate appellate court and the New Jersey Supreme Court affirmed the decision of the
trial court, agreeing that neither the wording of the detention statutes nor principles of
constitutional due process require testimony from a live witness at every detention hearing.

14
Id. at 801, 809-10. As had courts in other jurisdictions facing the issue, the New Jersey
Supreme Court confirmed that “the State is not obligated to call a live witness at each
detention hearing” but that “the trial court has discretion to require direct testimony if it is
dissatisfied with the State’s proffer.” Id. at 809-10.

F. New Mexico

{67} New Mexico’s release and detention reforms came shortly after the New Jersey
reforms. After this Court issued Brown in 2014, we took the first step toward methodically
studying improvement of our pretrial justice practices in light of the “wave of bail reform”
now taking place in the United States, Brown, 2014-NMSC-038, ¶ 36, by creating the
Court’s Ad Hoc Pretrial Release Committee. See New Mexico Supreme Court order,
February 25, 2015 (No. 15-8110). The Committee included retired Dean and Professor
Emeritus Leo M. Romero of the University of New Mexico School of Law as chair and a
broad-based representation of experienced state and federal judges, prosecutors, defense
attorneys, the New Mexico Senate and House of Representatives judiciary committees, the
Attorney General’s office, detention centers, and the commercial bail industry and was
tasked with making recommendations it deemed “necessary to revise the rules and policies
governing pretrial release in criminal proceedings in New Mexico state courts.” Id.

{68} The Committee, like similar bodies in other states, determined that public safety and
the equal administration of justice were ill-served by our historical reliance on the ability to
afford a secured bond as the determining factor in whether an accused defendant was entitled
to be released pending trial, and that pretrial release decisions should instead focus on
evidence-based assessments of individual risks of danger or flight.

1. The November 2016 Constitutional Amendment

{69} One of the first recommendations made by the Committee was to follow the recent
Ohio and New Jersey examples and seek an amendment of the antiquated right-to-bail
provisions of our state constitution to replace the money-based system of pretrial release
with an evidence-of-risk-based system by giving judges new lawful authority to deny release
altogether to defendants who pose unacceptable risks of public danger or flight, whether or
not they can afford a bail bond.

{70} The original proposal submitted by the New Mexico Supreme Court in 2015 to the
Legislature’s interim Courts, Corrections and Justice Committee was based on federal and
state reforms elsewhere. That proposal would have added language to the Pennsylvania-
model right-to-bail provisions in Article II, Section 13 of the New Mexico Constitution to
provide that bail may be denied pending trial if, after a hearing, the court finds by clear and
convincing evidence that no release conditions would reasonably ensure the appearance of
the person as required or protect the safety of any other person or the community and that
no person otherwise eligible for pretrial release could be detained solely because of financial
inability to post a money or property bond.

15
{71} The Court’s original proposed language was amended during the course of the
legislative process to restrict judicial detention authority over dangerous defendants to
judges in courts of record, which currently by statute does not include courts below the
district courts; to permit detention only in felony cases; to require a prosecutorial request
before the court may consider pretrial detention of a dangerous defendant; to textually place
the burden of proving dangerousness on the prosecution; to remove any judicial authority
to deny bail outright to nondangerous defendants who pose only a flight risk; and to add an
explicit right to prompt judicial consideration of a motion alleging that a defendant cannot
meet a particular amount of secured bond that a court has imposed.

{72} The resulting version, passed by the Legislature in the 2016 Regular Session as
Senate Joint Resolution 1 and subsequently approved by 87% of New Mexico voters casting
ballots on the issue in the November 2016 general election, amended Article II, Section 13
with the following provisions:

Bail may be denied by a court of record pending trial for a defendant
charged with a felony if the prosecuting authority requests a hearing and
proves by clear and convincing evidence that no release conditions will
reasonably protect the safety of any other person or the community. . . .

A person who is not detainable on grounds of dangerousness nor a
flight risk in the absence of bond and is otherwise eligible for bail shall not
be detained solely because of financial inability to post a money or property
bond. A defendant who is neither a danger nor a flight risk and who has a
financial inability to post a money or property bond may file a motion with
the court requesting relief from the requirement to post bond. The court shall
rule on the motion in an expedited manner.

S.J.R. 1, 52nd Leg., 2nd Sess. (N.M. 2016), final version, available at
https://www.nmlegis.gov/Sessions/16%20Regular/final/SJR01.pdf (last visited January 5,
2018); N.M. Const. art. II, § 13 (amendment effective November 8, 2016).

2. The July 2017 Procedural-Rule Amendments

{73} At the time the rulings were made in the Salas and Harper detention hearings, all the
participants were learning how to apply the new detention authority provided by the
constitutional amendment. This Court had not completed the process of seeking and
considering input on proposals from the Committee and others for procedural rule changes
to regulate compliance with the constitutional requirements. See Albuquerque Rape Crisis
Ctr. v. Blackmer, 2005-NMSC-032, ¶ 7, 138 N.M. 398, 120 P.3d 820 (discussing state law
establishing that under the New Mexico Constitution the Supreme Court has the ultimate
responsibility for promulgating rules relating to judicial procedures). Both Petitioner and
Respondent were necessarily working with broad constitutional concepts and without the
more detailed procedural guidance that would be provided by our subsequent bail rule

16
amendments, issued in June 2017 with an effective date of July 1, 2017. Because any future
detention proceedings must comply not only with the broad requirements of the constitution
but also with the new court rules, we briefly summarize those provisions here.

{74} While the constitutional amendment required few changes in Rule 5-401 NMRA
(amendment effective July 1, 2017), which regulates release decisions and since its original
promulgation in 1972 (see Brown, 2014-NMSC-038, ¶ 37) has followed federal law in
requiring nonfinancial release conditions unless financial security is found necessary to
assure a particular defendant’s court appearance (see State v Gutierrez, 2006-NMCA-090,
¶ 16, 140 N.M. 157, 140 P.3d 1106), the new constitutional detention authority required
promulgation of new procedural rules to guide its application.

{75} Only the district courts now have authority to enter detention orders, at least until and
unless the Legislature designates any other courts as courts of record for detention hearings,
and accordingly it was necessary to create a new district court pretrial detention process in
our Rules of Criminal Procedure for the District Courts. See Rule 5-409 NMRA (effective
July 1, 2017).

{76} Rule 5-409(B) provides for filing and service of motions to detain by the prosecution
and of any responses by the defendant and requires notice of the detention request to the
district court with detention authority, to any other courts in which the case may otherwise
be pending, and to any detention centers with custody of the defendant. All release authority
of any court other than the district court and of detention centers is immediately terminated
pending the district court disposition of the detention motion, see Rule 5-409(C), (E)(1),
subject to a requirement that the lower court ensure that a probable cause determination has
been made in compliance with County of Riverside v. McLaughlin, 500 U.S. 44, 47, 56
(1991). See Rule 5-409(C) & committee cmt.; Rule 6-203 NMRA; Rule 7-203 NMRA.

{77} Rule 5-409(F)-(H) provides guidance for the detention hearing itself, including
expedited time limits, discovery of reasonably available evidence, presentation of evidence
by both prosecution and defense, and resulting findings by the court. During the pretrial
detention hearing, “[t]he defendant has the right to be present and to be represented by
counsel[,] . . . to testify, to present witnesses, to compel the attendance of witnesses, to cross-
examine witnesses who appear at the hearing, and to present information by proffer or
otherwise.” Rule 5-409(F)(3).

{78} If the district court denies the state’s motion for pretrial detention, it must articulate
what it found to be insufficient. Rule 5-409(H) (“The court shall file written findings of the
individualized facts justifying the denial of the detention motion . . . .”) Alternatively, if the
district court grants the state’s motion and detains the defendant, it must articulate in writing
the “individualized facts justifying the detention . . . .” Rule 5-409(G).

{79} If the court orders detention, Article II, Section 13 of the New Mexico Constitution
as well as Rule 5-409(L), Rule 5-405(F) NMRA (amendment effective July 1, 2017), and

17
Rule 12-204 NMRA (amendment effective July 1, 2017) provide for an expedited appeal.

{80} There is nothing in the text of the rules or their legislative history that would require
live witnesses in every case or that otherwise would limit the discretion of the court in
relying on information that it may find reliable and helpful. In fact, Rule 5-409(F)(5) now
explicitly confirms that in detention hearings the formal rules of evidence “shall not apply
to the presentation and consideration of information.” This provision is consistent with our
Rules of Evidence, which were in effect at the time of the detention hearings below and that
have long provided that the rules “do not apply to . . . considering whether to release on bail
or otherwise.” Rule 11-1101(D)(3)(e) NMRA.

{81} To provide even more clarity, the published commentary to new Rule 5-409(F)(5)
specifically cites precedents from other jurisdictions approving the use of sound judicial
discretion in assessing the reliability and accuracy of information presented in support of
detention, whether by proffer or direct proof, rather than the technical formalities of trial
evidence rules. As the New Jersey Supreme Court noted in Robinson, 160 A.3d at 15, in
addressing the similar New Jersey detention procedures, “the focus is not on guilt, and the
hearing should not turn into a mini-trial.”

{82} Our court rules simply do not impose any live witness limitations on the information
considered at a pretrial detention hearing. We therefore address whether there are other
federal or state constitutional constraints that might impose different requirements.

3. Federal Constitutional Law

{83} The federal precedents previously discussed in this opinion should put to rest any
question whether the United States Constitution imposes any blanket requirement that live
witnesses must testify at pretrial detention hearings.

{84} Salerno, 481 U.S. at 751, authoritatively disposed of general federal due process
attacks on the kind of detention-for-dangerousness authority that is now part of both federal
and New Mexico law: “When the Government proves by clear and convincing evidence that
an arrestee presents an identified and articulable threat to an individual or the community,
we believe that, consistent with the Due Process Clause, a court may disable the arrestee
from executing that threat.”

{85} The United States Supreme Court has never directly addressed the issue whether live
witnesses are required at detention hearings, but decades of federal circuit and district court
opinions, as well as state appellate decisions, have consistently answered that question in the
negative, as discussed earlier in this opinion.

4. New Mexico Constitutional Law

{86} Because the United States Constitution does not mandate live testimony in pretrial

18
detention hearings, our remaining task is to consider whether the New Mexico Constitution
imposes more expansive requirements in state detention proceedings. See State v. Gomez,
1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1 (“Under the interstitial approach, the court
asks first whether the right being asserted is protected under the federal constitution. If it is,
then the state constitutional claim is not reached. If it is not, then the state constitution is
examined.”).

{87} In language substantively indistinguishable from that of the Fourteenth Amendment
to the United States Constitution, Article II, Section 18 of the New Mexico Constitution
states, “No person shall be deprived of life, liberty or property without due process of law;
nor shall any person be denied equal protection of the laws.” As this Court has observed,
“due process is a rather malleable principle which must be molded to the particular situation,
considering both the rights of the parties and governmental interests involved.” State v.
Valdez (In re Valdez), 1975-NMSC-050, ¶ 13, 88 N.M. 338, 540 P.2d 818. “The amount of
process due depends on the particular circumstances of each case.” State ex rel. CYFD v.
Pamela R.D.G. (In re Pamela A.G.), 2006-NMSC-019, ¶ 12, 139 N.M. 459, 134 P.3d 746.

{88} We have previously recognized that the Due Process Clause of the New Mexico
Constitution requires that a defendant’s protections at a pretrial detention hearing include
“the right to counsel, notice, and an opportunity to be heard.” State v. Brown, 2014-NMSC-
038, ¶ 20 (analyzing the limited detention authority in Article II, Section 13 of the New
Mexico Constitution before its 2016 amendment). Due process requires a meaningful
opportunity to cross-examine testifying witnesses or otherwise challenge the evidence
presented by the state at a pretrial detention hearing. State v. Segura, 2014-NMCA-037, ¶¶
24-25, 321 P.3d 140.

{89} Counsel for Respondent Judge Whitaker relies on Segura and State v. Guthrie, 2011-
NMSC-014, 150 N.M. 84, 257 P.3d 904, to contend that due process requires presentation
of live witness testimony and a right of personal confrontation at a pretrial detention
proceeding. But those cases do not establish any such bright-line requirements.

{90} In Segura, the defendant allegedly violated his pretrial conditions of release. 2014-
NMCA-037, ¶¶ 1, 5. The district court revoked his release and ordered him into custody
without providing notice of the revocation proceeding, the opportunity to examine witnesses
who actually testified at the hearing, and the opportunity to present evidence in opposition
to detention. Id. ¶¶ 6, 24. The Court of Appeals appropriately held that the defendant’s due
process rights were violated. Id. ¶ 25. But Segura did not hold that the state must call live
witnesses in order for a defendant to have a meaningful opportunity to challenge the state’s
evidence. With particular relevance to the issues before us, Segura simply stands for the
proposition that when the state does present the direct testimony of a witness at a hearing,
due process requires the opportunity to cross-examine. Id. ¶¶ 24-25.

{91} In Guthrie, we addressed what process is due to a defendant in a probation revocation
hearing. 2011-NMSC-014, ¶¶ 1-2. Significantly, we held that live testimony of probation

19
officers or other adverse witnesses “is not always required during probation revocation
hearings” and that “[t]he trial court should focus its analysis on the relative need for
confrontation to protect the truth-finding process and the substantial reliability of the
evidence.” Id. ¶¶ 12, 43. Guthrie specifically approved the use of “conventional substitutes
for live testimony, including affidavits, depositions, and documentary evidence” in probation
revocation hearings as long as the “evidence offered has particular indica of accuracy and
reliability.” Id. ¶¶ 13, 20 (emphasis, internal quotation marks, and citations omitted). We
stressed that “due process is flexible and calls for such procedural protections as the
particular situation demands” and that “not all situations calling for procedural safeguards
call for the same kind of procedure.” Id. ¶ 11 (emphasis, internal quotation marks, and
citation omitted).

{92} No New Mexico precedent has ever held that the New Mexico Constitution requires
live witnesses in pretrial release or detention hearings even though some forms of pretrial
detention, such as in “capital offenses when the proof is evident or the presumption great,”
have always been permitted by Article II, Section 13 of the New Mexico Constitution. From
the time when this Court promulgated the New Mexico Rules of Evidence in 1973, based
almost wholly on the then-proposed Federal Rules of Evidence, both the New Mexico rules
and the federal rules have specifically provided that the rules of evidence do not apply in
considering “whether to release on bail or otherwise.” Fed. R. Evid. 1101(d)(3); Rule 11-
1101(D)(3)(e); see State v. Martinez, 2008-NMSC-060, ¶ 25, 145 N.M. 220, 195 P.3d 1232
(observing that the New Mexico rules “were patterned after . . . the proposed Federal Rules
of Evidence”).

{93} While the authority of a New Mexico court to detain a defendant based on a finding
of dangerousness is new, our courts have routinely made pretrial release and bail decisions
on the basis of recorded materials, proffers, and other nontestimonial information with no
appellate decision ever suggesting constitutional infirmity in this process. As discussed in
Brown, 2014-NMSC-038, ¶¶ 28, 31, 35, these bail decisions have often resulted in pretrial
detention for defendants who could not afford the bail amount set by the court. There is no
principled reason why detaining arrestees because they are a danger to the community, rather
than because they lack money to buy a bond, should require a different constitutional
standard.

{94} Because the detention-for-dangerousness provisions of the New Mexico Constitution
were modeled in large part on federal detention statutes, using strikingly similar language,
the interpretation of our constitutional requirements can also be informed by how federal
courts have analyzed the same issue. See State v. Clements, 1988-NMCA-094, ¶ 15, 108
N.M. 13, 765 P.2d 1195 (looking to federal law in interpreting a New Mexico rule with
language similar to the federal rule); State v. Weddle, 1967-NMSC-028, ¶ 8, 77 N.M. 420,
423 P.2d 611 (same), contested on other grounds, Caristo v. Sullivan, 1991-NMSC-088, 112
N.M. 623, 818 P.2d 401.

{95} Our New Mexico Constitution and court rules relating to detention contain all the

20
procedural safeguards that the United States Supreme Court found constitutionally sufficient
in Salerno, including a detention hearing requiring a clear and convincing showing of the
need for detention and affording defendants the right to counsel, to testify, to “cross-examine
witnesses who appear at the hearing,” and to respond to charges through live witnesses or
“proffer or otherwise.” See 481 U.S. at 751-52. And as thoroughly discussed earlier,
numerous federal courts have consistently rejected the notion that due process requires live
witnesses at detention hearings. The federal law is both clear and persuasive, and we
recognize no need to create a different constitutional standard for due process in New
Mexico detention hearings.

{96} We emphasize that pretrial detention of an accused person, prior to assessing
individual guilt or innocence under the protections of constitutional due process, is not to be
imposed lightly. Salerno, 481 U.S. at 755 (“In our society liberty is the norm, and detention
prior to trial or without trial is the carefully limited exception.”); Mendonza, 673 N.E.2d at
35 (cautioning that pretrial detention must not be permitted on a “casual and untested”
basis); Robinson, 160 A.3d at 14 (“Balanced against important concerns for public safety are
the defendants’ liberty interests.”). A detention-hearing court must take into account both
the personal rights of the accused and the broader public interest as it makes a pretrial
detention decision.

5. Determining Dangerousness

{97} This Court has not been asked to reverse or affirm the particular decisions denying
detention in Salas or Harper but merely to determine the appropriate modes of testimony at
detention hearings and to remand for new hearings in accordance with our opinion. We will
attempt to provide the requested guidance in general terms, without prejudging their
application to particular cases.

{98} Like other courts addressing the issue, we caution that judges are still required to
make reasoned judgments in evaluating evidentiary presentations. Making judgments about
the persuasiveness of evidence is a core function of being a judge. While prosecutors may
make proffers, tender documents and other exhibits, and ask the court to consider
information in court records, a court may find the weight of any evidence, testimonial or
nontestimonial, insufficient to meet the clear and convincing standard for detention in
particular cases.

{99} The first step in a detention hearing is to assess which information in any form carries
sufficient indicia of reliability to be worthy of consideration by the court. In determining
whether any information presented at a detention hearing contains indicia of reliability, a
court can consider, for example, whether the information is internally consistent; whether
it is credibly contested; whether it originates from or is conveyed by suspect sources; and
whether it is corroborated or supported by accounts of independent observers, tangible
evidence, a defendant’s statements or actions, other sources, or other information.

21
{100} The court should then consider the extent to which that information would indicate
that a defendant may be likely to pose a threat to the safety of others if released pending trial.
While the goal of a pretrial detention hearing is not to impose punishment for past conduct,
Brown, 2014-NMSC-038, ¶ 52, a defendant’s past actions and statements can provide a
sound basis for justifiable evidentiary inferences of likely future actions, which is the proper
focus for the court and the parties under the new constitutional detention authority. See Rule
5-401(C)(3)(a).

{101} Both law and behavioral science recognize that in anticipating human behavior,
“[o]ne of the predictive tools . . . is the consideration of one’s character traits based on
patterns of past conduct.” Martinez, 2008-NMSC-060, ¶¶ 16, 23 (summarizing approaches
to predicting behavior and discussing why the rules of evidence limit using evidence of bad
character at trial for policy reasons, despite its undeniable “logical relevance”). Detention
decisions, like release conditions, should not be based categorically on the statutory
classification and punishability of the charged offense. But the particular facts and
circumstances in currently charged cases, as well as a defendant’s prior conduct, charged or
uncharged, can be helpful in making reasoned predictions of future dangerousness. The fact
that a defendant has shown a propensity for engaging in dangerous conduct in the past may
be helpful in predicting whether that behavior is likely to continue in the future. That is why
we stated in Brown that although “[n]either the Constitution nor our rules of criminal
procedure permit a judge to base a pretrial release decision solely on the severity of the
charged offense,” a judge is required “to make an informed, individualized decision about
each defendant.” Brown, 2014-NMSC-038, ¶ 52. In order to do so a judge must consider all
relevant information, including the conduct of a defendant in connection with the charged
offense, in determining the kind of evidence-based, instead of charge-based, release
conditions that would be reasonably necessary to assure return to court or to assure the safety
of others. See id. ¶ 55.

{102} Finally, the court must determine whether any pretrial release conditions it could
impose “will reasonably protect the safety” of others, as required by the new standard in
Article II, Section 13 of the New Mexico Constitution. District Court Rule 5-401(C),
(D)(13), like its counterparts in our rules for courts of limited jurisdiction, authorizes judges
to impose release conditions that are “reasonably necessary to ensure the appearance of the
defendant as required and the safety of any other person and the community.” See Rule 6-
401(C) NMRA (providing the same authorization in pretrial release considerations for the
magistrate courts); Rule 7-401(C) NMRA (same for the metropolitan courts); Rule 8-401(C)
NMRA (same for the municipal courts). In determining the adequacy of release conditions
to protect public safety, it may be particularly helpful to consider whether a defendant has
engaged in dangerous behavior while on supervised release or has refused to follow court-
ordered conditions of release in the past.

{103} It is not surprising that the New Mexico Constitution, applicable court rules, and
judicial precedents here and elsewhere all refer to the need for reasonableness in pretrial
release and detention decisions. As we pointed out in Brown, “there is no way to absolutely

22
guarantee that any defendant released on any pretrial conditions will not commit another
offense. The inescapable reality is that no judge can predict the future with certainty or
guarantee that a person will appear in court or refrain from committing future crimes.”
Brown, 2014-NMSC-038 ¶ 54. But to the extent that we permit judges to take into account
all helpful and reliable information in making those predictions, we will reduce the margins
of error.

6. Unlawful Use of Money Bail to Detain

{104} In both the Salas and Harper detention orders the district court denied pretrial
detention and then conditioned release on posting $100,000 bonds. Money bonds are not
light substitutes for principled pretrial detention. The lawful purpose of a money bond is not
to protect public safety but only to provide additional assurance that a released defendant
will return to court. See State v. Ericksons, 1987-NMSC-108, ¶ 6, 106 N.M. 567, 746 P.2d
1099. A posted money bond does nothing to protect against commission of future crimes and
cannot even be forfeited under New Mexico statutes “for anything other than failure to
appear.” State v. Romero, 2007-NMSC-030, ¶ 3, 141 N.M. 733, 160 P.3d 914; see NMSA
1978, § 31-3-2(B)(2) (1993). This inadequacy of money bonds to protect public safety is a
major reason the Legislature and New Mexico voters realized that a constitutional
amendment containing a more effective public safety mechanism was necessary.

{105} Although we need not speculate on the purpose for the six-figure bonds in the two
cases not before us for appellate review, courts have long recognized that we “should not be
ignorant as judges of what we know as [people].” Watts v. Indiana, 338 U.S. 49, 52, 55
(1949) (holding a coerced confession unconstitutional and observing that our serious
concerns about crime cannot be a justification for ignoring “the safeguards which our
civilization has evolved for an administration of criminal justice”). It is common knowledge
among judges and others who have worked in our courts that in the vast majority of cases
imposition of high-dollar bonds for any but the most wealthy defendants is an effort to deny
defendants the opportunity to exercise their constitutional right to pretrial release.

{106} Setting a money bond that a defendant cannot afford to post is a denial of the
constitutional right to be released on bail for those who are not detainable for dangerousness
in the new due process procedures under the New Mexico Constitution. If a court finds that
a defendant is too dangerous to release under any available conditions, the court should enter
a detention order. If the court instead finds that a defendant is entitled to release under
Article II, Section 13 of the New Mexico Constitution and Rule 5-409, the court must not
use a money bond to impose pretrial detention. Brown, 2014-NMSC-038, ¶ 53 (“Neither the
New Mexico Constitution nor our rules of criminal procedure permit a judge to set high bail
for the purpose of preventing a defendant’s pretrial release. . . . If a defendant should be
detained pending trial under the New Mexico Constitution, then that defendant should not
be permitted any bail at all.”); see also Bandy v. United States, 81 S. Ct. 197, 198 (1960) (“It
would be unconstitutional to fix excessive bail to assure that a defendant will not gain his
freedom.”). We have explicitly recognized this constitutional principle in the text of our

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rules. See Rule 5-401(E)(1)(c) (“The court shall not set a secured bond that a defendant
cannot afford for the purpose of detaining a defendant who is otherwise eligible for pretrial
release.”).

{107} Other jurisdictions have recognized this constitutional principle. As the
Massachusetts Supreme Judicial Court emphasized, “a judge may not consider a defendant’s
alleged dangerousness in setting the amount of bail, although a defendant’s dangerousness
may be considered as a factor in setting other conditions of release.” Brangan v.
Commonwealth, 80 N.E.3d 949, 963 (2017). The court noted that if a defendant would pose
a danger to the community under nonfinancial conditions of release, the court should comply
with its detention authority granted by statute or constitution and court rules and by the
accompanying due process requirements. See id. at 963-64. But if a defendant does not pose
a danger to the community, the court should release the defendant under appropriate
conditions. See id. at 964-65; cf. Smith v. Leis, 2005-Ohio-5125, 835 N.E.2d 5, ¶¶ 1, 66
(holding that imposition of a high-cash bond for the purpose of denying release of a
defendant is unconstitutional but observing that the state could move to detain in compliance
with the due process procedures in Ohio law).

{108} Following oral argument in this case, we announced our ruling from the bench,
outlining the principles now embodied in this opinion, and we entered a contemporaneous
written order granting the State’s petition for writ of superintending control and remanding
the Salas and Harper cases to the district court for action in conformity with our oral ruling
and written order. See New Mexico Supreme Court order, April 12, 2017 (granting the
petition and remanding). Those cases have not come back before us for appellate review.

{109} We now confirm our contemporaneous rulings in this case.

III. CONCLUSION

{110} We hold that neither the United States Constitution nor the New Mexico Constitution
categorically requires live witness testimony at pretrial detention hearings. Under our
procedural rules, judges may consider all reasonably reliable information, without regard to
strictures of the formal rules of evidence, in considering whether any pretrial release
conditions will reasonably protect the safety of any other person or the community.

{111} IT IS SO ORDERED.

____________________________________
CHARLES W. DANIELS, Justice

WE CONCUR:

____________________________________
JUDITH K. NAKAMURA, Chief Justice

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____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
BARBARA J. VIGIL, Justice

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