specially concurring:
Article II of the Constitution of Colorado is the Bill of Rights. Section 19 of the Bill of Rights provides that:
“All persons shall be bailable by sufficient sureties except for capital offenses, when the proof is evident or the presumption great.”
It is to be noted that all persons are bailable with the one exception. The exception is stated in affirmative language. What meaning can be attached to the words, “when the proof is evident or the presumption great”? Whose proof does Section 19 contemplate must be evident? It can only refer to the People’s proof. Certainly, it does not advert to the defendant’s proof. The exception is not couched in negative language, to require thereby that the defendant show the proof not evident or the presumption not great.
I am convinced that under the Constitution the granting of bail is the general rule and its refusal the exception, and that the burden of satisfying the trial court that a given situation falls within the exception is upon the one seeking denial of bail. Ford v. Dilley, 174 Iowa 243, 156 N.W. 513. Such view comports with the constitutional notion that we are dealing with a right and also with the positive, affirmative language employed by the drafters of Section 19.
I would therefore hold that the trial court should require the People, where a capital offense has been charged, to produce evidence to satisfy it that the proof is evident or the presumption great.