(dissenting).
I dissent.
I believe the majority opinion goes too far in taking for granted the guilt of the defendant. We said in State v. Stevens, 234 N.W.2d 623 (N.D.1975), that there is a strong presumption of guilt after conviction and pending appeal. But it is still a presumption and not a certainty.
I agree with the statement of Chief Judge Bazelon, of the District of Columbia Court of Appeals, dissenting in United States v. Stanley, 469 F.2d 576, 591 (1972):
*648“Certainly the act for which a person seeking release stands convicted is relevant in assessing whether the community’s safety would be imperiled by release. Here, however, the substantial issues Stanley raises on appeal directly concern whether or not he committed the offense for which he was convicted. In such eases, unlike appeals where the fact of the offense is unchallenged, the inference to be drawn from the guilty verdict is more questionable. And, in Stanley’s case, the inference is further attenuated by the almost total absence of prior criminal activity. His only other involvement with the law was a disorderly conduct charge in 1965 which resulted in a ten dollar fine.”
In the case before us there is not even a disorderly conduct conviction or a ten-dollar fine. There is a total absence of a criminal record. Olmstead has never even had a traffic ticket.
I believe we have more reason to question the strength of the presumption of guilt where the conviction is based almost entirely upon an eyewitness identification made two weeks after the event. Many scholars and psychologists have commented on the high risk of error involved in eyewitness identification.1 The risk rises with the delay.
It may be that upon a new trial, if granted, the effect of additional alibi witnesses will negative the identification testimony of the victim.
I think we should also realize, in connection with the identification of the defendant, a young man with a narrow face and a moustache, that the Air Force has regulations as to hair styles and moustaches, and that every Air Force base has hundreds of young men with narrow faces and similar hair styles and moustaches.
I believe that Olmstead could be released pending the appeal with little or no risk of danger to the community. There is no testimony, expert or otherwise, indicating that he represents a significant risk to the public. I would hold, as the Federal courts do (see n. 17, United States v. Stanley, supra, majority opinion, at 581), that the trial court must consider and, if feasible, utilize imposition of conditions of release which might reduce flight and danger to acceptable levels. In this case the United States Air Force could, and I believe would, give assurance that Olmstead would not leave the State while his appeal is pending, and his associates in his church could, and would, agree to supervise his off-duty activities. If such conditions were imposed upon his release, I think the danger to the public would be so slight as to be almost nonexistent. Even without such conditions, I believe the risk would be minimal.
We said in State v. Stevens, supra, at 625:
“It is impossible to lay down specific guidelines for release of persons who have been convicted of crimes and sentenced to imprisonment who choose to appeal the convictions. The facts of each crime differ and the nature of each defendant differs, and consequently the decision must be made in each case on its own facts.”
In this case the defendant made an impressive showing that there would be no danger to the public upon his release, and the State took an almost passive attitude at the hearing, offering no evidence. If release is denied pending appeal in this case, I have difficulty conceiving of a case involving conviction of a serious crime where release will ever be allowed.
I would grant the motion for release pending appeal, subject to restrictions such as I have suggested above.
. “Some of the most tragic miscarriages of justice have been due to testimonial errors in this field.” Wigmore’s Principles of Judicial Proof (2d ed. rev.; Boston: Little, Brown, and Company, 1931), p. 428. Wigmore gives many illustrations in § 209.