3.2 Bail

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

3.2 BAIL

The Pretrial Services Act ¹ states:

It is the purpose of this article to provide more effective protection of society by establishing pretrial services agencies that will assist judicial officers in discharging their duties. . . . Such agencies are intended to provide better information and services for use by judicial officers in determining the risk to public safety and the assurance of appearance of persons age 18 or over or persons under the age of 18 who have been transferred for trial as adults held in custody and charged with an offense, other than an offense punishable by death, who are pending trial or hearing. ²

On at least one occasion, a capital defendant in Virginia has been released on bail before trial. For copies of the bail papers from that case, see Appendix 3-1 of this chapter. Because bail is virtually never granted and bail applications in capital cases often generate negative publicity, it should only be the rare case where counsel seeks pretrial release of a capital defendant,

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such as when there is compelling evidence of the defendant's innocence or another specific strategy. ³

There has been only one Virginia Supreme Court case in which a capital defendant appealed his denial of pretrial bail. In Fisher v. Commonwealth, ⁴ the court held that the magistrate ruled correctly in finding probable cause to believe that the defendant posed a threat of flight as well as a...