New Mexico ex rel. Torrez v. Whitaker

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Justia Opinion Summary

In this case, the New Mexico Supreme Court was asked to address the nature of evidentiary presentation required by the new detention authority approved by the New Mexico Legislature in February 2016 and passed by New Mexico voters in the November 2016 general election. The Court agreed with courts in all other federal and state bail reform jurisdictions that have considered the same issues, and held that the showing of dangerousness required by the new constitutional authority was 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." 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 the Supreme Court also agreed 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.

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: January 11, 2018 4 NO. S-1-SC-36379 5 STATE OF NEW MEXICO ex rel. 6 RAÚL TORREZ, Second Judicial District Attorney, 7 Petitioner, 8 v. 9 HON. STAN WHITAKER, 10 Respondent, 11 PAUL SALAS and 12 MAURALON HARPER, 13 Real Parties in Interest. 14 ORIGINAL PROCEEDING 15 16 17 18 Office of the Second Judicial District Attorney Presiliano Raúl Torrez, District Attorney Kevin P. Holmes, Assistant District Attorney Albuquerque, NM 19 for Petitioner 1 Hector H. Balderas, Attorney General 2 Joshua Rutledge Granata, Assistant Attorney General 3 Santa Fe, NM 4 Jones, Snead, Wertheim & Clifford, P.A. 5 Jerry Todd Wertheim 6 Santa Fe, NM 7 for Respondent 8 Jason Benjamin Wheeless 9 Steven P. Archibeque 10 Albuquerque, NM 11 for Real Party in Interest Paul Salas 12 Bennett J. Baur, Chief Public Defender 13 C. David Henderson, Appellate Defender 14 Santa Fe, NM 15 Jeff Rein, Assistant Public Defender 16 Albuquerque, NM 17 for Real Party in Interest Mauralon Harper 18 Hector H. Balderas, Attorney General 19 Kenneth H. Stalter, Assistant Attorney General 20 Santa Fe, NM 21 for Interested Party 1 OPINION 2 DANIELS, Justice. 3 {1} One of the most significant new tools provided to the New Mexico criminal 4 justice system as a result of the amendment to the bail provisions in Article II, Section 5 13 of the New Mexico Constitution, approved by the New Mexico Legislature in 6 February 2016 and passed by New Mexico voters in the November 2016 general 7 election, is the judicial authority to deny pretrial release—for any amount of 8 money—if a prosecutor shows by clear and convincing evidence that no release 9 conditions a court could impose on a felony defendant would reasonably protect the 10 safety of any other person or the community. 11 {2} In this case, we have been requested to address the nature of evidentiary 12 presentation required by this new detention authority. We agree with courts in all 13 other federal and state bail reform jurisdictions that have considered the same issues, 14 and we hold that the showing of dangerousness required by the new constitutional 15 authority is not bound by formal rules of evidence but instead focuses on judicial 16 assessment of all reliable information presented to the court in any format worthy of 17 reasoned consideration. The probative value of the information, rather than the 18 technical form, is the proper focus of the inquiry at a pretrial detention hearing. 19 {3} In most cases, credible proffers and other summaries of evidence, law 1 enforcement and court records, or other nontestimonial information should be 2 sufficient support for an informed decision that the state either has or has not met its 3 constitutional burden. But we also agree with other jurisdictions that a court 4 necessarily retains the judicial discretion to find proffered or documentary 5 information insufficient to meet the constitutional clear and convincing evidence 6 requirement in the context of particular cases. 7 I. PROCEDURAL HISTORY 8 This case came before us on a petition for writ of superintending control filed {4} 9 by Second Judicial District Attorney Raúl Torrez. The petition sought to have this 10 Court order Respondent District Judge Stan Whitaker to conduct new detention 11 hearings in two specific cases, State v. Salas, D-202-LR-2017-67, and State v. 12 Harper, D-202-LR-2017-68, and provide guidance on the nature of the evidence 13 required in the pretrial detention hearings authorized by the 2016 constitutional 14 amendment. 15 {5} We first review the history of the two cases that are the subject of the petition. 16 A. State v. Salas 17 Paul Salas was arrested on March 16, 2017, and charged in a single criminal {6} 18 complaint with forty-seven separate armed robberies of dozens of Bernalillo County 2 1 businesses in a five-month period. 2 {7} The complaint, prepared and signed under oath by the investigating police case 3 agent, alleged the facts reported by the separate victims and noted that each of the 4 robberies had been committed by a person fitting the physical description of Salas, 5 who was dressed similarly, who brandished a firearm, and who otherwise exhibited 6 the same modus operandi in each of the robberies; that surveillance video available 7 in most of the robberies confirmed that the same robber, who walked with the same 8 characteristic gait, appeared to be responsible; that in the most recent robbery, an 9 electronic tracking device placed in the bag of stolen cash and merchandise allowed 10 police to immediately chase down and arrest the fleeing Salas and a codefendant and 11 retrieve the robbery proceeds and other evidentiary items; and that after his arrest 12 Salas waived his Miranda rights and confessed to each of the forty-seven charged 13 robberies in a lengthy debriefing with the case agent who had prepared the sworn 14 criminal complaint, providing a detailed account of each admitted robbery that was 15 consistent with the victim reports. 16 {8} The day after Salas’s arrest, the State filed a motion for pretrial detention. The 17 motion contended that Salas’s alleged five-month crime spree and the fact that he was 18 a wanted fugitive from another state demonstrated “the ability to elude police and . . . 3 1 an unwillingness to abide by law and cooperate [with] law enforcement.” The motion 2 stated that he “has shown a blatant disregard for the value of a human life and . . . a 3 pattern for violence,” that because of the nature of his crimes Salas presented “a 4 serious danger to the community,” and that there were no conditions “other than a no 5 bond hold that would protect the safety of the public.” 6 {9} No probable cause determination had been made by a court or grand jury on 7 any of the charged offenses by the time of the March 22, 2017, detention hearing, and 8 the district court made no probable cause determination in connection with the 9 detention hearing. 10 {10} At the hearing on its detention motion, the State proffered the sworn criminal 11 complaint in this case and a fugitive complaint on which Salas recently had been 12 arraigned pending extradition to Arizona on a sex offense but called no live witnesses 13 and introduced none of the underlying materials relied on by the case agent in 14 preparing the robbery complaint. 15 {11} Salas offered no affirmative or rebuttal information concerning the accuracy 16 or truthfulness of the information presented to the district court by the State and did 17 not challenge his identity as the Paul Salas reported in the complaint to have been 18 pursued, arrested, searched, and interrogated. 4 1 {12} Accordingly, the hearing consisted primarily of argument concerning the 2 nature, reliability, and sufficiency of the form of documentary information offered by 3 the State, with the defense arguing generally that the documentary evidence was 4 insufficient to meet the State’s clear and convincing evidence burden without a live 5 witness to testify and be cross-examined about the documents’ accuracy and 6 reliability. 7 {13} In oral and written rulings, Respondent denied the detention motion, refusing 8 to admit the criminal complaint on the ground that it was deemed unreliable and 9 violative of due process in the absence of corroborating or authenticating witnesses 10 that the defense could cross-examine. After denying detention, Respondent ordered 11 Salas to be placed on pretrial conditions of release that included close supervision, 12 monitoring, and a cash-only bond of $100,000, in addition to the $100,000 cash-only 13 bond that had been set earlier on the Arizona fugitive complaint and in addition to 14 any other applicable money bonds. 15 B. State v. Harper 16 Mauralon Harper was charged in a sworn criminal complaint with attempted {14} 17 murder, aggravated battery with a deadly weapon, shooting at a vehicle resulting in 18 great bodily harm, and tampering with evidence. 5 1 {15} The complaint alleged that Harper shot his girlfriend in the abdomen as she got 2 into her car after arguing with Harper and ordering him out of her apartment. The 3 investigating detective who executed the complaint reported that he joined other 4 officers in responding to a report of a shooting at the victim’s address. There they 5 found several people attending to the bleeding victim as she lay on the ground. She 6 was able to tell officers, “Mauralon shot me,” before being transported to the hospital 7 for emergency surgery. 8 {16} A neighbor who knew both Harper and the victim told police she had heard the 9 two arguing, had heard the sound of gunshots and the victim screaming, and then saw 10 Harper pointing a handgun toward the victim’s car and the victim lying on the ground 11 next to the car. 12 {17} Another witness who knew and could identify Harper stated that moments after 13 she heard the gunshots she observed Harper running from the scene with a gun in his 14 waistband. 15 {18} The investigating detective recited that he personally observed at least thirteen 16 bullet holes in a car that was registered to the victim and parked at the scene and that 17 the bullet holes and casing locations were consistent with the eyewitness accounts 18 that Harper was standing in the area of the victim’s apartment when he fired toward 6 1 the victim’s car. 2 {19} The District Attorney’s office filed a motion to detain Harper pending trial. As 3 in the Salas case, no determination of probable cause by a court or grand jury had 4 been made either before or during the detention hearing. 5 {20} At the hearing, the prosecutor proffered the criminal complaint in support of 6 the detention motion. The prosecutor also proffered court documents recording 7 Harper’s six prior convictions, including three felony convictions for bank robbery, 8 assault on a police officer, and drug possession; documents reflecting three past 9 domestic violence restraining orders against Harper obtained by three separate 10 complainants; documents reflecting a pending robbery and evidence-tampering case 11 in which Harper was currently being held without bond on a release revocation order 12 for failure to appear; documents reflecting six past bench warrants for failure to 13 appear; and a current district court pretrial services risk assessment that placed him 14 in the highest risk category, calling for either intensive supervision or pretrial 15 detention. 16 {21} In addition to the documentary evidence, the State proffered a video and 17 images of text messages from the victim’s phone, which the prosecutor represented 18 to contain evidence that corroborated the State’s version of the charged offenses. 7 1 Although the defense argued briefly that the unreliability of the State’s documentary 2 evidence, in the absence of live testimony, left open to question whether Harper was 3 the same Mauralon Harper referenced in the documents, the defense never offered 4 affirmative or rebuttal evidence or even denied that he was the person who had shot 5 at his girlfriend, instead relying on objections to the admissibility and weight of the 6 State’s submissions. 7 {22} Respondent denied the request for detention in oral and written rulings but then 8 ordered Harper to be placed on multiple pretrial conditions of release that included 9 close supervision, monitoring, and a secured bond in the amount of $100,000. 10 {23} In the oral bench ruling at the conclusion of the hearing, Respondent stated that 11 he would not admit the video and text messages because the State did not provide a 12 witness to testify to their authenticity and reliability and be available for cross13 examination. While he stated in the oral ruling that he was admitting the criminal 14 complaint and the other documents regarding Harper’s criminal history over defense 15 objections, in the subsequent written order Respondent recited that the contents of the 16 criminal complaint were unreliable and therefore inadmissible and stated that the 17 admission of the complaint’s hearsay contents, “without more, would deprive the 18 Defendant a meaningful opportunity to challenge the State’s evidence, which is in 8 1 violation of his right to due process of law.” 2 C. The Petition for Writ of Superintending Control 3 After Respondent denied the State’s detention motions in Salas and Harper, {24} 4 Petitioner Torrez sought a writ of superintending control from this Court. 5 Respondent, Defendants Salas and Harper, whom the petition named as real parties 6 in interest, and the Attorney General filed separate responses to the State’s petition, 7 pursuant to Rule12-504(C) NMRA (“The respondent, the real parties in interest, and 8 the attorney general may file a response to the petition [for an extraordinary writ].”). 9 {25} As framed in the petition, the controversy between the parties was a clash of 10 absolutist positions that centered on whether the prosecution must always present live 11 witnesses, as the petition alleged the Respondent was requiring, or whether live 12 witnesses can never be required, as the petition seemed at times to contend. Petitioner 13 asked this Court to order the district court to reconsider the State’s motions for 14 pretrial detention and to issue a written opinion providing guidance to inferior courts 15 on how to interpret and apply the new pretrial detention provisions recently added to 16 Article II, Section 13 of the New Mexico Constitution. 17 {26} In his response to the State’s petition, Respondent took the position that due 18 process of law may require live witness testimony to satisfy confrontation rights at 9 1 pretrial detention hearings and that in these two cases he did not abuse his judicial 2 discretion in denying the State’s motions for pretrial detention. 3 {27} Salas and Harper argued that Respondent did not abuse his discretion to require 4 live witnesses at a pretrial detention hearing when he found the exhibits and proffers 5 insufficient to meet the State’s burden of proof. 6 {28} The Attorney General urged this Court to follow federal detention hearing 7 precedents and hold that a court may rely on proffers and documents alone without 8 violating the due process rights of an accused but to recognize that the court retains 9 the discretion to require one or more live witnesses when there is a question about the 10 credibility or authenticity of nonwitness information. 11 {29} Following oral argument on the petition, this Court delivered an oral ruling 12 from the bench granting the writ, providing guidelines for the evaluation of evidence 13 in detention hearings, directing Respondent to conduct new hearings in light of those 14 guidelines, and advising the parties that the Court would issue a full precedential 15 opinion amplifying our oral ruling. This is that opinion. 16 II. DISCUSSION 17 Article VI, Section 3 of the New Mexico Constitution provides that the New {30} 18 Mexico Supreme Court has the power of superintending control, a long-standing 10 1 power “to control the course of ordinary litigation in inferior courts.” State v. Roy, 2 1936-NMSC-048, ¶ 89, 40 N.M. 397, 60 P.2d 646. We may exercise our power of 3 superintending control when it is “in the public interest to settle the question involved 4 at the earliest moment.” Kerr v.Parsons, 2016-NMSC-028, ¶ 16, 378 P.3d 1 (internal 5 quotation marks and citation omitted). In granting a writ of superintending control, 6 we may offer guidance to lower courts on how to properly apply the law. See New 7 Energy Economy, Inc. v. Vanzi, 2012-NMSC-005, ¶ 25, 274 P.3d 53 (providing 8 guidance to the Court of Appeals with respect to who has the right to become 9 appellees in administrative rule-making appeals); Dist. Court of Second Judicial Dist. 10 v. McKenna, 1994-NMSC-102, ¶ 1, 118 N.M. 402, 881 P.2d 1387 (providing 11 guidance to a district court with respect to convening a grand jury). 12 {31} While a writ of superintending control should not “be used as a substitute for 13 . . . appeal,” Chappell v. Cosgrove, 1996-NMSC-020, ¶ 6, 121 N.M. 636, 916 P.2d 14 836, at the time the petition was filed in this case we had not yet promulgated our July 15 1, 2017, rules providing expedited appeals from detention-hearing decisions. See, 16 e.g., Rule 5-405(A)(3) NMRA (providing that either party may appeal an order 17 regarding pretrial release or detention); Rule 12-204 NMRA (providing expedited 18 appellate procedures). Because this case presents “an issue of first impression . . . 11 1 without clear answers under New Mexico law,” Chappell, 1996-NMSC-020, ¶ 6, and 2 because it involves new constitutional provisions with serious public safety 3 implications, we agree that this is an appropriate case in which to exercise our 4 superintending control authority. 5 {32} In order to address the proper interpretation of the new detention authority 6 created by the November 2016 constitutional amendment and the resulting July 2017 7 court rules, it is important to understand the reasons for their creation and the sources 8 and historical construction of the provisions we are called on to explicate in this case. 9 {33} In State v. Brown, 2014-NMSC-038, 338 P.3d 1276, this Court conducted a 10 comprehensive review of the origins and requirements of then-existing United States 11 and New Mexico bail law. While Brown created no new rules of law, but simply 12 traced the history and requirements of existing law, it took notice of the “enduring 13 inequalities in our nation’s system of bail,” which has come to rely heavily on an 14 accused person’s ability to purchase a bail bond as the determining factor in releasing 15 or detaining a person before a trial that would decide guilt or innocence. Id. ¶ 35. The 16 combination of those realities resulted in a system lacking in rational justice, where 17 clearly dangerous defendants or those who pose substantial flight risks have been able 18 to buy their way out of jail, while large numbers of poorer, low-risk defendants have 12 1 been held in jail simply for lack of money, with substantial harm done to them, their 2 families, and the taxpayers who bear the ultimate burden of housing, feeding, 3 guarding, medicating, and caring for them. See id.¶¶ 33-35. 4 {34} In Brown we traced key features of bail reforms in the United States, including 5 the movement toward minimizing the detention of low-risk defendants simply for 6 lack of money to buy a bond, as reflected in the provisions of the federal Bail Reform 7 Act of 1966, Pub. L. 89-465, 80 Stat. 214, 214-17, repealed by Bail Reform Act of 8 1984, Pub. L. 98-473, 98 Stat. 1837, 1976-85, that “established a presumption of 9 release by the least restrictive conditions, with an emphasis on non-monetary terms 10 of bail.” Brown, 2014-NMSC-038, ¶ 33 (internal quotation marks and citation 11 omitted). In 1972, New Mexico like many other American jurisdictions tracked the 12 provisions of those federal reforms in their own bail laws. Id. ¶ 37. Those preferences 13 for nonfinancial release conditions remain essentially unchanged in current federal 14 law and in New Mexico law, including our newest court rules. See 18 U.S.C. 15 §3142(c)(2) (2012) (requiring that in determining “[r]elease . . . conditions” for an 16 accused person, “[t]he judicial officer may not impose a financial condition that 17 results in . . . pretrial detention”); Rule 5-401(E)(1)(c) NMRA (“The court shall not 18 set a secured bond that a defendant cannot afford for the purpose of detaining a 13 1 defendant who is otherwise eligible for pretrial release.”). 2 {35} Many other jurisdictions have also followed the federal model in explicitly 3 prohibiting pretrial detention simply for lack of money to buy a bail bond. See D.C. 4 Code Sec. 23-1321(c)(3) (West 2017) (prohibiting a court from setting a “financial 5 condition” that would “result in the preventive detention of the person”); Mass. Gen. 6 Laws Ann. ch. 276, § 58A(2)(B)(iv) (West 2017) (providing that a “judicial officer 7 may not impose a financial condition that results in the pretrial detention of the 8 person”); see also N.J. Stat. Ann. § 2A:162-17(c)(1) (West 2017) (providing that a 9 “court shall not impose . . . monetary bail . . . for the purpose of preventing the release 10 of the eligible defendant”). 11 {36} A number of states have taken other steps to decrease the justice system’s 12 reliance on commercial sureties and other monetary bail. See, e.g., Ky. Rev. Stat. 13 Ann. § 431.510 (West 2017) (abolishing by statute the commercial bail bond 14 industry); see also, 725 Ill. Comp. Stat. Ann. 5/110-7(a) (West 2017) (effectively 15 abolishing the commercial bail bond industry by requiring any money bail to be paid 16 directly to the court rather than through a commercial surety); Or. Rev. Stat. Ann. § 17 135.265 (West 2017) (same); Wis. Stat. Ann. § 969.12(2) (West 2017) (same); cf. 18 Colo. Rev. Stat. § 16-4-103(3)(a)-(b), 4(b) (West 2017) (instructing courts to consider 14 1 risk assessment instruments and a person’s financial condition when setting bond and 2 prohibiting courts from setting bonds based solely on the level of offense). 3 {37} While those reforms focused on alleviating one of the worst consequences of 4 using money to decide who will be released pretrial—jailing people for lack of money 5 instead of for any real risk they posed—they did little to address the other primary 6 undesirable result of the money system—releasing dangerous defendants into the 7 community simply because they could arrange to buy their way out of jail. To address 8 that very serious problem, new legal authority for judges to deny pretrial release 9 based on findings of dangerousness has been created in a growing number of federal 10 and state jurisdictions. 11 {38} Those community safety reforms began in the District of Columbia four years 12 after passage of the federal Bail Reform Act of 1966. 13 A. District of Columbia 14 Prior to 1970, in the vast majority of jurisdictions defendants had a {39} 15 constitutional or statutory right, at least on paper if not always in practice, to be 16 released on bail prior to trial for virtually all crimes not punishable by death. Bail: An 17 Ancient Practice Reexamined, 70 Yale L.J. 966, 967 (1961). As we noted in Brown, 18 Article II, Section 13 of the New Mexico Constitution, like the constitutions and laws 15 1 of most American states, followed a 1682 Pennsylvania model and contained an 2 almost absolute right to bail in noncapital cases that required judges to release 3 virtually all defendants, no matter how significant a threat they might pose to 4 community safety after their release. Brown, 2014-NMSC-038, ¶¶ 26, 37. 5 {40} In a significant change from that history, Congress gave new risk-focused 6 pretrial detention authority to District of Columbia judges as part of the District of 7 Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L. 91-358, 84 8 Stat. 473, 642-50 (1970) (D.C. Act), now codified in relevant part as D.C. Code 9 Sections 23-1321 to -1332. See Thomas C. French, Is It Punitive or Is It Regulatory? 10 United States v. Salerno, 20 U. Tol. L. Rev. 189, 194 (1988). 11 {41} Section 23-1322(b)(2)(B), D.C. Act 644-45, now codified as Section 23- 12 1322(b)(2) (2013), permitted a court to deny pretrial release on any conditions if the 13 court found by “clear and convincing evidence that” no conditions of release would 14 “reasonably assure the safety of any other person or the community.” Significantly 15 for the issues we address in this opinion, Section 23-1322(c)(5), D.C. Act 645, now 16 codified as Section 23-1322(d)(4), also provided that “pretrial detention hearings . . . 17 need not conform to the rules pertaining to the admissibility of evidence in a court of 18 law.” 16 1 {42} The constitutionality of pretrial detention and the evidentiary requirements 2 applicable to detention hearings in the District of Columbia were addressed 3 thoroughly in United States v. Edwards, 430 A.2d 1321 (D.C. 1981). 4 {43} In a significant holding for the future of pretrial detention laws, Edwards held 5 that the language and history of the excessive bail prohibition in the Eighth 6 Amendment to the United States Constitution made it clear that there has never been 7 an absolute federal constitutional right to pretrial release like that contained in the 8 Pennsylvania constitutional model. Id. at 1328. 9 {44} After resolving the constitutionality of pretrial detention as a general concept, 10 Edwards addressed arguments relating to the construction and constitutionality of 11 specific features of the D.C. Act, including the evidentiary procedures at detention 12 hearings. See Edwards, 430 A.2d at 1334. Considering the statutory language and 13 legislative history of the D.C. Act, Edwards concluded that detention hearings were 14 not intended to be formal trials where strict rules of evidence controlled. See 15 Edwards, 430 A.2d at 1334. Instead, information could be presented by hearsay: 16 “‘proffer or otherwise.’” Id. (quoting Section 23-1322(c)(4), D.C. Act 645). Sworn 17 testimony was intended to be “‘the exception and not the rule,’” Edwards, 430 A.2d 18 at 1334 (citation omitted), although a court retained the right to “require direct 17 1 testimony if dissatisfied with a proffer.” Id. 2 {45} Edwards also held that neither the Confrontation Clause nor the Due Process 3 Clause precludes reliance on hearsay and proffers at bail and detention hearings. See 4 Edwards, 430 A.2d at 1337. In considering what process is due in a detention 5 proceeding, Edwards relied on Gerstein v. Pugh, 420 U.S. 103 (1975), in which the 6 United States Supreme Court held that, while a prompt judicial determination of 7 probable cause is required to justify restraints on the liberty of a defendant pending 8 judicial resolution of criminal charges, using hearsay and written information to make 9 that determination did not violate a defendant’s federal constitutional rights. See 10 Edwards, 430 A.2d at 1335. Because the protections provided in the D.C. Act were 11 greater than those approved in Gerstein, Edwards held that it was constitutionally 12 permissible to “proceed by the use of proffer and hearsay” at a pretrial detention 13 hearing, “subject to the discretion of the judge” to require more in particular cases. 14 Edwards, 430 A.2d at 1336-37. 15 B. Federal Courts 16 Encouraged by the experience with the D.C. Act, in 1984 Congress enacted {46} 17 similar detention authority for all federal courts in the Bail Reform Act of 1984, Pub. 18 L. 98-473, 98 Stat. 1837, 1976-85 (Federal Act). See 18 U.S.C. §§ 3141-3150 (2012); 18 1 French, supra at 197. 2 {47} As with the D.C. Act, the Federal Act allowed federal courts to detain 3 defendants pretrial if clear and convincing evidence at a detention hearing 4 demonstrated that no release conditions would “reasonably assure . . . the safety of 5 any other person and the community.” 18 U.S.C. § 3142(f), Federal Act 1979. The 6 Federal Act also tracked the provision that the “rules concerning admissibility of 7 evidence in criminal trials” were not applicable “to the presentation and consideration 8 of information at the hearing.” Id., Federal Act 1980. 9 {48} The United States Supreme Court directly addressed the constitutionality of the 10 Federal Act in United States v. Salerno, 481 U.S. 739 (1987). As had the District of 11 Columbia Court of Appeals in Edwards, the Supreme Court held that the Eighth 12 Amendment protected only against setting monetary conditions in an amount higher 13 than necessary to reasonably secure a defendant’s presence at court proceedings and 14 not against denial of release to protect public safety. Id. at 754-55 (holding that when 15 the Government’s “only interest is in preventing flight, bail must be set by a court at 16 a sum designed to ensure that goal, and no more,” but where detention is based on “a 17 compelling interest other than prevention of flight,” such as community safety, “the 18 Eighth Amendment does not require release on bail”). 19 1 {49} Salerno also held that the procedural protections encompassed in the Federal 2 Act, such as the right to counsel, the right to cross-examine any witnesses who do 3 appear at the hearing, the right to present information by proffer or otherwise, and the 4 clear and convincing burden of proof provided “extensive safeguards . . . [that] far 5 exceed” what is required by the due process standards articulated in Gerstein. 6 Salerno, 481 U.S. at 751-52; see 18 U.S.C. § 3142(f)(2)(B). 7 {50} Since Salerno, a number of federal courts have specifically addressed whether 8 the Federal Act permits a defendant to be detained pretrial based solely on 9 nontestimonial information proffered by the government. For example, United States 10 v. Gaviria, 828 F.2d 667, 669 (11th Cir. 1987), relied on the District of Columbia 11 holding in Edwards to hold that “the government as well as the defense may proceed 12 by proffering evidence subject to the discretion of the judicial officer presiding at the 13 detention hearing.” Accord United States v. LaFontaine, 210 F.3d 125, 131 (2d Cir. 14 2000) (stating that “proffers are permissible both in the bail determination and bail 15 revocation contexts” but that a court “must also ensure the reliability of the evidence, 16 by selectively insisting upon the production of the underlying evidence or evidentiary 17 sources where their accuracy is in question” (internal quotation marks and citation 18 omitted)); United States v. Webb, 238 F.3d 426 (table), 2000 WL 1721060 at 2 (6th 20 1 Cir. 2000) (unpublished) (“The government may proceed in a detention hearing by 2 proffer or hearsay.”); United States v. Smith, 79 F.3d 1208, 1209-10 (D.C. Cir. 1996) 3 (holding that the government may proceed by way of proffer instead of presenting 4 live witnesses); United States v. Winsor, 785 F.2d 755, 756 (9th Cir. 1986) (holding 5 that the government may present information “by proffer or hearsay” and that the 6 “accused has no right to cross-examine adverse witnesses who have not been called 7 to testify”); United States v. Delker, 757 F.2d 1390, 1396 (3d Cir. 1985) (holding that 8 “discretion lies with the district court to accept evidence by live testimony or 9 proffer”); United States v. Acevedo-Ramos, 755 F.2d 203, 206, 208 (1st Cir. 1985) 10 (acknowledging that often the parties “simply describe to the judicial officer the 11 nature of their evidence; they do not actually produce it,” while simultaneously 12 acknowledging a court’s discretion to insist on direct testimony). 13 C. Massachusetts 14 Following the federal example, in 1994 the Massachusetts Legislature enacted {51} 15 new procedures to permit pretrial detention of proven dangerous defendants in 16 prosecutions for designated felony and domestic abuse cases. See 1994 Mass. Acts 17 614, 617, now codified as Mass. Gen. Laws Ann. ch. 276, § 58A(3) (West 2017) 18 (providing that upon motion by the prosecutor and after a hearing, if a judge “finds 21 1 by clear and convincing evidence that no conditions of release will reasonably assure 2 the safety of any other person or the community” in the designated categories of 3 prosecution, the judge “shall order the detention of the person prior to trial”). There 4 was no constitutional impediment to this statutory reform because the Massachusetts 5 Constitution, like the United States Constitution and unlike the Pennsylvania model, 6 contained a protection against excessive bail but no absolute right to pretrial release. 7 See Mass. Const., Declaration of Rights Art. XXVI (“No magistrate or court of law, 8 shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or 9 unusual punishments.”). 10 {52} The Massachusetts pretrial detention statute, like the D.C. Act and the Federal 11 Act, was promptly subjected to a court challenge. See Mendonza v. Commonwealth, 12 673 N.E.2d 22, 35 (Mass. 1996) (upholding the constitutionality of detaining a 13 defendant on clear and convincing proof of dangerousness). The Supreme Judicial 14 Court in Mendonza also addressed a challenge to the provision of Section 58(A)(4), 15 see 1994 Mass. Acts 617-18, that allows reliance on hearsay in pretrial detention 16 hearings and provides that “[t]he rules concerning admissibility of evidence in 17 criminal trials shall not apply to the presentation and consideration of information at 18 the hearing.” See Mendonza, 673 N.E.2d at 31-32. 22 1 {53} Noting that the United States Supreme Court had upheld the “analogous 2 [f]ederal procedure” against constitutional attack, the Mendonza Court concluded that 3 the Massachusetts statutory guarantees of the rights of the defense to cross-examine 4 any witnesses the prosecution does call and to offer hearsay and other information, 5 including witnesses, were sufficient to comply with due process requirements. 6 Mendonza, 673 N.E.2d at 32 (citing Salerno, 481 U.S. at 751-52). 7 {54} While Mendonza settled the lawfulness of considering hearsay information in 8 a detention hearing, it did not directly address whether a detention order could be 9 entered without any live testimony at all. That question was directly answered in 10 Abbott A. v. Commonwealth, 933 N.E.2d 936 (Mass. 2010), which upheld the 11 exclusive use of nontestimonial evidence that “bore substantial indicia of reliability 12 . . . to warrant a finding of dangerousness.” Id. at 946-47. 13 D. Ohio 14 Ohio faced a greater challenge than the federal government and Massachusetts {55} 15 in authorizing pretrial detention of dangerous defendants. Since its admission to the 16 Union, the Ohio Constitution had tracked the Pennsylvania model in guaranteeing 17 that “all persons shall be bailable by sufficient sureties, unless for capital offenses, 18 where the proof is evident or the presumption is great.” Ohio Const. of 1803, Art. 23 1 VIII, § 12; Smith v. Leis, 2005-Ohio-5125, 835 N.E.2d 5, ¶¶ 18-20; see also State ex 2 rel. Jones v. Hendon, 609 N.E.2d 541, 543 (Ohio 1993) (reaffirming that Section 9, 3 Article I of the Ohio Constitution as worded at that time “guarantee[d] . . . an absolute 4 right to bail” in noncapital cases); Locke v. Jenkins, 253 N.E.2d 757, 757 (Ohio 1969) 5 (stating that “[t]he right to bail under that section is absolute, the only exception being 6 for capital offenses. There is no discretion in the trial court in such matters.”). 7 {56} As a result of that constitutional guarantee, Ohio had to amend its constitution 8 before it could promulgate any pretrial detention procedures in noncapital cases. In 9 1997, the Ohio Legislature proposed and the voters passed a constitutional 10 amendment to add new pretrial detention authority to Section 9, Article 1 “for a 11 person who is charged with a felony where the proof is evident or the presumption 12 great and where the person poses a substantial risk of serious physical harm to any 13 person or to the community.” 1997 Ohio Laws H.J. Res. No. 5; 1997, 147 Ohio Laws 14 Part IV, 9014, 9016; Ohio Const. art. I, § 9. 15 {57} Subsequent statutory enactments specified enumerated felonies for which a 16 defendant could be detained and, as have laws in other pretrial detention hearing 17 jurisdictions, provided that “rules concerning admissibility of evidence in criminal 18 trials do not apply to the presentation and consideration of information at the hearing” 24 1 and that the court “shall consider all available information regarding” the factors 2 relevant to the defendant’s dangerousness. Ohio Rev. Code Ann. § 2937.222(A), (C) 3 (West 2017). 4 {58} Although the Ohio appellate courts have not yet squarely addressed the extent 5 to which live witnesses could be required under their detention laws, appellate 6 affirmances of detention decisions have included cases in which witnesses personally 7 testified and in which they did not. See, e.g., State v. Urso, 11th Dist. Trumbull No. 8 T-0042, 2010-Ohio-2151, ¶¶ 4, 27, 77 (affirming a detention decision based on 9 testimony of an investigating officer who summarized facts of the instant case and of 10 the defendant’s dangerous criminal history, primarily on the basis of hearsay 11 documents), ¶ 70 (characterizing the evidence as not “weak,” as contended by the 12 defendant, “but rather [as] overwhelming”); State v. Foster, 10th Dist. Franklin No. 13 AP-523, 2008-Ohio-3525, ¶ 8 (affirming a detention decision where the evidentiary 14 record consisted of proffered representations and summaries by both sides and 15 observing that the statute might “under other circumstances call for a more elaborate 16 evidentiary hearing” but that “the facts of this case lend themselves to the approach 17 taken”). 18 E. New Jersey 25 1 {59} New Jersey is the most recent jurisdiction, other than New Mexico, to provide 2 authority for courts to deny pretrial release to dangerous defendants following a 3 hearing. Its comprehensive bail reforms “changed the landscape of the State’s 4 criminal justice system relating to pretrial release” by moving “away from heavy 5 reliance on monetary bail,” granting judges “the authority to detain defendants prior 6 to trial if they present a serious risk of danger, flight, or obstruction,” and releasing 7 on nonmonetary conditions “[d]efendants who pose less risk.” State v. Robinson, 160 8 A.3d 1, 4 (N.J. 2017). 9 {60} The New Jersey Constitution, like the old Pennsylvania model, guaranteed that 10 “[a]ll persons shall, before conviction, be bailable by sufficient sureties, except for 11 capital offences, when the proof is evident or presumption great.” See N.J. Const. of 12 1844, art. I, ¶ 10; see also N.J. Const. of 1947, art. I, ¶ 11. 13 {61} Following New Jersey’s legislative abolition of capital punishment in 2007, all 14 defendants who posted bail had a constitutional right under that provision to be 15 released before trial. See Robinson, 160 A.3d at 5. The result was that judges had to 16 release defendants “who posed a substantial risk of flight or danger to the 17 community” while jailing “poorer defendants accused of less serious crimes, who 18 presented minimal risk,” simply because they could not afford monetary bail. Id. 26 1 {62} In 2013, the New Jersey Supreme Court created a broad-based committee to 2 study the need for reforms, with representation “from all three branches of state 3 government including the Attorney General, Public Defender, private attorneys, 4 judges, court administrators, and representatives of the Legislature and the 5 Governor’s Office.” Robinson, 160 A.3d at 6 (internal quotation marks and citation 6 omitted). A key focus of the committee’s recommendations the following year was 7 to move from a resource-based, or money-based, system of release and detention to 8 a risk-based system that relies on individualized evidence of danger or flight risk. 9 Joint Committee on Criminal Justice, Report (March 10, 2014) at 2-4, available at 10 https://www.judiciary.state.nj.us/courts/assets/criminal/finalreport3202014.pdf (last 11 visited January 5, 2017). As the committee recognized, in order to accomplish that 12 shift it would be necessary to amend the state constitution. Id. at 68. 13 {63} In 2014, the New Jersey Legislature passed and voters adopted an amendment 14 to the New Jersey Constitution that was a key to the ability to move from a money15 based system of pretrial release and detention to one based on evidence of risk. 16 Robinson, 160 A.3d at 6. It provided that a court could deny release if it found that 17 no “conditions would reasonably assure the person’s appearance in court when 18 required, or protect the safety of any other person or the community, or prevent the 27 1 person from obstructing or attempting to obstruct the criminal justice process.” N.J. 2 Const. art. 1, ¶ 11. In addition, the amendment provided that “[i]t shall be lawful for 3 the Legislature to establish by law procedures, terms, and conditions applicable to 4 pretrial release and the denial thereof authorized under this provision.” Id. 5 {64} Pursuant to this new authority, new sections of the New Jersey Criminal Justice 6 Act addressing pretrial release and detention, N.J. Stat. Ann. §§ 2A:162-15 to -26 7 (West 2017), and new provisions in the New Jersey Supreme Court rules regulating 8 pretrial detention procedures, N.J. Rule 3:4A (West 2017), took effect on January 1, 9 2017. Like other courts before them, the New Jersey appellate courts quickly found 10 themselves considering the permissible modes of proof in their new detention 11 hearings. 12 {65} At 1:08 a.m. on the very day the new statutes and rules became effective, Amed 13 Ingram, a convicted felon, was arrested on a number of serious firearm charges. State 14 v. Ingram, 165 A.3d 797, 799-800 (N.J. 2017). The State moved for detention under 15 the new laws, relying at the hearing on nontestimonial evidence consisting of “the 16 complaint-warrant, the affidavit of probable cause, the PSA [risk-based public safety 17 assessment], the PLEIR [preliminary law enforcement incident report], and 18 defendant’s criminal history.” Id. at 800. 28 1 {66} The defendant appealed the resulting detention order, arguing that allowing the 2 prosecutor to proceed by a nontestimonial proffer alone violated the defendant’s 3 constitutional due process rights as well as the detention statutes. Id. at 801. Both the 4 intermediate appellate court and the New Jersey Supreme Court affirmed the decision 5 of the trial court, agreeing that neither the wording of the detention statutes nor 6 principles of constitutional due process require testimony from a live witness at every 7 detention hearing. Id. at 801, 809-10. As had courts in other jurisdictions facing the 8 issue, the New Jersey Supreme Court confirmed that “the State is not obligated to call 9 a live witness at each detention hearing” but that “the trial court has discretion to 10 require direct testimony if it is dissatisfied with the State’s proffer.” Id. at 809-10. 11 F. New Mexico 12 New Mexico’s release and detention reforms came shortly after the New Jersey {67} 13 reforms. After this Court issued Brown in 2014, we took the first step toward 14 methodically studying improvement of our pretrial justice practices in light of the 15 “wave of bail reform” now taking place in the United States, Brown, 2014-NMSC16 038, ¶ 36, by creating the Court’s Ad Hoc Pretrial Release Committee. See New 17 Mexico Supreme Court order, February 25, 2015 (No. 15-8110). The Committee 18 included retired Dean and Professor Emeritus Leo M. Romero of the University of 29 1 New Mexico School of Law as chair and a broad-based representation of experienced 2 state and federal judges, prosecutors, defense attorneys, the New Mexico Senate and 3 House of Representatives judiciary committees, the Attorney General’s office, 4 detention centers, and the commercial bail industry and was tasked with making 5 recommendations it deemed “necessary to revise the rules and policies governing 6 pretrial release in criminal proceedings in New Mexico state courts.” Id. 7 {68} The Committee, like similar bodies in other states, determined that public 8 safety and the equal administration of justice were ill-served by our historical reliance 9 on the ability to afford a secured bond as the determining factor in whether an 10 accused defendant was entitled to be released pending trial, and that pretrial release 11 decisions should instead focus on evidence-based assessments of individual risks of 12 danger or flight. 13 1. The November 2016 Constitutional Amendment 14 One of the first recommendations made by the Committee was to follow the {69} 15 recent Ohio and New Jersey examples and seek an amendment of the antiquated right16 to-bail provisions of our state constitution to replace the money-based system of 17 pretrial release with an evidence-of-risk-based system by giving judges new lawful 18 authority to deny release altogether to defendants who pose unacceptable risks of 30 1 public danger or flight, whether or not they can afford a bail bond. 2 {70} The original proposal submitted by the New Mexico Supreme Court in 2015 3 to the Legislature’s interim Courts, Corrections and Justice Committee was based on 4 federal and state reforms elsewhere. That proposal would have added language to the 5 Pennsylvania-model right-to-bail provisions in Article II, Section 13 of the New 6 Mexico Constitution to provide that bail may be denied pending trial if, after a 7 hearing, the court finds by clear and convincing evidence that no release conditions 8 would reasonably ensure the appearance of the person as required or protect the safety 9 of any other person or the community and that no person otherwise eligible for 10 pretrial release could be detained solely because of financial inability to post a money 11 or property bond. 12 {71} The Court’s original proposed language was amended during the course of the 13 legislative process to restrict judicial detention authority over dangerous defendants 14 to judges in courts of record, which currently by statute does not include courts below 15 the district courts; to permit detention only in felony cases; to require a prosecutorial 16 request before the court may consider pretrial detention of a dangerous defendant; to 17 textually place the burden of proving dangerousness on the prosecution; to remove 18 any judicial authority to deny bail outright to nondangerous defendants who pose only 31 1 a flight risk; and to add an explicit right to prompt judicial consideration of a motion 2 alleging that a defendant cannot meet a particular amount of secured bond that a court 3 has imposed. 4 {72} The resulting version, passed by the Legislature in the 2016 Regular Session 5 as Senate Joint Resolution 1 and subsequently approved by 87% of New Mexico 6 voters casting ballots on the issue in the November 2016 general election, amended 7 Article II, Section 13 with the following provisions: 8 9 10 11 12 13 14 15 16 17 18 19 20 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. 21 S.J.R. 1, 52nd Leg., 2nd Sess. (N.M. 2016), final version, available at 22 https://www.nmlegis.gov/Sessions/16%20Regular/final/SJR01.pdf (last visited 23 January 5, 2018); N.M. Const. art. II, § 13 (amendment effective November 8, 2016). 24 2. The July 2017 Procedural-Rule Amendments 32 1 {73} At the time the rulings were made in the Salas and Harper detention hearings, 2 all the participants were learning how to apply the new detention authority provided 3 by the constitutional amendment. This Court had not completed the process of 4 seeking and considering input on proposals from the Committee and others for 5 procedural rule changes to regulate compliance with the constitutional requirements. 6 See Albuquerque Rape Crisis Ctr. v. Blackmer, 2005-NMSC-032, ¶ 7, 138 N.M. 398, 7 120 P.3d 820 (discussing state law establishing that under the New Mexico 8 Constitution the Supreme Court has the ultimate responsibility for promulgating rules 9 relating to judicial procedures). Both Petitioner and Respondent were necessarily 10 working with broad constitutional concepts and without the more detailed procedural 11 guidance that would be provided by our subsequent bail rule amendments, issued in 12 June 2017 with an effective date of July 1, 2017. Because any future detention 13 proceedings must comply not only with the broad requirements of the constitution but 14 also with the new court rules, we briefly summarize those provisions here. 15 {74} While the constitutional amendment required few changes in Rule 5-401 16 NMRA (amendment effective July 1, 2017), which regulates release decisions and 17 since its original promulgation in 1972 (see Brown, 2014-NMSC-038, ¶ 37) has 18 followed federal law in requiring nonfinancial release conditions unless financial 33 1 security is found necessary to assure a particular defendant’s court appearance (see 2 State v Gutierrez, 2006-NMCA-090, ¶ 16, 140 N.M. 157, 140 P.3d 1106), the new 3 constitutional detention authority required promulgation of new procedural rules to 4 guide its application. 5 {75} Only the district courts now have authority to enter detention orders, at least 6 until and unless the Legislature designates any other courts as courts of record for 7 detention hearings, and accordingly it was necessary to create a new district court 8 pretrial detention process in our Rules of Criminal Procedure for the District Courts. 9 See Rule 5-409 NMRA (effective July 1, 2017). 10 {76} Rule 5-409(B) provides for filing and service of motions to detain by the 11 prosecution and of any responses by the defendant and requires notice of the 12 detention request to the district court with detention authority, to any other courts in 13 which the case may otherwise be pending, and to any detention centers with custody 14 of the defendant. All release authority of any court other than the district court and 15 of detention centers is immediately terminated pending the district court disposition 16 of the detention motion, see Rule 5-409(C), (E)(1), subject to a requirement that the 17 lower court ensure that a probable cause determination has been made in compliance 18 with County of Riverside v. McLaughlin, 500 U.S. 44, 47, 56 (1991). See Rule 5- 34 1 409(C) & committee cmt.; Rule 6-203 NMRA; Rule 7-203 NMRA. 2 {77} Rule 5-409(F)-(H) provides guidance for the detention hearing itself, including 3 expedited time limits, discovery of reasonably available evidence, presentation of 4 evidence by both prosecution and defense, and resulting findings by the court. During 5 the pretrial detention hearing, “[t]he defendant has the right to be present and to be 6 represented by counsel[,] . . . to testify, to present witnesses, to compel the attendance 7 of witnesses, to cross-examine witnesses who appear at the hearing, and to present 8 information by proffer or otherwise.” Rule 5-409(F)(3). 9 {78} If the district court denies the state’s motion for pretrial detention, it must 10 articulate what it found to be insufficient. Rule 5-409(H) (“The court shall file written 11 findings of the individualized facts justifying the denial of the detention 12 motion . . . .”) Alternatively, if the district court grants the state’s motion and detains 13 the defendant, it must articulate in writing the “individualized facts justifying the 14 detention . . . .” Rule 5-409(G). 15 {79} If the court orders detention, Article II, Section 13 of the New Mexico 16 Constitution as well as Rule 5-409(L), Rule 5-405(F) NMRA (amendment effective 17 July 1, 2017), and Rule 12-204 NMRA (amendment effective July 1, 2017) provide 18 for an expedited appeal. 35 1 {80} There is nothing in the text of the rules or their legislative history that would 2 require live witnesses in every case or that otherwise would limit the discretion of the 3 court in relying on information that it may find reliable and helpful. In fact, Rule 54 409(F)(5) now explicitly confirms that in detention hearings the formal rules of 5 evidence “shall not apply to the presentation and consideration of information.” This 6 provision is consistent with our Rules of Evidence, which were in effect at the time 7 of the detention hearings below and that have long provided that the rules “do not 8 apply to . . . considering whether to release on bail or otherwise.” Rule 119 1101(D)(3)(e) NMRA. 10 {81} To provide even more clarity, the published commentary to new Rule 5- 11 409(F)(5) specifically cites precedents from other jurisdictions approving the use of 12 sound judicial discretion in assessing the reliability and accuracy of information 13 presented in support of detention, whether by proffer or direct proof, rather than the 14 technical formalities of trial evidence rules. As the New Jersey Supreme Court noted 15 in Robinson, 160 A.3d at 15, in addressing the similar New Jersey detention 16 procedures, “the focus is not on guilt, and the hearing should not turn into a mini17 trial.” 18 {82} Our court rules simply do not impose any live witness limitations on the 36 1 information considered at a pretrial detention hearing. We therefore address whether 2 there are other federal or state constitutional constraints that might impose different 3 requirements. 4 3. Federal Constitutional Law 5 The federal precedents previously discussed in this opinion should put to rest {83} 6 any question whether the United States Constitution imposes any blanket requirement 7 that live witnesses must testify at pretrial detention hearings. 8 {84} Salerno, 481 U.S. at 751, authoritatively disposed of general federal due 9 process attacks on the kind of detention-for-dangerousness authority that is now part 10 of both federal and New Mexico law: “When the Government proves by clear and 11 convincing evidence that an arrestee presents an identified and articulable threat to 12 an individual or the community, we believe that, consistent with the Due Process 13 Clause, a court may disable the arrestee from executing that threat.” 14 {85} The United States Supreme Court has never directly addressed the issue 15 whether live witnesses are required at detention hearings, but decades of federal 16 circuit and district court opinions, as well as state appellate decisions, have 17 consistently answered that question in the negative, as discussed earlier in this 18 opinion. 37 1 4. New Mexico Constitutional Law 2 Because the United States Constitution does not mandate live testimony in {86} 3 pretrial detention hearings, our remaining task is to consider whether the New Mexico 4 Constitution imposes more expansive requirements in state detention proceedings. 5 See State v. Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1 (“Under the 6 interstitial approach, the court asks first whether the right being asserted is protected 7 under the federal constitution. If it is, then the state constitutional claim is not 8 reached. If it is not, then the state constitution is examined.”). 9 {87} In language substantively indistinguishable from that of the Fourteenth 10 Amendment to the United States Constitution, Article II, Section 18 of the New 11 Mexico Constitution states, “No person shall be deprived of life, liberty or property 12 without due process of law; nor shall any person be denied equal protection of the 13 laws.” As this Court has observed, “due process is a rather malleable principle which 14 must be molded to the particular situation, considering both the rights of the parties 15 and governmental interests involved.” State v. Valdez (In re Valdez), 1975-NMSC16 050, ¶ 13, 88 N.M. 338, 540 P.2d 818. “The amount of process due depends on the 17 particular circumstances of each case.” State ex rel. CYFD v. Pamela R.D.G. (In re 18 Pamela A.G.), 2006-NMSC-019, ¶ 12, 139 N.M. 459, 134 P.3d 746. 38 1 {88} We have previously recognized that the Due Process Clause of the New 2 Mexico Constitution requires that a defendant’s protections at a pretrial detention 3 hearing include “the right to counsel, notice, and an opportunity to be heard.” State 4 v. Brown, 2014-NMSC-038, ¶ 20 (analyzing the limited detention authority in Article 5 II, Section 13 of the New Mexico Constitution before its 2016 amendment). Due 6 process requires a meaningful opportunity to cross-examine testifying witnesses or 7 otherwise challenge the evidence presented by the state at a pretrial detention hearing. 8 State v. Segura, 2014-NMCA-037, ¶¶ 24-25, 321 P.3d 140. 9 {89} Counsel for Respondent Judge Whitaker relies on Segura and State v. Guthrie, 10 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904, to contend that due process requires 11 presentation of live witness testimony and a right of personal confrontation at a 12 pretrial detention proceeding. But those cases do not establish any such bright-line 13 requirements. 14 {90} In Segura, the defendant allegedly violated his pretrial conditions of release. 15 2014-NMCA-037, ¶¶ 1, 5. The district court revoked his release and ordered him into 16 custody without providing notice of the revocation proceeding, the opportunity to 17 examine witnesses who actually testified at the hearing, and the opportunity to 18 present evidence in opposition to detention. Id. ¶¶ 6, 24. The Court of Appeals 39 1 appropriately held that the defendant’s due process rights were violated. Id. ¶ 25. But 2 Segura did not hold that the state must call live witnesses in order for a defendant to 3 have a meaningful opportunity to challenge the state’s evidence. With particular 4 relevance to the issues before us, Segura simply stands for the proposition that when 5 the state does present the direct testimony of a witness at a hearing, due process 6 requires the opportunity to cross-examine. Id. ¶¶ 24-25. 7 {91} In Guthrie, we addressed what process is due to a defendant in a probation 8 revocation hearing. 2011-NMSC-014, ¶¶ 1-2. Significantly, we held that live 9 testimony of probation officers or other adverse witnesses “is not always required 10 during probation revocation hearings” and that “[t]he trial court should focus its 11 analysis on the relative need for confrontation to protect the truth-finding process and 12 the substantial reliability of the evidence.” Id. ¶¶ 12, 43. Guthrie specifically 13 approved the use of “conventional substitutes for live testimony, including affidavits, 14 depositions, and documentary evidence” in probation revocation hearings as long as 15 the “evidence offered has particular indica of accuracy and reliability.” Id. ¶¶ 13, 20 16 (emphasis, internal quotation marks, and citations omitted). We stressed that “due 17 process is flexible and calls for such procedural protections as the particular situation 18 demands” and that “not all situations calling for procedural safeguards call for the 40 1 same kind of procedure.” Id. ¶ 11 (emphasis, internal quotation marks, and citation 2 omitted). 3 {92} No New Mexico precedent has ever held that the New Mexico Constitution 4 requires live witnesses in pretrial release or detention hearings even though some 5 forms of pretrial detention, such as in “capital offenses when the proof is evident or 6 the presumption great,” have always been permitted by Article II, Section 13 of the 7 New Mexico Constitution. From the time when this Court promulgated the New 8 Mexico Rules of Evidence in 1973, based almost wholly on the then-proposed 9 Federal Rules of Evidence, both the New Mexico rules and the federal rules have 10 specifically provided that the rules of evidence do not apply in considering “whether 11 to release on bail or otherwise.” Fed. R. Evid. 1101(d)(3); Rule 11-1101(D)(3)(e); see 12 State v. Martinez, 2008-NMSC-060, ¶ 25, 145 N.M. 220, 195 P.3d 1232 (observing 13 that the New Mexico rules “were patterned after . . . the proposed Federal Rules of 14 Evidence”). 15 {93} While the authority of a New Mexico court to detain a defendant based on a 16 finding of dangerousness is new, our courts have routinely made pretrial release and 17 bail decisions on the basis of recorded materials, proffers, and other nontestimonial 18 information with no appellate decision ever suggesting constitutional infirmity in this 41 1 process. As discussed in Brown, 2014-NMSC-038, ¶¶ 28, 31, 35, these bail decisions 2 have often resulted in pretrial detention for defendants who could not afford the bail 3 amount set by the court. There is no principled reason why detaining arrestees 4 because they are a danger to the community, rather than because they lack money to 5 buy a bond, should require a different constitutional standard. 6 {94} Because the detention-for-dangerousness provisions of the New Mexico 7 Constitution were modeled in large part on federal detention statutes, using strikingly 8 similar language, the interpretation of our constitutional requirements can also be 9 informed by how federal courts have analyzed the same issue. See State v. Clements, 10 1988-NMCA-094, ¶ 15, 108 N.M. 13, 765 P.2d 1195 (looking to federal law in 11 interpreting a New Mexico rule with language similar to the federal rule); State v. 12 Weddle, 1967-NMSC-028, ¶ 8, 77 N.M. 420, 423 P.2d 611 (same), contested on other 13 grounds, Caristo v. Sullivan, 1991-NMSC-088, 112 N.M. 623, 818 P.2d 401. 14 {95} Our New Mexico Constitution and court rules relating to detention contain all 15 the procedural safeguards that the United States Supreme Court found 16 constitutionally sufficient in Salerno, including a detention hearing requiring a clear 17 and convincing showing of the need for detention and affording defendants the right 18 to counsel, to testify, to “cross-examine witnesses who appear at the hearing,” and to 42 1 respond to charges through live witnesses or “proffer or otherwise.” See 481 U.S. at 2 751-52. And as thoroughly discussed earlier, numerous federal courts have 3 consistently rejected the notion that due process requires live witnesses at detention 4 hearings. The federal law is both clear and persuasive, and we recognize no need to 5 create a different constitutional standard for due process in New Mexico detention 6 hearings. 7 {96} We emphasize that pretrial detention of an accused person, prior to assessing 8 individual guilt or innocence under the protections of constitutional due process, is 9 not to be imposed lightly. Salerno, 481 U.S. at 755 (“In our society liberty is the 10 norm, and detention prior to trial or without trial is the carefully limited exception.”); 11 Mendonza, 673 N.E.2d at 35 (cautioning that pretrial detention must not be permitted 12 on a “casual and untested” basis); Robinson, 160 A.3d at 14 (“Balanced against 13 important concerns for public safety are the defendants’ liberty interests.”). A 14 detention-hearing court must take into account both the personal rights of the accused 15 and the broader public interest as it makes a pretrial detention decision. 16 5. Determining Dangerousness 17 This Court has not been asked to reverse or affirm the particular decisions {97} 18 denying detention in Salas or Harper but merely to determine the appropriate modes 43 1 of testimony at detention hearings and to remand for new hearings in accordance with 2 our opinion. We will attempt to provide the requested guidance in general terms, 3 without prejudging their application to particular cases. 4 {98} Like other courts addressing the issue, we caution that judges are still required 5 to make reasoned judgments in evaluating evidentiary presentations. Making 6 judgments about the persuasiveness of evidence is a core function of being a judge. 7 While prosecutors may make proffers, tender documents and other exhibits, and ask 8 the court to consider information in court records, a court may find the weight of any 9 evidence, testimonial or nontestimonial, insufficient to meet the clear and convincing 10 standard for detention in particular cases. 11 {99} The first step in a detention hearing is to assess which information in any form 12 carries sufficient indicia of reliability to be worthy of consideration by the court. In 13 determining whether any information presented at a detention hearing contains indicia 14 of reliability, a court can consider, for example, whether the information is internally 15 consistent; whether it is credibly contested; whether it originates from or is conveyed 16 by suspect sources; and whether it is corroborated or supported by accounts of 17 independent observers, tangible evidence, a defendant’s statements or actions, other 18 sources, or other information. 44 1 {100} The court should then consider the extent to which that information would 2 indicate that a defendant may be likely to pose a threat to the safety of others if 3 released pending trial. While the goal of a pretrial detention hearing is not to impose 4 punishment for past conduct, Brown, 2014-NMSC-038, ¶ 52, a defendant’s past 5 actions and statements can provide a sound basis for justifiable evidentiary inferences 6 of likely future actions, which is the proper focus for the court and the parties under 7 the new constitutional detention authority. See Rule 5-401(C)(3)(a). 8 {101} Both law and behavioral science recognize that in anticipating human behavior, 9 “[o]ne of the predictive tools . . . is the consideration of one’s character traits based 10 on patterns of past conduct.” Martinez, 2008-NMSC-060, ¶¶ 16, 23 (summarizing 11 approaches to predicting behavior and discussing why the rules of evidence limit 12 using evidence of bad character at trial for policy reasons, despite its undeniable 13 “logical relevance”). Detention decisions, like release conditions, should not be based 14 categorically on the statutory classification and punishability of the charged offense. 15 But the particular facts and circumstances in currently charged cases, as well as a 16 defendant’s prior conduct, charged or uncharged, can be helpful in making reasoned 17 predictions of future dangerousness. The fact that a defendant has shown a propensity 18 for engaging in dangerous conduct in the past may be helpful in predicting whether 45 1 that behavior is likely to continue in the future. That is why we stated in Brown that 2 although “[n]either the Constitution nor our rules of criminal procedure permit a 3 judge to base a pretrial release decision solely on the severity of the charged offense,” 4 a judge is required “to make an informed, individualized decision about each 5 defendant.” Brown, 2014-NMSC-038, ¶ 52. In order to do so a judge must consider 6 all relevant information, including the conduct of a defendant in connection with the 7 charged offense, in determining the kind of evidence-based, instead of charge-based, 8 release conditions that would be reasonably necessary to assure return to court or to 9 assure the safety of others. See id. ¶ 55. 10 {102} Finally, the court must determine whether any pretrial release conditions it 11 could impose “will reasonably protect the safety” of others, as required by the new 12 standard in Article II, Section 13 of the New Mexico Constitution. District Court Rule 13 5-401(C), (D)(13), like its counterparts in our rules for courts of limited jurisdiction, 14 authorizes judges to impose release conditions that are “reasonably necessary to 15 ensure the appearance of the defendant as required and the safety of any other person 16 and the community.” See Rule 6-401(C) NMRA (providing the same authorization 17 in pretrial release considerations for the magistrate courts); Rule 7-401(C) NMRA 18 (same for the metropolitan courts); Rule 8-401(C) NMRA (same for the municipal 46 1 courts). In determining the adequacy of release conditions to protect public safety, it 2 may be particularly helpful to consider whether a defendant has engaged in dangerous 3 behavior while on supervised release or has refused to follow court-ordered 4 conditions of release in the past. 5 {103} It is not surprising that the New Mexico Constitution, applicable court rules, 6 and judicial precedents here and elsewhere all refer to the need for reasonableness in 7 pretrial release and detention decisions. As we pointed out in Brown, “there is no way 8 to absolutely guarantee that any defendant released on any pretrial conditions will not 9 commit another offense. The inescapable reality is that no judge can predict the future 10 with certainty or guarantee that a person will appear in court or refrain from 11 committing future crimes.” Brown, 2014-NMSC-038 ¶ 54. But to the extent that we 12 permit judges to take into account all helpful and reliable information in making those 13 predictions, we will reduce the margins of error. 14 6. Unlawful Use of Money Bail to Detain 15 In both the Salas and Harper detention orders the district court denied pretrial {104} 16 detention and then conditioned release on posting $100,000 bonds. Money bonds are 17 not light substitutes for principled pretrial detention. The lawful purpose of a money 18 bond is not to protect public safety but only to provide additional assurance that a 47 1 released defendant will return to court. See State v. Ericksons, 1987-NMSC-108, ¶ 2 6, 106 N.M. 567, 746 P.2d 1099. A posted money bond does nothing to protect 3 against commission of future crimes and cannot even be forfeited under New Mexico 4 statutes “for anything other than failure to appear.” State v. Romero, 2007-NMSC5 030, ¶ 3, 141 N.M. 733, 160 P.3d 914; see NMSA 1978, § 31-3-2(B)(2) (1993). This 6 inadequacy of money bonds to protect public safety is a major reason the Legislature 7 and New Mexico voters realized that a constitutional amendment containing a more 8 effective public safety mechanism was necessary. 9 {105} Although we need not speculate on the purpose for the six-figure bonds in the 10 two cases not before us for appellate review, courts have long recognized that we 11 “should not be ignorant as judges of what we know as [people].” Watts v. Indiana, 12 338 U.S. 49, 52, 55 (1949) (holding a coerced confession unconstitutional and 13 observing that our serious concerns about crime cannot be a justification for ignoring 14 “the safeguards which our civilization has evolved for an administration of criminal 15 justice”). It is common knowledge among judges and others who have worked in our 16 courts that in the vast majority of cases imposition of high-dollar bonds for any but 17 the most wealthy defendants is an effort to deny defendants the opportunity to 18 exercise their constitutional right to pretrial release. 48 1 {106} Setting a money bond that a defendant cannot afford to post is a denial of the 2 constitutional right to be released on bail for those who are not detainable for 3 dangerousness in the new due process procedures under the New Mexico 4 Constitution. If a court finds that a defendant is too dangerous to release under any 5 available conditions, the court should enter a detention order. If the court instead 6 finds that a defendant is entitled to release under Article II, Section 13 of the New 7 Mexico Constitution and Rule 5-409, the court must not use a money bond to impose 8 pretrial detention. Brown, 2014-NMSC-038, ¶ 53 (“Neither the New Mexico 9 Constitution nor our rules of criminal procedure permit a judge to set high bail for the 10 purpose of preventing a defendant’s pretrial release. . . . If a defendant should be 11 detained pending trial under the New Mexico Constitution, then that defendant should 12 not be permitted any bail at all.”); see also Bandy v. United States, 81 S. Ct. 197, 198 13 (1960) (“It would be unconstitutional to fix excessive bail to assure that a defendant 14 will not gain his freedom.”). We have explicitly recognized this constitutional 15 principle in the text of our rules. See Rule 5-401(E)(1)(c) (“The court shall not set a 16 secured bond that a defendant cannot afford for the purpose of detaining a defendant 17 who is otherwise eligible for pretrial release.”). 18 {107} Other jurisdictions have recognized this constitutional principle. As the 49 1 Massachusetts Supreme Judicial Court emphasized, “a judge may not consider a 2 defendant’s alleged dangerousness in setting the amount of bail, although a 3 defendant’s dangerousness may be considered as a factor in setting other conditions 4 of release.” Brangan v. Commonwealth, 80 N.E.3d 949, 963 (2017). The court noted 5 that if a defendant would pose a danger to the community under nonfinancial 6 conditions of release, the court should comply with its detention authority granted by 7 statute or constitution and court rules and by the accompanying due process 8 requirements. See id. at 963-64. But if a defendant does not pose a danger to the 9 community, the court should release the defendant under appropriate conditions. See 10 id. at 964-65; cf. Smith v. Leis, 2005-Ohio-5125, 835 N.E.2d 5, ¶¶ 1, 66 (holding that 11 imposition of a high-cash bond for the purpose of denying release of a defendant is 12 unconstitutional but observing that the state could move to detain in compliance with 13 the due process procedures in Ohio law). 14 {108} Following oral argument in this case, we announced our ruling from the bench, 15 outlining the principles now embodied in this opinion, and we entered a 16 contemporaneous written order granting the State’s petition for writ of superintending 17 control and remanding the Salas and Harper cases to the district court for action in 18 conformity with our oral ruling and written order. See New Mexico Supreme Court 50 1 order, April 12, 2017 (granting the petition and remanding). Those cases have not 2 come back before us for appellate review. 3 {109} We now confirm our contemporaneous rulings in this case. 4 III. CONCLUSION 5 We hold that neither the United States Constitution nor the New Mexico {110} 6 Constitution categorically requires live witness testimony at pretrial detention 7 hearings. Under our procedural rules, judges may consider all reasonably reliable 8 information, without regard to strictures of the formal rules of evidence, in 9 considering whether any pretrial release conditions will reasonably protect the safety 10 of any other person or the community. 11 {111} IT IS SO ORDERED. 12 13 ___________________________________ CHARLES W. DANIELS, Justice 14 WE CONCUR: 15 ___________________________________ 16 JUDITH K. NAKAMURA, Chief Justice 51 1 ___________________________________ 2 PETRA JIMENEZ MAES, Justice 3 ___________________________________ 4 EDWARD L. CHÁVEZ, Justice 5 ___________________________________ 6 BARBARA J. VIGIL, Justice 52