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which he may have well been proved to be
innocent is wrong. The fact remains that
most people that are arrested are essen-
tially poor people. The bulk of these people
cannot afford the fees of a bondsman to
release them from prison. The bulk of these
people, there is no reason to keep in prison.
Once again, with the bulk of these people
there is a hardship in keeping them in
prison in that the man is usually the bread-
winner for his family and the family goes
without the breadwinner and it also goes
without the head of the household. The
man may be in prison anywhere from up
to three to four months, as all the attor-
neys here know, and then brought to trial
at which time the case is either nolle
prosequi because they figure he spent
enough time in jail already or else it re-
sults in acquittal. In any event, the man
is incarcerated for a period of time without
a trial. This simply shifts the burden on
the other foot. It makes it necessary for
the State to establish that the man must be
incarcerated or else he will not be avail-
able for trial.
Now, I point out to you that we do not
use the word "accused" for it is a simple
matter that you can do the same thing
with witnesses. This makes it a right, not
a privilege, to be released from incarcera-
tion without a trial.
THE PRESIDENT: Delegate Kiefer,
will you wait just a moment.
Delegate Grant, the Chair has a ques-
tion. I assume that this is intended to refer
only to a person awaiting trial for a crime,
is it? Is this correct?
DELEGATE GRANT: That is correct.
THE PRESIDENT: It does not say so.
I wonder if —
DELEGATE GRANT: It said a person
awaiting trial. This could be either a per-
son held as a material witness or else a
person being held as a prospective de-
fendant at the trial.
THE PRESIDENT: But not a person
awaiting trial of a civil case?
DELEGATE GRANT: No, not a person
awaiting trial of a civil case. Subject to
those exceptions in which there are civil
proceedings, which are criminal —
THE PRESIDENT: I just raised the
question to ask whether you think your
amendment ought to indicate that it is
not intended to be applicable in civil
proceedings.
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DELEGATE GRANT: No, Mr. Presi-
dent, I do not think it should be changed.
I can envision cases where you may have
a ne exeat writ issued if they would wish
to restrain a person. It would be a general
application.
THE PRESIDENT: For what purpose
does Delegate Gilchrist rise?
Delegate Grant, will you yield to a
question?
DELEGATE GRANT: Yes.
DELEGATE GILCHRIST: In whose
judgment is "restraint as necessary"
placed? Is this an ex post facto thing and
is this to be determined at the time and
in whose judgment?
THE PRESIDENT: Delegate Grant.
DELEGATE GRANT: It would be de-
termined by the person before whom the
person is brought to be incarcerated. In
other words, it is necessary when you are
arrested to be brought before either a
committing magistrate or a judge or some
other official. The same official that would
establish bond or other pre-trial restraint
would be the one who would judge this. It
would be subject, of course, to administra-
tion by the court by rule.
THE PRESIDENT: Delegate Gilchrist.
DELEGATE GILCHRIST: Would it also
be subject to appeal?
THE PRESIDENT: Delegate Grant.
DELEGATE GRANT: It would cer-
tainly be subject to appeal in the nature of
a writ of habeas corpus.
THE PRESIDENT: Delegate Kiefer.
DELEGATE KIEFER: Mr. President
and ladies and gentlemen of the Conven-
tion, the Committee on Personal Rights and
Preamble adopted as part of its recom-
mendations in R&P-1 the language that was
read to you by Delegate Grant. This was
the subject of a minority report which
turned out to be in a sense a majority re-
port because nine members of the Commit-
tee were on it. This was led by Delegate
Child, and I feel that, sir, I would like to
yield the floor to Delegate Child.
THE PRESIDENT: Delegate Child.
DELEGATE CHILD: Mr. President, we
already have in the bill of rights the pro-
vision that excessive bail shall never be
required. This would fix another bail
proposition, and it was exactly for that
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