Brief Brief Wheeler v. State, 160 Md.App. 566 (2005)
Issue: Bond hearing preventative detention.
“It is often stated that “[t]he setting of bail is within the sound discretion of the trial court.” See e.g., Sykes v. Warden, 201 Md. 662, 662, 93 A.2d 549, cert. denied, 345 U.S. 937, 73 S.Ct. 799, 97 L.Ed. 1364 (1953). While that statement is accurate with respect to the judicial officer’s selection of appropriate conditions of release, the decision to impose “preventive detention” does not involve the exercise of “discretion.” As stated above, “preventive detention” based on the fact that the defendant poses a danger, requires proof of that fact by “clear and convincing” evidence. Unless persuaded by clear and convincing evidence that the defendant is a danger to another person or to the community, a judicial officer does not have “discretion” to conclude that the defendant is too dangerous to be released pending trial.” Id. at 580.
Practitioner Note: To be clear and convincing, evidence should be “clear” in the sense that it is certain, plain to the understanding, and unambiguous and “convincing” in the sense that it is so reasonable and persuasive as to cause one to believe it.