SHOULD THE DEFENDANT TESTIFY AT HIS DETENTION HEARING?
While arguably a defendant’s testimony at his bail hearing would not be admissible at his trial on the theory that an accused should not be required to forfeit one constitutional right (Eighth Amendment right to bail) in order to exercise another (Fifth Amendment privilege at trial); Simmons v. U.S., 390 U.S. 377 (1968) (dealing with testimony at a suppression hearing). At least one court has held that because a Fourth Amendment Suppression Hearing differs from bail proceedings “testimony presented by a defendant to meet bail requirements may be admissible against him at trial”, at least where he was appropriately warned of such. U.S. v. Dohm, 618 F.2d 1169, 1174 (5th Cir. 1981) (holding that because no warnings were given, the defendant’s bail hearing testimony was not admissible against him at trial).
“The Simmons rationale is inapplicable in this factual setting…Testimony at a Fourth Amendment suppression hearing differs in nature from that required at a bail bond hearing. In the former, the testimony given must necessarily go to the ultimate facts and issues in the case. A defendant at a bail bond hearing need not divulge the facts in his case in order to receive the benefits of the Eighth Amendment right to bail. We conclude that when proper warnings are given, testimony presented by a defendant to meet bail requirements may be admissible against him at trial. Dohm at 1173- 74.
It would appear that putting your client on the stand at a bail hearing has
become risky business, and a disclaimer would be appropriate setting out the fact that you are doing so only to assert your client’s Eighth Amendment right to bail and not with any intent or desire to waive and in fact that you reassert, your Fifth Amendment right at trial.