R.I. Super. Ct. R. Crim. P. 46

As amended through June 7, 2024

Rule 46 - Release on Bail.

(a)Right to Bail.

(1)Before and After Conviction. In accordance with the Constitution and laws of this State, a defendant shall be admitted to bail before conviction and may be admitted to bail after conviction pending appeal.

(2)Extradition Proceedings. A person arrested in connection with an extradition proceeding may in the discretion of the court be admitted to bail except where the defendant is charged with an offense punishable by death or life imprisonment under the laws of the demanding state.

(b)Bail for Witness. If upon a hearing it appears that the testimony of a person is material in any criminal proceeding and if it is shown that it may become impracticable to secure the person's presence by subpoena, the court may require the person to give bail for the person's appearance as a witness in an amount fixed by the court. If the person fails to give bail, the court may commit the person pending final disposition of the proceeding in which the testimony is needed, may order the person's release if the person has been detained for an unreasonable length of time, and may modify at any time the requirement as to bail.

(c)Terms. If the defendant is admitted to bail, the terms thereof shall be such as in the judgment of the court will insure the presence of the defendant, having regard to the nature and circumstances of the offense charged, the weight of the evidence against the defendant, the financial ability of the defendant to give bail, the character of the defendant, and the policy against unnecessary detention of defendants pending trial.

(d)Form and Conditions. A defendant required or permitted to give bail shall execute a recognizance in such form as may be prescribed to assure for the defendant's appearance, for the defendant's good behavior, and that the defendant will keep the peace. The court, having regard to the considerations set forth in subdivision (c), may require one (1) or more sureties, may authorize the acceptance of cash or bonds or other security in an amount equal to or less than the face amount of the recognizance, or may authorize the release of the defendant without security upon the defendant's written agreement to appear at a specified time and place and upon such conditions as may be prescribed to insure the defendant's appearance.

(e)Violation of Terms of Recognizance. In addition to other remedies provided for in this rule or otherwise provided for by law, violation of the terms of a recognizance may be punished as a contempt of court.

(f)Justification of Sureties. Every surety, except a corporate surety authorized by law to give a recognizance, shall justify by affidavit or oral testimony under oath and may be required to describe the property by which the surety proposes to justify and the encumbrances thereon, the number and amount of other bonds and undertakings for bail entered into by he surety and remaining undischarged and all he surety's other liabilities. No recognizance shall be approved unless the surety thereon appears to be qualified.

(g)Revocation of Bail or Personal Recognizance.

(1)Revocation. In addition to other remedies provided for in this rule or otherwise provided for by law, violation of the bail or personal recognizance conditions may result in the defendant's bail or personal recognizance being revoked and may result in the defendant being ordered held without bail at the Adult Correctional Institutions.

(2)Hearing. The court shall not revoke a defendant's bail or personal recognizance except after a hearing at which the defendant shall be afforded the opportunity to be present and apprised of the grounds on which such action is proposed. If the court finds by a preponderance of the evidence that a violation of the bail or personal recognizance conditions has occurred, the defendant may be admitted to bail or held without bail pending such hearing, as the court may deem reasonable. Prior to the hearing the State shall furnish the defendant and the court with a written statement specifying the grounds upon which revocation is sought.

(3)Date for readmission to bail to be set. If the court revokes the defendant's bail or personal recognizance, the court shall set the date for trial. If the case has not been brought to trial or otherwise adjudicated after ninety (90) days, the defendant may move to be readmitted to bail.

(4)Alternative remedies. Alternatively, in lieu of revoking the defendant's recognizance, the court may, in appropriate cases where a violation of the bail and personal recognizance conditions has been proven or admitted, require the defendant to give a new recognizance, with or without surety or sureties, in place of the one already given, with new or additional conditions, as to the court may seem reasonable.

(h)Forfeiture.

(1)Declaration. If there is a breach of condition of a recognizance, the court upon motion of the attorney for the State shall declare a forfeiture of the bail.

(2)Setting Aside. The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture.

(3)Enforcement. When a forfeiture has not been set aside, the court shall on motion enter a judgment of default and execution may issue thereon. By entering into a recognizance the obligors submit to the jurisdiction of the court and irrevocably appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served. Their liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the obligors to their last known addresses.

(4)Remission. After entry of such judgment, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (2) of this subdivision.

(5)Settlement. The Attorney General may settle with any obligor liable upon a forfeited recognizance upon such terms and in such manner as the Attorney General shall deem most advantageous to the interest of the State.

(i) Exoneration. When the condition of the recognizance bond has been satisfied or the forfeiture thereof has been set aside or remitted or settled, the court shall exonerate the obligors and release any bail. A surety may be exonerated by a deposit of cash in the amount of the bond or by a timely surrender of the defendant into custody.

R.I. Super. Ct. R. Crim. P. 46

Last amended by Order dated June 22, 2017, effective 9/5/2017.

1972 Notes

This rule, which is patterned upon Federal Rule 46, is in substantial accord with existing Rhode Island bail procedures.

Subdivision (a) differs significantly from the federal rule. Paragraph (1) establishes a defendant's right to bail "in accordance with the Constitution and Laws" of Rhode Island both prior to and after conviction. The details of bail procedures are contained in the General Laws. See G.L. 1956 (1969 Reenactment), §§ 12-13-1 through 12-13-7 (bail pending trial); 12-22-3 through 12-22-6 (bail pending appeal from District Court to Superior Court); 12-19-1 and 12-22-12 (bail pending appeal from Superior Court to Supreme Court). Paragraph (2), which governs bail in extradition proceedings, is based on G.L. 1956 (1969 Reenactment), § 12-9-19; the federal rule does not contain a similar provision for extradition cases. Under long established Rhode Island practice, once a Governor's warrant of arrest has issued, it is customary not to bail the arrestee except in extraordinary circumstances. Rule 46 is not intended to alter that practice.

Subdivision (b), which is essentially the same as its federal counterpart, is in accord with current Rhode Island procedures. See G.L. 1956 (1969 Reenactment), § 12-13-1 5; § 12-13-14 (Supp.1970); Quince v. Langlois, 88 R.I. 438, 149 A.2d 349 (1959).

Subdivision (c) is essentially the same as its federal counterpart and reflects existing Rhode Island constitutional standards for setting terms of bail. See Benoit v. Langlois, 96 R.I. 129, 189 A.2d 805 (1963) (bail prior to conviction should be no greater than is necessary to secure the defendant's appearance for the trial and to commence sentence in the event of conviction). Under the Constitution an accused has a right to release on bail prior to conviction and the burden is upon the State to show the circumstances under which the right has been lost. Taglianetti v. Fontaine, 105 R.I. 596, 253 A.2d 609 (1969). The right to bail guaranteed by the Constitution does not exist pending appeal from conviction in the Superior Court, although bail may be granted in the discretion of the court. Quattrocchi v. Langlois, 100 R.I. 741, 219 A.2d 570 (1966); G.L. 1956 (1969 Reenactment), §§ 12-19-1 and 12-22-12.

Subdivision (d) is essentially the same as its federal counterpart. Under the rule the term "recognizance" is substituted for the term "bond." Also, the final sentence of the federal rule, prescribing the place where bail is to be deposited, is not contained in the Rhode Island rule. This subdivision is basically in accord with existing Rhode Island procedure (see G.L. 1956 (1969 Reenactment), § 12-13-8 ) except that under the rule the court will be authorized to accept security in an amount less than the face amount of the recognizance.

Subdivision (e), which has no counterpart in the federal rule, was included to provide the Court with an additional and effective means of enforcing the terms of a recognizance. Cf. 3 Wright, Federal Practice and Procedure, pp. 297-98(1969).

Subdivision (f) is in accord with current Rhode Island practice and is essentially the same as the federal rule, except that a surety will be permitted to justify by oral testimony as well as by affidavit.

Subdivision (g) is patterned upon its federal counterpart but contains two significant differences which bring it into accord with existing Rhode Island practice under G.L. 1956 (1969 Reenactment), §§ 12-13-16 and 12-13-17. Paragraph (1) authorizes the court to declare a forfeiture of bail for breach of a recognizance only upon motion of the prosecutor. In addition, paragraph 5 of the rule continues the practice of permitting the Attorney General to settle with obligors where a recognizance has been forfeited.

Subdivision (h) is essentially the same as its federal counterpart. The only Rhode Island statutory provision dealing with this question is G.L. 1956 (1969 Reenactment), § 12-13-19 which provides for discharge of a surety upon surrender of the defendant prior to default. See State v. McGuire, 16 R.I. 519, 17 A. 918 (1889).

Subdivision (i), which is patterned upon the federal rule, has no counterpart in the General Laws. This provision is believed a valuable addition to the Superior Court's supervisory powers over pending criminal proceedings; it will also aid in preventing unnecessary detention of defendants and witnesses and the hardships resulting therefrom. See, e.g., Quince v. Langlois, 88 R.I. 438, 149 A.2d 349 (1959).