evidence as to each may warrant, he may bind over one or more and discharge the others. But the detainer of a defendant, who when presented demands an immediate hearing, may not properly be prolonged merely for the convenience which may result if his hearing should eventually be consolidated with that of other defendants who may subsequently be arrested and presented on the same charge. If at the conclusion of the preliminary hearing, the commissioner feels that a defendant should be discharged as to the particular offense complained of, but might be bound over on another charge, he may order the defendant detained pending the immediate preparation and filing of a new complaint, and after giving both sides an opportunity to present further testimony, he should dispose of the case under the complaint on the basis of all the evidence.

If, after a preliminary hearing, the defendant has been discharged and thereafter additional evidence is discovered, the defendant may, notwithstanding his previous discharge, be again complained against before the same commissioner, or any other commissioner, upon the same charge, and thereupon the same course of proceedings will ensue.

U. S. C., Title 28 (1948 Revision), § 1922, provides that in no case shall the fees of more than four witnesses be taxed against the United States in the examination of any criminal case before a United States commissioner, unless the materiality and importance of the testimony of the witnesses be first approved and certified to by the United States attorney.

BINDING OVER AND DISCHARGE

At the conclusion of a preliminary hearing, the commissioner should promptly announce his decision orally and immediately record his action in the appropriate space in his docket book. If he announces that the defendant is discharged, any warrant of arrest under which the defendant may have been presented is also discharged and the defendant may not be detained further thereon. In all cases in which a preliminary hearing is waived, the commissioner should note the waiver of hearing in his docket and the binding over proceeds as a matter of course.

Every case which results in a binding over will require the commissioner to make a decision embodied in an appropriate order as to the custody of the defendant pending arraignment and trial before the court. This is a matter of great importance since in many districts, and especially in cases in which the prosecution can proceed only on the indictment of a grand jury, a considerable time will elapse before the defendant can be arraigned.

If the defendant, while under arrest and not having been admitted to bail, is discharged, under the provisions of U. S. C., Title 18 (1948 Revision), § 4282, he is entitled, in the discretion of the court, to "transportation and subsistence to the place of his arrest, or, at his election, to the place of his bona fide residence if such cost is not greater than to the place of arrest." In such cases, however, an order of court is required for the payment. Good practice suggests that, in cases in which a released defendant will otherwise suffer substantial hardship, the commissioner before whom the proceeding is pending should advise the nearest district judge of the circumstances of the case in order that appropriate directions may be given immediately by the judge to the marshal. This provision applies to removal cases also.

BAIL

Every person arrested for a federal offense not punishable by death has the right to be admitted to bail. Even in a capital case a judge has discretion to admit to bail but this power is not given to a commissioner (Rule 46(a)(1)).

Admission to bail is accomplished by the official acceptance of an appearance, or bail bond, the object of which is solely to insure the appearance of the defendant-not to punish him. A form for appearance bond is appended to the Federal Rules of Criminal Procedure as Form No. 17, and generally this form should be followed with such expansion, if needed, as is discussed below under the heading of "Personal Sureties." Since the bond form ordinarily will not indicate the exact time when the defendant is expected to appear under it, it may be well for the commissioner when he approves the bond, to inform the defendant of the date and place of his required appearance, if that is known when the bond is approved.

TEMPORARY BAIL

A temporary appearance bond may be taken by the commissioner when he is unable to complete his hearings in the case at the time when the defendant is first presented to him after arrest: it is conditioned upon the appearance of the defendant before the commissioner at a specified place in accordance with the commissioner's orders and directions (see Form A. O. 98). Temporary appearance bonds with any accompanying collateral, including cash bail and liquid security, may be retained by the commissioner and upon their discharge any accompanying collateral, if not needed to support a final bond, should be returned directly to the owner by the commissioner,

who should, for his own protection, take and preserve a proper receipt therefor.

FINAL BAIL

A final appearance bond may be taken when the defendant is bound over to answer in the District Court: it is conditioned upon his appearance in that court in accordance with all orders and directions of the court (see Form A. O. 94). All final appearance bonds, with any accompanying collateral, including cash bail and liquid security, should be forwarded forthwith to the clerk of the court (Rule 5(c)), who upon appropriate order is authorized to return the collateral to the rightful owner upon the eventual discharge of the bonds without forfeiture (Rule 46(g)).

AMOUNT OF BAIL AND SECURITY THEREFOR

In every case (except capital cases) in which the defendant is detained the commissioner should determine and set the amount of bail whether the defendant desires or expects to furnish it or not (Rule 5(c) and Rule 46(a)(1) and (c)). The amount thus fixed should be stated as the penalty in any appearance bond which may be accepted, whether security for the appearance as hereinafter described is required or not (Rule 46(d)). The commissioner must next determine whether any security therefor should be required and, if so, whether the security proffered is sufficient (Rule 46(d) and (e)). However, the commissioner will not assume to exercise any of these powers in cases in which a judge has already acted.

All decisions as to the amount of bail and the necessity for or sufficiency of security for the appearance of the defendant should be made upon the independent judgment of the commissioner on the strength of such information and representations as may be made to him informally by representatives of the government on the one hand and by the defendant on the other hand. And especially in cases in which the defendant is without counsel the commissioner should take care that no unnecessary hardship is caused by these determinations.

If the commissioner is satisfied that the defendant, if released without security for his appearance, will nonetheless appear, the defendant even though his guilt is admitted or fully apparent may properly be released upon his own appearance bond without sureties or justification or other security. This practice is frequently called "release upon the defendant's own recognizance" and is accomplished by oral order of the commissioner upon the receipt of an appearance bond signed

by the defendant, but without surety or other collateral. Occasionally, and especially when the defendant is a minor, a surety such as a parent, guardian or next friend may be accepted without the disclosure of property by way of justification, thus furnishing some moral, as distinguished from financial, security for the required appearance. Information that the defendant has ties of family or of business which notwithstanding the pending charges he is not likely to abandon, will suggest the propriety of release upon the defendant's own recognizance or at most, bail of moderate dimensions.

However, in all cases the amount of bail and the quality of the security therefor must be such as, in the opinion of the commissioner, will insure the presence of the defendant as ordered, having regard for 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 and the character of the defendant (Rule 46(c)). Unless satisfied that the defendant will appear without security for his appearance, and especially when credibly informed that the defendant is habitually lawless or of transitory habits and is under serious charges which if sustained well may be expected to subject him to liability to a substantial sentence of confinement, the commissioner should fix bail at a substantial amount and require security reasonably adequate, in quality as well as in amount, to secure appearance.

CASH BAIL AND LIQUID COLLATERAL

If the commissioner believes that substantial security is required he may accept an appearance bond without surety if secured by liquid collateral having a value equal to the amount of bail fixed (Rule 46(d)). Liquid collateral may consist of cash, certified or cashiers' checks drawn to the order of the clerk of court, United States bonds and notes which are negotiable (U. S. C., Title 6, § 15), and savings bank books accompanied, if non-negotiable, by written order effective to empower the clerk of court to accomplish the liquidation of the account. United States Savings Bonds, under Treasury regulations, are non-negotiable even if accompanied by power of attorney, and hence not acceptable as bail. A description of any liquid collateral taken and notation of the ownership thereof should always be included in the appearance bond.

APPROVED CORPORATE SURETIES

In cases in which security is required but liquid collateral is lacking, a corporate surety approved as provided by law will furnish sufficient

security for the appearance without necessity for justification (Rule 46(e), U. S. C., Title 6, § § 6-14). The clerk of court will have a list of surety companies which have been authorized by the Secretary of the Treasury as acceptable surety on federal bonds.

PERSONAL SURETIES

Where security is required but neither liquid collateral nor an approved surety company is proffered, one or more personal sureties should be required and be compelled to "justify" (Rule 46(d)). This means a disclosure of ownership of specific property sufficient to show that the surety is good for the amount of the bond (Rule 46(e)). The “justification of sureties" attached to the appearance bond shown in form No. 17 appended to the Federal Rules of Criminal Procedure may, if necessary to satisfy the commissioner that the surety has fully "justified" and is good for the amount of the bond, be expanded to require the surety to show the ownership of real estate and its description, location (which generally should be in the commissioner's district), and assessed valuation, together with the amounts of mortgages or other incumbrances thereon, whether it is a homestead or otherwise exempt from execution, and any other data bearing on the financial responsibility of the surety including the extent of his liability on outstanding bail bonds and the nature and amount of his personal property and of his liabilities. In all such cases the form for appearance bond should be fully completed and the items of justification relied upon should be accurately recorded in order to reduce to a minimum the number of uncollectible judgments on forfeited bonds.

The commissioner's task in the process of justification is not one which requires him to leave his office. He may require that necessary information and evidence be brought to him. Persons seeking to justify may be sworn and the commissioner may act upon their testimony as to data affecting the title of property and outstanding incumbrances, including contingent liabilities on other outstanding bail bonds. In rural districts where bondsmen are personally known this may be sufficient, but generally, and especially in urban areas, good practice requires that a bondsman should submit at least some informal evidence as to title and value. A certified copy of the most recent assessment list, memorandum abstract, or complete abstract of title may be required if the circumstances warrant. However, under some circumstances, the most recent tax receipt will furnish sufficient clue as to title and value, at least when supplemented with the bondsman's oath as to underlying detail. All sureties whose responsibility is thus