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Raising a 'Substantial Question' - The Key to Unlocking the Door Under the 1984 Bail Reform Act

NCJ Number
Notre Dame Law Review Volume: 62 Issue: 2 Dated: (1987) Pages: 192-204
T W Cushing
Date Published
12 pages
Because the 1984 Bail Act restricts granting appeals to convicted offenders and defines an issue as raising a substantial question likely to result in reversal or an order for a new trial, all circuit courts should agree on a clear, uniform standard for interpreting this requirement.
The 1966 Bail Act, now reversed, denied bail only if a court ruled an issue on appeal as frivolous. The ninth and third circuit courts developed a Fairly Debatable standard for interpreting the phrase 'substantial question' in the 1984 Bail Act, admitting a novel appeal or one lacking controlling precedent. This Fairly Debatable standard has been criticized for its outdated historical basis and now has only wavering support. All other circuit courts follow the more restrictive Close Question standard examining the merits of each appeal and correctly applying the intent of Congress. This Close Question standard should be adopted by all circuit courts. 104 references.


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