United States v. Edwards

430 A.2d 1321, 7 Media L. Rep. (BNA) 1324, 1981 D.C. App. LEXIS 278

• Court: District of Columbia Court of Appeals
• Decided: May 8, 1981
• Docket: 80-294, 80-401
• Status: Published

Opinions

NEWMAN, Chief Judge:

These consolidated appeals present us, for the first time, with the question of the constitutionality of the District of Columbia pretrial detention statute, D.C.Code 1973, § 23-1322, under which a suspect arrested for certain enumerated offenses may be detained for up to 60 days pending trial. In the first case, No. 80-294, the government appeals the ruling of Judge Bowers which denied pretrial detention for Marvin Edwards when the government refused to present the complaining witness for cross-examination. In the second case, No. 80-401, Marvin Edwards appeals Judge Norman’s subsequent ruling granting the government’s motion that he be detained. Appellant Edwards¹ challenges the proceeding as violative of his asserted constitutional right to bail, his right to a fair trial, and his right to due process, including rights of confrontation, cross-examination, and compulsory process. In addition, the government challenges the constitutionality of the partial closure of both proceedings. We find the pretrial detention statute constitutional as applied to appellant and hold the closure of the hearings improper under the First Amendment.²

I. FACTS

Marvin Edwards was arrested on March 18, 1980, and charged with the armed rape of a woman in the early morning hours of February 23, 1980. Fingerprints matching appellant’s had been found at the scene, and appellant was arrested on the basis of this information. At the time of his arrest, appellant confessed both to the rape and to a forcible sodomy on another person several months before, as well as to seventeen additional robberies. A ring stolen during the course of the rape was recovered from a pawnshop where it had been pawned in appellant’s name. The rape victim identified appellant at a line-up as her assailant. On the basis of this information, and on appellant’s extensive juvenile record, the government moved for appellant’s pretrial detention pursuant to D.C.Code 1973, § 23-1322(a)(1), at appellant’s presentment.

A hearing on the motion was set for March 25, 1980, before Judge Bowers, and continued to March 28 at appellant’s request. Appellant requested the continuance in order to exercise his right to subpoena witnesses. Appellant also requested of the government any information concerning both the rape charge and any “past and present” conduct upon which the government intended to rely to show a pattern of dangerous behavior. The government declined these requests. Appellant, prior to the March 28 hearing, moved that the hearing be closed in order to protect his right to a fair trial. The government initially took no position on closure, but subsequently objected. Appellant made no proffer as to specific prejudice from articles already published, and presented no evidence that future publicity was likely. The court ordered the courtroom closed without any specific findings that closure was necessary to protect appellant’s fair trial rights.³

Appellant also raised Fifth and Eighth Amendment challenges to the detention proceeding, contending that the Constitution requires a right of confrontation and of cross-examination which precludes the use of proffers or hearsay. The court agreed and ruled that hearsay would be inadmissible, and to the extent D.C.Code 1973, § 23-1322 authorized the use of proffers or hearsay, it was unconstitutional. Appellant further contended that he had a right under Blunt v. United States, D.C.App., 322 A.2d 579 (1974), to have certain material witnesses, including the rape complainant, available for cross-examination. Appellant’s counsel represented that he could not subpoena the complainant because he did not know her whereabouts. The court held that appellant had a right to cross-examine the complainant without proffering how her testimony might be exculpatory, and denied the motion for pretrial detention when the government declined to present her as a witness. The government filed an appeal, No. 80-294, pursuant to D.C.Code 1973, § 23-1324(d)(2).

On April 1, 1980, appellant was charged with burglary, robbery, and sodomy arising out of a single incident on November 23, 1979, to which appellant had confessed after his arrest on the charge of rape. At his presentment on the new charges on April 1, before Judge Norman, the government again moved for detention under D.C.Code 1973, § 23-1322(a)(1). Appellant requested and received a continuance until April 4. As in the prior proceeding, appellant’s counsel requested notice and discovery of the government, which was largely denied. The government did provide copies of appellant’s confession before the start of the hearing on April 4. At the outset of the hearing, appellant again requested closure and the government objected. Judge Norman initially ruled in favor of complete closure. The court ruled that appellant could make a voluntary and knowing waiver of his personal Sixth Amendment right to a public trial unless the government could show a compelling interest in having an open hearing. Later, after hearing from counsel for amicus, the Washington Post, the court modified its ruling so as to exclude the press and public only during the presentation of evidence that would be inadmissible at a subsequent trial.

Appellant also renewed his constitutional objections to the pretrial detention hearing as provided for by statute. The court ruled against the appellant in each instance except one. The court construed the statute to require the government to establish by a substantial probability, without resort to hearsay, that the accused committed the charged offense. The court ruled, however, that it would admit hearsay regarding appellant’s past and present conduct to show dangerousness to the community. Accordingly, the court excluded hearsay testimony regarding the complainant’s line-up identification of appellant and of her report to the police of the assault. The court further ruled that because the complainant was not relied upon by the government as a witness, appellant was not entitled to compel her presence for cross-examination, and could not call her on his own behalf without a proffer that her testimony would tend to negate a “substantial probability” showing of complicity.

On the basis of the evidence presented, Judge Norman granted the motion for detention. Appellant thereupon noted an appeal, No. 80-401. The two appeals were consolidated for argument en banc before this court.

II. CONSTITUTIONAL RIGHT TO BAIL

Appellant attacks the constitutionality of the pretrial detention statute on its face as contrary to an asserted constitutional right to bail. The source for this asserted right is the “excessive bail” clause of the Eighth Amendment.⁴ Whether this clause grants a right to bail in a criminal case has never been decided in the federal courts.⁵ Before the adoption of the pretrial detention statute, Congress had always provided a statutory right to pretrial bail for federal detainees in noncapital cases.⁶ Appellant concedes that the literal language of the excessive bail clause does not encompass a right to bail, but would have us find such a right implied in the clause on the basis of the history of the adoption of the clause and its constitutional context. The history of the Eighth Amendment, however, is generally unilluminating and falls short of supporting, let alone compelling, the conclusion that a right to bail must be found by implication.

A. History of English Bail

The excessive bail clause of the Eighth Amendment was adopted almost verbatim from section nine of the Virginia Declaration of Rights of 1776,⁷ which in turn was derived from the English Bill of Rights of 1689.⁸ The excessive bail clause of the English Bill of Rights itself sought to close a loophole in the English bail system by restricting the discretion of local justices in setting bail for offenses otherwise deemed bailable. The limited nature of the excessive bail clause in its original form becomes apparent upon an examination of the evolution of the English bail system. See Duker, The Right to Bail: A Historical Inquiry, 42 Alb.L.Rev. 33, 34-66 (1977); Foote, The Coming Constitutional Crisis in Bail (pt. 1), 113 U.Pa.L.Rev. 959, 967-68, 982-83 (1965); Meyer, Constitutionality of Pretrial Detention (pt. 1), 60 Geo.L.J. 1139, 1151-56, 1180-90 (1972).⁹

The English bail system developed out of the ancient Anglo-Saxon forms of sureties into early common law bail. By the thirteenth century the local representative of the Crown, the sheriff, exercised a broad and ill-defined discretionary power to bail the King’s prisoners committed to his custody. This power was widely abused by sheriffs who extorted money from individuals entitled to release without charge and who accepted bribes from those who were not otherwise entitled to bail. The first statutory regulation of bail, the Statute of Westminster I, 3 Edw. 1, c. 15 (1275), sought to curb such abuses by carefully enumerating which offenses were bailable and which were not. The sheriffs, and later the justices of the peace, were required to grant or deny bail according to the terms of the statute, which also provided sanctions for noncompliance. The statute, however, did not bind the higher justices nor the King himself, and Parliament was free to redefine which crimes were bailable. See Duker, supra at 43-50; Meyer, supra at 1151-57.

Further limitations on the discretion to grant bail were enacted to cure defects in the law which the Stuarts exploited to deny release to particular prisoners. The Petition of Right of 1628, in which King Charles I acquiesced, required that, upon petition, a return be made showing the specific cause upon which a prisoner was being detained.¹⁰ A specific return, rather than a general recitation that the prisoner was detained at the King’s command, would enable a justice to determine whether the cause was a bailable offense, as determined by statute or common law, as well as allow for an answer and a trial on the charge. Procedural abuses by the Stuarts after the Restoration led to the enactment fifty years later of the Habeas Corpus Act of 1679, which closed the procedural loopholes by firmly establishing a means for enforcing the rights of bail and habeas corpus.¹¹ When, thereafter, the protections of the Habeas Corpus Act were circumvented by the practice of setting prohibitively high bail, the excessive bail clause was drafted into the Bill of Rights of 1689, clause 10, in order to correct this injustice. See Duker, supra note 10, at 66; Foote, supra note 9, at 967-68; Meyer, supra note 10, at 1189-90. In sum, the excessive bail clause was developed as a specific remedy for judicial abuse of the bail procedure as otherwise established by law, and did not, in and of itself, imply any right to bail.

B. Colonial and State Constitutional Bail Rights

Appellant contends that, notwithstanding the narrow language and limited purpose of the excessive bail clause in the seventeenth and eighteenth centuries, the practice in the colonies established the right to bail as a “fundamental right” which perforce was implicitly guaranteed by the Eighth Amendment. This argument is not supported by history. First, a fundamental right to bail was not universal among the colonies or among the early states; several states made the right to bail a statutory rather than a constitutional right. See Duker, supra note 10, at 77-83; Meyer, supra note 10, at 1191. Second, the language of several state constitutions explicitly limiting the power of the judiciary to set excessive bail negates any suggestion that the excessive bail clause was intended to restrict the definition of bailable offenses by the legislature. See Duker, supra note 10, at 81-83. Third, the early state constitutions that specifically granted a right to bail also contained an excessive bail clause, suggesting a recognition of the distinction between the two. See Meyer, supra note 10, at 1191.

The English common law and statutory provisions regulating bail procedures were simplified to some extent in various colonial charters. The earliest colonial provision concerning bail is found in section eighteen of the Massachusetts Body of Liberties of 1641.¹² This enactment deviated sharply from the English tradition by granting an affirmative, though limited, right to bail. Excluded were capital crimes, contempts of court, and other cases to be expressly designated by the legislature. The Massachusetts provision influenced article XI of the Pennsylvania Charter of Liberty (1682),¹³ which granted a constitutional right to bail in a form that was later adopted by Pennsylvania and North Carolina in their constitutions in 1776, and was widely copied in 19th century state constitutions: “That all persons shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident, or presumption great.”¹⁴ Many other colonial charters, however, simply guaranteed that the subjects of the colony would enjoy the same liberties as Englishmen,¹⁵ which, as we have seen, only encompassed a right to bail as defined by Parliament.

When the colonies asserted their independence in 1776, they largely adopted the bail provisions from their colonial charters into their state constitutions. The Massachusetts Constitution of 1780 included an excessive bail clause, but the right to bail itself was relegated to statutory status. This excessive bail clause makes clear that it was intended as a limitation on the judiciary and not the legislature:¹⁶ “No magistrate or court of law shall demand excessive bail or sureties ....”¹⁷ The New Hampshire Constitution of 1784 used identical language,¹⁸ while the Maryland Constitution of 1776 stated “[t]hat excessive bail ought not to be required ... by the courts of law.”¹⁹ This explicit language refutes appellant’s contention that the early excessive bail clause, standing alone, was generally intended to embody a limitation on the legislature by granting a right to bail as well as a protection against judicial abuse. Finally, the state constitutions of North Carolina and Pennsylvania, which were the only state constitutions of those adopted before the Bill of Rights to include an express right to bail in noncapital cases, also contained a distinct excessive bail clause.²⁰ The inclusion of two separate provisions regulating the bail system suggests a recognition of their differing language and purposes.

C. The Bill of Rights

The excessive bail clause was a noncontroversial provision that provoked very little discussion when Congress considered the adoption of the Bill of Rights in 1789. The only reference in the record of congressional debate attacked its asserted vagueness,²¹ but that statement provoked no response and the amendment was approved shortly afterward.

Appellant adopts the argument of Professor Foote that the narrowly drawn excessive bail clause was the product of oversight and inadvertence, which masked the framers’ true intention to include a right to bail in the Bill of Rights. See Foote, supra note 9, at 979-71, 984-89. Professor Foote acknowledges that Congress had available examples of an explicit right to bail in colonial charters and state constitutions going back to the Massachusetts Body of Liberties of 1641, in the Northwest Territory Ordinance of 1787,²² and in the contemporaneous Judiciary Act of 1789. See id. at 970-71. Professor Foote explains the language of the Eighth Amendment excessive bail clause as a “drafting error," the result of “inadvertence” by George Mason, the drafter of the Virginia Declaration of Rights and of the amendments proposed to Congress by the Virginia ratification convention in 1788. Id. at 984-87. Under this theory, Mason, who was not a lawyer, failed to appreciate the “tripartite nature of the English protection against abusive pretrial detention, involving procedure and the right to bail as well as control of the judicial abuse of excessive bail,” id. at 986, and used the limited language of the English Bill of Rights of 1689 to stand for the whole. The argument assumes, without foundation, that English law granted an absolute right to bail.²³ As we have seen, the definition of bailable offenses was left to Parliament, and the colonial charters and early constitutions varied in establishing a fundamental right to bail. In addition, even if the clause was lifted imperfectly from the English Bill of Rights of 1689, the clause was approved in Congress and ratified by the states in the form in which it stood and without indication of Mason’s asserted intention to provide a right to bail. See Duker, supra note 10, at 84-85 n.303. Indeed, the contemporary understanding of the limited meaning of the excessive bail clause may be inferred from other states’ proposals for the Bill of Rights and from the contemporaneous passage of an explicit federal statutory right to bail. See id. at 85-86; Meyer, supra note 10, at 1164, 1190-94.

In addition to Mason’s proposal from Virginia, seven other states made proposals for the Bill of Rights. The North Carolina and Pennsylvania proposals included only an excessive bail clause, although their constitutions each contained both an excessive bail clause and a right to bail provision. See Duker, supra note 10, at 83; Meyer, supra note 10, at 1192. Of the other five proposals, one (New York) included an excessive bail clause, but not one contained a right to bail provision. Bee Meyer, supra note 10, at 1193.

In the same session in which Congress considered the proposals and finally approved a Bill of Rights, it also drafted and passed the Judiciary Act of 1789. The latter act established a statutory right to bail in noncapital cases. See note 6, supra. Although the Eighth Amendment and the statutory right to bail may have developed from two distinct sources, and there is nothing in the congressional record to suggest that the implications of the differing language were addressed, see Foote, supra note 9, at 971-73; Tribe, supra note 6, at 398, it must be presumed that Congress recognized the clear difference in scope of the clauses. The alternative explanation, that the clearly differing language was fortuitous, cannot be simply inferred without any evidence that Congress intended the differing language to carry the same meaning. Moreover, the right to bail in the 1789 Act would have been a redundancy if the excessive bail language meant the same thing even in capital cases.

D. Case Law

The Supreme Court has never ruled on whether the excessive bail clause imports a right to bail. The government cites the Court’s language in Carlson v. Landon, 342 U.S. 524, 546, 72 S.Ct. 525, 537, 96 L.Ed. 547 (1952), that “the very language of the Amendment fails to say all arrests are bailable.” Carlson involved the denial of bail to alien Communists pending deportation proceedings. The Court concluded that the Eighth Amendment does not apply to such civil proceedings. Accordingly, the Carlson holding does not directly concern criminal cases, particularly as the Court emphasized Congress’ broad powers to deal with aliens. Moreover, the Carlson dictum regarding the scope of an Eighth Amendment right to bail conflicts with the tenor of Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951), decided the same term. Stack v. Boyle, although concerned with the exces-siveness of the bail orders under review there, recognized the “traditional right to freedom before conviction [which] permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.” Id. at 4, 72 S.Ct. at S.24 Lower courts have relied, alternatively, on the dicta of both Carlson' and Stack to find or deny a constitutional right to bail, but without any convincing resolution.²⁵

E. Constitutional Scheme

Apart from the asserted support in the history of the development and adoption of the excessive bail clause, appellant argues that the apparent anomaly of the excessive bail clause can only be explained by construing it to grant a right to bail. The core of this argument is that the excessive bail clause, insofar as it operates as a limit on congressional power, is a futility if Congress is prohibited from requiring excessively high bail but is free to deny bail altogether by making some or all crimes nonbailable. The only explanation for prohibiting excessively high bail but allowing the denial of all bail would be a concern for economic equality between the rich and the poor, which the historical evidence clearly negates.²⁶ To avoid rendering the excessive bail clause “surplusage,” the argument runs, it must be broadly interpreted to grant a right to bail. See Foote, supra note 9, at 987.

This argument presumes, however, that the excessive bail clause was intended primarily to limit the legislative power of Congress rather than to limit the discretion of the judiciary in setting individual bail. The historical origins of the excessive bail clause, as well as its narrow language, indicate that its primary purpose is to limit the judiciary. The major reason advanced for construing the clause as directed to Congress (and thus as a broader limitation on its powers) is the constitutional context of the Bill of Rights itself. The Bill of Rights, it is argued, had as its “central concern . .. protection against abuse by Congress.” Id. at 969, 988; Tribe, supra note 6, at 400. See also Ingraham v. Wright, 430 U.S. 651, 664-66, 97 S.Ct. 1401, 1408-10, 51 L.Ed.2d 711 (1977) (history of adoption of Eighth Amendment indicates that cruel and unusual punishment clause was intended to restrict Congress as well as the judiciary). A cursory examination of other provisions contained in the Bill of Rights, however, reveals that the conduct of the judicial branch was an important, if not the chief, concern. The indictment, double jeopardy, and due process clauses of the Fifth Amendment, and the Sixth Amendment’s criminal trial rights, clearly were intended to curtail the powers of the courts as well as those of Congress in legislating for the courts.

A second related argument is that while an unlimited legislative power to define the boundaries of the citizen’s rights, such as the right to bail, is consistent with the English theory of civil liberties in which Parliament is the ultimate authority, it is generally inconsistent with a constitutional form of government like ours. Foote, supra note 9, at 969, 988; see Tribe, supra note 6, at 400. This reasoning requires, however, an antecedent finding that the right to bail is a fundamental right that the framers of the Bill of Rights meant to protect against congressional encroachment, because plainly not all asserted rights are constitutionally protected. While the history of the development of bail reveals that it is an important right, and bail in noncapital cases has traditionally been a federal statutory right, neither the historical evidence nor contemporary fundamental values implicit in the criminal justice system requires recognition of the right to bail as a “basic human right,” Foote, supra note 9, at 969, which must then be construed to be of constitutional dimensions.

III. DUE PROCESS

Appellant attacks the statutory procedure for pretrial detention on multiple grounds as violative of his Fifth Amendment due process rights. Chief among these complaints are the contentions (1) that pretrial detention is punishment that cannot be imposed “prior to an adjudication of guilt in accordance with due process of law,” Bell v. Wolfish, 441 U.S. at 535, 99 S.Ct. at 1872 (footnote omitted); (2) that the hearing, at a minimum, must provide rights of confrontation, cross-examination, and compulsory process, and (3) that the notice of the past acts that would support a finding of “dangerousness” was deficient. Appellant also contends that the statutory burden of proof is inadequate, and that the statute as a whole is violative of substantive due process and is both facially overbroad and unconstitutionally vague. We address these contentions in the order presented.

A. Detention as Punishment

The government concedes that if detention is punishment, it cannot be imposed absent conviction for the crime charged, i. e., a fair trial resulting in an adjudication of guilt with the panoply of protections guaranteed by the Fifth and Sixth Amendments. The Supreme Court recognized this fundamental principle in Bell v. Wolfish: “under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” Id. See also Ingraham v. Wright, 430 U.S. at 671-72 n.40, 674, 97 S.Ct. at 1412-13 n.40, 1414; Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165-67, 186, 83 S.Ct. 554, 565-67, 576, 9 L.Ed.2d 644 (1963); Wong Wing v. United States, 163 U.S. 228, 237, 16 S.Ct. 977, 980, 41 L.Ed. 140 (1896). Whether pretrial detention constitutes prohibited punishment turns on whether the statute is penal or regulatory in character. We conclude that appellant’s contention that incarceration inevitably constitutes punishment is without merit. As the Supreme Court has said: “Detention is a usual feature of every case of arrest on a criminal charge, even when an innocent person is wrongfully accused; but it is not imprisonment in a legal sense.” Wong Wing v. United States, 163 U.S. at 235, 16 S.Ct. at 980.²⁷

The distinction between penal and regulatory sanctions is often elusive, but the compilation of traditional tests set out by the Court in Kennedy v. Mendoza-Martinez, and reaffirmed and applied in Bell v. Wolfish,²⁸ provides authoritative guidance:

Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions. [Kennedy v. Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct. at 567-68 (footnotes omitted), quoted in Bell v. Wolfish, 441 U.S. at 537-38, 99 S.Ct. at 1873-74.]

As this test explicitly recognizes, the various factors may point in differing directions, and there can be no mechanical application of the test. Characterization of pretrial detention is a particularly close question. Nevertheless, we conclude, after considering all of the relevant factors, that pretrial detention is regulatory rather than penal in nature. Although detention pending trial invokes an affirmative restraint, historically it has not been regarded as punishment where the purpose has been to prevent flight or to prevent the coercion or intimidation of witnesses. See Blunt v. United States, 322 A.2d at 584. See also Carbo v. United States, 82 S.Ct. 662, 7 L.Ed.2d 769 (1962) (Douglas, J.). The critical question is whether detention pending trial for the purpose of protecting the community from the detainee’s established dangerousness is an “alternative purpose” contemplated by the Mendoza-Martinez factors. The traditional reasons for pretrial detention, preventing flight or the intimidation of witnesses, serve the “alternative purpose” of preserving the integrity of the judicial process, and thus are preventive and forward-looking.²⁹ Similarly, pretrial detention to prevent repetition of dangerous acts under § 23-1322(a)(1) by incapacitating the detainee seeks to curtail reasonably predictable conduct, not to punish for prior acts.

The Court’s opinion in Bell v. Wolfish, supra, emphasizes governmental purpose as particularly significant in determining whether the challenged conditions imposed on pretrial detainees were penal or regulatory.

A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose .... Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” [441 U.S. at 538-39, 99 S.Ct. at 1873-74 (footnotes omitted).]

The statutory history makes clear that pretrial detention was intended to protect the safety of the community until it can be determined whether society may properly punish the defendant. Pretrial detention was not intended to promote either of the “traditional aims of punishment — retribution and deterrence.” Kennedy v. Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. at 567.³⁰ Nor does it seek to rehabilitate the detainee, another purpose ordinarily associated with punishment.³¹ Pretrial detention does purposefully incapacitate the detainee from committing further crimes pending trial on the criminal charges, and such physical restraint is necessarily also one of the functions of imprisonment after conviction. Incapacitation, however, is distinct from general deterrence, which operates by example, not by physical restraint. See note 30, supra. Significantly, pretrial detention is closely circumscribed so as not to go beyond the need to protect the safety of the community pending the detainee’s trial. Such detention is not to exceed 60 days, by which time either the detainee must be brought to trial, or bail must be set. D.C.Code 1973, § 23-1322(d)(2)(A). Moreover, the detention may be ended “whenever a judicial officer finds that a subsequent event has eliminated the basis for such detention.” Id. § 23-1322(d)(2)(B). As the legislative history makes clear, “[o]ne such circumstance might be the court’s granting a motion to suppress most of the Government’s evidence.” H.R.Rep.No.91-907, 91st Cong., 2d Sess. 184 (1970).³²

B. Procedural Due Process

Appellant next contends that even if pretrial detention is not found to be a penal sanction which would trigger the full procedural protections of a criminal trial under the Fifth and Sixth Amendments, the statutory provisions nonetheless are violative of the Due Process Clause by not providing the minimal procedural framework necessary to a fair hearing. In particular, appellant asserts that due process requires that a defendant in a pretrial detention hearing be afforded rights of confrontation, cross-examination, and compulsory process, and that the government must prove each required finding by proof beyond a reasonable doubt.³³ The statute provides certain procedural formalities and safeguards but does not guarantee the several procedural protections which appellant asserts are constitutionally required. The two judges in the respective pretrial detention hearings under review here made conflicting rulings on the adequacy of the statutory protections. For the reasons that follow, we conclude that the statutory procedures satisfy the minimum demands of procedural due process before a person may be detained pending trial on the grounds of dangerousness to the community.

Although pretrial detention is not punishment, it clearly implicates a liberty interest that requires a fair hearing within the mandates of procedural due process. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1973) (due process protections attach to probation revocation); Morrissey v. Brewer, 408 U.S. 471, 480-82, 92 S.Ct. 2593, 2599-01, 33 L.Ed.2d 484 (1972) (parole revocation implicates protected liberty interest). Due process is a flexible concept, however, and “not all situations calling for procedural safeguards call for the same kind of procedure.” Id. at 481, 92 S.Ct. at 2600. The question therefore remains “what process is due,” id. See Mathews v. Eldridge, 424 U.S. 319, 333-35, 96 S.Ct. 893, 901-03, 47 L.Ed.2d 18 (1976), and whether the procedures provided by statute meet the minimum due process requirements.

The pretrial detention statute provides for a hearing before a judicial officer, D.C.Code 1973, § 23-1322(b)(1), (c)(1), at which the defendant is entitled to representation by counsel and “to present information by proffer or otherwise, to testify, and to present witnesses in his own behalf.” Id. § 23-1322(c)(4). The information presented to the judicial officer by either the government or the defense may be by proffer and “need not conform to the rules pertaining to the admissibility of evidence in a court of law.” Id. § 23-1322(c)(5). Upon the information presented at the hearing, the judicial officer must make three separate findings, with particular burdens of proof: (1) that there is clear and convincing evidence that the accused falls into one of the categories of persons eligible for detention, e. g., a person charged with a dangerous crime, id. § 23-1322(b)(2)(A); (2) that, based on the accused’s “pattern of behavior consisting of his past and present conduct, and the other factors set out in section 23-1321(b),” there is “no condition or combination of conditions of release which will reasonably assure the safety of any other person or the community,” id. § 23-1322(b)(2)(B)(i); and (3) that there is “a substantial probability that the person committed by the offense for which he is present before the judicial officer,” id. § 23-1322(b)(2)(C).

The legislative history of the statute confirms Congress’ intent that the information upon which the judicial officer makes his finding need not be sworn testimony, and that the hearing is not designed to afford defendants a discovery device. Thus, in providing that the finding of substantial probability is to be based on information presented “by proffer or otherwise,” the House Report anticipates

that, as is the present practice under the Bail Reform Act, ... the use of sworn testimony will be the exception and not the rule. ... [Bjail hearings under the Bail Reform Act, which frequently result in detention of the accused, proceed primarily by way of proffers. They are not formal trials requiring strict adherence to technical rules of evidence. If the court is dissatisfied with the nature of the proffer, it can always, within its discretion, insist on direct testimony. But the discretion should be left to the court without imposing on it the burden of limiting admissibility to that it would permit a jury to hear. [H.R.Rep.No.91-907, 91st Cong., 2d Sess. 182, 184 (1970) (emphasis added).]

Accordingly, hearsay evidence may be presented, although the court may require direct testimony if dissatisfied with a proffer.

The legislative history does not discuss the scope of cross-examination permitted of witnesses who are called by the government. Section 1322(c)(4) gives the accused the right “to present witnesses in his own behalf,” but the House Report states that the accused has only a conditional right to call adverse witnesses:

He may not, of course, call witnesses who ordinarily would be expected to testify for the Government at trial, unless he can proffer to the court in reasonable detail how he expects their testimony to negate substantial probability. The hearing provided by subsections (b) and (c) is not designed to afford defendants a discovery device. Discovery is to be obtained pursuant to the rules of court. [H.R.Rep.No. 91-907, supra at 183 (emphasis added).]

In the first of the two hearings under review here, Judge Bowers agreed with appellant that the statute was constitutionally deficient, and the government appeals this determination. Although the basis for the court’s ruling shifted during the proceeding, the court ultimately held (1) that hearsay would not be admitted because the defendant has a constitutional right of confrontation, and to that extent the statute is constitutionally deficient, and (2) that the defendant has a right to call adverse witnesses without a proffer, i. e., a right to compulsory process, under Blunt v. United States, 322 A.2d at 585. Because the government refused to make the complainant available, Judge Bowers denied the motion for pretrial detention.

In the second proceeding, Judge Norman held that the accused has a right to confront and cross-examine the witnesses against him on the issue of whether the crime charged was committed, and therefore excluded hearsay evidence on that issue, including the complainant’s report of the crime and her line-up identification of the appellant. The court did accept hearsay evidence regarding the issues of the accused’s past and present conduct and whether any conditions of release could assure the safety of the community. The court held there was no requirement that the complainant be made available for cross-examination without a proffer from the defense as to how her testimony would negate “substantial probability” that the charged offense was committed. Appellant contests the rulings admitting hearsay evidence and denying an unconditional right to call adverse witnesses. The government challenges the ruling excluding the complainant’s hearsay statements.

Guidance in determining “what process is due” in a pretrial detention hearing may be derived from the Supreme Court’s decision in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Gerstein held that an arrestee is entitled to a timely hearing before a magistrate for a “judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” 420 U.S. at 114, 95 S.Ct. at 863. The Court further held that “the full panoply of adversary safeguards — counsel, confrontation, cross-examination, and compulsory process for witnesses,” id. at 119, 95 S.Ct. at 865, which the District Court and Court of Appeals had held was mandatory, is not constitutionally required.³⁴ Id. at 120-26, 95 S.Ct. at 866-69. Morrissey, on the other hand, held that a preliminary hearing must be held, with certain procedural safeguards, to determine whether there is probable cause to believe the parolee has committed a parole violation. The hearing must be held before a neutral magistrate and the parolee given notice and an opportunity to present evidence. 408 U.S. at 486-87, 92 S.Ct. at 2602-03. The parolee also is given a right to confront and cross-examine “person[s] who [have] given adverse information on which parole revocation is to be based,” unless the hearing officer specifically finds that the witness “would be subjected to a risk of harm if his identity were disclosed.” Id. at 487, 92 S.Ct. at 2603. The prelimi-' nary hearing is to be followed by the revocation hearing at which there is notice, an opportunity to present evidence, id. at 487-89, 92 S.Ct. at 2603-04, and a right to confront and cross-examine adverse witnesses (“unless the hearing officer specifically finds good cause for not allowing confrontation,” id. at 489, 92 S.Ct. at 2604).

Appellant contends that, at a minimum,³⁵ the rights of confrontation and cross-examination of adverse witnesses required in a preliminary parole revocation hearing by Morrissey should be similarly required in a pretrial detention hearing. Because “due process is flexible and calls for such procedural protections as the particular situation demands,” id. 408 U.S. at 481, 92 S.Ct. at 2600, an independent examination must be made of the due process requirements for pretrial detention. In determining the scope of procedural protections required, we must consider the individual’s interest affected by the official action, the nature of the governmental function involved, and the probable value of and enhanced accuracy from additional procedural safeguards. Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. at 903; see Vitek v. Jones, 445 U.S. 480, 495 (1980); Morrissey v. Brewer, 408 U.S. at 481, 92 S.Ct. at 2600. See generally L. Tribe, American Constitutional Law §§ 10-12 to -13 (1978). Consideration of the individual’s liberty interest and the government’s interests in a simplified yet fair pretrial detention hearing leads us to the conclusion that the interests involved are closer to those in a Gerstein preliminary hearing than those involved in a Morrissey hearing, and that the statutory procedures challenged here are constitutionally adequate.³⁶

The effect of the findings in a detention hearing and a preliminary (Gerstein) hearing is the same: each hearing determines whether the accused may be detained pending trial. The individual’s liberty interest affected by each proceeding is accordingly the same. In Gerstein, the Court explicitly stated that the “sole issue is whether there is probable cause for detaining the arrested person pending further proceedings,” 420 U.S. at 120, 95 S.Ct. at 866 (emphasis added), and concluded that a full adversary hearing was not required. Appellant attempts to distinguish the liberty interest involved in Gerstein as “practically less severe and conceptually entirely different” because a person detained under Gerstein may also be entitled to a hearing on bail or conditions for release. See D.C.Code 1973, § 23-1321. This argument confuses the statutory right to a bail hearing with the procedural protections that due process requires for any pretrial detention. The bail hearing, in which the court will determine likelihood of flight and whether any conditions “will reasonably assure the appearance of the person for trial or the safety of any other person or the community,” id. § 23-1321(a), does not offer any procedural protections beyond the Gerstein requirements. The District of Columbia statute specifically provides that “[information stated in, or offered in connection with, any order entered pursuant to this section need not conform to the rules pertaining to the admissibility of evidence in a court of law.” Id. § 23-1321(f).³⁷ An arrestee has no constitutional rights to cross-examination, confrontation, or compulsory process or to proof beyond a reasonable doubt in a bail proceeding. Thus characterizing detention upon a probable cause determination under Gerstein as only “indirectly” resulting in detention because the arrestee could be released on bail or subject to other conditions of release is misleading. Indeed, if the arrestee is released on personal recognizance, there is no requirement under Ger-stein that any preliminary hearing be held. Only when the arrestee is subject to prolonged detention or pretrial release “accompanied by burdensome conditions that effect a significant restraint of liberty,” id. at 114, 95 S.Ct. at 863; see id. at 125 n.26, 95 S.Ct. at 868 n.26, does Gerstein apply. In short, the same liberty interest of the individual — to be free from pretrial detention— is involved in a pretrial detention hearing and a Gerstein hearing on probable cause.

Turning to a comparison of the nature of the government’s interest in the two proceedings, we find that they are also similar in scope. At the outset, the government has an obvious interest in not conducting a full-blown criminal proceeding twice, once for pretrial detention and a second time for the trial on the charges. Indeed, the individual’s and the government’s mutual interest in holding that the hearing soon after the time of the arrest³⁸ necessarily precludes the full-scale preparation and investigation that is commensurate with a criminal trial. Conversely, the limited function of a pretrial detention hearing, i.e., to determine the appropriateness of detention for a maximum of 60 days pending a trial on the charges with the full panoply of criminal trial rights, weighs in favor of a simplified hearing. The Gerstein Court distinguished the greater procedural formalities required by Morrissey in part on the basis of the overall procedural protections otherwise afforded by the criminal justice system.³⁹ In addition, the Court distinguished the preliminary revocation proceeding in Morrissey, to be held near the place of the alleged parole violation, by its broader function of “gathering and preserving live testimony,” id. at 121 n.22, 95 S.Ct. at 866 n.22, which function is shared by neither a probable cause preliminary hearing nor a pretrial detention hearing.

1. Rights of Confrontation and Cross-Examination

With regard to the specific procedural protections of confrontation and cross-examination, which Judge Bowers ruled were constitutionally required and which Judge Norman imposed in part, we hold that the government may proceed by the use of proffer and hearsay, subject to the discretion of the judge as to the nature of the proffer and the need for admissible evidence. The rights of confrontation and cross-examination together generally prohibit the use of hearsay statements unless they fall within a recognized exception,⁴⁰ or unless they are supported by other “indicia of reliability,” ⁴¹ although the right of confrontation is not co-extensive with the evi-dentiary rules of hearsay. See Dutton v. Evans, 400 U.S. 74, 81-82, 91 S.Ct. 210, 215-216, 27 L.Ed.2d 213 (1970); California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 1933-34, 26 L.Ed.2d 489 (1970); Harrison v. United States, D.C.App., 407 A.2d 683, 686 (1979). Judge Bowers apparently relied on these constitutionally-mandated trial rights in ruling that all hearsay must be excluded. We disagree, finding that, as in a preliminary hearing for probable cause, the government may proceed by proffer or hearsay. See Gerstein v. Pugh, 420 U.S. at 121—22, 95 S.Ct. at 866-67; Blunt v. United States, 322 A.2d at 583 n.4 (“Given the unique nature of [pretrial detention] proceedings, a full trial of the general issue would be impracticable,” and evidence by proffer is constitutionally sufficient.) The liberty interest at stake and the function of the two proceedings are so similar as to provide no basis for distinguishing them.⁴²

The related trial right of compulsory process, as provided by the Sixth Amendment, guarantees that the defendant may compel the attendance of witnesses in his favor. In the trial context, the defendant need not proffer how the requested witness will testify in his favor; the defendant only carries the burden of identifying and securing the attendance of those witnesses whose testimony he desires. See Westen, supra note 39, at 601-13. In neither of the two pretrial detention hearings appealed here was the complainant produced. The government relied on information and statements other than statements by the complainant. Holding, as we do, that the government may proceed by proffer or otherwise, we conclude that there is no reason to distinguish the complainant from other possible witnesses to an offense, and that the government may proffer a complainant’s hearsay statements as in a probable cause preliminary examination. Consistent with this holding, we further conclude that the court may require a proffer from the defense before compelling the presence of an adverse witness. The pretrial detention statute provides the accused with a right to present witnesses in his favor. Such an opportunity to respond is a fundamental procedural right which the government has no interest in restricting. Nevertheless, with regard to the government’s witnesses, and particularly the complaining witness, the government does have an interest in preventing premature discovery. It also has an interest in protecting the emotional and physical well-being of its witnesses. See Washington v. Clemmer, 119 U.S.App.D.C. 216, 219 n.11, 339 F.2d 715, 718 n.11 (1964). Under our holding that the government may proceed by proffer or hearsay, cross-examination for the limited purpose of impeaching the witness’ credibility is an insufficient reason to compel a witness’ presence. " The requirement of a preliminary proffer,³ regarding the manner in which a witness’ testimony will tend to negate substantial probability that the accused committed the charged offense, is a reasonable limitation on the accused’s right to call witnesses in his favor.

Blunt v. United States, supra, was relied upon by Judge Bowers and is cited by appellant as authority for an unconditional right to call adverse witnesses. In Blunt, the defendant argued that he was denied the constitutional right to cross-examine the witnesses who alleged he had threatened them. We noted that “[a] defendant has the right under the statute and under the case law to subpoena witnesses to appear in his behalf” id. 322 A.2d at 585 (emphasis added) (citing D.C.Code 1973, § 23-1322(c)(4); Greenwell v. United States, 115 U.S.App.D.C. 44, 317 F.2d 108 (1963)), but held that the defendant had “waived his right to cross-examine the government’s witnesses when he neither availed himself of his right to call the witnesses nor asked the court for a continuance in order to secure their presence,” id. 322 A.2d at 586. We had no occasion in Blunt to determine whether the accused’s right to call witnesses in his favor may be conditioned upon a proffer showing how the testimony will negate substantial probability when the witness’ testimony presumably will be adverse to the accused. See In re R.D.S., D.C.App., 359 A.2d 136, 139 (1976) (respondent’s right in a probable cause hearing to introduce evidence on his own behalf “does not connote the right to determine in effect who the government’s witnesses shall be,” and in order to compel the complainant’s testimony, respondent must proffer how the evidence would negate probable cause).

2. Burden of Proof

Appellant contends that the burden of proof required in a criminal trial, i. e., proof beyond a reasonable doubt, see In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), is the required standard under the dictates of procedural due process for a pretrial detention hearing. We cannot agree. The Supreme Court has consistently held that significant restraints on liberty may be imposed upon a finding of probable cause of a violation, including cases of parole violations, Morrissey v. Brewer, 408 U.S. at 485-89, 92 S.Ct. at 2602-04; probation violations, Gagnon v. Scarpelli, 411 U.S. at 782, 789, 93 S.Ct. at 1763; and pretrial detention, Gerstein v. Pugh, 420 U.S. at 119-21, 95 S.Ct. at 865-67. The statute requires that the judicial officer find by “a substantial probability” that the accused committed the offense for which he is charged. D.C.Code 1973, § 23-1322(b)(2)(C). The legislative history indicates that this standard, higher than probable cause was intended to be equivalent to the standard required “to secure a civil injunction — likelihood of success on the merits.” H.R.Rep.No.91-907, 91st Cong., 2d Sess. 182 (1970).

Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), is cited by appellant but actually lends support to our conclusion. In Addington, the Court rejected a burden of proof beyond a reasonable doubt for involuntary civil commitment hearings, requiring instead proof by clear and convincing evidence. The Court rejected the higher “beyond a reasonable doubt” standard because historically it has been reserved for criminal cases, which are punitive in purpose and for which our society has determined that “our concern that the risk of error to the individual must be minimized even at the risk that some who are guilty might go free.” Id. at 428, 99 S.Ct. at 1810. These considerations also weigh against the imposition of the “reasonable doubt” standard on detention proceedings. As we conclude above, pretrial detention is not punitive in purpose. Our societal determination that the risk of error in a criminal trial be balanced in favor of the accused is closely tied to the punitive aspects of conviction and has no application to detention pending a trial at which the government will be required to meet the higher burden.

We find no constitutional infirmity in the statute on this score.

C. Notice

Advance notice of the specific allegations against the accused is a fundamental component of procedural due process. Notice is necessary for the individual to understand the charges and the proceedings and to give him a meaningful opportunity “to marshal the facts in his defense.” Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 2978, 41 L.Ed.2d 935 (1974). The pretrial detention statute does not contain any provision regarding notice but does provide for a continuance on the accused’s motion which “shall not exceed five calendar days, unless there are extenuating circumstances.” D.C.Code 1973, § 23-1322(c)(3). Appellant availed himself of a three-day continuance in the proceeding before Judge Norman.⁴³ Although appellant claims this was a constitutionally insufficient time to prepare, we find no merit in this contention. See Gerstein v. Pugh, 420 U.S. at 123-25 & nn. 24 & 25, 95 S.Ct. at 867-69 & nn. 24 & 25 (preliminary hearing for probable cause to be held immediately after presentment, or in conjunction with bail or pretrial release hearing); Wolff v. McDonnell, 418 U.S. at 564, 94 S.Ct. at 2978 (minimum 24 hours advance notice necessary for prison disciplinary hearing).

Appellant also acknowledges that he was provided adequate notice of the specific crimes charged for which he was arrested, but contends that he received inadequate notice of the specific instances of his “past and present conduct” upon which the government would rely to show his dangerousness to the community. See D.C.Code 1973, § 23-1322(b)(2)(B)(i). Appellant misperceives the character of the finding of dangerousness under § 23-1322(b)(2) required for pretrial detention. The judicial officer (here, Judge Norman) was not required to conduct a trial of each of the prior offenses described in appellant’s confession or to retry the adjudications of delinquency contained in appellant’s social file. Rather, the judicial officer is to determine from the accused’s “pattern of behavior consisting of his past and present conduct, and on the other factors set out in section 23-1321(b),” whether “there is no condition or combination of conditions of release which will reasonably assure the safety of any other person or the community.” Id The factors set out in § 23-1321(b), the statute governing pretrial release, include “the nature and circumstances of the offense charged, . . . his family ties, employment, financial resources, character and mental conditions, past conduct, length of residence in the community, [and] record of convictions . . .. ” Id. § 23-1321(b) (emphasis added). The judicial officer’s task is thus qualitatively no different than, and in some aspects identical to, the determination at a bail hearing held immediately after an arrest to ascertain “which conditions of release, if any, will reasonably assure the appearance of a person as required or the safety of any other person or the community . .. . ” Id. Nor is the inquiry significantly different from assessing whether a convicted defendant is dangerous or likely to flee, for purposes of determining his release pending appeal. Id. § 23-1325(c).⁴⁴

Judge Norman relied upon the appellant’s confession (to the offenses charged and seventeen robberies in the preceding four months), as corroborated by the testimony of the investigating officers, and upon the adjudications of delinquency in appellant’s juvenile social file. With regard to the prior adjudications, appellant was put on notice by the statute that past convictions would be considered in the determination of dangerousness. And, although counsel for appellant was given a copy of appellant’s statement of confession only several hours prior to the commencement of the hearing, counsel had been present at a line-up held soon after appellant’s arrest (and confession) in which some twenty-five witnesses were asked whether they were witnesses to or victims of assaults by appellant on particular dates at particular locations. Moreover, in the unique circumstances of the present case, whereby a hearing had been held a short time earlier on the government’s first, but unsuccessful, motion for pretrial detention, counsel for appellant had more than usual notice regarding instances of appellant’s past conduct, including access to appellant’s juvenile social file. We find the notice to appellant constitutionally adequate.

D. Substantive Due Process, Vagueness, and Overbreadth

Appellant also asserts that the pretrial detention statute violates substantive due process by denying bail pending trial and is both unconstitutionally vague and over-broad. These contentions have no merit and may be dismissed with little discussion.

1. Substantive Due Process

Substantive due process requires that when “fundamental rights” are involved, the state may limit such rights by regulation only upon a showing of a “compelling state interest.” Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The Supreme Court has identified only a limited number of such “fundamental rights,” such as the right to vote, the right to travel, the right to privacy concerning decisions of intimacy and procreation, as well as rights expressly guaranteed by the Constitution. See Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977); Roe v. Wade, supra; Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). See generally W. LaFave & A. Scott, Criminal Law § 20, at 138; L. Tribe, supra §§ 11-1 to -4.

Regardless of whether the right to bail is characterized as fundamental or not, the legislative history provides ample support for a compelling state interest in the pretrial detention of the narrow class of persons covered by the statute. Congress considered (1) the alarming increase in street crime in the District of Columbia since 1966; (2) statistical studies involving recidivism by persons while on pretrial release; (3) recommendations by the President’s Commission on Crime in the District of Columbia (1966), and the Judicial Council Committee to Study the Operation of the Bail Reform Act in the District of Columbia (1969); and (4) pretrial release and detention practices in England and other countries. H.R.Rep.No.91-907, 91st Cong., 2d Sess. 87-94 (1970). Appellant attempts to litigate what are essentially legislative findings, i. e., the extent of crime committed by persons released pending trial and the predictability of criminal conduct, citing studies which reached different statistical results ⁴⁵ than those relied upon by Congress. These are matters properly committed to the legislative process. Pretrial detention clearly has a substantial relation to preventing injury to the public and thus falls within the scope of Congress’ power to legislate for the District of Columbia. See Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973); United States v. Sharpnack, 355 U.S. 286, 294, 78 S.Ct. 291, 296, 2 L.Ed.2d 282 (1958).

2. Overbreadth

In support of his contention that the pretrial detention statute is imper-missibly overbroad, appellant also cites statistical studies concluding that criminal conduct generally cannot be predicted. The doctrine of constitutional overbreadth applies to statutes that sweep unnecessarily broadly and thereby substantially impinge on constitutionally-protected conduct as well as conduct subject to governmental regulation. See Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Aptheker v. Secretary of State, 378 U.S. 500, 508, 84 S.Ct. 1659, 1664, 12 L.Ed.2d 992 (1964); L. Tribe, supra, §§ 12-24 to -25. The doctrine has no application to the pretrial detention statute as it applies only to conduct which is constitutionally regulable, /. e., the detainee must be charged with the commission of a dangerous crime, D.C.Code 1973, § 23-1322(a)(1), or a crime of violence, id. § 23-1322(a)(2), which the judicial officer finds with substantial probability was committed by the accused. Moreover, the statute also requires a finding that “there is no condition or combination of conditions of release which will reasonably assure the safety of any other person or the community,” id. § 23-1322(b)(2), which thus prohibits pretrial detention if less restrictive alternatives are available in the individual case to effect the government’s interest in protecting the community. Prediction of the likelihood of certain conduct necessarily involves a margin of error, but is an established component of our pretrial release system. Trial judges have been engaged in predicting the likelihood of flight for all defendants, capital and noncapital, and have predicted the likelihood of recidivism for capital offenses since the Judiciary Act of 1789. See Wright v. United States, D.C.App., 262 A.2d 350, 351, n.4 (1970); Russell v. United States, 131 U.S.App.D.C. 44, 402 F.2d 185 (1968). Appellant’s argument relies on the assumptions, which we do not share, that the judicial prediction of dangerousness, as distinguished from the prediction of likelihood of flight, is both a denial of a fundamental right and the imposition of punishment. Accordingly, we decline to find the statute unconstitutionally overbroad.

3. Vagueness

Appellant also asserts that the statute is impermissibly vague. The Supreme Court stated in Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939): “[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Id. at 453, 59 S.Ct. at 619 (quoting Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1925)). The statute is not tested in the abstract, however; vagueness challenges “must be examined in light of the facts of the case at hand.” United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975), quoted in Willcher v. United States, D.C.App., 408 A.2d 67, 73 (1979). It is true that Congress left the meaning of “past conduct” supporting a finding of dangerousness under D.C.Code 1973, §§ 23-1321(b), -1322(b)(2)(B), to the sound judgment of the judicial officer, see H.R.Rep.No.91-1303, 91st Cong., 2d Sess. 240 (1970). However, the crimes with which appellant was charged and the crimes which he admits he committed in the space of four months preceding his arrest — a rape, a sodomy, two burglaries, and seventeen robberies — as well as the adjudication of his juvenile social file, are all prohibited conduct under concededly valid criminal laws.⁴⁶ Nor can there be any doubt as to the meaning of “safety of the community” in this context. D.C.Code 1973, § 23-1322(1).

In sum, we hold that the challenged provisions of the District of Columbia pretrial detention statute, D.C.Code 1973, § 23-1322, are constitutional.⁴⁷

IV. CLOSURE

A collateral but important issue is left for our consideration. In each of the appellant’s pretrial detention hearings, defense counsel moved for and was successful in obtaining at least partial closure of the hearings to the press and public. Because the court in each case failed to make any findings at all to support its conclusion that closure was necessary to preserve appellant’s fair trial right, we reverse the court’s rulings as violative of the First Amendment right of the press and public to attend courtroom proceedings.

Appellant contends that, despite an acknowledged, long-standing tradition of public trials and hearings, there is neither a common-law nor a constitutional right of the press or public to attend pretrial hearings. We cannot accept this contention. While certain aspects of pretrial hearings, including pretrial detention hearings, weigh heavily in favor of implementing protective procedures to safeguard a defendant’s right to a fair trial, the necessity and scope of such procedures must be balanced against the interest of the press and public in open judicial proceedings.

In United States v. Burka, D.C.App., 289 A.2d 376 (1972), we recognized a common law right of access to judicial proceedings in holding that a trial judge may not sequester transcripts of proceedings from inspection by one of the parties because the proceeding itself was required to be public. In so holding, we noted that “[t]he general nature of our form of government requires the highest degree of public exposure to trial court proceedings,” and that “the underlying policy firmly rooted in our judicial system [is] that courtroom proceedings must be public and open.” Id. at 378 (footnote omitted). See also ex parte Drawbaugh, 2 App. D.C. 404 (1894) (patent registration litigation cannot be held in secret despite Patent Office rules preventing public disclosure in registration). If the government and amicus relied solely on this common law right of access, the balance of interests might weigh heavily in favor of appellant’s right to a fair trial unjeopard-ized by prejudicial publicity, as guaranteed by the Fifth and Sixth Amendments. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). The right of access to judicial proceedings also has a constitutional basis, however, requiring consideration of the balance between the two constitutional rights.

The Supreme Court recently made explicit that the constitutional guarantees of the First Amendment to freedom of speech and the press and the right to assemble encompass a cognate right to attend criminal trials. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). In an earlier decision, a plurality of the Supreme Court had held that there is no independent Sixth Amendment right on the part of the public to attend pretrial hearings in which the defense, the government, and the court consent to closure. Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). The appellant and Judges Bowers and Norman relied on Gannett as sanctioning the closure of the pretrial detention hearings solely on appellant’s motion. This reliance is misplaced. Gannett did not rule out the existence of a First Amendment public right of access to pretrial hearings, see id. at 392, 99 S.Ct. at 2911. Instead, the plurality opinion for the Court found that, assuming there was a First Amendment right of access, there was sufficient evidence in the record to support closure to protect the defendant’s fair trial right. Id. at 392-93, 99 S.Ct. at 2911-12. A clear majority of the Court in Gannett would require, at a minimum, a showing by the defense that there exists a likelihood of pretrial publicity prejudicial to the accused’s fair trial rights. See id. at 400, 99 S.Ct. at 2916 (Powell, J., concurring); id. at 441, 99 S.Ct. at 2937 (Blackmun, J., with Brennan, White & Marshall, JJ., concurring in part and dissenting in part) [hereinafter cited as (Blackmun, J., concurring and dissenting)]. Justice Powell based his decision on the First Amendment, while the Blackmun opinion relied on the Sixth Amendment without reaching the issue of a First Amendment right of access. Id. at 447, 99 S.Ct. at 2940. The concurring opinions in Richmond Newspapers of Justices White, 100 S.Ct. at 2830, and Brennan and Marshall, id. at 2832-39, accept the recognition of a First Amendment right of access to judicial proceedings while maintaining their position in Gannett that the more explicit public trial right of the Sixth Amendment also contains such a right of access. Because a majority of the Court in Gannett rejected the Sixth Amendment as a basis for a right of public access, and consistent with the concurring and dissenting opinions in that case and with the Court’s explicit holding in Richmond Newspapers that there is a First Amendment right of access to criminal trials, we conclude that the First Amendment provides a right of access to pretrial proceedings as well. The principles that support a right of access to trials apply with equal force to pretrial proceedings. While the possibility of prejudicial pretrial publicity is greater and the alternatives to closure more limited in the pretrial setting, these concerns are addressed by balancing the need for closure against the right of access, not by refusing to recognize such a right.

Public access to judicial proceedings serves an amalgam of functions, functions which are as applicable to critical pretrial hearings as to trials. See Gannett Co. v. DePasquale, 443 U.S. at 433-39, 99 S.Ct. at 2933-36 (Blackmun, J., concurring and dissenting) (pretrial suppression hearing is a critical proceeding implicating right of trial access). An open courtroom has an ameliorative effect on judicial proceedings themselves, by deterring perjury and thus protecting the integrity of the judicial process, see id. at 383, 99 S.Ct. at 2907, by inducing the unknown witnesses to come forward with relevant testimony and thus promoting the search for truth, see id., by serving as a “restraint on possible abuse of judicial power,” In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 506, 92 L.Ed. 682 (1948); see United States v. Burka, supra; by guarding against misconduct by the police and prosecution, Sheppard v. Maxwell, supra ; and generally by “causing] all trial participants to perform their duties more conscientiously,” Gannett Co. v. DePasquale, 443 U.S. at 383, 99 S.Ct. at 2907. In addition to the ameliorative effect on the judicial process, openness and publicity perform an informative, educative function by enabling the public to observe the operation of the criminal justice system. See Richmond Newspapers, Inc. v. Virginia, 100 S.Ct. at 2824-25; Gannett Co. v. DePasq-uale, 443 U.S. at 383, 99 S.Ct. at 2907; id. at 428-29, 99 S.Ct. at 2930-31 (Blackmun, J., concurring and dissenting). Related to the educative function is another purpose of open proceedings, promoting the appearance of justice, see Richmond Newspapers, Inc. v. Virginia, 100 S.Ct. at 2824-25; Gannett Co. v. DePasquale, 443 U.S. at 429, 99 S.Ct. at 2931 (Blackmun, J., concurring and dissenting), which promotes confidence in the fair administration of justice. Although the simplified procedures of the pretrial detention hearing distinguish it from a trial and arguably lessen the need for and impact on the evidentiary process that public scrutiny brings,⁴⁸ the educative and “sunshine” aspects of openness fully apply to pretrial detention. “Secret hearings— though they be scrupulously fair in reality — are suspect by nature. Public confidence cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court’s decision sealed from the public view.” Id. (quoting United States v. Cianfrani, 573 F.2d 835, 851 (3d Cir. 1978)). In the context of a constitutional challenge to a controversial pretrial detention process, the appropriateness of public scrutiny of such pretrial proceedings cannot be gainsaid.

Appellant argues, with some force, that special considerations apply with respect to the possibility of prejudicial publicity arising from pretrial detention hearings. Like other pretrial hearings, pretrial detention hearings may involve the disclosure of allegedly inadmissible evidence, such as statements of the accused or physical evidence seized by the police, which ultimately may be suppressed. In addition, the nature of the inquiry in a pretrial detention hearing, in examining whether the past and present conduct of the accused supports a finding that he is dangerous to the community, necessarily introduces evidence which will be inadmissible at trial. Past arrests and convictions, highly relevant to the pretrial detention proceeding, are inadmissible at trial to show predisposition to commit the crime charged. Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). Likewise, the accused’s juvenile convictions may be introduced at the pretrial detention hearing but by law are confidential. See D.C.Code 1973, §§ 16-2331, -2333. Not only does a pretrial detention hearing present an increased possibility of prejudicial publicity, appellant further argues, but some of the alternatives to closure are less desirable. For instance, as with other hearings held in advance of trial, sequestration of the jury is not an available alternative. See Gannett Co. v. DePasquale, 443 U.S. at 378-79, 99 S.Ct. at 2904-05. But compare Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318, 324, cert. denied, - U.S. -, 101 S.Ct. 528, 66 L.Ed.2d 289 (1980) (sequestration an available alternative to closure when suppression hearing scheduled to immediately precede trial). Change of venue is not available in the District of Columbia, compare Nebraska Press Association v. Stuart, 427 U.S. 539, 563-64, 96 S.Ct. 2791, 2804-05, 49 L.Ed.2d 683 (1976), and a continuance is a costly alternative where the defendant would waive the statutory requirement that a person ordered detained be tried within 60 days. D.C.Code 1973, § 23-1322(d)(2)(A).

The increased possibility of prejudicial publicity and the limitation on alternatives are important considerations for a court confronted with a motion to close a pretrial proceeding. Nevertheless, the right of access of the press and the public to judicial proceedings mandates that the defendant make a showing and the court find, at a minimum, a likelihood that pretrial publicity will jeopardize the defendant’s fair trial and that there are no “alternative means reasonably available by which the fairness of the trial might be preserved without interfering substantially with the public’s interest” in open proceedings. Gannett Co. v. DePasquale, 443 U.S. at 400, 99 S.Ct. at 2916 (Powell, J., concurring); see id. at 440-42, 99 S.Ct. at 2936-38 (Blackmun, J., concurring and dissenting); Nebraska Press Association v. Stuart, 427 U.S. at 562-65, 96 S.Ct. at 2804-06. Compare Richmond Newspapers, Inc. v. Virginia, 100 S.Ct. at 2829-30 (in absence of any findings supporting closure or any inquiry regarding alternative solutions, closure order reversed).⁴⁹ Less burdensome alternatives, such as presenting the accused’s juvenile file for in camera review by the court, must be considered before taking the ultimate step of barring the courtroom door to the press and the public.

The record here reflects that Judge Bowers conducted no inquiry concerning: (1) the likelihood of and nature of pretrial publicity; (2) its potential to jeopardize a fair trial for all parties; and (3) the available means by which a fair trial can be assured without resorting to closure. Judge Norman, after originally ordering complete closure, modified this order after hearing from counsel for The Washington Post.

Significantly, the record in these cases shows that the minimal publicity accompanying these proceedings was primarily generated by the unusual fact of the closure itself. And that is hardly surprising. The District of Columbia, the capital of the nation, is a major metropolitan center with a surfeit of events commanding media attention. Events occur, are reported, and pass with amazing rapidity. Trials relating to events of national and international news attention have been conducted without undue difficulty in obtaining a jury free from taint caused by such news attention. See, e. g., Khaalis v. United States, D.C.App., 408 A.2d 313 (1979), cert. denied, 444 U.S. 1092, 100 S.Ct. 1059, 62 L.Ed.2d 781 (1980); United States v. Haldeman, 181 U.S.App.D.C. 254, 559 F.2d 31 (1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). The strong presumption must be that in any case, jurors can be found in the District of Columbia whose exposure to the case will have been sufficiently minimal to enable them to render a fair and impartial verdict. Absent findings of fact based upon a showing clearly demonstrating that pretrial publicity will jeopardize the parties’ right to a fair trial and that no alternative means are available to accord a fair trial without threatening the substantial public interest in open proceedings, it is error to order closure.

So ordered.

1 . For convenience, Mr. Edwards is hereinafter referred to as “appellant”, although he is the appellee in No. 80-294.

2 . Subsequent to argument on appeal, appellant entered pleas of guilty in both cases in which pretrial detention was sought pursuant to plea bargains. The disposition of the charges raises a question of mootness, as appellant is no longer held under the statute he challenges. We conclude, however, that the inherently limited time period for pretrial detention renders confinement under the statute a practice that would be “capable of repetition, yet evading review.” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); see Gerstein v. Pugh, 420 U.S. 103, 110 n.11, 95 S.Ct. 854, 861 n.11, 43 L.Ed.2d 54 (1975); District of Columbia v. Washington Home Ownership Council, Inc., D.C.App., 415 A.2d 1349, 1350 n.3 (1980) (challenge to 90-day emergency acts not moot). Similarly, although the closure orders may no longer be in effect, they also fall within the “capable of repetition, yet evading review” category. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 2820-21, 65 L.Ed.2d 973 (1980); Gannett Co. v. DePasquale, 443 U.S. 368, 377, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1979).

3 . The court also ordered that the record be sealed for all purposes except appellate review, the order presumably to be effective until trial or disposition of the charges. Notwithstanding this order, the record comes to us unsealed.

4 . “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.Const. Amend. VIII.

5 . See Bell v. Wolfish, 441 U.S. 520, 534 n.15, 99 S.Ct. 1861, 1871 n.15, 60 L.Ed.2d 447 (1979) (reserving the question whether any governmental interest besides guaranteeing an accused’s presence at trial may justify pretrial detention). The contradictory dicta of Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 3 (1951), and Carlson v. Landon, 342 U.S. 524, 545, 72 S.Ct. 525, 536, 96 L.Ed. 547 (1952), are inconclusive on the issue. See discussion infra Part II (D).

Previous cases in this jurisdiction have not directly passed on this question. In Blunt v. United States, 322 A.2d at 583-84, we upheld the constitutionality of D.C.Code 1973, § 23-1322(a)(3) (detention to prevent obstruction of justice and threatening of witnesses) but did not pass on the constitutionality of detention under D.C.Code 1973, § 23-1322(a)(1) or (2). In Dash v. Mitchell, 356 F.Supp. 1292 (D.D.C.1972) (three-judge court), the District Court held the plaintiffs had no standing to question the constitutionality of the pretrial detention statute. See generally United States v. Alston, D.C.App., 412 A.2d 351, 358 n.15 (1980) (en banc).

6 .“From the passage of the Judiciary Act of 1789, ... to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail.” Stack v. Boyle, 342 U.S. at 4, 72 S.Ct. at 3 (emphasis in original). See 18 U.S.C. § 3146 (1976) (right to bail in noncapital cases); Fed.R.Crim.P. 46(a) (incorporating § 3146 by reference).

The government contends that the longstanding and well-established exception for capital crimes in both the federal bail statute and under most state constitutions justifies a denial of bail in non capital cases on the grounds of the detainee’s dangerousness, citing Mitchell, Bail Reform and the Constitutionality of Pretrial Detention, 55 Va.L.Rev. 1223, 1225-31 (1969). Despite its superficial plausibility, however, there is no historical support for equating the capital crimes exception with a finding of dangerousness; rather, the right to bail was denied for capital crimes on the theory that a person faced with a possible death penalty would be likely not to appear at trial, so bail was denied to prevent flight, not to protect the community. See Tribe, An Ounce of Detention: Preventive Justice in the World of John Mitchell, 56 Va.L.Rev. 371, 377-79, 397, 400-02 (1970).

7 . “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted,” reprinted in 10 Sources and Documents of United States Constitutions 49 (W. Swindler ed. 1979); 7 American Charters 3813 (F. Thorpe ed. 1909). Compare note 4 supra.

8 . 1 W. & M., c. 36, § 1(10) (1689) (“That excessive bail ought not to be required .... ”).

9 . In Carlson v. Landon, 342 U.S. at 544-46, 72 S.Ct. at 536-37, the Court, in dictum, stated that the Eighth Amendment’s excessive bail clause does not provide a right to bail, citing, without discussion, its derivation from the English Bill of Rights. Commentators have criticized the Court’s summary discussions as historically inaccurate, asserting that it relies on an apparent misunderstanding of the allocation of discretion to the justices of the King’s Bench to grant bail for crimes made nonbailable by statute. See, e. g., Foote, The Coming Constitutional Crisis in Bail (pt. 1), 113 U.Pa.L.Rev. at 979.

10 . 3 Car. 1, c. 1 (1628); see Duker, The Right to Bail: A Historical Inquiry, 42 Alb.L.Rev. at 58-66 (1977); Foote, supra note 9, at 966-67; Meyer, Constitutionality of Pretrial Detention (pt. 1), 60 Geo.L.J. at 1180-85 (1972).

11 . 31 Car. 2, c. 2 (1679); see Duker, supra note 10, at 65-66; Foote, supra note 9, at 967; Meyer, supra note 10, at 1185-90.

12 . Reprinted in 5 Sources and Documents of United States Constitutions 49 (W. Swindler ed. 1975) [hereinafter cited as 5 Sources and Documents]. See Duker, supra note 10, at 79; Foote, supra note 9, at 975; Meyer, supra note 10, at 1162-63.

13 . Pennsylvania Charter of Liberty, Laws Agreed Upon in England, May 5, 1682, art. XI, reprinted in 8 Sources and Documents of United States Constitutions 259 (W. Swindler ed. 1979) [hereinafter cited as 8 Sources and Documents] and in 5 American Charters, supra note 7, at 3061. See Foote, supra note 9, at 975.

14 . Pa.Const. of 1776, § 28, reprinted in 8 Sources and Documents, supra note 13, at 283; see N.C.Const. of 1776 art. XXXIX, reprinted in 7 Sources and Documents of United States Constitutions 407 (W. Swindler ed. 1978) [hereinafter cited as 7 Sources and Documents]. (In 1868, North Carolina eliminated the right to bail from its constitution.) See also, Foote, supra note 9, at 975.

At present, 36 state constitutions provide an absolute right to bail in noncapital cases. See Petition of Humphrey, 601 P.2d 103, 108-10 (Okl.Cr.App.1979) (Appendix I).

15 . See Duker, supra note 10, at 80-81; Meyer, supra note 10, at 1163.

16 . See Duker, supra note 10, at 82.

17 . Mass.Const. of 1780, pt. 1, art. XXVI, reprinted in 5 Sources and Documents, supra note 12, at 95, and in 3 American Charters, supra note 7, at 1892 (emphasis added).

18 . N.H.Const. of 1784, art. I, § XXXIII, reprinted in 6 Sources and Documents of United States Constitutions 347 (W. Swindler ed. 1976), and in 4 American Charters, supra note 7, at 2457.

19 . Md.Const. of 1776, Declaration of Rights, § XXII, reprinted in 4 Sources and Documents of United States Constitutions 373 (W. Swindler ed. 1975), and in 3 American Charters, supra note 7, at 1688 (emphasis added).

20 . N.C.Const. of 1776, Declaration of Rights, § X; id. art. XXXIX, reprinted in 7 Sources and Documents, supra note 14, at 402, 407, and in 5 American Charters, supra note 7, at 2788, 2793; Pa.Const. of 1776, §§ 28, 29, reprinted in 8 Sources and Documents, supra note 13, at 283, and in 5 American Charters, supra note 7, at 3089; see Meyer, supra note 10, at 1191.

21 . The entire reference is as follows:

Mr. Livermore. — The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary. What is meant by the terms excessive bail? Who are to be the judges?

1 Annals of Cong. 782 (Gales & Seaton eds. 1789). The speaker then made similarly brief objections to the vagueness of the other clauses of the amendment. Id. at 782-83.

22 . An Ordinance for the Government of the Territory of the United States north-west of the river Ohio, July 13, 1787, art. II, re-enacted by Congress in 1789, 1 Stat. 50-53.

23 . The argument also overlooks the fact that procedural protection against abusive pretrial detention was provided in the U.S. Constitution by Art. I, § 9, cl. 2, which preserved the privilege of the writ of habeas corpus. See Meyer, supra note 10, at 1190.

24 .The Court in Stack added that “[u]nless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.” 342 U.S. at 4, 72 S.Ct. at 3. More recently, however, the Court has stated that the presumption of innocence has “no application to a determination of the rights of a pretrial detain-ee. . . .” Bell v. Wolfish, 441 U.S. at 533, 99 S.Ct. at 1870.

25 . Compare Trimble v. Stone, 187 F.Supp. 483 (D.D.C.1960) (constitutional right to bail extends to juvenile cases) (citing Stack v. Boyle, supra) with United States ex rel. Covington v. Coparo, 297 F.Supp. 203, 205 & n.6 (S.D.N.Y.1969) (Congress may define which criminal offenses are bailable) (citing Carlson v. Landon, supra). See generally Note, Preventive Detention Before Trial, 79 Harv.L.Rev. 1489, 1498-1500 (1966).

26 .See Foote, supra note 9, at 989-92.

27 . Wong Wing involved the detention of aliens pending inquiry into their status, which was found unobjectionable, and their subsequent imprisonment at hard labor without trial, which was invalidated. Detention under the challenged statute does comprehend a longer period of confinement than that administratively necessary in any arrest to effect processing, presentment, and a bail hearing, if appropriate, but is limited to the pretrial period which may not exceed 60 days. D.C.Code 1973, § 23-1322(d)(2)(A). After this 60-day period, generally the defendant must be admitted to bail. Id.

28 . In Bell v. Wolfish, the Court was called upon to determine whether certain jail conditions were penal or regulatory as applied to uncon-victed pretrial detainees. The petitioners did not challenge and the Court specifically reserved any determination regarding the constitutionality of the initial decision to detain. 441 U.S. at 534 & n.15, 99 S.Ct. at 1871 & n.15.

29 . Justice Stevens, dissenting in Bell v. Wolfish, disagreed with the majority’s application of the Kennedy v. Mendoza-Martinez standard and suggested that a distinguishing principle between punishment and a regulatory sanction is that punishment is “backward-looking, personal, and normative,” while a regulatory sanction is “forward looking, general, and nonnor-mative.” Bell v. Wolfish, 441 U.S. at 581-82 n.10, 99 S.Ct. at 1896-97 n.10. Justice Stevens concluded:

By contrast, pretrial detention is acceptable as a means of assuring the detainee’s presence at trial and of maintaining his and his fellows’ safety in the meantime. Its focus is therefore essentially forward looking, general, and nonnormative. Because this type of government sanction is primarily designed for the future benefit of the public at large and implies no moral judgment about the person affected it is properly classified as regulatory. [Jd.]

30 . As the Court noted in Bell v. Wolfish, “[Retribution and deterrence are not legitimate nonpunitive governmental objectives.” 441 U.S. at 539 n.20, 99 S.Ct. at 1874 n.20 (citing Kennedy v. Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. at 567). In neither Mendoza-Martinez nor Wolfish does the Court indicate that “deterrence” is meant to encompass what is sometimes referred to as specific deterrence, i. e., “deterrence” through physical incapacitation, as well as the generally understood meaning of general deterrence, i. e., the existence of a criminal sanction and the example of its application deters others for fear of similar consequences.

31 . See Ingraham v. Wright, 430 U.S. at 686-87, 97 S.Ct. at 1420-21 (White, J„ dissenting) (footnote and citation omitted): “The relevant inquiry is not whether the offense for which a punishment is inflicted has been labeled as criminal, but whether the purpose of the deprivation is among those ordinarily associated with punishment, such as retribution, rehabilitation, or deterrence.”

32 . Appellant also contends that pretrial detention unconstitutionally punishes for the “status” of being “dangerous,” relying on Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (punishment for status of drug addiction violates Eighth and Fourteenth Amendments’ prohibition on cruel and unusual punishment). Because we conclude that such detention is not punishment, the argument falls of its own weight. Moreover, a necessary prerequisite to pretrial detention is an arrest for a specified crime, which crime is an act beyond mere status. See Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1258 (1968) (state may not punish status of alcoholism but may punish for specific acts such as public drunkenness).

33 . The due process requirement of notice is addressed in part III(C), infra.

34 . The Court decided the constitutional requirements for a preliminary hearing under the Fourth Amendment rather than the Due Process Clause of the Fifth Amendment, noting that “[t]he Fourth Amendment was tailored explicitly for the criminal justice system, and its balance between individual and public interests always has been thought to define the “process that is due” for seizures of person or property in criminal cases, including the detention of suspects pending trial.” Gerstein v. Pugh, 420 U.S. at 125 n.27, 95 S.Ct. at 868 n.27.

35 . Appellant also contends that the burden of proof should be the criminal trial standard of proof beyond a reasonable doubt, rather than the probable cause standard of the preliminary hearings in both Gerstein and Morrissey, and apparently contends that the right to confront and cross-examine the complainant is absolute.

36 . See note 34, supra.

37 . See Super.Ct.Cr.R. 5(d)(1) (“Preliminary Examination”): “The purpose of a preliminary examination is not for discovery .... The finding of probable cause may be based upon hearsay evidence in whole or in part. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf.”

38 . D.C.Code 1973, § 23-1322(c)(3) provides:

The pretrial detention hearing shall be held immediately upon the person being brought before the judicial officer for such hearing unless the person or the United States attorney moves for a continuance. A continuance granted on motion of the person shall not exceed five calendar days, unless there are extenuating circumstances. A continuance on motion of the United States attorney shall be granted upon good cause shown and shall not exceed three calendar days. The person may be detained pending the hearing.

39 . “Uhe] revocation proceedings [in Morris-sey] may offer less protection from initial error than the more formal criminal process, where violations are defined by statute and the prosecutor has a professional duty not to charge a suspect with crime unless he is satisfied of probable cause.” Gerstein v. Pugh, 420 U.S. at 121-22 n.22, 95 S.Ct. at 866-67 n.22.

40 . The rights of confrontation, cross-examination, and compulsory process, guaranteed to the defense in a criminal trial by the Sixth Amendment, are related and overlapping rights. Generally speaking, a right of confrontation is the right to be present and to hear the live testimony of available witnesses whose statements are used against the defendant. See Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 403-05, 85 S.Ct. 1065, 1067-69, 13 L.Ed.2d 923 (1965). See generally Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv.L.Rev. 567, 569-79 (1978). The right of cross-examination, derived from the right of confrontation, is the right to cross-examine the government’s witnesses presented at trial. See Pointer v. Texas, 380 U.S. at 404, 85 S.Ct. at 1068; Westen, supra at 579-81.

41 .The Supreme Court recently reexamined the relationship between the right of confrontation and the hearsay rule. In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Court held that the introduction at defendant’s trial of testimony obtained at a preliminary hearing from a witness who did not appear at trial did not violate defendant’s right of confrontation, where the witness had been subjected to the equivalent of significant cross-examination at the preliminary hearing. This holding rested upon a showing that the witness was unavailable for trial and that the hearsay testimony bore adequate “indicia of reliability.” Id. at 2542—13. Roberts addressed the issue of whether testimony obtained at a preliminary hearing may be used against a defendant at trial without violating defendant’s right of confrontation; it did not address the issue which we face here, namely; whether the government may proceed by proffer and hearsay at a pretrial detention hearing.

42 . Appellant relies on the language in Gerstein wherein the Court distinguished the nature of the functions in Gerstein and Morrissey. “[A probable cause hearing] does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands, and credibility determinations are seldom crucial .... ” 420 U.S. at 121, 95 S.Ct. at 866. Although the statutory standard for determining if the accused in a pretrial detention hearing committed the charged offense is “substantial probability,” D.C.Code 1973, § 23-1322(b)(2)(C), a higher standard than probable cause, it is nevertheless essentially an informed estimate of whether the government will prove the charge at trial and it does not require the fine determination of a reasonable doubt standard.

43 . He had previously obtained a three-day continuance in the case handled by Judge Bowers.

44 . Unquestionably, there is no constitutional right to post-conviction bail. Harris v. United States, 404 U.S. 1232, 92 S.Ct. 10, 30 L.Ed.2d 25 (1971) (Douglas, J.); Johnson v. United States, D.C.App., 291 A.2d 697, 698 (1972); see 18 U.S.C. § 3148 (1976); D.C.Code 1973, § 23-1325; Duker, supra note 10, at 112-19. Having concluded that, likewise, there is no constitutional right to pretrial bail, the deprivation of liberty through pretrial detention does not differ significantly from either detention in lieu of bail or the denial of bail pending appeal, as due process attaches to post-conviction denials of liberty interests. See Morrissey v. Brewer, supra (parole revocation); Gagnon v. Scarpelli, supra (probation revocation); Wolff v. McDonnell, supra (loss of good-time credits for prison disciplinary infraction).

45 . E. g., Note, Preventive Detention: An Empirical Analysis, 6 Harv.C.R.-C.L.L.Rev. 289 (1971).

46 . Specifically, § 23-1331(3)-(4) of the D.C. Pretrial Detention Statute provides statutory definitions for “dangerous” and “violent” crimes.

Subsection 3 provides:

The term “dangerous crime” means (A) taking or attempting to take property from another by force or threat of force, (B) unlawfully entering or attempting to enter any premises adapted for overnight accommodation of persons or for carrying on business with the intent to commit an offense therein, (C) arson or attempted arson of any premises adaptable for overnight accommodation of persons or for carrying on business, (D) forcible rape, or assault with intent to commit forcible rape, or (E) unlawful sale or distribution of a narcotic or depressant or stimulant drug (as defined by any Act of Congress) if the offense is punishable by imprisonment for more than one year.

Subsection 4 provides:

The term “crime of violence” means murder, forcible rape, carnal knowledge of a female under the age of sixteen, taking or attempting to take immoral, improper, or indecent liberties with a child under the age of sixteen years, mayhem, kidnaping, robbery, burglary, voluntary manslaughter, extortion or blackmail accompanied by threats of violence, arson, assault with intent to commit any offense, assault with a dangerous weapon, or an attempt or conspiracy to commit any of the foregoing offenses as defined by any Act of Congress or any State law, if the offense is punishable by imprisonment for more than one year.

47 . Contrary to the contention of Judge Ferren in his dissent, we do not purport to advise the legislative or executive branches of government on the constitutionality of a statute not before us. We only hold that the statute before us, with its “stricter standards” — to use his language — survives appellant’s constitutional challenge.

48 . Compare Gannett Co. v. DePasquale, 443 U.S. at 437, 99 S.Ct. at 2935 (Blackmun, J., concurring and dissenting) (probable cause hearings, unlike pretrial suppression hearings, may be secret).

49 . Justice Powell found sufficient evidence in the record in Gannett to support a finding that prejudicial publicity was likely to jeopardize the defendants’ fair trial rights. The trial was to take place in a small town in a county with a total population of 34,000, see Gannett Co. v. DePasquale, 443 U.S. at 371 n.1, 99 S.Ct. at 2901 n.1, where there had been extensive pretrial publicity in two local newspapers concerning the crime and the defendants’ arrest, see id. at 371-74, 99 S.Ct. at 2901-03.

3 . An amicus curiae is a neutral party who appears to aid the court. Where one who seeks to appear as an amicus is advocating a position of one of the parties, this is inconsistent with the impartiality which clothes amicus curiae, and the court within its discretion may deny the application to appear as amicus. Casey v. Male, 63 N.J.Super. 255, 164 A.2d 374 (1960). Since the trial court permitted The Washington Post to be heard, we should assume that it did so on grounds consistent with the role of an amicus curiae; that is, the court sought information from The Washington Post as a friend of the court to better assist it in assessing the public interest in an open proceeding.

As a matter of law our disposition of the case should also be consistent with the role of an amicus. Therefore, we cannot consider the First Amendment question sought to be raised. The fact that the trial court allowed The Washington Post to be heard does not serve to make it a party on appeal. Peckham v. Casalduc, 261 F.2d 120 (1st Cir. 1958).