Bail Reform in New Jersey: A Sixty-Day Checkup

Bail Reform in New Jersey: A Sixty-Day Checkup

The new year brought with it a titanic shift in New Jersey’s criminal justice system. Signed by Governor Christie on August 11, 2014, the Bail Reform Law included an amendment to the New Jersey State Constitution that — for the first time in the state’s history — authorized the pretrial detention of defendants without bail. This NJ bail reform law did not take effect until January 1, 2017, and has since been met with mixed reviews. The most meaningful assessment and analysis, however, comes from our state’s appellate courts. Both these courts and the New Jersey Supreme Court give binding direction and instruction to judges, prosecutors and defense attorneys.

With a little over 60 days of contentious litigation having passed, the appellate division has already settled — for the time being — two of the most pertinent issues in pretrial detention hearings.

What Evidence Must the Prosecutor Provide to a Defendant?

The first case wherein the procedures of pretrial detention were addressed came on February 8, 2017, in State v. Robinson. The defendant was arrested and charged with murder. In the Preliminary Law Enforcement Information Report (PLEIR), a document that briefly summarizes the evidence available to law enforcement at the time of the arrest, police noted that law enforcement possessed surveillance footage relevant to the case. The defendant demanded that the prosecutor produce this footage, but the prosecutor refused. The judge presiding over the detention hearing ordered the prosecutor to turn over certain discoveries, including the surveillance footage. The state appealed.

An appellate court upheld the judge’s order at the detention hearing, finding that the plain language and purpose of the law compelled the production of materials relevant to the probable cause upon which the state relies when seeking detention. Moreover, the appellate court held that information included in the Affidavit of Probable Cause, a document that briefly spells out the evidence supporting the arrest of a defendant, is also subject to discovery. Finally, the appellate court made no distinction between materials in the possession of the police and materials in possession of the prosecutor. In short: If the police have it, so does the prosecutor.

Can the Prosecutor Rely on Hearsay at the Detention Hearing?

The second case, State v. Ingram, was decided March 1, 2017. The defendant was arrested and charged with various firearms offenses. As is the practice of prosecutors, the state relied upon an affidavit of probable cause and the PLEIR at the detention hearing, and did not produce any testimony from police officer(s) or other witnesses. The judge found that probable cause existed that the defendant committed the offense, and ordered the defendant held without bail. The defendant appealed.

On appeal, the primary issue was whether the prosecutor was required to produce live testimony when establishing probable cause, as opposed to relying upon the probable cause affidavit and the PLEIR. In other words, can the prosecutor proffer documents instead of calling live witnesses?

The appellate court held that the prosecutor is not required to call live witnesses. The court noted that federal criminal courts employ a similar system of pretrial detention and permit the proffering of documents instead of live testimony. The court further rejected the defendant’s argument that the plain language of the Statute, providing a defendant with a right of cross examination, also compelled the state to produce live testimony. Rather, the court held that if the state opted to produce live testimony, the defendant has a right to cross-examine the witness. The court declined to hold that the state was required to produce a witness, though. Finally, the court expressed concern over the volume of detention hearings and the risk of “mini-trials” monopolizing judicial resources.

The court did convey discretion to the judge and held that a judge could demand the prosecutor produce a live witness. The court did not address a defendant’s right to produce evidence by way of proffer in lieu of live testimony.


Sixty days in, the appellate courts have spoken regarding two significant issues pertaining to pretrial detention hearings. If this were a boxing match, it would be a split decision. Defendants walked away with a victory in that prosecutors must produce more discovery than they would prefer to hand over at this early stage. Prosecutors succeeded in holding off defendants’ demands for live testimony and an early crack at cross-examining law enforcement or other witnesses.

To be sure, NJ bail guidelines (Pretrial Detention) are far from settled. At some future juncture, the New Jersey Supreme Court will consider these issues, and those decisions will dictate procedure with far more authority. There are also countless other questions that will arise, and the devil is often in the details of the particular facts and circumstances before the courts. For now, though, pretrial detention hearings are simultaneously the law of the land and a work in progress.

If someone you know has been taken into custody as a result of being charged with a crime in New Jersey, the attorneys at Rosenberg | Perry & Associates, LLC can help. Knowing the law and the leanings of local judges and prosecutors is invaluable when presenting a defense to any criminal accusations and trying to avoid pretrial detention. Call (609) 216-7400 for an immediate, free consultation with experienced and compassionate counsel.