APPEALING A NEW JERSEY DETENTION ORDER
I’ve written previous articles on New Jersey’s pre-trial detention proceedings following bail reform in the Garden State. It is important to understand that in New Jersey, unlike Pennsylvania, cash bail has been pretty much abolished. New Jersey now has implemented a system in which criminal defendants are either detained or released prior to trial.
Pretrial Detention Proceeding In New Jersey
To detain an individual the county prosecutor’s office must file a petition for detention prior to a defendant’s first appearance. Following a defendant arrest a public risk assessment and pre-trial detention recommendation must be made within 24-48 hours of that arrest. A prosecutor’s office can file a motion to detain a person even if the Public Risk Assessment (PSA) is low. At a detention proceeding the court will evaluate a defendant’s PSA score and consider arguments of the prosecutor and defense counsel before deciding. A superior court judge may release a defendant with few or any conditions if he or she is a low risk individual, but a court can also impose electronic monitoring if it is appropriate.
What is the Burden of Proof at a Detention Hearing
The evidentiary burden of proof at a detention hearing is clear and convincing evidence which is a lower standard than guilt beyond a reasonable doubt (criminal trial standard at trial). In other words, the court must decide if the prosecution has presented substantial credible evidence to support, by clear and convincing evidence, that no amount of monetary bail, non-monetary conditions of pre-trial release, or a combination of monetary bail and conditions would do the following:
- Assure a defendant’s appearance in court
- Protect the safety of any other person in community
- Ensure that the defendant would not obstruct or attempt to obstruct the criminal justice process
The Right To Appeal Detention
If the Superior Court is persuaded during a detention proceeding the defendant does have the right to appeal the decision within 7 days to New Jersey’s Appellate Division. New Jersey’s appellate division will review the trial court’s determination and evaluate the decision based on those above stated factors. The appellate court will evaluate the trial court’s decision and determine if it considered relevant and appropriate information in making its pre-trial detention determination under NJSA 2A: 162-20. These factors include the following:
- The nature and circumstances of the offense charged
- The weight of the evidence against the defendant
- The history and characteristics of the defendant
- The nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release
- The nature and seriousness of the risk of obstructing or attempting to obstruct the criminal justice process that would be posed by the defendant’s release
- The release recommendation of the pre-trial services program
The appellate court will determine if the trial court’s decision was an abuse of discretion and failed to comport with the applicable legal principles. It is important to keep in mind that a trial court’s decision can not rely solely on a recommendation against release made within a PSA.
The defense can also take the opportunity in an appeal to point our claims of errors made in the PSA calculation score, but the defense attorney must have brought them up during the actual detention proceedings at the trial level. New Jersey pre-trial detention proceedings are an extremely critical part of any criminal defense. For more information please contact our law firm.
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