Our criminal defense law firm represents clients in Pennsylvania and New Jersey and in all of these matters, a person’s liberty is obviously a major issue before and after trial. Keep in mind that in Pennsylvania and New Jersey most serious drug and firearm offenses carry with them a possibility of state prison time and so many prosecutors and district attorney will argue for high bail to keep a person in custody pending trial. High bail, however, isn’t the same issue as no bail and this is the reason why New Jersey is so different than Pennsylvania when it comes to pre-trial bail issues
New Jersey Bail Procedure
New Jersey bail system, unlike Pennsylvania’s system isn’t based on money but on risk factors to determine if a person should be held in custody prior to trial.
If a prosecutor in New Jersey is seeking pre-trial detention, he or she must file a motion before a court orders the accused person’s release based on New Jersey’s new bail reform guidelines.
If this motion isn’t filed, a court, no later than 48 hours after a person is taken into custody, should release the accused individual on their personal recognizance or on the execution of an unsecured appearance bond, after considering the pre-trial services risk assessment and any other information available to the court.
The New Jersey Pre-Trial Detention Proceeding – 2 Part Test
If the prosecutor files such a motion, there is a rebuttable presumption that the eligible defendant should be detained pending trial because no amount of monetary bail, non-monetary conditions, or a combination will ensure that this person appears for trial, or that this person presents a danger to the community. It is important to keep in mind that once a motion is filed for detention, there is a two prong analysis which the court must go through in order to determine if detention is appropriate.
First, the court must determine if probable cause exists to find that the eligible defendant committed a predicate offense under 2A: 162-19 which would include crimes of violence, illegal drugs, and firearms offenses (Graves Act).
The standard of proof to overcome the rebuttable presumption for the defense is preponderance of the evidence. If the defense does not overcome the presumption, the court will likely order that the defendant be held prior to trial. If, however, the defense does establish sufficient burden of proof the prosecutor is then given the opportunity to establish grounds that detention is appropriate. This is the second part of the analysis.
To determine if detention is appropriate the court may consider the following factors:
- The nature and circumstances of the offense charged
- The weight of evidence against the eligible defendant and the likelihood that the admissible evidence could be excludable
- The history and characteristics of the defendant
- The defendant’s character, physical and mental condition, along with family ties, employment, length of residence in the community and prior criminal history
- The release recommendation of pre-trial services using a risk assessment analysis report.
Pre-trial detention is quickly becoming a major issue in New Jersey as the new bail reform procedure has replaced the former monetary system. Remember that if a person isn’t granted release during a detention hearing, he or she will be held until the matter is disposed of through a trial or a plea.
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.
Reopening Detention Proceeding
If a Superior Court judge orders detention and the appellate denies the appeal, the defense can file a motion to reopen detention proceedings if there is a change in circumstances following the original detention order. A change in circumstances can include but isn’t limited to any of the following situations
- Some of criminal charges are downgraded
- Some of the criminal charges are dismissed
- Material witnesses become permanently unavailable due to death or incapacity and the State cannot otherwise support a criminal charge
- Evidence is lost
- Evidence is destroyed
If you or a friend is held in pre-trial detention in New Jersey, your criminal defense lawyer must always monitor the status of your case for a change in circumstances which could be the basis for a motion to reopen detention proceeding. Remember, your criminal defense lawyer must file a motion to reopen detention proceedings. The prosecution in almost every situation will never request that a Court reconsider a detention order.
For more information on criminal defense strategies and tactics in New Jersey, I invite you to continue reading this blog or give our firm a call.
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