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State’s Top Court Rules Witnesses Not Required at Pretrial Hearings

In a move to further refine New Jersey’s criminal justice reform, Supreme Court says prosecution doesn’t have to call witnesses to determine if accused can be held in jail

Judge Rabner
Chief Justice Stuart Rabner

In a victory for state prosecutors, the New Jersey Supreme Court ruled Tuesday that the state is not required to call witnesses at pretrial hearings that determine whether a person accused of a crime must remain in jail until a court hears his case, which could take two years.

In another decision that further refines New Jersey’s seven-month old criminal justice reform, the justices were unanimous in finding that neither state law nor the principle of due process demand the state present witnesses at detention hearings as a rule. However, judges have the discretion to require direct testimony if they believe the prosecution has not made a convincing case with the other evidence presented.

“To require the State to present a live witness at more than 10,000 detention hearings each year would impose significant additional ‘fiscal and administrative burdens’ on the court system, law enforcement officers, the prosecution, and public defenders,” wrote Chief Justice Stuart Rabner for the court. He cited statistics from the Administrative Office of the Courts that the state moved to detain 7,824 cases in the first half of this year, and courts held hearings in 5,548 of those cases.

“To be clear, though, we repeat that the trial court has discretion to require direct testimony if it is dissatisfied with the State’s proffer,” Rabner continued, referring to the evidence documents that prosecutors present. “In those instances, the State must proceed reasonably promptly to avoid unduly prolonging a defendant’s detention while the hearing is pending. That approach conforms to the tight time deadlines the CJRA (Criminal Justice Reform Act) imposes once a prosecutor applies for pretrial detention.”

Refining the rules

This latest decision is part of the court’s effort to quickly refine for judges, prosecutors, and defense attorneys the rules by which those accused of significant crimes are either released or held pending trial under the major criminal justice reform implemented statewide beginning January 1.

New Jersey voters overwhelmingly passed a constitutional amendment in 2014 changing how the courts decide where those accused of a crime spend their time awaiting trial.

Under the former system, a judge would set a dollar bail amount and a person unable to pay bail was forced to await trial in jail, while a wealthy person who could afford the bond could go free, regardless of the severity of the crime committed. Under bail reform, it is assumed that alleged criminals will be released without bail — some with varying degrees of monitoring — but those accused of the most heinous offenses may be detained until their case goes before a judge.

Trimming time to trial

Those who are held must be tried within two years in an effort to minimize the amount of time a person must spend in confinement while awaiting trial.

Tuesday’s ruling is a setback that undermines the fairness in bail reform, according to the American Civil Liberties Union of New Jersey, which was a proponent of criminal justice reform and has continued to support the effort as a fairer way to determine who is released and who is detained pending trial.

“The decision to lock someone up is a critical one, especially before an adjudication of guilt, and any decision to detain someone pretrial requires significant due process,” said Alexander Shalom, senior ACLU staff attorney, who was disappointed by the ruling. Shalom had argued before the court that hearsay statements that cannot be tested may not be enough to justify detention without additional evidence.

“As recommended by the Supreme Court, we urge trial courts to carefully scrutinize all evidence during pretrial detention hearings and require direct testimony whenever it is dissatisfied with the state’s submissions,” he said.

Extensive safeguards

In this decision and a prior one that further refined the rules surrounding pretrial hearings, the court acknowledged that pretrial detention is significant because it “interferes with a defendant’s liberty interest,” but it wrote that the law has provided “extensive safeguards that protect that critical interest.” The state must prove grounds for detention and probable cause that the defendant committed the offense, and it does not need to call witnesses to testify to do so.

In the specific case involving Amed Ingram on which the court ruled, though, the justices said the pretrial hearing judge would have had cause to require the prosecution to call a witness because the state did not prove its case on at least one of the counts on which the defendant was charged. Based on their questioning of the attorney representing the state during oral arguments on this case, it seemed clear that the justices did not think the information provided by prosecutors had been sufficient.

Police arrested Ingram in Camden after an officer indicated he saw the man with a handgun on January 1, little more than an hour after the reform went into effect. The report prepared by police, known as the preliminary law enforcement incident report or PLEIR, gave little evidence, other than to state that the officer had seen Ingram with a gun.

Assessing public safety

The public safety assessment the state is now using to determine whether a person should be released and, if so, whether to impose any conditions of release, judged Ingram to be at the highest risk of failing to appear for court and for committing another crime. The prosecutor sought to detain Ingram in jail and a judge agreed.

Ingram’s defense attorney objected and argued that the state needed to present a live witness to establish probable cause at the detention hearing. Before the Supreme Court took the case, a grand jury in Camden County indicted Ingram, leaving his specific case moot.

Still, the justices used this case as a way to provide guidance for future hearings. Simply stating that police officers observed an offense may not be enough proof to detain the accused.

“The better practice to establish probable cause is to provide a narrative statement of facts in the affidavit and identify the basis for the officer’s knowledge,” Rabner wrote. “The affidavit should do more than merely recite statutory language. It should contain sufficient information in the form of factual details, not legal conclusions, to explain how probable cause exists for each charge.”

It also would have helped had the prosecutor provided the officer’s incident report on the arrest, which provided more information. Today, due to a court ruling and a new rule issued, prosecutors must disclose such reports prior to a hearing.

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