What Does the Prosecutor have to Prove for Pretrial Detention?

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

The new system in the Bail Reform Act favors pretrial release and monitoring as the presumptive approach and limits preventive detention to defendants who actually warrant it.  Nonetheless, the trial court remains authorized, upon motion of a prosecutor, to order pretrial detention of a particular defendant when it finds by “clear and convincing evidence, that no condition or combination of conditions can reasonably assure the effectuation of these goals.” N.J.S.A. 2A:162-15; accord N.J.S.A. 2A:162-18(a)(1); N.J.S.A. 2A:162-19(e)(3).

The State may file an application for pretrial detention when a defendant is charged with, among other things: (1) any crime of the first or second degree enumerated under NERA17; or (2) any crime enumerated under N.J.S.A. 2C:7-2(b)(2) (Megan’s Law) or the crime of endangering the welfare of a child under N.J.S.A. 2C:24-4. See N.J.S.A. 2A:162-19(a)(1) and (4). The State may also move for pretrial detention when a defendant is charged with any other crime for which the prosecutor believes there is a serious risk that the goals set forth in N.J.S.A. 2A:162-15 cannot be met. N.J.S.A. 2A:162-19(a)(7).

At the detention hearing required by N.J.S.A. 2A:162-19(c), if the defendant has not yet been indicted, “the prosecutor shall [first] establish probable cause that the eligible defendant committed the predicate offense.” N.J.S.A. 2A:162-19(e)(2). Probable cause consists of a “well grounded” suspicion that an offense has been committed. State v. Sullivan, 169 N.J. 204, 211 (2001).

Except for when an eligible defendant is charged with a crime set forth in N.J.S.A. 2A:162-19(b), i.e., murder or any crime for which the defendant would be subject to an ordinary or extended term of life imprisonment, the statute imposes a rebuttable presumption against detention. N.J.S.A. 2A:162-18(b). The State must rebut the presumption that some amount of monetary bail, non-monetary conditions, or a combination thereof would reasonably assure (1) the defendant’s appearance in court when required, (2) the protection of the safety of any other person or the community, and (3) that the defendant will not obstruct or attempt to obstruct the criminal justice process. N.J.S.A. 2A:162-18(b).

At a detention hearing the court may take into account :

1. the nature and circumstances of the offense charged
2. weight of evidence
3. history and characteristics of defendant including:
   1. character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
   2. whether, at the time of the current offense or arrest, the eligible defendant was on probation, parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any other state
4. danger to any other person if released
5. risk of obstructing criminal justice process if released
6. release recommendation of the pretrial services program

A defendant may be released on: (1) his or her own recognizance; (2) execution of an unsecured appearance bond; (3) non-monetary conditions; (4) monetary bail; or (5) a combination of conditions and monetary bail. N.J.S.A. 2A:162-16(b)(2); N.J.S.A. 2A:162-17. Monetary bail can only be used to reasonably assure the eligible defendant’s appearance. N.J.S.A. 2A:162-17(c)(1)