What Are My Rights to Evidence for a Pretrial Detention Hearing?
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
Recently the New Jersey Superior Court implemented the final part of the State’s Bail Reform Act N.J.S.A. 2A:162-15 to -26 since it went into effect on January 1, 2017 and approved by voters and the legislature over 2 years ago. Now, when some is arrested there is determination to be made if a defendant is to be issued a Warrant or Summons with a return date to appear at trial. For all cases where a defendant is charged with a summons, there is an immediate release and a return date for a hearing. For all cases involving the issuance of a warrant, the next step is a 48 hour review period by the court in order for a of whether the defendant shall be entitled to release, pretrial supervision, or ultimately pretrial detention. Obviously, the nature of the offense primarily dictates whether there will be pretrial release, pretrial supervision, or pretrial detention. Major 1st and 2nd crimes such as murder, aggravated sexual assault and weapons offense will mandate a pretrial detention hearing with a presumption against release! There is a list of other serious crimes which contain the same presumption against release, as well as a list of crimes which have a presumption against pretrial detention and an ‘entitlement’ to release. A defendant’s prior history, prior history of supervision, compliance with the law, and prior bail violations will also come into play.
As a result of these recent substantial changes in criminal procedure the Appellate Division had the opportunity to issue an opinion defining the scope of evidence the State must produce prior to a pretrial detention hearing. This was the first opinion the In State v. Robinson, the defendant was arrested and charged with murder based on an affidavit of probable cause reciting two eyewitnesses that allegedly saw the defendant shoot the victim, and the witnesses identified the defendant from a photo array. The murder charge was also based off of the Preliminary Law Enforcement Information Report (PLEIR) which summarizes the evidence in the prosecutor’s possession. This PLEIR in particular stated that the police had surveillance video footage of the defendant. During the pretrial detention hearing, there was a dispute as to what the State had to produce for discovery purposes. The relevant statute indicates:
[I]f the prosecutor is seeking pretrial detention, the prosecutor shall provide the defendant with all statements or reports in its possession relating to the pretrial detention application. All exculpatory evidence must be disclosed. R. 3:4-2(c)(1)(B)
The Court was faced with the task of analyzing what “relating to the pretrial detention application” means. The Court held that the State could not just produce the PLEIR summarizing the evidence and the probable cause affidavit. Instead, the Court required the prosecutor to produce the two eyewitness statements, the photo array, the surveillance video listed in the PLEIR, and the initial police reports. Through the Court’s statutory interpretation, the panel reasoned that the evidence the State relied upon for the murder charge was all information “relating to the pretrial detention application” and the defendant was entitled to such information. The Court further stated that if materials are in possession of the police, they are in the State’s possession and the prosecutor must produce them.
In summary, a prosecutor seeking pretrial detention must produce all of the evidence in his or her possession and not just a summary of the evidence, even if that evidence is still with the police. This material will help the defendant prepare for any cross examination of any witnesses at the time of the detention hearing and see exactly what he evidence he/she is facing at an eventual trial.
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