Bail Pending Appeal (Part 1)

Prison-bound defendants generally fall into two categories. The first category involves those who are convicted of a first or second degree crime. The second category deals with those whose prior records are bad and are therefore not amenable to probationary sentences, even though probation could otherwise be imposed for a third or fourth degree crime.

While there is a right to appeal the various issues that were decided by the trial court, that right often rings hollow when a relatively short prison sentence is handed down. For example, a defendant will usually have to serve a minimum of six months in the state prison sentence before being considered for parole. Because appellate courts have finite resources they almost never decide a case on appeal within six months of a defendant’s sentence. Therefore, even a meritorious appeal on a relatively short prison sentence will not be decided until a defendant has already served their time. While the vacation of a conviction could still help a defendant by way of erasing a criminal record, i.e. it can improve future employment prospects and remove the related collateral consequences of being a convicted felon, the time unjustly served I prison can never be returned.

The exception to this unfortunate reality is that bail pending appeal can be granted by the trial or appellate court. However, the defendant is first required to demonstrate that allowing them to post bail while their appeal is decided does not endanger anyone’s safety.

Additionally, they must demonstrate that the appeal “presents numerous substantial questions.” The dynamic here is that the defense is essentially asking the trial judge to concede that there is a good chance that he or she erred in their decision on a particular issue or issues. Trial courts usually loathe to do this, especially after protracted litigation. And protracted litigation is usually the only kind of litigation that produces issues for appeal. That is because unless there is a full trial, the only issues that are automatically preserved for appeal are (1) motions to suppress physical evidence and (2) denials from the pre-trial intervention and drug court programs. Still, there are rare cases where judges are willing to grant bail pending appeal, especially when novel issues that have never been decided in New Jersey are at stake.