Bail Reform: Affidavit of Probable Cause

“The Division of Criminal Justice shall work with the AOC to develop and implement practices and procedures that allow an Affidavit of Probable Cause to be filed electronically through the eCDR system to support an application for a complaint-warrant and to supplement any oral statements made under oath by the law enforcement officer applying for the complaint-warrant. The Affidavit of Probable Cause shall include a check-box allowing the officer to certify that the statements in the Affidavit are true, and acknowledging that the affiant is aware that filing willfully false statements would subject him or her to punishment.

The Affidavit of Probable Cause shall include a concise description of relevant facts and circumstances that support probable cause to believe that the offense(s) was committed and that the defendant is the one who committed it. The Affidavit shall include a concise statement as to the officer’s basis for believing that the defendant committed the offense(s) (e.g., the officer’s personal observations, statements of eyewitnesses, defendant’s admission, etc.), and shall indicate whether a victim was injured and, if so, the extent of the injury known to the officer submitting the Affidavit. The foregoing description of relevant facts and circumstances and statement as to the officer’s basis for believing that probable cause exists may be established, or supplemented, by a Preliminary Law Enforcement Incident Report prepared pursuant to Section 5.2. See also R. 3:4-2(c)(l)(A). In that event, the Preliminary Law Enforcement Incident Report shall be appended to/transmitted with and expressly incorporated by reference in the Affidavit of Probable Cause.”

On their face, these provisions would appear to provide transparency and greater insight into the charges against an accused at an early stage in the proceedings. In practice, these are on Attorney General “directives” as opposed to binding law. It is doubtful that they will be followed in the vast majority of cases. It is more likely that forms will be transmitted with incomplete sections and relatively vague accusations. If the Attorney General were serious about providing additional transparency regarding the alleged circumstances of an offense, the form would be designed so that it could not be transmitted until all sections were sufficiently filled.