“When the impact of the crime on a victim is relevant to the pretrial detention decision, the prosecutor shall consider such impact as part of the consideration of the “nature and circumstances of the offense charged.” See N.J.S.A. 2A: 162-20(a) (recognizing the relevance of the nature and circumstances of the offense charged as a factor a court may consider in determining whether to order pretrial detention). The prosecutor in deciding whether to seek pretrial detention also shall consider whether there is reason to believe that defendant’s release would pose a risk to a victim and that a nocontact release condition would not be sufficient to control any such risk. Nothing herein shall be construed in any way to suggest that a victim should be called as a witness at a pretrial detention hearing, see note 23 and accompanying text (noting that the Bail Reform Law allows hearsay evidence at a pretrial detention hearing), and a prosecutor shall object and, if necessary, seek an interlocutory appeal if the defendant attempts to call a victim as a witness at a pretrial detention hearing. See also Sections 13.1 and l6.1 (uniform positions on legal issues arising under the Bail Reform Law).
The Crime Victims’ Bill of Rights, N.J.S.A. 52:4B-36, affords rights that may be implicated by the implementation of the Bail Reform Law and this Directive, including the right:
(k) To be advised of case progress and final disposition and to confer with the prosecutor’s representative so that the victim may be kept adequately informed;
(m) To submit a written statement, within a reasonable amount of time, about the impact of the crime to a representative of the prosecuting agency which shall be considered prior to the prosecutor’s final decision concerning whether formal criminal charges will be filed, whether the prosecutor will consent to a request by the defendant to enter a pre-trial program, and whether the prosecutor will make or agree to a negotiated plea;
(p) To be present at any judicial proceeding involving a crime or any juvenile proceeding involving a criminal offense, except as otherwise provided by Article I, paragraph 22 of the New Jersey Constitution;
(q) To be notified of any release or escape of the defendant;
To appear in any court before which a proceed ing implicating the rights of the victim is being held, with standing to file a motion or present argument on a motion filed to enforce any right conferred herein or by Article I, paragraph 22 of the New Jersey Constitution, and to receive an adjudicative decision by the court on any such motion.”
The requirement that prosecutors object to any effort by the defense to call an alleged victim as a witness at a pretrial detention hearing probably stems from this scenario arising for years in juvenile waiver hearings. Courts were generally not inclined to allow alleged victims to testify when prosecutors objected, but there is little to no appellate division law on the issue. A strong argument in favor of permitting the defense to call alleged victims as witnesses is that it invokes the fundamental constitutional right of Confrontation. An historic constitutional right should trump the novel victims’ rights amendment which was passed with the understanding that it would not denigrate the existing rights of the accused. If victim input is to be considered, then at a minimum, an alleged victim should be required to reduce their statement to a signed writing that can later be used to impeach them if they change their story at a subsequent proceeding.