Bail Reform: Confrontation Clause Issues

by | Jan 22, 2017 | Blog, Criminal Law, Law Reform and Amendments

Fred Sisto Brick Lawyer“In deciding whether to seek pretrial detention, prosecutors will be expected to give substantial weight to the results of the objective pretrial risk-assessment process approved by the AOC pursuant to N.J.S.A. 2A:162-25(c). However, as noted throughout this Directive, the pretrial risk-assessment process approved by the AOC does not account for all facts and circumstances that may have a material bearing on the risks posed by a defendant’s release pending trial.

See note 8 (noting that some provisions of this Directive establish grounds for invoking a presumption that are independent of the automated pretrial risk-assessment results). A prosecutor, therefore, should consider any additional relevant information that may be reasonably available, see subsections 4.2.2 to 4.2.5 and Section 7.6, provided, however, that the prosecutor shall not rely on any such additional information as the basis for deciding to overcome the presumption against pretrial detention pursuant to this Directive unless the prosecutor is prepared to establish that fact or circumstance at a detention hearing. The Bail Reform Law expressly provides that “[t]he rules concerning the admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the [detention] hearing.” N.J.S.A .2A:162- 19(e)(1). Accordingly, a prosecutor may rely upon and present, for example, hearsay evidence to establish the legal basis for a pretrial detention order.”

It will be interesting to see how judges construe this constitutionally-suspect provision of the Bail Reform statute. It presents obvious Confrontation Clause issues to the extent it permits pretrial detention based on hearsay evidence that is not tested by cross-examination. At a minimum, single hearsay (as opposed to multiple levels of hearsay) in the form of live testimony should be required and the hearsay should bear objective indicia of reliability. Otherwise, law enforcement will  have no motivation to refrain from making inflammatory and baseless accusations as a means to achieve pretrial detention and/or onerous bail conditions. Note that both detention and onerous conditions make law enforcement’s job easier at the expense of the tax-paying citizenry.