Bail Reform: Discoverable Documentations

by | Feb 1, 2017 | Blog, Criminal Law, Law Reform and Amendments

Fred Sisto Brick Lawyer“In cases not otherwise covered under Section 7.3, unless the presumption of seeking pretrial detention is overcome pursuant to subsection 7.4.6, the prosecutor shall apply for pretrial  detention  if the present offense is a crime of the first or second degree, and the defendant committed the present offense:

(a)    while on pretrial release for an indictable crime or a disorderly persons offense involving domestic violence as defined in N.J.S.A.2C:25-19(a), whether that previous offense had been charged by complaint-warrant or complaint-summons , or

(b)    while on probation, special probation, intensive supervision program (ISP),parole, or was on pretrial intervention (PTI) where the defendant had pleaded guilty as required by N.J.S.A. 2C:43- 12(g)(3) (see P.L. 2015, c. 98), or if the defendant was on release pending sentencing or appeal.  See note 18.

In cases not otherwise covered under Section 7.3, unless the presumption of seeking pretrial detention is overcome pursuant to subsection 7.4.6, the prosecutor  shall apply for pretrial detention  if the automated  pretrial risk assessment raises a New Violent Criminal Activity  (NVCA)   flag.

In any case where there is a rebuttable presumption of seeking pretrial detention pursuant to subsection 7.4.1, 7.4.2, 7.4.3, 7.4.4, or 7.4.5, the prosecutor shall file a motion for pretrial detention unless a supervisory prosecutor designated pursuant to Section 7.8 determines that: (1) the risks posed by defendant’s release can be controlled adequately by imposing release conditions monitored by the pretrial services program, or (2) the interests of justice would not be served by applying for pretrial detention. If the determination is made to overcome the presumption of applying for pretrial detention, the supervisory prosecutor shall document the reason(s) for that decision in the case file.

All motions for pretrial detention shall be filed electronically through the eCourts system. When the prosecutor files a motion for pretrial detention, the prosecutor shall specify whether the application is based on the risk that (1) defendant will not appear in court when required;  (2) defendant will endanger the safety of any other person or the community; ( 3) defendant will obstruct or attempt to obstruct the criminal justice process, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror; or (4) any combination of the foregoing specified  risks. This specification may limit the type of evidence or information that would be relevant to the pretrial detention decision, and thus limit the scope of the detention hearing.”

One favorable provision contained within this Directive is that the prosecutor’s reasons “shall be documented in the case file.” This proviso lends itself to the argument that such documentations should be discoverable in determining whether a bail decision constitutes an abuse of discretion.