Bail Reform: Ineligible Defendants

“A grand jury will on occasion return an indictment against a defendant who was not arrested for the offense and therefore has not already been charged by complaint-warrant or complaint­ summons. These cases are referred to as “direct” indictments. Rule 3:25-4, as recently amended, provides that persons charged by “complaint-warrant on indictment”(i.e., a complaint-warrant issued following a direct indictment) are “eligible defendants” for purposes of the Bail Reform Law as if they initially had been charged by complaint-warrant. See N.J.S.A. 2A:162-15. This means that they are subject to pretrial detention or release on conditions that will be monitored by the pretrial services program. Rule 3:7-8 provides that when a direct indictment is returned, the criminal division manager, as designee of the deputy clerk of the Superior Court, must issue either a complaint-summon s or a complaint-warrant in accordance with Rule 3:3-1. Although Rule 3:7-8 does not specify the role that the prosecutor plays in the complaint-warrant versus complaint-summons determination, it is appropriate that, except in cases where a complaint-warrant is required pursuant to Rule 3:3-1(e), see subsection 4.4.1, or is presumed to be issued pursuant to Rule 3:3-1(f), see subsection 4.5.4, a complaint-summons should be issued following the return of a direct indictment unless the prosecutor establishes the basis for issuance of a complaint-warrant. Accordingly, at the time that a direct indictment is returned pursuant to Rule 3:6-8, the prosecutor shall advise the Assignment Judge or other designated judge before whom the indictment is returned whether the State is seeking issuance of a complaint-warrant on indictment, and if so, the prosecutor shall provide the judge with the factual basis for overcoming the presumption that a complaint-summons should be issued.”

There is correctly a presumption in favor of treating those directly indicted as “ineligible defendants” as opposed to “eligible defendants” since they have remained at liberty without issue during the time period between the alleged offense(s) and the indictment. Note that this time period is almost never less than three months and often times is as long as several years. Therefore, in these cases without intervening arrests, the defendant has proven themselves trustworthy of remaining at liberty without release conditions.