Bail Reform: Selective Court Rules

by | Jan 4, 2017 | Blog, Criminal Law, Law Reform and Amendments

“It is appropriate to develop a process by which police officers may quickly and easily prepare an electronic document that succinctly describes the relevant factual circumstances pertaining to the offense for which the defendant was arrested and the basis for the arresting officer’s belief that probable cause exists. This document could be reviewed/approved by a prosecutor consulted pursuant to Section 3.2 of this Directive or a -supervisory officer designated pursuant to subsection 3.3.2, helping to inform the decision whether to issue a complaint-summons or apply for a complaint­ warrant under this Directive. If a complaint-warrant is issued, the information captured in a Preliminary Law Enforcement Incident Report also might inform the prosecutor’s decision whether to file a motion for pretrial detention, and may assist the prosecutor in preparing for a pretrial detention hearing. See R. 3:4-2(c)(l )(A) (requiring prosecutor at first appearance to “provide defendant with a copy of any available preliminary law enforcement incident report concerning the offense and any material  used  to establish  probable cause”).

Accordingly, the Division of Criminal Justice, in consultation with the State Police, the County Prosecutors Association of New Jersey, and the New Jersey Association of Chiefs of Police, shall develop and periodically update or supplement as appropriate an electronic Preliminary Law Enforcement Incident Report form that could be used to capture information pertaining to a range of common offenses (e.g., domestic violence offenses, drug offenses, assaults, burglaries/thefts, robberies, sex offenses, etc.). The Preliminary Law Enforcement Incident Report should be designed so that recorded information that is not discoverable (e.g., victim contact information) can easily be segregated from material appended to and incorporated by reference in an Affidavit of Probable Cause, or any other material required to be provided under the State’s discovery obligations. Cf. R. 3:4-2(c)( l)(b) (explaining the State’s discovery obligations when the prosecutor moves for pretrial detention); R. 3: 13-3(a) (general rule that pre-indictment discovery obligation is triggered only when the prosecutor  makes  a pre-indictment  plea offer).”

Again, we see an example of law enforcement citing to the Court Rules when it suits them and not just ignoring, but encouraging violation of the rules as a matter of convenience when the Rules do not suit them. Our criminal discovery rules make the name, date of birth, and other victim contact information, including their addresses, presumptively available until law enforcement obtains a protective order from the Court. Here, the Attorney General is directing the suppression of discoverable material in the absence of the protective order that is required by law.