The New Jersey Supreme Court held that neither the statute’s plain language nor principles of due process require the State to present testimony from a live witness at every detention hearing. Instead, the State may proceed by proffer to try to satisfy its burden of proof and show that detention is warranted. Trial judges, however, retain discretion to require direct testimony when they are dissatisfied with the State’s proffer. The prosecution will likely appeal any judge’s order requiring live testimony at a detention hearing. In addition to being motivated to not create additional work for themselves and their staffs by requiring live testimony, trial judges will also be motivated to avoid being reversed on appeal. Moreover, the prosecution may be able to use the delay in the proceedings while an appeal is pursued to present the case to the grand jury. If an indictment is returned, the prosecution’s position is strengthened by the return of an indictment since the return means they are no longer to establish probable cause at a detention hearing under the statute.
At a detention hearing, a defendant has the right “to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise.” N.J.S.A. 2A:162-19(e)(1). If a grand jury has not returned an indictment, “the prosecutor shall establish probable cause that the eligible defendant committed the predicate offense.” N.J.S.A. 2A:162-19(e)(2). To decide whether detention is warranted a court may “take into account” a number of factors. N.J.S.A. 2A:162-20(a)-(f).
Section 19(e)(1) grants defendants the right to “cross-examine witnesses who appear at the hearing.” N.J.S.A. 2A:162-19(e)(1) (emphasis added). In Section 19(e)(1), the Legislature afforded defendants the right to cross-examine a witness who testifies at a hearing. The section does not require the State to call a witness. Section 19(e)(1) also permits a defendant “to present information by proffer.” The statute is silent about whether the State may call witnesses, cross-examine witnesses, or ‘otherwise’ present information to the judge, all of which the Act expressly permits a defendant to do. The Court cannot conclude that the Legislature’s silence either bars the State from presenting proofs in those ways or obligates it to summon a live witness. Other parts of the statute reveal that the Legislature intended for the parties to use documentary evidence at a detention hearing.