Defendant claims that his right to due process requires the State to call a live witness at a pretrial detention hearing. Defendant focuses on the need for live testimony for the State to establish probable cause, not to argue for detention. The CJRA, N.J.S.A. 2A:162-15 to -26, in many respects follows the federal Bail Reform Act and the District of Columbia’s statutory scheme for pretrial detention, D.C. Code. §§ 23-1321 to -1333. Reliance on federal law is misplaced where, as here, New Jersey has a history of providing defendants with enhanced protections under our state constitution, even where the text of the federal and state constitution is the same.
The Federal Constitution does not require the prosecution to present live testimony to establish probable cause. The CJRA, in effect, incorporated Gerstein‘s mandate that a judge find probable cause as a prerequisite to detention after an arrest. The Act did not elevate the standard. Grand jury presentations can include hearsay evidence that neither the defendant nor defense counsel is present to observe, let alone cross-examine. Had a grand jury indicted defendant before the detention hearing, the State would not have needed to establish probable cause. And defendant could not have persuasively argued that the court’s reliance on the indictment violated his due process rights.
United States v. Salerno (1987), recounted the procedural protections that the federal act offers defendants and found that those “extensive safeguards” are sufficient “to repel” a constitutional challenge. The CJRA provides identical safeguards. Circuit Courts that have decided the question have concluded that the federal act allows the government to proceed by proffer at a detention hearing, subject to the judge’s discretion. And in 1981 the District of Columbia Court of Appeals found that the D.C. Code allowed both the government and the defense to present information by proffer.