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Due Process under the New Jersey Bail Reform Act

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In State v. Ingram, the New Jersey Supreme Court addressed the requirements imposed on the State in a pre-detention hearing by the Bail Reform Act, N.J.S.A.2A:162-15 et seq (“Act”). The defendant was arrested and charged with several counts, including possession of a defaced firearm. At the pre-trial detention hearing, now required under the Bail Reform Act, the prosecutor relied on the complaint-warrant, the affidavit of probable cause, the Public Safety Assessment, the Preliminary Law Enforcement Incident Report, and the criminal history of the defendant. The trial judge overruled the defense objection to the State’s proffer of only documentary evidence, and found by clear and convincing evidence that detention was necessary to assure the defendant’s appearance in court, and to ensure protection of the community. The defendant appealed, arguing that due process and the Act was violated by establishing probable cause without calling live witnesses who had person knowledge of the case, so that he might have an opportunity to cross-examine.

The Act creates a general presumption against pre-trial detention, but allows a prosecutor to seek detention of a defendant arrested for certain crimes or offenses, including when the defendant is facing a murder charge or a life sentence for another charge, and Graves Act offenses. As the defendant’s gun charges were potentially punishable under the Graves Act, he was subject to a pre-trial detention hearing. At this hearing, there is a rebuttable presumption of detention if the court finds probable cause that the defendant committed the offense charged. If the defendant rebuts this presumption by a preponderance of the evidence, the prosecutor can then attempt to establish grounds for detention by clear and convincing evidence. At these hearings, the defendant has a right to counsel, and can testify, present witnesses, cross-examine witnesses who appear, and present evidence by proffer.

Noting the similarities between the Federal Bail Reform Act, under which federal courts have long held that information at the pre-trial detention hearings could be by proffer, and the Act, the court held that there was no requirement under the Act that the State produce live witnesses with personal knowledge of the case. The court also noted that, had a grand jury returned an indictment before the pre-trial hearing, there would have been no requirement of probable cause before an arrest, and that the grand jury process provided less procedural safeguards than were available under the Act. Subject to these findings, the panel affirmed, finding that the State had met the clear and convincing burden.