For reversal and remandment -- Chief Justice Weintraub and Justices Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
On Friday, July 12, 1968, defendant Daniel Obstein was arrested and charged with the murder of Robert Yakubic on May 28, 1968 in Lyndhurst, N.J. He obtained counsel, was arraigned in the appropriate court, and a preliminary hearing was scheduled for Wednesday, July 17. R.R. 3:2-3. Defense counsel then applied for bail and the county court conducted a hearing thereon, in camera, on Monday, July 15. At the hearing, in addition to opposing bail, the prosecutor sought an order requiring defendant to submit to a psychiatric examination. In support of his opposition to bail the prosecutor submitted to the court an affidavit of a witness setting forth vital, relevant factual allegations concerning the nature of the homicide and defendant's participation in it. Relying on the facts so alleged, be contended defendant was not entitled to bail. Defendant offered no evidence in support of the bail application. In addition, he objected to the granting of the State's request for a psychiatric examination. After argument, the trial court denied bail and also ruled that defendant should submit to examination by the State's psychiatrists. The order for examination, dated July 15, authorized the doctors to examine "by conversation" with Obstein. On July 16, the day before the scheduled preliminary hearing, the Grand Jury indicted Obstein for murder. The indictment was in the usual short form. R.R. 3:4-3(b).
Defendant moved for leave to appeal from both rulings, and in view of the nature of the case, we set the matter down for oral argument as if the motion had been granted.
This Court had occasion a few years ago to deal with the issue of the right of a person under indictment for murder to be released on bail pending trial. State v. Konigsberg, 33 N.J. 367 (1960). There we said the constitutional
authorization to deny bail in murder cases where the proof is evident or the presumption great is satisfied, and that bail should be denied when upon analysis, the circumstances shown on the application disclose a fair likelihood that the defendant is in danger of a first degree murder verdict. 33 N.J., at pp. 374-377; N.J. Const. 1947, Art. I, par. 11; Note, 7 Vill. L. Rev. 438 (1962). The requisite danger exists when the trial court concludes that the circumstances, if believed by a jury, could reasonably support a finding of that degree of murder. Commonwealth ex rel. Alberti v. Boyle, 412 Pa. 398, 195 A. 2 d 97 (Sup. Ct. 1963). Our reference to first degree murder as distinguished from the death penalty is deliberate. The rule does not require a specific holding that the danger is of the death penalty. No such forecast is required of the trial judge, primarily because decision on that penalty is ordinarily for the jury upon and after a consideration of all the evidence introduced at the formal trial. N.J.S. 2 A:113-4.
While we said in Konigsberg that the burden of showing a fair likelihood that the defendant is in danger of a first degree murder verdict rests upon the State, we repeat a caution expressed in the opinion. On a bail hearing, guilt or innocence of the accused is not the issue. There can be no evaluation of the evidence with that result in mind. Direct conflicts between inculpatory or exculpatory facts cannot be resolved. Problems of credibility of witnesses, except, perhaps, in extraordinary circumstances, should not be passed upon. Such matters must await jury determination at the trial. 33 N.J., at p. 377.
The nature of the bail hearing seems to require some elaboration beyond that set down in Konigsberg. Conduct of the proceedings in camera in the absence of objection by the accused is approved. Care must be taken to safeguard him against possible prejudice at his later plenary trial through public revelation or reporting in the press or other media of the obviously incomplete but necessarily incriminating evidence. Naturally a stenographic record will be made
and preserved for later inspection by authorized persons at appropriate times.
The prosecutor may present the proof in affidavit form on which he bases his opposition to the release of the accused on bail. But ex parte affidavits cannot be used over the defendant's objection. Commonwealth ex rel. Alberti v. Boyle, supra; Young v. Russell, 332 S.W. 2 d 629 (Ky. Ct. App. 1960). Consultation between counsel should settle the problem before the hearing. If agreement is reached to submit affidavits, defendant is entitled to copies sufficiently in advance to enable him to prepare counter-proofs, either by way of affidavits or live witnesses. If defendant declines to proceed by affidavits, the prosecutor must produce the witnesses on whom he relies to meet the test for denial of bail. The same may be said of the testimony adduced before the Grand Jury, if the prosecutor wishes to rely on it at the hearing. If defendant objects because he had no opportunity for cross-examination, the transcript will not suffice. It should be added that the ...