January 31, 2017
appeal from the Superior Court of New Jersey, Law Division,
Essex County, Complaint-Warrant No. W20160256160714 .
J. Ducoat, Special Deputy Attorney General/Acting Assistant
Prosecutor, argued the cause for appellant (Carolyn A.
Murray, Acting Essex County Prosecutor, attorney; Mr. Ducoat,
of counsel and on the brief).
Elizabeth C. Jarit, Assistant Deputy Public Defender, argued
the cause for respondent (Joseph E. Krakora, Public Defender,
attorney; Ms. Jarit, of counsel and on the brief).
Claudia Joy Demitro, Deputy Attorney General, argued the
cause for amicus curiae Attorney General (Christopher S.
Porrino, Attorney General, attorney; Ms. Demitro, of counsel
and on the brief).
Alexander Shalom argued the cause for amicus curiae American
Civil Liberties Union of New Jersey Foundation (Mr. Shalom,
Edward L. Barocas and Jeanne LoCicero, on the brief).
Judges Reisner, Koblitz and Rothstadt.
appeal, we address the scope of the discovery which the State
must produce prior to a pretrial detention hearing held under
the Bail Reform Act (Act), N.J.S.A. 2A:162-15 to -26.
Rule 3:4-2(c)(1)(B), which was part of a
comprehensive set of rule amendments adopted to implement the
[I]f the prosecutor is seeking pretrial detention, the
prosecutor shall provide the defendant with all statements or
reports in its possession relating to the pretrial detention
application. All exculpatory evidence must be disclosed.
appeal primarily focuses on the meaning of the phrase
"relating to the pretrial detention
application." In this case, defendant was arrested on
January 4, 2017, and charged with murder based on an
affidavit of probable cause reciting that two eyewitnesses
saw defendant shoot the victim, and the witnesses identified
defendant from a photo array. The Preliminary Law Enforcement
Information Report (PLEIR) also stated that the police had
surveillance video footage relevant to the commission of the
crime. The defense asked for those documents, and the State
refused to provide them.
result, the January 10, 2017 pretrial detention hearing
devolved into a dispute over discovery, with the State
insisting that its discovery obligation was limited to
producing the probable cause affidavit and the PLEIR. Judge
Ronald D. Wigler rejected that argument. Instead, keying the
State's discovery obligation to the evidence referenced
in the probable cause affidavit and related information
listed in the PLEIR, Judge Wigler required the prosecutor to
produce as discovery the two eyewitness statements, the photo
array, and the surveillance video listed in the PLEIR. He
also ordered the State to turn over any initial police
reports that related to the application.
conclude that Judge Wigler correctly interpreted
Rule 3: 4-2(c)(1)(B). The State's argument,
which it repeats on this appeal, is contrary to the plain
language and textual context of the rule, as well as its
purpose. The State's contention is also directly contrary
to the position it asserted before the Criminal Practice
Committee - including the version of the rule the State
advocated - during the Committee's comprehensive review
of Court Rule amendments needed to implement the Act. The
State's submissions were included in the Committee's
report to the Supreme Court and thus became part of the
legislative history of section (B) as adopted by the Court.
See Rep, of the Sup. Ct. Comm. on Criminal Practice on
Recommended Court Rules to Implement the Bail Reform Law,
Part 1, Pretrial Release (May 9, 2016) (CPC
conclude that Judge Wigler correctly interpreted the rule as
entitling a defendant to discovery of the factual materials
on which the State bases its application for defendant's
pretrial detention, and not merely the hearsay description of
those materials set forth in the probable cause affidavit and
reject the State's contention that it need only produce
the materials described in the affidavit if it says it relies
on them. Clearly, the State relies on the affidavit to
establish probable cause, and therefore, the materials
described by hearsay in the affidavit "relate" to
the detention application. R. 3:4-2(c)(1)(B). Moreover, the
trial court cannot be expected to ignore what is set forth in
the probable cause affidavit in considering the weight of the
State's evidence, N.J.S.A. 2A:162-20(a), and the defense
cannot meaningfully respond to the application without seeing
at least the most critical evidence supporting the
case, the State alleged that defendant committed a murder in
view of two eyewitnesses and a surveillance camera. The
State's probable cause affidavit turned on identification
of defendant as the shooter, and thus the required discovery
would be the materials "relating to" that aspect of
the State's motion. R. 3:4-2(c)(1)(B). We agree
with Judge Wigler that defendant was entitled to discover the
statements of the two eyewitnesses; the photo array described
in the probable cause affidavit as having been used in the
identification process; the surveillance video; and the
initial police reports of the crime. Accordingly, we affirm
the January 10, 2017 discovery order. We also vacate the stay of
the order that was entered pending appeal, and remand this
case to the trial court to complete discovery and hold the
detention hearing forthwith.
we understand that, because of the expedited nature of the
pretrial detention hearing process, all parties need clear
guidance as to the State's discovery obligations. In
particular, the State needs to know with some specificity
what documents it must produce when it files its detention
application, an event that will usually occur shortly after
defendant's arrest. At oral argument, defendant and the
amicus American Civil Liberties Union agreed that under the
Rule, the State's initial discovery obligation
is limited to the materials in the State's possession
that are referenced in the probable cause affidavit and the
related materials listed in the PLEIR. That is
consistent with our interpretation of the Rule.
clear, if such materials are in the possession of the police,
they are in the State's possession and the prosecutor
must produce them. See State v. Womack, 145 N.J. 57
6, 5 89, cert, denied, 519 U.S. 1011, 117 S.Ct. 517,
136 L.Ed.2d 405 (1996); State v. Mustaro, 411
N.J.Super. 91, 102 (App. Div. 2009). We expect that all
parties will act cooperatively in implementing Rule
3:4-2(c)(1)(B), and that they will use available electronic
communication methods to promptly produce and receive
discovery. While there may be occasional glitches in
producing discovery, those should be the exception rather
than the rule, to avoid delaying the pretrial detention
hearings and compromising the rights of defendants.
this is the first opinion to address an issue under the Bail
Reform Act, it will be helpful to review the history and
content of the Act to put the legal issues in context.
The Constitutional Amendment and the Bail Reform Act
January 1, 2017, the voters of New Jersey approved a
constitutional amendment providing a right to pretrial
release, but authorizing pretrial detention under certain
limited circumstances, N.J. Const, art. I, ¶
All persons shall, before conviction, be eligible for
pretrial release. Pretrial release may be denied to a person
if the court finds that no amount of monetary bail,
nonmonetary conditions of pretrial release, or combination of
monetary bail and non-monetary conditions would reasonably
assure the person's appearance in court when required, or
protect the safety of any other person or the community, or
prevent the person from obstructing or attempting to obstruct
the criminal justice process. It shall be lawful for the
Legislature to establish by law procedures, terms, and
conditions applicable to pretrial release and the denial
thereof authorized under this provision.
[N.J. Const, art. I, ¶ 11 (amended effective
this constitutional mandate, and its shift from a pretrial
system based on the right to bail, New Jersey adopted a
risk-based approach unrelated to a defendant's ability to
pay. As codified by the Bail Reform Act, the new system
favors pretrial release and monitoring as the presumptive
approach and limits preventive detention to defendants who
actually warrant it. By permitting judges to keep high-risk
defendants detained without bail, and to release with or
without conditions those defendants who pose little risk of
flight or of committing another offense, these constitutional
and legislative changes represent a major reform to criminal
justice that will promote public safety and fairness.
in New Jersey, individuals had a constitutional right to bail
before trial in all criminal cases, "except for capital
offenses when the proof is evident or the presumption
great." N.J. Const, art. I, ¶ 11; N.J.
Const, of 1844 art. I, ¶ 10. Although this
fundamental right to bail was first incorporated into the New
Jersey Constitution in 1844, it existed by statute prior to
the 1776 Constitution. State v. Johnson, 61 N.J.
351, 354 (1972) (citing Leaming & Spicer, Grants and
Concessions of New Jersey, 1664-1702 235 (1881)).
constitutional amendment approved by voters in November 2014
arose from the recognition that a sizable number of pretrial
defendants stayed in jail before trial because of their
inability to pay relatively small amounts of bail. Pub.
Hearing before Senate Law and Pub. Safety Comm., Senate
Concurrent Resol. 128, at 2 (July 24, 2014),
07242014.pdf (Public Hearing). The reliance on bail
also led to the pretrial release of high-risk defendants
without appropriate individual assessments. Public
Hearing, supra, at 1-2. The 2014 constitutional
amendment was intended to address these issues.
2014, the Legislature adopted a new law to take effect on the
same day as the constitutional amendment. Effective on
January 1, 2017, the Bail Reform Act established reforms for
bail and other forms of pretrial release and for pretrial
detention, established statutory speedy trial deadlines, and
made other changes to court administration and court-related
programs. See Statement to S. 94 6 (July 31, 2014).
three-fold purpose of the Bail Reform Act is to primarily
rely upon pretrial release by non-monetary means "to
reasonably assure an eligible defendant's appearance in
court when required, the protection of the safety of any
other person or the community, [and] that the eligible
defendant will not obstruct or attempt to obstruct the
criminal justice process." N.J.S.A. 2A:162-15. The Act
further seeks to assure that "the eligible defendant
will comply with all conditions of release, while authorizing
the court, upon motion of a prosecutor, to order pretrial
detention . . . when it finds clear and convincing evidence
that no condition or combination of conditions can reasonably
assure the effectuation of these goals." N.J.S.A.
2A:162-15. Under the statute, a court may set monetary bail
"only when it is determined that no other conditions of
release will reasonably assure the eligible defendant's
appearance in court when required." N.J.S.A. 2A:162-15.
For purposes of bail reform, an eligible defendant means
"a person for whom a complaint-warrant is issued for an
initial charge involving an indictable offense or a
disorderly persons offense unless otherwise provided" in
the statute. N.J.S.A. 2A:162-15.
Bail Reform Act provides that an eligible defendant,
following the issuance of a complaint-warrant, will be
temporarily detained to allow the Pretrial Services Program
(PSP) the opportunity to "prepare a risk assessment with
recommendations on conditions of release." N.J.S.A.
2A:162-16(a); see N.J.S.A. 2A:162-25. The court must
make a pretrial release decision "in no case later than
48 hours after the eligible defendant's commitment to
jail." N.J.S.A. 2A:162-16(b)(1). The court may release a
defendant on his or her own recognizance, or may order the
pretrial release subject to certain conditions. N.J.S.A.
prosecutor makes a motion for pretrial detention, the
eligible defendant must be detained in jail pending a
pretrial detention hearing. N.J.S.A. 2A:162-18, -19. The
hearing must be held no later than the defendant's first
appearance, unless either the eligible defendant or the
prosecutor seeks a continuance, or unless the prosecutor
files the motion after the first appearance. N.J.S.A.
2A:162-19(d). Upon filing of the prosecutor's motion, and
during any continuance granted by the court, the eligible
defendant must remain in jail. N.J.S.A. 2A:162-19(d)(2). If
the eligible ...