March 29, 2017
appeal from the Superior Court, Appellate Division, whose
opinion is reported at 448 N.J.Super. 501 (App. Div. 2017) .
Honig, Director, Division of Criminal Justice, Office of the
Attorney General, argued the cause for appellant (Christopher
S. Porrino, Attorney General, attorney; Claudia Joy Demitro,
Deputy Attorney General, of counsel and on the briefs).
E. Krakora, Public Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender, attorney; Elizabeth C.
Jarit, Assistant Deputy Public Defender, of counsel and on
H. Heinzel, Somerset County Assistant Prosecutor, argued the
cause for amicus curiae, County Prosecutors Association of
New Jersey (Richard T. Burke, President, attorney).
Alexander R. Shalom argued the cause for amicus curiae
American Civil Liberties Union of New Jersey (Edward L.
Barocas, Legal Director, attorney; Alexander R. Shalom,
Edward L. Barocas, and Jeanne M. LoCicero on the brief).
C. J., writing for a majority of the Court.
appeal, the Court considers the newly enacted Criminal
Justice Reform Act for the first time and addresses the type
and scope of discovery the State must provide when it seeks
to detain a defendant pretrial.
Criminal Justice Reform Act (CJRA), N.J.S.A. 2A: 162-15 to
-26, has three principal components. First, it allows for
pretrial detention of defendants who present such a serious
risk of danger, flight, or obstruction that no combination of
release conditions would be adequate. Second, it replaced the
system's prior heavy reliance on monetary bail and
instead calls for an objective evaluation of risk level and
consideration of conditions of release. Finally, the Act
establishes statutory speedy trial deadlines. The CJRA took
effect on January 1, 2017.
2A: 162-18(a) authorizes the court to order pretrial
detention if it finds by clear and convincing evidence that
no conditions of release would reasonably assure a
defendant's appearance in court, the safety of the
community, and the integrity of the criminal justice process.
A rebuttable presumption of detention exists when the court
finds probable cause for murder or a crime subject to life
imprisonment. N.J.S.A. 2A: 162-19(b).
prosecutor applies for pretrial detention, the defendant is
held pending a hearing. N.J.S.A. 2A: 162-19(d)(2). "In
pretrial detention proceedings for which there is no
indictment, the prosecutor shall establish probable cause
that the eligible defendant committed the predicate
offense." N.J.S.A. 2A: 162-19(e)(2). A defendant can
rebut a presumption of detention, when one applies, by a
preponderance of the evidence. Ibid. If a court
orders detention, its decision must be supported by clear and
convincing evidence. N.J.S.A. 2A: 162-19(e)(3).
hearing, "the court may take into account": (a)
"[t]he nature and circumstances of the offense charged;
(b) [t]he weight of the evidence against the eligible
defendant"; (c) the defendant's "history and
characteristics"; (d) the danger posed by release; (e)
the risk of obstruction of justice; "and (f) [t]he
release recommendation" of the Public Safety Assessment
(PSA) prepared under N.J.S.A. 2A:162-25. N.J.S.A. 2A:162-20.
the Legislature enacted the CJRA, the Court asked the
Criminal Practice Committee to propose amendments to the
court rules. The Committee divided sharply about the amount
and type of discovery that should be required for pretrial
detention hearings. The Court struck a compromise: "if
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." IL 3:4-2(c)(1)(B).
police arrested defendant Habeeb Robinson for killing a
victim. According to the affidavit, two eyewitnesses saw the
shooting. One identified defendant from a six-person photo
array; the other identified a photo of defendant. The
Preliminary Law Enforcement Incident Report (PLEIR) adds that
a surveillance camera recorded the incident. The pending
complaint charges defendant with first-degree murder and
weapons offenses. The PSA recommended that defendant not be
State moved for pretrial detention. At the hearing, the State
relied on the hearsay statements in the affidavit of probable
cause (which refer to the two eyewitnesses); the presumption
of detention under N.J.S.A. 2A:I62-I9(b)(1) (based on the
murder charge); defendant's criminal history and record
of court appearances; and the release recommendation in the
PSA. The trial court directed the State to disclose the two
witness statements, the photos used in the identification
process, the surveillance video, and any incident report that
the police prepared.
Appellate Division affirmed the trial court's order. 448
N.J.Super. 501, 506 (App. Div. 2017). The Court agreed to
hear the State's motion for leave to appeal on an
Both the trial court and the Appellate Division directed the
State to disclose the statements of two eyewitnesses, photos
used in the identification process, any incident report of
the crime prepared by the police, and a surveillance video.
Rule 3:4-2(c)(1)(B) required disclosure of the reports and
the photos but not the video. The Court also clarifies and
reframes the Rule to help ensure that it strikes the
proper balance between two important concerns: a
defendant's liberty interest and the State's ability
to seek to detain high-risk defendants before trial.
Thoughtful people have wrestled over the scope of discovery
that should be required at a detention hearing. A number of
considerations factor into the ongoing debate: the language
of the statute; important concerns for public safety; and the
defendants' liberty interests. In addition, the discovery
rule should not impose impractical demands on law
enforcement. The administration of justice calls for fair and
efficient proceedings. In the case of a detention
application, the focus is not on guilt, and the hearing
should not turn into a mini-trial, (pp. 26-29)
balance those aims, the Court sets forth principles to govern
the disclosure of evidence at a detention hearing: (1)
because the Act calls for a determination of probable cause
and an assessment of the risk of danger, flight, and
obstruction, which may include consideration of the nature
and circumstances of the offense and the weight of the
evidence, discovery should likewise be keyed to both areas;
(2) the complaint, (3) the PSA, (4) the affidavit of probable
cause, and (5) any available PLEIR must be disclosed; (6) all
statements and reports relating to the affidavit of probable
cause should be disclosed; (7) all statements or reports that
relate to any additional evidence the State relies on to
establish probable cause at the detention hearing should be
disclosed; (8) statements and reports related to items that
appear only in the PLEIR need not be disclosed; (9)
statements and reports relating to the risk of Light, danger,
and obstruction, which the State advances at the hearing,
should be disclosed; the phrase "statements and
reports" (10) refers to items that exist at the time of
the hearing and does not encompass video and audio files as a
general rule, but does (11) encompass reports that are in the
possession of the prosecutor, law enforcement officials, and
other agents of the State; and (12) all exculpatory evidence
must be disclosed, (pp. 29-32)
those principles in mind, and based on the
Rule's practical application since January 1,
2017, the Court clarifies and revises Rule 3:4-2(c),
effective at once. The revisions are to be read with
Rule 3:13-3, which obligates the State to provide
full discovery when it makes a pre-indictment plea offer or
when an indictment is returned or unsealed. In appropriate
cases, the prosecutor may apply for a protective order
directly to the judge who will preside over the detention
hearing. If, after an extensive, long-term investigation, the
State seeks permission to provide more limited discovery,
judges may direct that a representative sample of statements
and reports be disclosed before the detention hearing. When
the Court adopted the original Rule, it unanimously
rejected the recommendation that videotapes be disclosed
before a detention hearing. The revised rule maintains that
approach, (pp. 32-36)
discovery rule-in its original and revised form-satisfies the
requirements of due process and passes muster under the
Federal and New Jersey Constitutions, (pp. 37-40)
Applying Rule 3:4-2(c), as clarified, to this case,
any initial police reports about the witnesses must be
disclosed, and the prosecution must provide copies of
statements or reports of the two eyewitnesses. When an
eyewitness makes an identification, the State must document
the process and record certain details. That information
should be disclosed along with copies of any photo arrays or
photos used in the identification process. Because photos
shown as part of an identification receive special treatment
under the law, their disclosure is an exception to the rule.
Neither the original nor the revised Rule calls for
disclosure of surveillance videos and similar items, (pp.
judgment of the Appellate Division is AFFIRMED and MODIFIED.
The revised Rule 3:4-2(c) shall go into effect at
JUSTICE ALBIN, DISSENTING IN PART, concurs in the judgment in
this case based on the language of the then-operative Rule
but dissents from the majority's decision to draft a new
rule. In Justice Albin's view, the redrafted Rule
sanctifies artificial distinctions, making highly relevant
evidence non-discoverable (a videotape) and second-hand
evidence discoverable (written summary of tape). The
redrafted Rule also gives the prosecutor a perverse incentive
to place information, not in the affidavit of probable cause,
but rather in the PLEIR because reports and statements
referenced in the PLEIR are non-discoverable.
JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join
in CHIEF JUSTICE RABNER's opinion.
Procedure in Indictable Offenses. At the
defendant's first appearance before a judge, if the
defendant is charged with an indictable offense, the judge
(1) give the defendant a copy of the complaint, discovery as
provided in subsections (A) and (B) below, and inform the
defendant of the charge;
(A) if the prosecutor is not seeking pretrial detention, the
prosecutor shall provide the defendant with a copy of any
available preliminary law enforcement incident report
concerning the offense and the affidavit of probable cause;
(B) if the prosecutor is seeking pretrial detention, the
prosecutor shall provide the defendant with (i) the discovery
listed in subsection (A) above, (ii) all statements or
reports relating to the affidavit of probable cause, (iii)
all statements or reports relating to additional evidence the
State relies on to establish probable cause at the hearing,
(iv) all statements or reports relating to the factors listed
in N.J.S.A. 2A:I62-I8(a)(l') that the State advances at
the hearing, and (v) all exculpatory evidence.
RABNER, CHIEF JUSTICE
appeal, we consider the newly enacted Criminal Justice Reform
Act for the first time and address the type and scope of
discovery the State must provide when it seeks to detain a
law changed the landscape of the State's criminal justice
system relating to pretrial release. The statute marked a
shift away from heavy reliance on monetary bail. Judges now
have the authority to detain defendants prior to trial if
they present a serious risk of danger, flight, or
obstruction. N.J.S.A. 2A:162-18(a)(1). Defendants who pose
less risk can be released on their own recognizance or on
conditions that pretrial services officers monitor. N.J.S.A.
2A:162-17, -25(d). The law also sets forth new speedy trial
rules that apply to defendants who are detained. N.J.S.A.
case, defendant Habeeb Robinson was arrested on January 4,
2017 and charged with murder and weapons offenses. The State
moved to detain him. In connection with the detention
hearing, both the trial court and the Appellate Division
directed the State to disclose the statements of two
eyewitnesses, photos used in the identification process, any
incident report of the crime prepared by the police, and a
that Rule 3:4-2(c)(1)(B), on which the courts
relied, required disclosure of the reports and the photos but
not the video. We also take this opportunity to clarify and
reframe the Rule to help ensure that it strikes the
proper balance between two important concerns: a
defendant's liberty interest and the State's ability
to seek to detain high-risk defendants before trial.
begin with an overview of the Criminal Justice Reform Act
(CJRA or Act), N.J.S.A. 2A: 162-15 to -26, and certain
related court rules to offer context for the discussion that
this year, New Jersey had long guaranteed defendants the
right to bail. The 1844 Constitution added a provision that
had existed by statute for more than a century: "All
persons shall, before conviction, be bailable by sufficient
sureties, except for capital offences, when the proof is
evident or presumption great." N.J. Const, of
1844, art. I, ¶ 10; see also State v.
Johnson, 61 N.J. 351, 354 (1972). The 1947 Constitution
retained the same language. N.J. Const, of 1947,
art. I, ¶ 11 (2016) .
in 2007, when the Legislature eliminated the death penalty
for murder, see State v. Fortin, 198 N.J. 619, 624
(2009), the constitutional right to bail applied in all
cases, see Report of the Joint Committee on Criminal
Justice 18-19, 18 n.42 (Mar. 10, 2014),
2014/FinalReport_3_20_2014.pdf (JCCJ Report).
practice, New Jersey's system of pretrial release relied
heavily on the use of monetary bail "to insure [the]
presence of the accused at the trial." Johnson,
supra, 61 N.J. at 364. Defendants had to post cash
or arrange for a bond to secure their release.
system had direct consequences: any defendants -- even those
who posed a substantial risk of flight or danger to the
community -- could be released if they had access to
untainted funds to post as bail. See N.J.S.A.
2A:162-13(b). Meanwhile, poorer defendants accused of less
serious crimes, who presented minimal risk, were held in
custody if they could not post even modest amounts of bail.
2013 study of New Jersey's county jails revealed that
twelve percent of inmates were in custody pretrial because
they could not pay $2500 or less. Marie VanNostrand, Ph.D.,
Luminosity & the Drug Policy Alliance, New Jersey
Jail Population Analysis 13 (Mar. 2013),
org/viewdocument/new-jersey-jail-popu. About 800 inmates
"could have secured their release for $500 or
less"; "an additional 259 inmates could have
secured their release for between $501 and $1, 000[;] and an
additional 489 inmates could have secured their release for
between $1, 001 and $2500." Ibid. In other
words, one in eight inmates, who posed little risk, sat in
jail pretrial because they were poor, while defendants
charged with serious crimes who posed a substantial risk of
danger or flight could be released into the community without
monitoring so long as they could make bail.
number of steps were taken in the past five years to address
those system-wide problems. In 2012, Governor Christie called
for a constitutional amendment to allow for pretrial
detention in serious cases. Administrative Office of the
Courts, Criminal Justice Reform: Annual Report to the
Governor & Legislature 1 (2016),
criminal/2Ol6cjrannual.pdf. The following year, the
Judiciary established the Joint Committee on Criminal
Justice, "comprised of members from all three branches
of state government including the Attorney General, Public
Defender, private attorneys, judges, court administrators,
and representatives of the Legislature and the Governor's
Office, to examine New Jersey's criminal justice
system." Ibid. The Committee issued a report in
March 2014, which recommended a series of changes to New
Jersey's criminal justice system and focused, in
particular, on bail reform and the need for a speedy trial
act. See JCCJ Report, supra, at 1.
Legislature held hearings to consider the Committee's
findings and recommendations, and ultimately adopted a
proposal to amend the State Constitution to permit detention
if the court finds that no amount of monetary bail,
non-monetary 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.
[S. Con. Res. No. 128, 216th Leg. (2014).]
Legislature also drafted a bill, S. 946/A.
1910 (2014), discussed in detail below, to reform the
system of pretrial release and provide for more timely trials
for defendants who are detained. Governor Christie signed the
new law on August 11, 2014. L. 2014, c. 31 (codified at
N. J.S.A. 2A:162-15 to - 26) .
Criminal Justice Reform Act has three principal components.
First, it allows for pretrial detention of defendants who
present such a serious risk of danger, flight, or obstruction
that no combination of release conditions would be adequate.
N.J.S.A. 2A:162-18(a)(1). Second, the Act replaced the
system's prior heavy reliance on monetary bail. The law
instead calls for an objective evaluation of each
defendant's risk level and consideration of conditions of
release that pretrial services officers will monitor.
N.J.S.A. 2A:162-17, - 25(d) . In that way, low-level
offenders will not be penalized because they cannot afford to
post bail. Finally, the Act establishes statutory speedy
trial deadlines for defendants who are detained pending
trial. N.J.S.A. 2A:162-22.
was contingent on passage of the proposed constitutional
amendment, which voters approved by a wide margin of 61.8 to
38.2 percent in November 2014. Div. of Elections, Dep't
of State, Official List: Public Question Results for
11/04/2014 General Election Public Question No. 1 1
(Dec. 2, 2014),
Criminal Justice Reform Act took effect on January 1, 2017.
N.J.S.A. 2A:162-15 to -26. We summarize its provisions and
focus in particular on parts of the law that relate to
"shall be liberally construed" to effect its
purpose: to rely primarily on "pretrial release by
non-monetary means to reasonably assure" that a
defendant will "appear in court when required, "
will not endanger "the safety of any other person or the
community, " and "will not obstruct or attempt to
obstruct the criminal justice process." N.J.S.A.
2A:162-15. If a court finds by clear and convincing evidence
that "no condition or combination of conditions"
would achieve those goals, the court, upon motion by the
prosecutor, may order that a defendant be held pending trial.
may set monetary bail "only when ... no other conditions
of release will reasonably assure the eligible
defendant's appearance in court." Ibid. The
statute defines "eligible defendant" as a person
initially charged in a complaint-warrant with an indictable
offense or a disorderly persons offense, unless otherwise
complaint-warrant is issued, eligible defendants "shall
be temporarily detained to allow the Pretrial Services
Program to prepare a risk assessment" and recommend
conditions of release. N.J.S.A. 2A:162-16(a); see
also N.J.S.A. 2A:162-25. Within 48 hours of a
defendant's commitment to jail, the court must "make
a pretrial release decision." N.J.S.A. 2A:I62-16(b)(1).
Defendants who are released must receive notice of any
conditions imposed and the consequences for violating them.
N.J.S.A. 2A:l62-23(a)(1); see also N.J.S.A.
2A:162-24 (noting process for violations).
CJRA outlines a hierarchy of release decisions to assure a
defendant's return to court and protect both public
safety and the integrity of the criminal justice process: (i)
release on personal recognizance or an unsecured appearance
bond, N.J.S.A. 2A:I62-I6(b)(2)(a), -17(a); (ii) if that is
inadequate, release on non-monetary conditions that are the
least restrictive conditions necessary, N.J.S.A.
2A:I62-16(b)(2)(b), -17(b); (iii) if that is inadequate,
release on monetary bail -- but only to reasonably assure the
defendant's appearance in court, N.J.S.A.
2A:162-16(b)(2)(c), -17(c); (iv) if that is inadequate,
release on both monetary and non-monetary conditions,
N.J.S.A. 2A:162-16(b)(2)(c), -17(d); and (v) if that is
inadequate and the prosecutor has moved for pretrial
detention, order that the defendant remain detained pending a
pretrial detention hearing, N.J.S.A. 2A:162-16(b)(2)(d).
18 to 20 of the Act set forth procedures for pretrial
detention hearings, N.J.S.A. 2A:162-18 to -20, and are
discussed in the following section.
Act's speedy trial deadlines appear in section 22. Except
for "excludable time for reasonable delays, "
defendants cannot remain in jail for more than 90 days before
the return of an indictment, or more than 180 days after
indictment and before the start of trial. N.J.S.A.
2A:162-22(a)(1)(a), (a)(2). The statute lists thirteen
periods of excludable time, N.J.S.A. 2A:162-22(b), and sets
an outer limit of two years for pretrial detention in a
single matter, aside from any delays attributable to the
defendant. N.J.S.A. 2A:l62-22(a)(2)(a), (a)(2)(c); see
also R. 3:25-4(d) .
25 establishes a Pretrial Services Program. Among other
responsibilities, pretrial services officers prepare a risk
assessment for each defendant for the court's use,
N.J.S.A. 2A:162-25(b), (c), and monitor defendants who are
released on conditions, N.J.S.A. 2A:162-25(d).
respects, the text of the Criminal Justice Reform Act follows
the federal Bail Reform Act of 1984, 18 U.S.C.A. §§
3141 to 3156, and the District of Columbia's statutory
scheme for pretrial detention, D.C. Code.
§§ 23-1321 to -1333. As State Senator Norcross, one
of the Act's sponsors, noted at a public hearing, the
Legislature looked to both laws among others when it framed
New Jersey's reform measure. Pub. Hearing Before S.
Law & Pub. Safety Comm., S. Con. Res. 128 2 (2014).
The CJRA, however, contains additional safeguards for
pretrial detention hearings. We turn to those now.
sections of the Criminal Justice Reform Act are critical to
this appeal: N.J.S.A. 2A:162-18, -19, and -20.
18(a) authorizes the court to order pretrial detention if it
finds by clear and convincing evidence that no conditions of
release would reasonably assure a defendant's appearance
in court, the safety of the community, and ...