March 12, 2018
appeal from the Superior Court, Appellate Division.
R. Ashley argued the cause for appellant (Thomas R. Ashley,
on the brief).
Stephanie Davis Elson, Assistant Prosecutor, argued the cause
for respondent (Esther Suarez, Hudson County Prosecutor,
attorney; Stephanie Davis Elson, on the briefs).
B. Lasota, Assistant Deputy Public Defender, argued the cause
for amicus curiae Office of the Public Defender (Joseph E.
Krakora, Public Defender, attorney; Laura B. Lasota, of
counsel and on the brief).
Alexander Shalom argued the cause for amicus curiae American
Civil Liberties Union of New Jersey (Edward L. Barocas, Legal
Director, attorney; Alexander Shalom, Edward L. Barocas, and
Jeanne LoCicero, on the brief).
Claudia Joy Demitro, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Gurbir S. Grewal, Attorney General, attorney; Claudia Joy
Demitro, of counsel and on the brief).
C.J., writing for the Court.
Criminal Justice Reform Act (CJRA) provides that defendants
"shall be afforded an opportunity . . . to present
witnesses" at pretrial detention hearings. N.J.S.A.
2A:162-19(e)(1). In this appeal, the Court considers whether
the provision allows a defendant to compel an adverse witness
to testify at a detention hearing.
police spotted defendant Leo Pinkston in a car that matched
the general description of a vehicle used in a shooting. The
officers "activated their lights and sirens."
Defendant allegedly "disregarded" the lights and
sirens and drove off. Ultimately, defendant struck another
car, and both vehicles collided with a light pole and caught
on fire. Defendant was charged with second-degree eluding and
second-degree aggravated assault while eluding. Pretrial
Services recommended against defendant's release, and the
State moved to detain defendant.
counsel asked for an adjournment to obtain additional
discovery and subpoena police officers to testify at the
hearing. The trial court denied defendant's request.
After it considered the complaint, affidavit of probable
cause, Public Safety Assessment, Preliminary Law Enforcement
Incident Report, and the arguments of counsel, the court
concluded that (a) probable cause existed, and (b) clear and
convincing evidence established that defendant should be
Appellate Division concluded that, under the circumstances,
the trial judge did not mistakenly exercise his discretion in
denying defendant's request to call adverse witnesses.
The panel affirmed the finding of probable cause and order of
Court granted defendant's motion for leave to appeal. 231
N.J. 418 (2017).
before this appeal was argued, defendant pled guilty, and the
State moved to dismiss as moot. The Court denied the motion
because "the appeal raise[d] an issue of public
importance that is capable of repetition yet evades
review." 232 N.J. 299');">232 N.J. 299 (2018).
The CJRA -- like the federal and D.C. laws on which it is
based in part -- provides defendants a qualified right to
summon adverse witnesses. Before calling an adverse witness,
a defendant must proffer how the witness's testimony
would tend to negate probable cause or undermine the
State's evidence in support of detention in a material
CJRA and case law outline various safeguards that apply to
detention hearings. The State must provide discovery before
the hearing in accordance with State v. Robinson,
229 N.J. 44, 69-71 (2017). At the hearing, the State must
first establish probable cause that the defendant committed
the charged offenses, unless a grand jury has already
returned an indictment. N.J.S.A. 2A:162-19(e)(2). The State
may proceed by proffer to satisfy its burden of proof.
See State v. Ingram, 230 N.J. 190, 195 (2017).
Defendants have various rights at the hearing: to be
represented by counsel, "to testify, to present
witnesses, to cross-examine witnesses who appear at the
hearing, and to present information by proffer or
otherwise." N.J.S.A. 2A:162-19(e)(1). To decide if
detention is appropriate, "'the court may take into
account information' about the nature and circumstances
of the offense, the weight of the evidence, the
defendant's history and characteristics, the nature of
the risk of danger and obstruction the defendant poses, and
'[t]he release recommendation of the pretrial services
program.'" State v. Mercedes, ___ N.J.___,
___ (2018) (slip op. at 14-15) (citing N.J.S.A. 2A:162-20(a)
to (f)). (pp. 8-9)
text of the Criminal Justice Reform Act follows the federal
Bail Reform Act of 1984 and the District of Columbia's
statutory scheme for pretrial detention in many respects. The
relevant text in all three laws is identical: a defendant
"shall be afforded an opportunity . . . to present
witnesses." Compare N.J.S.A. 2A:162-19(e)(1),
with 18 U.S.C. § 3142(f)(2)(B), and
D.C. Code § 23-1322(d)(4). A number of federal courts
have followed the reasoning of United States v.
Edwards, in which the District of Columbia Court of
Appeals interpreted the D.C. Code. 430 A.2d 1321, 1323 (D.C.
1981) (en banc). Relying in part on the statute's
legislative history, the court found that a defendant has
"only a conditional right to call adverse
witnesses." See id. at 1334. The
Edwards court concluded that requiring a preliminary
proffer about how "a witness' testimony will tend to
negate substantial probability that the accused committed the
charged offense, is a reasonable limitation on the
accused's right to call witnesses" at a pretrial
detention hearing. Id. at 1338. Other courts
likewise call for some type of preliminary showing before
they allow defendants to compel adverse witnesses to testify
at detention hearings. (pp. 10-13)
State v. Stewart, the Appellate Division canvassed
the CJRA and relevant case law and concluded that
Edwards struck "the proper balance." 453
N.J.Super. 55, 68 (App.Div. 2018). The Appellate Division set
forth the following standards. Before a defendant may call an
adverse witness "to rebut the State's evidence of
probable cause, the judge must first ask for a proffer
regarding the witness' anticipated testimony and its
relevancy to the issue of probable cause, and how the
anticipated testimony negates the State's evidence
already adduced at the hearing." Id. at 69. To
compel an adverse witness to appear on the issue of
detention, "a defendant must make a proffer
demonstrating how the anticipated testimony would rebut or
diminish the otherwise clear and convincing evidence the
State must produce." Id. at 70. In both
instances, the trial court has "significant discretion
to compel the production of a witness." Id. at
71. (p. 14)
light of the CJRA's history, the Court agrees with
Stewart that the law provides defendants a qualified
right to call witnesses at detention hearings. An alternative
reading of the statute would have far-reaching consequences.
An absolute right would mean that a defendant accused of
rape, for example, could compel the victim to testify at a
detention hearing in many instances. There is no basis to
believe the Legislature had that in mind when it drafted the
CJRA. To the contrary, it borrowed language from other laws
that stood for a very different approach. (pp. 15-16)
detention hearing has two components: the State must
establish probable cause, unless there is an indictment,
see N.J.S.A. 2A:162-19(e)(2), and must present clear
and convincing evidence to justify detention, see
a. Decisions about probable cause, both before and after the
enactment of the CJRA, have routinely been made without live
testimony. Ultimately, the question of probable cause
presents judges with but one choice to make: either there is
sufficient probable cause to proceed with a case, or there is
not. Against that backdrop, as to the issue of probable
cause, before being allowed to call an adverse witness, a
defendant must proffer how the witness's testimony would
tend to negate the State's showing of probable cause.
b. A more flexible standard is needed to decide when a
defendant may call an adverse witness to challenge the
State's case for detention because that decision is more
complex. Both sides have the right to present information
about the nature and circumstances of the offense, the weight
of the evidence, the nature of the danger to the community,
the risk of flight, and the risk of obstruction. Those issues
invite qualitative judgments, not "yes" or
"no" answers. Before being allowed to call an
adverse witness on the issue of detention, a defendant must
proffer how the witness's testimony would tend to
undermine the State's evidence in support of detention in
a material way.
weighing a defense proffer, judges have discretion to accept
and rely on the proffer, or not, and to compel an adverse
witness to appear, or not. See Stewart, 453
N.J.Super. at 71. A judge's decision whether to allow a
defendant to compel an adverse witness to testify at a
detention hearing is subject to review for abuse of
discretion. See State v. S.N., 231 N.J. 497, 500
(2018). Here, because defendant pled guilty, the Court does
not review the trial court's decision to detain him
pretrial. (pp. 16-20)
appeal is DISMISSED AS MOOT.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER's