Motion By the Prosecutor:  Once a Complaint-Warrant is filed and served, the prosecutor has a decision to make:  agree to release conditions for the defendant OR file a motion for pre-trial detention seeking to hold the defendant in jail while the case is pending.  The prosecutor may file a motion seeking pre-trial detention of a defendant for whom a Warrant-Complaint was issued with felony-level offenses or disorderly persons domestic violence offenses.  See N.J.S.A. 2A:162-15 et seq. and Court Rule 3:4A(a).  The prosecutor’s decision to file a Motion for Pre-Trial Detention is based on whether the prosecutor believes there is a serious risk that the defendant’s pre-trial release will compromise the “Three Goals” of criminal justice reform (i.e., appearance in court, protection of any person or the community, and/or to prevent risk of obstruction).  See N.J.S.A. 2A:162-18(a)(1); see also N.J.S.A. 2A:162-19.

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Timing of Motion for Detention:  The prosecutor must file its Motion for Pre-Trial Detention at the time of the defendant’s First Appearance (i.e., within 24 to 48 hours after arrest).  Each side then has 3 business days to prepare for the Detention Hearing, which occurs before a Superior Court judge in the county where the charges are filed.  See Court Rule 3:4A(b)(1); see also N.J.S.A. 2A:162-19(d)(1).  Courts may grant a continuance of up to 5 business days (when sought by the defendant) or up to 3 business days (when sought by the prosecutor). 

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Defendant Detained Until Detention Hearing:  Once a Motion for Pre-Trial Detention is filed, the defendant will be held at the county jail until the Detention Hearing on the State’s Motion is heard.  N.J.S.A. 2A:162-19(d)(2).

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Discovery:  Prior to the detention hearing, the prosecutor will provide the defense with discovery related to the case.  “Discovery” is a term used for the evidence in a particular case (example – police reports, witness statements, photographs, surveillance footage, police body-worn camera footage, etc.).  Rule 3:4-2.  When a prosecutor seeks to detain a defendant, “the prosecutor shall provide the defendant with all statements or reports in its possession relating to the pre-trial detention application.”  Additionally, all exculpatory evidence must be disclosed.  See Court Rule 3:4-2(c)(1)(B).

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Grounds for Ordering Pre-Trial Detention:  The Court may only detain a defendant, pre-trial, if the court finds “by clear and convincing evidence” that no conditions of pre-trial release would reasonably assure the “Three Goals” of criminal justice reform are met (i.e., appearance in court, protection of any individual and/or the community, prevent risk of obstruction).  See N.J.S.A. 2A:162-18(a)(1); see also Court Rule 3:4A(b)(4).  Where the Court determines that pre-trial detention is appropriate, it must provide written findings of fact supporting its decision.

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​Burden of Proof:  At a detention hearing, the burden is on the prosecutor to prove by clear and convincing evidence that there are no combination of pre-trial release conditions that would assure the three goals of criminal justice reform (i.e., defendant’s appearance in Court, safety of others or the community; and/or that the defendant will not obstruct or attempt to obstruct the criminal justice process).  The Court may order an eligible defendant be detained, pending resolution of his or her case, if after a detention hearing the Court finds by clear and convincing evidence that no amount of monetary bail or conditions of pre-trial release would reasonable assure the three goals of criminal justice reform.  See N.J.S.A. 2A:162-18.

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Information Court Considers When Determining Whether Pre-Trial Detention is Warranted:  Pursuant to N.J.S.A. 2A:162-20, in addition to the three goals of criminal justice reform (i.e., appearance in court, safety of the community, and risk of obstruction), the Court will consider the following factors when deciding whether to detain a defendant pre-trial or release them into the community on conditions:

• The nature and circumstances of the offense charged;

• The weight of the evidence against the defendant (including otherwise excludable evidence);

• The history and characteristics of the defendant, including:

o    The defendant’s character;

o    The physical and mental condition of the defendant;

o    Family ties;

o    Employment;

o    Financial resources;

o    Length of residence in the community;

o    Community ties;

o    Past conduct;

o    History relating to drug and/or alcohol abuse;

o    Criminal history;

o    Prior record of appearing in court;

o    Whether the defendant is currently on probation, parole, or pre-trial release for any other criminal matter.

• The nature and seriousness of the danger the defendant poses to any person or the community;

• The risk of obstructing or attempting to obstruct the criminal justice process posed by the defendant’s release.

• The release recommendation of pre-trial services.

o    *NOTE:  If the PSA recommends “no release,” then this is evidence sufficient to overcome a presumption of release.  

 

The Importance of Litigating Pre-Trial Release

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The single most important step early on in a criminal case is to try to get the defendant out of jail while the case is pending.  It is extremely important to vigorously litigate pre-trial release.  The reason for this is it is much easier to fight and deal with a criminal case while out on pre-trial release, versus trying to fight a case while in custody at the county jail.  Defendants who are detained pre-trial are more likely to receive jail or prison sentences than those who are out on release pending the resolution of his or her case.  Pre-trial detention can also have many collateral consequences:  the defendant is cut off from his or her family while in jail, they may lose their job, and they may go without access to medications.  Pre-trial detention can also cause loss of housing, disruption in education, and damage to reputation/relationships.  Clients who are detained pre-trial may also face tougher plea offers, feel pressure to plead guilty just to get out of jail, and may receive a longer/worse sentence than someone who was not detained pre-trial. 

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Tools for Litigating Pre-Trial Release

An experienced and skilled defense attorney uses many “tools” when effectively advocating for a client’s pre-trial release.

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Familiarity With and Skill Litigating Pre-Trial Release Issues:  An attorney litigating pre-trial release at a detention hearing must be familiar with the legal criteria for determining pre-trial release and the procedures that will be followed in setting those conditions.  This includes a thorough understanding of New Jersey's pre-trial release statutes, constitutional provisions governing pre-trial release, and New Jersey pre-trial release case law.  The attorney should also be very familiar with the different types of pre-trial release conditions the court may set.

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Thorough Knowledge of Discovery:  The attorney must be thoroughly aware of all of the discovery provided prior to the detention hearing (example:  charges, police reports, witness statements, photographs, lab reports, medical records, etc.).

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Thorough Client Interview:  A thorough knowledge of the client and his or her background is one of the most important tools a lawyer possesses when litigating pre-trial release.  Conducting a detailed initial interview gives the attorney the information she needs to advocate effectively for the client, and explain to the Court how there are appropriate conditions of release that address the client’s specific “risk” factors.  The client interview can be a rich source of information that can be used to convince a Superior Court judge to release a defendant that the judge might otherwise have detained.  For example, your attorney should be familiar with your:

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• Ties to the Community:  Length of time living in New Jersey, family in the area, employment or school status, children.

• Physical and Mental Health History:  Any physical or mental health issues the client has suffered from, including any treatment completed or currently undergoing. 

• Educational History:  The client’s educational history including the highest level of education completed and/or current schooling.  It is also important to know about any learning disabilities or developmental issues.

• Military History:  Information about a client’s military service can be an important factor to highlight for the Judge (i.e., branch of military, dates of service, injuries, discharge status, etc.).

• Criminal History:  The attorney should gather information about the client’s past criminal record by asking detailed and specific questions regarding what is listed on the Public Safety Assessment.  This includes information about prior arrests, convictions, failures to appear in court, pending charges, probation or parole status, past performance under supervision, any reasons for past non-compliance with probation or release conditions or appearances in court).  This will ensure that the attorney is prepared for any arguments raised by the State at the detention hearing about anything negative in the client’s criminal/court history.

• Collateral Financial Issues:  When a client is detained while their case is pending, they may experience financial consequences of being detained.  This includes obligations to pay child support, rent or mortgage, educational payments, or any other financial obligations the client would not be able to meet if incarcerated while their case is pending.

• Client’s Version of Events:  In addition to the client’s social factors, the attorney should attempt to get a workable understanding of the client’s version of events as soon as possible in order to appropriately advocate for release.

 

Thorough Understanding of PSA Factors:  An experienced defense attorney will have a thorough understanding of the risk-assessment tools used by New Jersey Courts, specifically, the Public Safety Assessment. 

 

Defense counsel should make arguments to the court that are individualized to the client, outlining the specific circumstances that make onerous conditions unworkable.  It is important to highlight the specific facts and circumstances about the client, his or her life, employment, family support, etc.  It is also helpful to describe why the services offered by Pre-Trial Services will adequately assure the client’s appearance in court and to protect public safety and the integrity of the criminal justice process.  It is also important to know your audience.  Judges frequently have specific condition-setting proclivities and/or biases that the defense attorney should try to address with factual information about the client.​

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Contact a New Jersey Detention Hearing

Lawyer for a Free Consultation

 

The consequences of pre-trial detention can be devastating.  It can impact employment, housing, finances, education, reputation, and relationships.  Detention hearings are also very complex and highly specialized.  If you or a loved one is facing a detention hearing, it is crucial to hire an experienced criminal defense attorney. 

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At Denholtz Criminal Defense, we understand the stakes involved and are committed to providing you with skilled, aggressive, and personalized legal representation.  No matter what the allegations, Ms. Denholtz will provide an honest and detailed evaluation of your case, outline the best legal options available, and craft a defense strategy designed to achieve the best possible result for your unique situation.  Contact Denholtz Criminal Defense today for your free consultation: (862) 842-0811 or Tracy@DenholtzCriminalDefense.com.