Rule 3:4A. Pretrial Detention
(a) Timing of Motion. A prosecutor may file a motion at any time seeking the
pretrial detention of a defendant for whom a complaint-warrant or warrant on indictment
is issued for an initial charge involving an indictable offense, or a disorderly persons
offense involving domestic violence, as provided in N.J.S.A. 2A:162-15 et seq. A
defendant who is the subject of a warrant on indictment is an eligible defendant
pursuant to N.J.S.A. 2A:162-15 et seq.
(b) Hearing on Motion.
(1) A pretrial detention hearing shall be held before a Superior Court
judge no later than the defendant’s first appearance unless the defendant or the
prosecutor seeks a continuance or the prosecutor files a motion at or after the
defendant’s first appearance. If the prosecutor files a motion at or subsequent to the
defendant’s first appearance the pretrial detention hearing shall be held within three
working days of the date of the prosecutor’s motion unless the defendant or prosecutor
seek a continuance. Except for good cause, a continuance on motion of the defendant
may not exceed five days, not including any intermediate Saturday, Sunday or holiday.
Except for good cause, a continuance on motion of the prosecutor may not exceed
three days, not including any intervening Saturday, Sunday or holiday. The Superior
Court judge in making the pretrial detention decision may take into account information
as set forth in N.J.S.A. 2A:162-20.
(2) The defendant shall have a right to be represented by counsel and, if
indigent, to have counsel appointed if he or she cannot afford counsel. The defendant
shall be provided discovery pursuant to Rule 3:4-2(c)(1)(B). The defendant shall be
afforded the right to testify, to present witnesses, to cross-examine witnesses who
appear at the hearing and to present information by proffer or otherwise. Testimony of
the defendant given during the hearing shall not be admissible on the issue of guilt in
any other judicial proceeding, but the testimony shall be admissible in proceedings
related to the defendant’s subsequent failure to appear, proceedings related to any
subsequent offenses committed during the defendant’s release, proceedings related to
the defendant’s subsequent violation of any conditions of release, any subsequent
perjury proceedings, and for the purpose of impeachment in any subsequent
proceedings. The defendant shall have the right to be present at the hearing. The rules
governing admissibility of evidence in criminal trials shall not apply to the presentation
and consideration of information at the hearing. The return of an indictment shall
establish probable cause to believe that the defendant committed any offense alleged
therein. Where there is no indictment at the point of the detention hearing, the
prosecutor shall establish probable cause that the defendant committed the predicate
offense.
(3) A hearing may be reopened at any time before trial if the court finds
that information exists that was not known by the prosecutor or defendant at the time of
the hearing and that information has a material bearing on the issue of whether there
are conditions of release that will reasonably assure the defendant’s appearance in
court when required, the protection of the safety of any other person or the community,
or that the defendant will not obstruct or attempt to obstruct the criminal justice process.
(4) Presumption of detention. When a motion for pretrial detention is filed
pursuant to paragraph (a), there shall be a rebuttable presumption that the defendant
shall be detained pending trial because no amount of monetary bail, non-monetary
condition or combination of monetary bail and conditions would reasonably assure the
defendant’s appearance in court when required, the protection of the safety of any other
person or the community, and that the defendant will not obstruct or attempt to obstruct
the criminal justice process, if the court finds probable cause that the defendant: (i)
committed murder pursuant to N.J.S.A. 2C:11-3; or (ii) committed any crime for which
the defendant would be subject to an ordinary or extended term of life imprisonment.
(5) Presumption of release. Except when a presumption of detention is
required pursuant to paragraph (b)(4), when a motion for pretrial detention is filed
pursuant to paragraph (a), there shall be a rebuttable presumption that some amount of
monetary bail, non-monetary conditions of pretrial release or combination of monetary
bail and conditions would reasonably assure the defendant’s appearance in court when
required, the protection of the safety of any other person or the community, and that the
defendant will not obstruct or attempt to obstruct the criminal justice process.
The standard of proof for the rebuttal of the presumption of pretrial release shall
be by clear and convincing evidence. The court may consider as prima facie evidence
sufficient to overcome the presumption of release a recommendation by the Pretrial
Services Program established pursuant to N.J.S.A. 2A:162-25 that the defendant’s
release is not recommended (i.e., a determination that “release not recommended or if
released, maximum conditions”). Although such recommendation by the Pretrial
Services Program may constitute sufficient evidence upon which the court may order
pretrial detention, nothing herein shall preclude the court from considering other
relevant information presented by the prosecutor or the defendant in determining
whether no amount of monetary bail, non-monetary bail conditions of pretrial release or
combination of monetary bail and conditions would reasonably assure the defendant’s
appearance in court when required, the protection of the safety of any other person or
the community, and that the defendant will not obstruct the criminal justice process.
(c) Pretrial Detention Order. If the court determines that pretrial detention is
necessary it shall issue an order containing written findings of fact and a written
statement of reasons for the detention. That order shall also direct that the defendant
be afforded reasonable opportunity for private consultation with counsel.
(d) Temporary Release Order. The court may issue an order temporarily
releasing the defendant, subject to conditions, to the extent that the court determines
the release is necessary for the preparation of a defendant’s defense or for another
compelling reason.
(e) Interlocutory Order from Appellate Division. Nothing in this Rule shall be
deemed to preclude the State’s right to seek an interlocutory order from the Appellate
Division within 48 hours.
Note: Adopted August 30, 2016 to be effective January 1, 2017; paragraph (a) amended July 28, 2017 to
be effective September 1, 2017.
