Pretrial Conference
The last status conference before trial is the Pretrial Conference.
The court conducts a Pretrial Conference when there are no
motions pending, discovery is complete, and all reasonable
attempts to dispose of the case prior to trial have been made and
it appears that further negotiations or an additional status
conference will not result in the disposition of the case or
progress towards the disposition of a case. The Pretrial
Conference is conducted in open court with the defendant,
defense counsel and prosecutor present. At the Pretrial
Conference, unless objected to by a party, the judge will ask the
prosecutor to describe the case. The judge then addresses the
defendant and advises the defendant of the State's final offer
and the authorized sentence for the offenses charged. The
defendant is also advised that ordinarily a negotiated plea will
not be accepted (a plea cutoff) after the Pretrial Conference and
a trial date has been set. The judge also advises the defendant
of his or her right to trial. If the defendant wishes to proceed to
trial, a trial memorandum is prepared and reviewed on the
record and a trial date is set. Usually, no motions are heard
after this event and a plea cut off10 is in effect.
5. Trial and Right to Trial by Jury
If a defendant decides to contest guilt, the defendant is entitled,
by both the United States and New Jersey Constitutions11 to a
10
A plea cutoff means that, after the last status conference, the State's plea offer is withdrawn and the defendant must
either proceed to trial or enter a plea to the indictment without a recommendation from the State
See R. 3:9-1(e).
11
Article III, Sec. 2 of the United States Constitution and the Sixth Amendment to the United States Constitution;
Article I Paragraph 9 of the New Jersey Constitution of 1947.
84
trial by jury. The right to a jury trial generally applies to all
criminal acts for which the penalty for the offense exceeds six
months in confinement. The defendant can waive the right to a
jury trial if the court approves. See, R. 1:8-1(a). Defendants
may ask the court to be allowed to waive their right to be tried
by a jury. If the judge grants such a request, the judge tries the
case.12 This is known as a “bench trial.” In addition to the right
to a jury trial, the defendant has the right to be present at every
stage of a trial, including jury selection. See R. 3:16.
a. Selection of a Jury
In criminal cases a jury consists of twelve persons, unless
the parties agree that the jury may consist of less than
twelve. Note that in a capital case there must be 12
jurors. See R. 1:8-2. Normally, fourteen persons are
selected, with two being designated as alternate jurors at
the end of the trial.13 The alternate jurors are then
available if one of the twelve persons selected to serve on
the jury becomes ill or otherwise cannot continue to
serve. Jurors are drawn from a merged list of registered
voters, licensed drivers, filers of state gross income tax
returns and filers of homestead rebate application forms
in the county where the case will be tried.
The jury is selected after undergoing questioning by the
judge. If the court allows, counsel may be allowed to
personally question jurors or offer questions for the court
to ask of jurors. This process is known as jury voir dire.
It seeks to find out whether jurors have a bias or
prejudice which would render them unable to objectively
evaluate all testimony and render a fair and impartial
verdict. During this process, both the defense and the
prosecution are given peremptory challenges. These
challenges allow the parties to exclude prospective jurors
who are being considered for selection to the jury without
giving a reason for excluding them. See R. 1:8-3(d). Of
12
The defendant also needs the approval of the prosecutor to waive a jury in the sentencing phase of a capital case.
13
In many cases judges will empanel alternate jurors in case one of the twelve jurors cannot finish the trial, e.g. due
to sickness.
course, the court will always exclude jurors for cause,
such as where a juror has personal knowledge of the case.
Under rule 3:16, a, a defendant, who requests it,
ordinarily has a right of presence at voir dire sidebar
conferences. The vicinage has decided as a general
operating procedure to accommodate the defendants right
of presence at side bar through the use of technology
available from the TCA’s office. See Rule 3:16. a.
