Professor Michael Toto
Steps of Criminal Prosecution
Arrest or summons:
An arrest is often made without any warrant.
Warrants for arrest are typically given where the crime to be charged is either a 1st or 2nd degree felony.
If the charge will be 3rd or 4th degree (which typically does not carry jail time), there will usually just be a summons.
Booking- basically just entering the information, taking name and fingerprints, etc.
Complaint- the officer will give the information to the prosecutor who will decide whether to bring charges. The charges are called the “complaint”.
First appearance before a magistrate- notice of charges and told to get counsel.
Preliminary hearing- a magistrate decides whether there is probable cause.
Indictment- charges brought before a grand jury.
There are 23 people on the grand jury.
No defense counsel is present by the proceeding.
Majority rules whether there is probable cause.
Many forms of evidence which are generally inadmissible, will be allowed for a grand jury hearing.
The purpose of bail is to ensure that the defendant returns for trial.
In NJ, the risk of another crime being committed is not a good reason to deny bail. Federal courts do allow.
The factors for deciding the amount of bail will include the risk of flight and the likelihood of committing another crime in the meantime. Federal court allows denial of bail for fear of harm but NJ does not. (NJ rules are currently under reform).
Bail may not be excessive, which will be reasonably calculated to ensure that defendant will return to trial. Capital cases may often have no bail, since he may reasonably flee for any amount of money.
Bail should be within a certain range- see handout. Attorney may file a motion to reduce bail amount. The judge can go beyond the guidelines if there are specific reasons.
There can be conditions for bail such as drug testing, surrender passport, not return to a scene, impose a curfew, etc.
Also look at physical and mental health, do they have family in the area, is someone vouching for them.
There can also be a 10% option for certain crimes, which will allow a bail business to supply the rest of the bail after 10%.
In State v Johnson (important case), the court created factors:
Seriousness of crime and likelihood of conviction;
Defendant’s reputation and mental condition;
Length of residence in community;
Prior record on bail
Employment status and record of employment;
Identity of responsible members of community who will vouch;
Any other factors…
Under 3:26-2 bail can be set by superior or municipal court- superior court must set for certain crimes (more serious crimes)- all first and second degree offenses.
There is a move to allow release without bail for defendants who are first time offenders, and less than first or second degree crimes.
Soon (new guidelines): not tested
Objective risk assessment for risks of flight and harm
No bail needed for 3rd and 4th level offenses
There are five options for bail:
ROR (no payment) (A release on your own recognizance (ROR), also known as an own recognizance (OR) or personal recognizance (PR), is a written promise signed by the defendant promising that they will show up for future court appearances and not engage in illegal activity while out on an ROR);
Conditions of Bail:
No victim contact
Live with parent
No travel beyond state/country
No new offenses
Report to court
Surrender passport/driver’s license
Monetary with conditions;
Held in detention until trial.
Bail Source hearing
Used to determine the source of the funds are kosher
Bail hearing within 48 hours
Trial within 180
Person released without any bail if no trial within 180
Some circumstances may permit an extension up to 2 years
Bail should be reasonably calculated to be no higher than necessary to ensure defendant’s return
Was bail excessive?
Did it come within acceptable range?
Prosecutors have a lot of discretion in determining whether or not to bring charges
Prosecutors can also decide venue (municipal vs. superior)
Whether to admit an accused to PTI (or other program to help offenders)
Prosecutor’s PTI decision may be overruled by judge if they fail to consider all 13 relevant factors (don’t need to know the factors)
Drug Court is a little different:
Late discovery: up to judge whether to permit (even during trial)
Evidence rules apply: 104 hearing; unfair prejudice outweighs probative value
Brady v. Maryland
Prosecution must turn over some material that is favorable to the accused:
Undisclosed evidence demonstrating the P’s case includes perjured testimony and knew or should’ve known.
Material exculpatory evidence
Prosecution’s intent in suppressing is irrelevant (good or bad faith)- must turn over such evidence
Evidence is material if it goes to guilt or punishment
Defense should make a general pre-trial request for Brady material in order to preserve this right
Under Brady, a conviction should be set aside if any of these occur
Failure to disclose cumulative evidence (non-material) won’t require reversal, if there is other evidence/the outcome would have been the same. However, non-disclosure of several pieces of evidence which could have the altered the outcome with their cumulative value will be grounds for reversal.
If the evidence was destroyed (not suppressed- i.e. it is no longer available), the rules are different: if there was no bad faith in the destruction of the evidence, the Defendant is not entitled to acquittal. See Youngblood. However, this will change if the evidence was clearly exculpatory.
A defense attorney does not have to disclose the existence of a bad witness.
Requires State to turn over criminal and witness records/history, statements, reports of seized items, recordings (NJ R. 3:3(c))
Asserting Defenses: Defense has an obligation to notify Prosecution if certain defenses are to be raised (otherwise, they may be waived)
Must give written notice for some defenses
Alibi: Must tender location, time, and witnesses/people they were with.
Defense has the right to test all evidence itself.