SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Habeeb Robinson (A-40-16) (078900)
Argued March 29, 2017 -- Decided May 10, 2017
RABNER, C.J., writing for a majority of the Court.
In this appeal, the Court considers the newly enacted Criminal Justice Reform Act for the first time and
addresses the type and scope of discovery the State must provide when it seeks to detain a defendant pretrial.
The Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26, has three principal components.
First, it allows for pretrial detention of defendants who present such a serious risk of danger, flight, or obstruction
that no combination of release conditions would be adequate. Second, it replaced the system’s prior heavy reliance
on monetary bail and instead calls for an objective evaluation of risk level and consideration of conditions of release.
Finally, the Act establishes statutory speedy trial deadlines. The CJRA took effect on January 1, 2017.
N.J.S.A. 2A:162-18(a) authorizes the court to order pretrial detention if it finds by clear and convincing
evidence that no conditions of release would reasonably assure a defendant’s appearance in court, the safety of the
community, and the integrity of the criminal justice process. A rebuttable presumption of detention exists when the
court finds probable cause for murder or a crime subject to life imprisonment. N.J.S.A. 2A:162-19(b).
When a prosecutor applies for pretrial detention, the defendant is held pending a hearing. N.J.S.A. 2A:162-
19(d)(2). “In pretrial detention proceedings for which there is no indictment, the prosecutor shall establish probable
cause that the eligible defendant committed the predicate offense.” N.J.S.A. 2A:162-19(e)(2). A defendant can
rebut a presumption of detention, when one applies, by a preponderance of the evidence. Ibid. If a court orders
detention, its decision must be supported by clear and convincing evidence. N.J.S.A. 2A:162-19(e)(3).
At the hearing, “the court may take into account”: (a) “[t]he nature and circumstances of the offense
charged; (b) [t]he weight of the evidence against the eligible defendant”; (c) the defendant’s “history and
characteristics”; (d) the danger posed by release; (e) the risk of obstruction of justice; “and (f) [t]he release
recommendation” of the Public Safety Assessment (PSA) prepared under N.J.S.A. 2A:162-25. N.J.S.A. 2A:162-20.
After the Legislature enacted the CJRA, the Court asked the Criminal Practice Committee to propose
amendments to the court rules. The Committee divided sharply about the amount and type of discovery that should
be required for pretrial detention hearings. The Court struck a compromise: “if the prosecutor is seeking pretrial
detention, the prosecutor shall provide the defendant with all statements or reports in its possession relating to the
pretrial detention application. All exculpatory evidence must be disclosed.” R. 3:4-2(c)(1)(B).
The police arrested defendant Habeeb Robinson for killing a victim. According to the affidavit, two
eyewitnesses saw the shooting. One identified defendant from a six-person photo array; the other identified a photo
of defendant. The Preliminary Law Enforcement Incident Report (PLEIR) adds that a surveillance camera recorded
the incident. The pending complaint charges defendant with first-degree murder and weapons offenses. The PSA
recommended that defendant not be released.
The State moved for pretrial detention. At the hearing, the State relied on the hearsay statements in the
affidavit of probable cause (which refer to the two eyewitnesses); the presumption of detention under N.J.S.A.
2A:162-19(b)(1) (based on the murder charge); defendant’s criminal history and record of court appearances; and
the release recommendation in the PSA. The trial court directed the State to disclose the two witness statements, the
photos used in the identification process, the surveillance video, and any incident report that the police prepared.
The Appellate Division affirmed the trial court’s order. 448 N.J. Super. 501, 506 (App. Div. 2017). The
Court agreed to hear the State’s motion for leave to appeal on an accelerated basis.
HELD: Both the trial court and the Appellate Division directed the State to disclose the statements of two
eyewitnesses, photos used in the identification process, any incident report of the crime prepared by the police, and a
surveillance video. Rule 3:4-2(c)(1)(B) required disclosure of the reports and the photos but not the video. The Court
also clarifies and reframes the Rule to help ensure that it strikes the proper balance between two important concerns: a
defendant’s liberty interest and the State’s ability to seek to detain high-risk defendants before trial.
1. Thoughtful people have wrestled over the scope of discovery that should be required at a detention hearing. A
number of considerations factor into the ongoing debate: the language of the statute; important concerns for public
safety; and the defendants’ liberty interests. In addition, the discovery rule should not impose impractical demands
on law enforcement. The administration of justice calls for fair and efficient proceedings. In the case of a detention
application, the focus is not on guilt, and the hearing should not turn into a mini-trial. (pp. 26-29)
2. To balance those aims, the Court sets forth principles to govern the disclosure of evidence at a detention hearing:
(1) because the Act calls for a determination of probable cause and an assessment of the risk of danger, flight, and
obstruction, which may include consideration of the nature and circumstances of the offense and the weight of the
evidence, discovery should likewise be keyed to both areas; (2) the complaint, (3) the PSA, (4) the affidavit of
probable cause, and (5) any available PLEIR must be disclosed; (6) all statements and reports relating to the
affidavit of probable cause should be disclosed; (7) all statements or reports that relate to any additional evidence the
State relies on to establish probable cause at the detention hearing should be disclosed; (8) statements and reports
related to items that appear only in the PLEIR need not be disclosed; (9) statements and reports relating to the risk of
flight, danger, and obstruction, which the State advances at the hearing, should be disclosed; the phrase “statements
and reports” (10) refers to items that exist at the time of the hearing and does not encompass video and audio files as
a general rule, but does (11) encompass reports that are in the possession of the prosecutor, law enforcement
officials, and other agents of the State; and (12) all exculpatory evidence must be disclosed. (pp. 29-32)
3. With those principles in mind, and based on the Rule’s practical application since January 1, 2017, the Court
clarifies and revises Rule 3:4-2(c), effective at once. The revisions are to be read with Rule 3:13-3, which obligates
the State to provide full discovery when it makes a pre-indictment plea offer or when an indictment is returned or
unsealed. In appropriate cases, the prosecutor may apply for a protective order directly to the judge who will preside
over the detention hearing. If, after an extensive, long-term investigation, the State seeks permission to provide
more limited discovery, judges may direct that a representative sample of statements and reports be disclosed before
the detention hearing. When the Court adopted the original Rule, it unanimously rejected the recommendation that
videotapes be disclosed before a detention hearing. The revised rule maintains that approach. (pp. 32-36)
4. The discovery rule—in its original and revised form—satisfies the requirements of due process and passes muster
under the Federal and New Jersey Constitutions. (pp. 37-40)
5. Applying Rule 3:4-2(c), as clarified, to this case, any initial police reports about the witnesses must be disclosed,
and the prosecution must provide copies of statements or reports of the two eyewitnesses. When an eyewitness
makes an identification, the State must document the process and record certain details. That information should be
disclosed along with copies of any photo arrays or photos used in the identification process. Because photos shown
as part of an identification receive special treatment under the law, their disclosure is an exception to the rule.
Neither the original nor the revised Rule calls for disclosure of surveillance videos and similar items. (pp. 41-42)
The judgment of the Appellate Division is AFFIRMED and MODIFIED. The revised Rule 3:4-2(c) shall
go into effect at once.
JUSTICE ALBIN, DISSENTING IN PART, concurs in the judgment in this case based on the language
of the then-operative Rule but dissents from the majority’s decision to draft a new rule. In Justice Albin’s view, the
redrafted Rule sanctifies artificial distinctions, making highly relevant evidence non-discoverable (a videotape) and
second-hand evidence discoverable (written summary of tape). The redrafted Rule also gives the prosecutor a
perverse incentive to place information, not in the affidavit of probable cause, but rather in the PLEIR because
reports and statements referenced in the PLEIR are non-discoverable.
JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in CHIEF
JUSTICE RABNER’s opinion. JUSTICE ALBIN filed a separate opinion, dissenting in part and concurring
in part, in which JUSTICE LaVECCHIA joins.
2
Rule 3:4-2(c)
(c) Procedure in Indictable Offenses. At the defendant’s first appearance before
a judge, if the defendant is charged with an indictable offense, the judge shall
(1) give the defendant a copy of the complaint, discovery as provided
in subsections (A) and (B) below, and inform the defendant of the
charge;
(A) if the prosecutor is not seeking pretrial detention, the
prosecutor shall provide the defendant with a copy of any
available preliminary law enforcement incident report
concerning the offense and the affidavit of probable cause;
(B) if the prosecutor is seeking pretrial detention, the
prosecutor shall provide the defendant with (i) the discovery
listed in subsection (A) above, (ii) all statements or reports
relating to the affidavit of probable cause, (iii) all statements or
reports relating to additional evidence the State relies on to
establish probable cause at the hearing, (iv) all statements or
reports relating to the factors listed in N.J.S.A. 2A:162-18(a)(1)
that the State advances at the hearing, and (v) all exculpatory
evidence.
3
SUPREME COURT OF NEW JERSEY
A-40 September Term 2016
078900
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
HABEEB ROBINSON,
Defendant-Respondent.
Argued March 29, 2017 – Decided May 10, 2017
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 448
N.J. Super. 501 (App. Div. 2017).
Elie Honig, Director, Division of Criminal
Justice, Office of the Attorney General,
argued the cause for appellant (Christopher
S. Porrino, Attorney General, attorney;
Claudia Joy Demitro, Deputy Attorney
General, of counsel and on the briefs).
Joseph E. Krakora, Public Defender, argued
the cause for respondent (Joseph E. Krakora,
Public Defender, attorney; Elizabeth C.
Jarit, Assistant Deputy Public Defender, of
counsel and on the briefs).
Paul H. Heinzel, Somerset County Assistant
Prosecutor, argued the cause for amicus
curiae, County Prosecutors Association of
New Jersey (Richard T. Burke, President,
attorney).
Alexander R. Shalom argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey (Edward L. Barocas, Legal
Director, attorney; Alexander R. Shalom,
Edward L. Barocas, and Jeanne M. LoCicero on
the brief).
1
CHIEF JUSTICE RABNER delivered the opinion of the Court.
In this appeal, we consider the newly enacted Criminal
Justice Reform Act for the first time and address the type and
scope of discovery the State must provide when it seeks to
detain a defendant pretrial.
The new law changed the landscape of the State’s criminal
justice system relating to pretrial release. The statute marked
a shift away from heavy reliance on monetary bail. Judges now
have the authority to detain defendants prior to trial if they
present a serious risk of danger, flight, or obstruction.
N.J.S.A. 2A:162-18(a)(1). Defendants who pose less risk can be
released on their own recognizance or on conditions that
pretrial services officers monitor. N.J.S.A. 2A:162-17, -25(d).
The law also sets forth new speedy trial rules that apply to
defendants who are detained. N.J.S.A. 2A:162-22.
In this case, defendant Habeeb Robinson was arrested on
January 4, 2017 and charged with murder and weapons offenses.
The State moved to detain him. In connection with the detention
hearing, both the trial court and the Appellate Division
directed the State to disclose the statements of two
eyewitnesses, photos used in the identification process, any
incident report of the crime prepared by the police, and a
surveillance video.
2
We find that Rule 3:4-2(c)(1)(B), on which the courts
relied, required disclosure of the reports and the photos but
not the video. We also take this opportunity to clarify and
reframe the Rule to help ensure that it strikes the proper
balance between two important concerns: a defendant’s liberty
interest and the State’s ability to seek to detain high-risk
defendants before trial.
I.
We begin with an overview of the Criminal Justice Reform
Act (CJRA or Act), N.J.S.A. 2A:162-15 to -26, and certain
related court rules to offer context for the discussion that
follows.
A.
Before this year, New Jersey had long guaranteed defendants
the right to bail. The 1844 Constitution added a provision that
had existed by statute for more than a century: “All persons
shall, before conviction, be bailable by sufficient sureties,
except for capital offences, when the proof is evident or
presumption great.” N.J. Const. of 1844, art. I, ¶ 10; see also
State v. Johnson, 61 N.J. 351, 354 (1972). The 1947
Constitution retained the same language. N.J. Const. of 1947,
art. I, ¶ 11 (2016).
Beginning in 2007, when the Legislature eliminated the
death penalty for murder, see State v. Fortin, 198 N.J. 619, 624
3
(2009), the constitutional right to bail applied in all cases,
see Report of the Joint Committee on Criminal Justice 18–19, 18
n.42 (Mar. 10, 2014), http://www.judiciary.state.nj.us/pressrel/
2014/FinalReport_3_20_2014.pdf (JCCJ Report).
In practice, New Jersey’s system of pretrial release relied
heavily on the use of monetary bail “to insure [the] presence of
the accused at the trial.” Johnson, supra, 61 N.J. at 364.
Defendants had to post cash or arrange for a bond to secure
their release.
The system had direct consequences: any defendants -- even
those who posed a substantial risk of flight or danger to the
community -- could be released if they had access to untainted
funds to post as bail. See N.J.S.A. 2A:162-13(b). Meanwhile,
poorer defendants accused of less serious crimes, who presented
minimal risk, were held in custody if they could not post even
modest amounts of bail.
A March 2013 study of New Jersey’s county jails revealed
that twelve percent of inmates were in custody pretrial because
they could not pay $2500 or less. Marie VanNostrand, Ph.D.,
Luminosity & the Drug Policy Alliance, New Jersey Jail
Population Analysis 13 (Mar. 2013), https://university.pretrial.
org/viewdocument/new-jersey-jail-popu. About 800 inmates “could
have secured their release for $500 or less”; “an additional 259
inmates could have secured their release for between $501 and
4
$1,000[;] and an additional 489 inmates could have secured their
release for between $1,001 and $2500.” Ibid. In other words,
one in eight inmates, who posed little risk, sat in jail
pretrial because they were poor, while defendants charged with
serious crimes who posed a substantial risk of danger or flight
could be released into the community without monitoring so long
as they could make bail.
A number of steps were taken in the past five years to
address those system-wide problems. In 2012, Governor Christie
called for a constitutional amendment to allow for pretrial
detention in serious cases. Administrative Office of the
Courts, Criminal Justice Reform: Annual Report to the Governor
& Legislature 1 (2016), https://www2.njcourts.gov/courts/assets/
criminal/2016cjrannual.pdf. The following year, the Judiciary
established the Joint Committee on Criminal Justice, “comprised
of members from all three branches of state government including
the Attorney General, Public Defender, private attorneys,
judges, court administrators, and representatives of the
Legislature and the Governor’s Office, to examine New Jersey’s
criminal justice system.” Ibid. The Committee issued a report
in March 2014, which recommended a series of changes to New
Jersey’s criminal justice system and focused, in particular, on
bail reform and the need for a speedy trial act. See JCCJ
Report, supra, at 1.
5
The Legislature held hearings to consider the Committee’s
findings and recommendations, and ultimately adopted a proposal
to amend the State Constitution to permit detention
if the court finds that no amount of monetary
bail, non-monetary conditions of pretrial
release, or combination of monetary bail and
non-monetary conditions would reasonably
assure the person’s appearance in court when
required, or protect the safety of any other
person or the community, or prevent the person
from obstructing or attempting to obstruct the
criminal justice process.
[S. Con. Res. No. 128, 216th Leg. (2014).]
The Legislature also drafted a bill, S. 946/A. 1910 (2014),
discussed in detail below, to reform the system of pretrial
release and provide for more timely trials for defendants who
are detained. Governor Christie signed the new law on August
11, 2014. L. 2014, c. 31 (codified at N.J.S.A. 2A:162-15 to -
26).
The Criminal Justice Reform Act has three principal
components. First, it allows for pretrial detention of
defendants who present such a serious risk of danger, flight, or
obstruction that no combination of release conditions would be
adequate. N.J.S.A. 2A:162-18(a)(1). Second, the Act replaced
the system’s prior heavy reliance on monetary bail. The law
instead calls for an objective evaluation of each defendant’s
risk level and consideration of conditions of release that
pretrial services officers will monitor. N.J.S.A. 2A:162-17, -
6
25(d). In that way, low-level offenders will not be penalized
because they cannot afford to post bail. Finally, the Act
establishes statutory speedy trial deadlines for defendants who
are detained pending trial. N.J.S.A. 2A:162-22.
The law was contingent on passage of the proposed
constitutional amendment, which voters approved by a wide margin
of 61.8 to 38.2 percent in November 2014. Div. of Elections,
Dep’t of State, Official List: Public Question Results for
11/04/2014 General Election Public Question No. 1 1 (Dec. 2,
2014), http://nj.gov/state/elections/2014-results/2014-official-
general-public-question-1.pdf.
The Criminal Justice Reform Act took effect on January 1,
2017. N.J.S.A. 2A:162-15 to -26. We summarize its provisions
and focus in particular on parts of the law that relate to
pretrial detention.
The Act “shall be liberally construed” to effect its
purpose: to rely primarily on “pretrial release by non-monetary
means to reasonably assure” that a defendant will “appear[] in
court when required,” will not endanger “the safety of any other
person or the community,” and “will not obstruct or attempt to
obstruct the criminal justice process.” N.J.S.A. 2A:162-15. If
a court finds by clear and convincing evidence that “no
condition or combination of conditions” would achieve those
7
goals, the court, upon motion by the prosecutor, may order that
a defendant be held pending trial. Ibid.
A court may set monetary bail “only when . . . no other
conditions of release will reasonably assure the eligible
defendant’s appearance in court.” Ibid. The statute defines
“eligible defendant” as a person initially charged in a
complaint-warrant with an indictable offense or a disorderly
persons offense, unless otherwise stated. Ibid.
After a complaint-warrant is issued, eligible defendants
“shall be temporarily detained to allow the Pretrial Services
Program to prepare a risk assessment” and recommend conditions
of release. N.J.S.A. 2A:162-16(a); see also N.J.S.A. 2A:162-25.
Within 48 hours of a defendant’s commitment to jail, the court
must “make a pretrial release decision.” N.J.S.A. 2A:162-
16(b)(1). Defendants who are released must receive notice of
any conditions imposed and the consequences for violating them.
N.J.S.A. 2A:162-23(a)(1); see also N.J.S.A. 2A:162-24 (noting
process for violations).
The CJRA outlines a hierarchy of release decisions to
assure a defendant’s return to court and protect both public
safety and the integrity of the criminal justice process: (i)
release on personal recognizance or an unsecured appearance
bond, N.J.S.A. 2A:162-16(b)(2)(a), -17(a); (ii) if that is
inadequate, release on non-monetary conditions that are the
8
least restrictive conditions necessary, N.J.S.A. 2A:162-
16(b)(2)(b), -17(b); (iii) if that is inadequate, release on
monetary bail -- but only to reasonably assure the defendant’s
appearance in court, N.J.S.A. 2A:162-16(b)(2)(c), -17(c); (iv)
if that is inadequate, release on both monetary and non-monetary
conditions, N.J.S.A. 2A:162-16(b)(2)(c), -17(d); and (v) if that
is inadequate and the prosecutor has moved for pretrial
detention, order that the defendant remain detained pending a
pretrial detention hearing, N.J.S.A. 2A:162-16(b)(2)(d).
Sections 18 to 20 of the Act set forth procedures for
pretrial detention hearings, N.J.S.A. 2A:162-18 to -20, and are
discussed in the following section.
The Act’s speedy trial deadlines appear in section 22.
Except for “excludable time for reasonable delays,” defendants
cannot remain in jail for more than 90 days before the return of
an indictment, or more than 180 days after indictment and before
the start of trial. N.J.S.A. 2A:162-22(a)(1)(a), (a)(2). The
statute lists thirteen periods of excludable time, N.J.S.A.
2A:162-22(b), and sets an outer limit of two years for pretrial
detention in a single matter, aside from any delays attributable
to the defendant. N.J.S.A. 2A:162-22(a)(2)(a), (a)(2)(c); see
also R. 3:25-4(d).
Section 25 establishes a Pretrial Services Program. Among
other responsibilities, pretrial services officers prepare a
9
risk assessment for each defendant for the court’s use, N.J.S.A.
2A:162-25(b), (c), and monitor defendants who are released on
conditions, N.J.S.A. 2A:162-25(d).
In many respects, the text of the Criminal Justice Reform
Act follows the federal Bail Reform Act of 1984, 18 U.S.C.A. §§
3141 to 3156, and the District of Columbia’s statutory scheme
for pretrial detention, D.C. Code. §§ 23-1321 to -1333. As
State Senator Norcross, one of the Act’s sponsors, noted at a
public hearing, the Legislature looked to both laws among others
when it framed New Jersey’s reform measure. Pub. Hearing Before
S. Law & Pub. Safety Comm., S. Con. Res. 128 2 (2014). The
CJRA, however, contains additional safeguards for pretrial
detention hearings. We turn to those now.
B.
Several sections of the Criminal Justice Reform Act are
critical to this appeal: N.J.S.A. 2A:162-18, -19, and -20.
Section 18(a) authorizes the court to order pretrial
detention if it finds by clear and convincing evidence that no
conditions of release would reasonably assure a defendant’s
appearance in court, the safety of the community, and the
integrity of the criminal justice process. N.J.S.A. 2A:162-
18(a).
Prosecutors may seek detention when an eligible defendant
is charged with:
10
(1) any crime of the first or second degree
enumerated under [N.J.S.A. 2C:43-7.2(d)];
(2) any crime for which the eligible
defendant would be subject to an ordinary or
extended term of life imprisonment;
(3) any crime if the eligible defendant has
been convicted of two or more offenses under
paragraph (1) or (2) of this subsection;
(4) any crime enumerated under [N.J.S.A.
2C:7-2(b)(2)] or crime involving human
trafficking pursuant to [N.J.S.A. 2C:13-8] or
[N.J.S.A. 52:17B-237 et al.] when the victim
is a minor, or the crime of endangering the
welfare of a child under N.J.S.A. 2C:24-4;
(5) any crime enumerated under N.J.S.A.
2C:43-6(c);
(6) any crime or offense involving domestic
violence as defined in [N.J.S.A. 2C:25-19(a)];
or
(7) any other crime for which the prosecutor
believes there is a serious risk that:
(a) the eligible defendant will not
appear in court as required;
(b) the eligible defendant will pose a
danger to any other person or the
community; or
(c) the eligible defendant will
obstruct or attempt to obstruct justice,
or threaten, injure, or intimidate, or
attempt to threaten, injure or
intimidate, a prospective witness or
juror.
[N.J.S.A. 2A:162-19(a).]
A rebuttable presumption of detention exists when the court
finds probable cause for two categories of offenses: murder,
11
under N.J.S.A. 2C:11-3, or a crime that would subject a
defendant to life imprisonment. N.J.S.A. 2A:162-19(b).
When a prosecutor applies for pretrial detention, the
defendant is held pending a hearing. N.J.S.A. 2A:162-19(d)(2).
The hearing must take place no later than the defendant’s first
appearance or within three days of the prosecutor’s motion.
N.J.S.A. 2A:162-19(d)(1). The court may grant a continuance of
up to three days upon the prosecutor’s request or up to five
days at the defendant’s request. Ibid.
At the hearing, the defendant has the right to counsel and,
if indigent, to court-appointed counsel. N.J.S.A. 2A:162-
19(e)(1). The defendant also has the right to testify, to call
witnesses, to cross-examine witnesses who appear, and to present
information by proffer or otherwise. Ibid.
Of particular note in this appeal, “[i]n pretrial detention
proceedings for which there is no indictment, the prosecutor
shall establish probable cause that the eligible defendant
committed the predicate offense.” N.J.S.A. 2A:162-19(e)(2). In
that way, the CJRA differs from federal law, which does not
require the government to establish probable cause to prevail on
a motion for pretrial detention. See 18 U.S.C.A. § 3142(e)(1).
A defendant can rebut a presumption of detention, when one
applies, by a preponderance of the evidence. N.J.S.A. 2A:162-
19(e)(2). If the defendant succeeds, the prosecution may seek
12
to establish that detention is warranted. Ibid. In the end, if
a court orders detention, its decision must be supported by
clear and convincing evidence. N.J.S.A. 2A:162-19(e)(3). The
court may reopen the hearing to consider new and material
evidence. N.J.S.A. 2A:162-19(f).
At the hearing itself, “the court may take into account”
the following:
a. The nature and circumstances of the
offense charged;
b. The weight of the evidence against the
eligible defendant, except that the court may
consider the admissibility of any evidence
sought to be excluded;
c. The history and characteristics of the
eligible defendant, including:
(1) the eligible defendant’s character,
physical and mental condition, family
ties, employment, financial resources,
length of residence in the community,
community ties, past conduct, history
relating to drug or alcohol abuse,
criminal history, and record concerning
appearance at court proceedings; and
(2) whether, at the time of the current
offense or arrest, the eligible defendant
was on probation, parole, or on other
release pending trial, sentencing,
appeal, or completion of sentence for an
offense under federal law, or the law of
this or any other state;
d. The nature and seriousness of the danger
to any other person or the community that
would be posed by the eligible defendant’s
release, if applicable;
13
e. The nature and seriousness of the risk of
obstructing or attempting to obstruct the
criminal justice process that would be posed
by the eligible defendant’s release, if
applicable; and
f. The release recommendation of the pretrial
services program obtained using a risk
assessment instrument under [N.J.S.A. 2A:162-
25].
[N.J.S.A. 2A:162-20 (emphases added).]
If a court orders a defendant detained pretrial, the judge
must “include written findings of fact and a written statement
of . . . reasons” in an order. N.J.S.A. 2A:162-21(a). If a
judge instead authorizes a defendant’s release, “contrary to a
recommendation made in a risk assessment,” “the court shall
provide an explanation” in the order of release. N.J.S.A.
2A:162-23(a)(2) (requiring explanation whenever court enters
order contrary to recommendation in PSA). A defendant has the
right to file an appeal from a detention order, which “shall be
heard in an expedited manner.” N.J.S.A. 2A:162-18(c).
C.
After the Legislature enacted the Criminal Justice Reform
Act, the Court asked the Criminal Practice Committee to propose
amendments to the court rules. That able Committee is comprised
of judges, representatives of the Attorney General and the
Public Defender, county prosecutors, and private counsel. The
Committee recommended dozens of rule changes to implement the
14
new law. See Report of the Supreme Court Committee on Criminal
Practice on Recommended Court Rules to Implement the Bail Reform
Law, Part I: Pretrial Release (CPC Report I) (May 9, 2016),
http://njcourts.gov/reports2016/bailreform.pdf, & Part II:
Pretrial Detention & Speedy Trial (May 12, 2016),
http://njcourts.gov/reports2016/bailreformlaw.pdf. The
Committee divided sharply about the amount and type of discovery
that should be required for pretrial detention hearings.
The Committee’s recommendation called for broad discovery:
“if the prosecutor is seeking pretrial detention, the prosecutor
shall provide all relevant material in its possession that would
be discoverable at the time of indictment as set forth in
paragraph (a) of Rule 3:13-3.” CPC Report I, supra, at 46. The
Committee also acknowledged that “[t]here were strong concerns
raised about the nature of a detention hearing, and that it is
supposed to be limited in scope. Some members noted that it
would be overly burdensome for prosecutors to be required to
provide ‘complete’ discovery . . . .” Id. at 51.
In a dissent to the Committee’s recommendation, the
Attorney General asserted that the proposed rule “would signal
to the bench and bar that a defendant may probe and contest the
State’s case-in-chief at a detention hearing as if it were a
trial to decide guilt or innocence.” Office of the Attorney
General, Dissent to Proposed Rule 3:4-2(c)(1)(b) Governing
15
Discovery for Pretrial Detention Hearings 2 (May 4, 2016),
reprinted in CPC Report I, supra, at 109. The Attorney General
advocated for the narrower rule that Judge Martin Cronin, a
Committee member, had initially recommended. Id. at 1,
reprinted in CPC Report I, supra, at 108. They proposed the
following language: “if the prosecutor is seeking pretrial
detention or release revocation, the prosecutor shall provide
the defendant with all statements or reports in its possession
that relate to the facts upon which the prosecutor relies in
these motions.” Id. at 5, reprinted in CPC Report I, supra, at
112.
The Public Defender challenged the dissent’s formulation
and argued that “[i]t would permit the State to withhold
evidence that is arguably exculpatory or that the defense could
use to demonstrate weaknesses in the case.” Office of the
Public Defender, Comments on Part I Proposed Rules 2 (Apr. 27,
2016), reprinted in CPC Report I, supra, at 107.
The Court struck a compromise and adopted a rule closer to
the dissent’s proposal: “if the prosecutor is seeking pretrial
detention, the prosecutor shall provide the defendant with all
statements or reports in its possession relating to the pretrial
detention application. All exculpatory evidence must be
disclosed.” R. 3:4-2(c)(1)(B).
16
Rule 3:4-2(c)(1)(B) guarantees far broader discovery than
federal law does. The Bail Reform Act of 1984 has no discovery
provision. Consistent with the Jencks Act, the government is
obligated to disclose witness statements only after a witness
testifies at a hearing. See 18 U.S.C.A. § 3500; see also Fed.
R. Crim. P. 26.2, 46(j). Similarly, the ABA’s model standards
for pretrial detention hearings call for disclosure of
exculpatory evidence only. ABA Standards for Criminal Justice:
Pretrial Release § 10.5-10(c) (3d ed. 2007).
For non-detention cases, by contrast, the Court adopted a
new rule that calls for more limited disclosure of “a copy of
any available preliminary law enforcement incident report
[PLEIR] concerning the offense and any material used to
establish probable cause.” R. 3:4-2(c)(1)(A).
The PLEIR is “an electronic document that succinctly
describes the relevant factual circumstances” relating to a
defendant’s arrest. Office of the Attorney General, Directive
Establishing Interim Policies, Practices, and Procedures to
Implement Criminal Justice Reform Pursuant to P.L. 2014, c. 31 §
5.2, at 48 (Oct. 11, 2016), http://www.state.nj.us/lps/dcj/
agguide/directives/2016-6_Law-Enforcement.pdf. PLEIRs are
designed to enable law enforcement officers to prepare them
quickly and easily. Id. at 49. The electronic form lists
“commonly occurring facts and circumstances” that officers may
17
select, including whether law enforcement officers or other
eyewitnesses observed the offense, whether the defendant made a
recorded admission, what type of weapon was involved, and
whether any physical evidence was recovered, among other things.
Id. at 49-51. The Administrative Office of the Courts (AOC)
developed a form that states that the PLEIR “is designed to be
appended to, and is expressly incorporated by reference in, the
affidavit of probable cause.”
In addition, the CJRA specifically calls for the use of a
“risk assessment instrument approved by the” AOC. N.J.S.A.
2A:162-25(c). Pretrial services officers use the device “to
prepare a risk assessment with recommendations on conditions of
release . . . and for the court to issue a pretrial release
decision.” N.J.S.A. 2A:162-16(a).
To prepare for the onset of the CJRA, the Judiciary worked
with the Laura and John Arnold Foundation to develop an
objective risk-assessment tool. The tool is designed to measure
two types of risk: whether a defendant will fail to appear for
court proceedings and whether he or she will engage in new
criminal activity while on release. The tool considers nine
factors: (1) the defendant’s age at the time of the current
offense; (2) whether the offense is violent and, if so, whether
the defendant is age 20 or older; (3) any additional pending
charge(s) at the time of the current offense; and whether the
18
defendant has any prior (4) disorderly persons convictions, (5)
indictable convictions, (6) violent convictions, (7) failures to
appear pretrial in the past two years or (8) more than two years
ago, or (9) sentences of incarceration of fourteen days or more.
Within hours of an arrest, pretrial services officers
gather this and other relevant information about each eligible
defendant to prepare a “Public Safety Assessment” (PSA).
N.J.S.A. 2A:162-16(a), (b)(1). The PSA assesses the level of
risk for failure to appear and for new criminal activity on a
scale of 1 to 6, with 6 being the highest, and may include a
flag to denote new violent criminal activity. The PSA also
recommends whether to release a defendant and what, if any,
conditions of release to impose. The court can use a
recommendation against release as “prima facie evidence
sufficient to overcome the presumption of release.” R.
3:4A(b)(5).
Trial judges consider the PSA but make the ultimate
decision on release after reviewing other relevant information
as well. See N.J.S.A. 2A:162-20.
Against that backdrop, we turn to the facts of this case
and the parties’ arguments.
II.
Based on a complaint and a supporting affidavit of probable
cause, the police arrested defendant Habeeb Robinson for
19
shooting and killing a victim on December 25, 2016. According
to the affidavit, two eyewitnesses saw the shooting. One
identified defendant from a six-person photo array; the other
identified a photo of defendant. The affidavit does not name
either witness and states that both wish “to stay anonymous out
of fear.” The PLEIR adds that a surveillance camera recorded
the incident.
The pending complaint charges defendant with first-degree
murder, N.J.S.A. 2C:11-3(a)(1); second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b)(1); and second-
degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(a)(1).
Pretrial Services prepared a Public Safety Assessment for
defendant on January 5, 2017, one day after his arrest. The PSA
rates defendant 3 out of 6 for risk of flight and 4 out of 6 for
new criminal activity; it also flags defendant for “new violent
criminal activity.” According to the PSA, defendant has prior
convictions for disorderly persons offenses, indictable
offenses, and prior violent offenses. He has been sentenced to
prison for more than fourteen days on three prior occasions. He
also failed to appear in court three times in 2004 and 2005.
The PSA recommended that defendant not be released.
The State moved for pretrial detention, and the court
scheduled a hearing for January 10, 2017. Before the hearing,
20
the State disclosed the complaint-warrant, the affidavit of
probable cause, an affidavit in support of the arrest warrant,
the PSA, and the PLEIR. The PLEIR briefly refers to seven types
of relevant information: recorded statements by eyewitnesses; a
recording from a surveillance camera; the fact that defendant
and the victim were strangers; the use of a handgun; ballistics
evidence; a 9-1-1 call; and a consent search. The surveillance
video was from a private security camera. State v. Robinson,
448 N.J. Super. 501, 517 n.7 (App. Div. 2017). The State also
disclosed defendant’s exculpatory statement to the police in
which he denied that he was involved in the shooting.
At the hearing, the State relied on the hearsay statements
in the affidavit of probable cause (which refer to the two
eyewitnesses); the presumption of detention under N.J.S.A.
2A:162-19(b)(1) (based on the murder charge); defendant’s
criminal history and record of court appearances; and the
release recommendation in the PSA. The State argued that all
three grounds set forth in the statute -- risk of flight,
danger, and obstruction -- justified pretrial detention. See
N.J.S.A. 2A:162-18.
Defense counsel requested additional discovery. After
hearing argument from the parties, the trial court rejected the
State’s view of Rule 3:4-2(c)(1)(B) and ordered it to turn over
“any discovery in [its] possession that the State is relying
21
upon for [the] pretrial detention hearing.” In particular, the
trial court directed the State to disclose the two witness
statements referred to in the affidavit, the photos used in the
identification process, the surveillance video, and any incident
report of the crime that the police prepared. The court granted
the prosecutor’s request to stay the order.
The Appellate Division granted the State’s motion for leave
to appeal and later affirmed the trial court’s order. Robinson,
supra, 448 N.J. Super. at 506.
The panel did a careful and thorough review of the CJRA and
the history of Rule 3:4-2(c)(1)(B). Id. at 509-15. The court
focused in particular on the part of the Rule that requires the
prosecution to disclose all statements and reports in its
possession “relating to the pretrial detention application.”
Id. at 504. The panel interpreted the phrase to mean that the
prosecutor must “provide a defendant with those materials in the
State’s possession that relate to the facts on which the State
bases its pretrial detention application.” Id. at 519-20.
The panel agreed with the trial court that a defendant is
entitled to the factual materials themselves “and not merely the
hearsay description of those materials set forth in the probable
cause affidavit and the PLEIR.” Id. at 505. As a result, the
panel concluded that the State had to turn over the witness
statements described in the affidavit of probable cause, the
22
identification photos, the surveillance video listed in the
PLEIR, and any initial police reports of the crime. Id. at 506,
517. The panel noted that those materials relate to both
probable cause and the weight of the evidence, which the court
may consider under N.J.S.A. 2A:162-20(b). Id. at 505-06. The
panel also explained that materials in the possession of the
police are in the prosecutor’s possession for discovery
purposes. Id. at 507.
The panel reasoned “that the very limited discovery for
which the State advocates could deny a defendant a fair
opportunity to defend against the State’s application, and could
hamper the trial court’s ability to fairly assess the nature and
circumstances of the offense and the weight of the evidence.”
Id. at 518 (citing N.J.S.A. 2A:162-20(a), (b)).
We agreed to hear the State’s motion for leave to appeal on
an accelerated basis. The Court denied the State’s motion for a
stay but preserved its right to obtain review of a “recurring
issue of great public importance” that “would otherwise evade
review.”
The Office of the Attorney General superseded the Essex
County Prosecutor and now represents the State on appeal. The
American Civil Liberties Union of New Jersey (ACLU) appeared as
amicus curiae before the Appellate Division and has continued to
participate in this appeal. See Rule 1:13-9(d). We also
23
granted the County Prosecutors Association of New Jersey leave
to appear as amicus.
III.
The State contends that the appellate panel ignored the
plain language and history of Rule 3:4-2(c)(1)(B), that its
decision will inappropriately expand the scope of detention
hearings and make compliance extremely onerous for prosecutors,
and that due process does not require broad discovery at
detention hearings. At oral argument, the State asserted that
it was sufficient in this case to disclose the affidavit of
probable cause and the PLEIR, and not the underlying documents
to which they refer.
The County Prosecutors Association shares the State’s
concerns. The Association argues that the Appellate Division
grievously misinterpreted the reach of the Rule, which the
Association claims imposes a far more limited discovery
obligation.
Defendant submits that the Appellate Division’s decision
comports with the Rule and should be affirmed. He argues that
the ruling will not turn detention hearings into mini-trials and
does not create a burdensome standard. Defendant also claims
that the State’s interpretation of the Rule would violate due
process.
24
The ACLU agrees with defendant’s view of the State’s
discovery obligations and supports the appellate ruling. The
group adds that the Rule encompasses information in the
possession of law enforcement officers. The ACLU also claims
that the State’s reliance on hearsay at a detention hearing does
not relieve it of the responsibility to supply underlying
statements or reports in its possession.
IV.
The trial court and Appellate Division interpreted Rule
3:4-2(c)(1)(B) to require the disclosure of reports and a
surveillance video. Our review of the meaning of a court rule
is de novo. State v. Hernandez, 225 N.J. 451, 461 (2016).
A.
For convenience, we recite the text of the Rule again:
“the prosecutor shall provide the defendant with all statements
or reports in its possession relating to the pretrial detention
application. All exculpatory evidence must be disclosed.” R.
3:4-2(c)(1)(B).
We apply ordinary principles of statutory construction to
interpret the court rules and start with the plain language of
the Rule. Wiese v. Dedhia, 188 N.J. 587, 592 (2006). Rule 3:4-
2(c)(1)(B) calls for discovery of “statements or reports,” not
videos. We therefore conclude that disclosure of the
surveillance video was not required. For reasons that follow,
25
we agree that the other items should be disclosed. We also
clarify the role that the PLEIR should play in future discovery
decisions.
Thoughtful people have wrestled over the scope of discovery
that should be required at a detention hearing. As noted
earlier, the members of the Criminal Practice Committee sharply
divided on that issue, and the Court compromised among different
positions when it adopted Rule 3:4-2(c)(1)(B).
A number of considerations factor into the ongoing debate.
The language of the statute is the proper starting point.
Although the new law is silent on the question of discovery,
several sections help frame the discussion.
Under the CJRA, the prosecutor must “establish probable
cause that the eligible defendant committed the predicate
offense” at a detention hearing. N.J.S.A. 2A:162-19(e)(2). The
trial court must also determine whether there are no conditions
that “would reasonably assure” the “defendant’s appearance in
court,” “the protection of the safety of any other person or the
community, or that the eligible defendant will not obstruct or
attempt to obstruct the criminal justice process.” N.J.S.A.
2A:162-20. To make that assessment, the court may consider
information about “[t]he nature and circumstances of the offense
charged” and “[t]he weight of the evidence against the eligible
defendant.” N.J.S.A. 2A:162-20(a), (b).
26
The statute, thus, requires both some proof about the crime
-- sufficient to establish probable cause -- and proof relating
to the risk of flight, danger, or obstruction. In cases where
detention is presumed, N.J.S.A. 2A:162-19(b), factors relevant
to those risks can still play a role in the defendant’s rebuttal
or the prosecution’s response, N.J.S.A. 2A:162-19(e)(2).
In addition to the guidance we find in the Act, the scope
of the discovery rule in detention cases must reflect what is at
stake. Balanced against important concerns for public safety
are the defendants’ liberty interests. As Chief Justice
Rehnquist observed in a related context, “[i]n our society
liberty is the norm, and detention prior to trial or without
trial is the carefully limited exception.” United States v.
Salerno, 481 U.S. 739, 755, 107 S. Ct. 2095, 2105, 95 L. Ed. 2d
697, 714 (1987).
To be sure, defendants who must report to pretrial services
officers are inconvenienced. But defendants who are detained
pretrial face a complete loss of liberty. Rule 3:4-2(c)(1)
therefore requires broader discovery in detention cases than in
non-detention cases, so that a person who is accused of a crime
and subject to possible detention is better able to challenge
the State’s application and presentation.
Another important consideration is self-evident. A
discovery rule should set forth a workable standard. In light
27
of the law’s tight timeframe, N.J.S.A. 2A:162-19(d), the rule
should not impose impractical demands on law enforcement. The
supplemental record before us highlights a matter in Union
County in which the trial court, relying on the current rule and
the Appellate Division’s decision in this case, ordered the
State to disclose video footage from 25 body-worn police cameras
in connection with a detention hearing. The State may not be
able to review all of those videos within days of an arrest or
apply for any needed protective orders. It is also difficult to
imagine how defense counsel could review, let alone use, dozens
of videos in connection with a detention hearing.
Beyond that, the administration of justice calls for fair
and efficient proceedings. In the case of a detention
application, the focus is not on guilt, and the hearing should
not turn into a mini-trial. A trial judge must instead examine
two sets of questions. First, unless there is an indictment,
the judge must determine probable cause -- whether an officer
has a “well grounded suspicion that a crime has been” committed
and that defendant committed the offense. State v. Gibson, 218
N.J. 277, 292 (2014). That, of course, calls for “less evidence
than is needed to convict at trial.” State v. Brown, 205 N.J.
133, 144 (2011). Second, a trial judge must assess the risk of
danger, flight, and obstruction.
28
We note another concern as well. Before the new law’s
effective date, the Attorney General developed a new document --
a “preliminary law enforcement incident report.” The PLEIR is
designed to get the parties information they need about
categories of evidence in a case at the very earliest stage.
Prosecutors, defendants, and judges alike benefit from that
approach. It helps the parties prepare for the hearing and make
a preliminary assessment of the overall case. The current court
rules call for disclosure of the PLEIR only in non-detention
cases. R. 3:4-2(c)(1)(A). The rules should create an incentive
to prepare a PLEIR in detention cases as well.
B.
To balance those aims, we believe that the following
principles should govern the disclosure of evidence at a
detention hearing:
1. As set forth above, because the Act calls for a
determination of probable cause and an assessment of the risk of
danger, flight, and obstruction, which may include consideration
of the nature and circumstances of the offense and the weight of
the evidence, discovery should likewise be keyed to both areas.
See N.J.S.A. 2A:162-18(a)(1); -19(e)(2); -20(a), (b).
2. The complaint must be disclosed.
3. The Public Safety Assessment must be disclosed.
29
4. The affidavit of probable cause must be disclosed. If
a similar document with a different name is used to establish
probable cause, that document should be disclosed.1
5. Any available PLEIR should be disclosed.
6. All statements and reports relating to the affidavit of
probable cause should be disclosed. In other words, if an
affidavit of probable cause describes what a police officer or
witness observed, an initial police report or witness statement
that relates to those factual assertions must be disclosed.
7. All statements or reports that relate to any additional
evidence the State relies on to establish probable cause at the
detention hearing should be disclosed. For example, if the
State, at the detention hearing, refers to a witness whose
observations are not discussed in the affidavit of probable
cause, all statements and reports relating to the additional
witness should be disclosed.
8. Statements and reports related to items that appear
only in the PLEIR need not be disclosed. Thus, statements
related to a witness who is referred to in both the affidavit of
probable cause and the PLEIR must be disclosed; but, if the
1 In a long-term investigation or some other matter in which
there is an indictment at the time of the detention hearing, the
indictment standing alone establishes probable cause, and no
separate evaluation is required under N.J.S.A. 2A:162-19(e)(2).
The indictment would trigger discovery under Rule 3:13-3(b).
30
PLEIR alone references an expert report, and the State does not
otherwise rely on it at the hearing, the report need not be
disclosed for the detention hearing. We ask the AOC to revise
the standard form for the PLEIR to clarify that it is not
incorporated into the affidavit of probable cause.
9. Statements and reports relating to the risk of flight,
danger, and obstruction, N.J.S.A. 2A:162-18(a)(1), which the
State advances at the hearing, should be disclosed. For
example, if the defendant conveyed a threat to a witness or said
he would flee if caught, and the State relied on the statements
in support of detention, all statements and reports relating to
those comments should be disclosed.
10. The phrase “statements and reports” refers to items
that exist at the time of the hearing. The terms plainly
include relevant police reports. The terms also include witness
statements that are maintained only in recorded form and have
not yet been reduced to writing. In those cases, a copy of the
recording should be disclosed. The phrase “statements and
reports,” however, does not encompass video and audio files from
body cameras, dash cameras, surveillance cameras, cellphones, 9-
1-1 calls, or similar items, except as noted earlier in this
point. We do not consider those items the functional equivalent
of a statement for purposes of a discovery rule for detention
hearings. To the extent an affidavit of probable cause refers
31
to a surveillance video or comparable item, though, an existing
statement or report that summarizes the video or item must be
disclosed. The video itself shall be disclosed at the time of
indictment, or a pre-indictment plea offer, in accordance with
Rule 3:13-3.
11. Consistent with longstanding practice, statements and
reports encompass reports that are in the possession of the
prosecutor, law enforcement officials, and other agents of the
State. See State v. W.B., 205 N.J. 588, 608 (2011) (noting that
once “a case is referred to the prosecutor following arrest by a
police officer . . . , local law enforcement is part of the
prosecutor’s office for discovery purposes” (internal citations
omitted)); State v. Murphy, 36 N.J. 172, 184 (1961) (“[A]lthough
the State may, as it necessarily must, diffuse its total power
among many offices and agencies, yet when the State brings its
authority to bear upon one accused of crime, all of its agents
must respond to satisfy the State’s obligation to the
accused.”). A contrary approach could create an incentive to
delay furnishing reports to the prosecutor.
12. All exculpatory evidence must be disclosed.
C.
With those principles in mind, and based on what we have
learned from the Rule’s practical application since January 1,
2017, we clarify and revise Rule 3:4-2(c) as follows:
32
(c) Procedure in Indictable Offenses. At the
defendant’s first appearance before a judge,
if the defendant is charged with an indictable
offense, the judge shall
(1) give the defendant a copy of the
complaint, discovery as provided in
subsections (A) and (B) below, and inform
the defendant of the charge;
(A) if the prosecutor is not seeking
pretrial detention, the prosecutor shall
provide the defendant with a copy of any
available preliminary law enforcement
incident report concerning the offense
and the affidavit of probable cause;
(B) if the prosecutor is seeking
pretrial detention, the prosecutor shall
provide the defendant with (i) the
discovery listed in subsection (A) above,
(ii) all statements or reports relating
to the affidavit of probable cause, (iii)
all statements or reports relating to
additional evidence the State relies on
to establish probable cause at the
hearing, (iv) all statements or reports
relating to the factors listed in
N.J.S.A. 2A:162-18(a)(1) that the State
advances at the hearing, and (v) all
exculpatory evidence.
The revisions to subsection (A) are cosmetic; subsection
(B) incorporates the principles outlined above. Both
subsections are to be read in conjunction with Rule 3:13-3,
which obligates the State to provide full discovery when it
makes a pre-indictment plea offer or when an indictment is
returned or unsealed. R. 3:13-3(a), (b)(1). When a defendant
is detained, the State must obtain an indictment within 90 days
33
or qualify for an extension of time under the new speedy trial
provision. N.J.S.A. 2A:162-22(a)(1)(a), (b)(1).
In appropriate cases, the prosecutor “may apply for a
protective order to redact, delay, or withhold the disclosure of
materials that would expose witnesses and others to harm, hinder
or jeopardize ongoing investigations or prosecutions, undermine
the secrecy of informants and confidential information which the
law recognizes, or compromise some other legitimate interest.”
State in Interest of N.H., 226 N.J. 242, 256 (2016) (citing R.
3:13-3(a)(1), (e)(1)). The prosecutor may bring an application
directly to the judge who will preside over the detention
hearing.
Judges must also be mindful of practical concerns in
another area. For example, after an extensive, long-term
investigation into the activities of an organized criminal
group, there may be dozens of police reports at the time of
arrest that arguably relate to the affidavit of probable cause.
If the State seeks permission to provide more limited discovery
within days of an arrest in those situations, judges may
exercise their discretion and direct that a representative
sample of statements and reports be disclosed before the
detention hearing.
Neither the original nor the revised version of Rule 3:4-
2(c) calls for disclosure of surveillance videos and similar
34
items. Instead, as noted above, if the affidavit of probable
cause refers to a video, the State must disclose any existing
statement or report that summarizes its contents.
On that point, we do not start with a clean slate. When we
adopted the original Rule, the Court unanimously rejected the
Committee’s recommendation that videotapes and similar evidence
be disclosed before a detention hearing. After considering that
suggestion, the full Court called for disclosure of only
statements and reports. The revised rule maintains that
approach. It is still a fair and sensible approach in light of
the more limited purpose of a detention hearing: to assess
probable cause -- which judges do tens of thousands of times a
year without video or audio files -- and to measure the risk of
danger, flight, and obstruction. Once again, we note that
detention hearings are not full-scale trials designed to assess
guilt.
We believe that the Rule, as clarified, is faithful to the
statute and addresses legitimate concerns of both defendants and
prosecutors. We also believe that prosecutors will apply the
Rule in good faith, in the same manner in which the Attorney
General and Public Defender have proceeded throughout the
ongoing criminal justice reform effort. To the extent that a
prosecutor might seek to work around the Rule by presenting a
barebones affidavit of probable cause alongside a more expansive
35
PLEIR, counsel would act at his or her peril. Judges will
reject affidavits that fall below the standard of probable
cause. And the prosecution may not rely on information listed
only in a PLEIR to advocate for detention without disclosing
relevant statements or reports about that information.
Ordinarily, we would refer an opinion to an appropriate
Court committee and ask it to craft a proposed rule. We have
not done so here for several reasons. The matter has been fully
vetted once recently, and we recognize that the Criminal
Practice Committee might well divide again as to the scope of a
discovery rule. We also had the benefit of hearing from key
stakeholders in this appeal. The written and oral arguments of
the Attorney General, Public Defender, County Prosecutors
Association, and ACLU represented the highest level of
professionalism and advocacy. In addition, we are aware that
judges, prosecutors, and defense counsel alike need prompt
guidance in this area.
We therefore adopt the rule set forth above and make it
effective at once. In doing so, we rely on the Court’s
authority under Article VI, Section 2, Paragraph 3 of the State
Constitution to make rules that govern the administration of the
court system.
36
V.
Defendant correctly notes that the court rule must satisfy
due process concerns. We find that the discovery rule -- in its
original and revised form -- amply lives up to that requirement.
Rule 3:4-2(c) extends far beyond what federal law requires. It
also provides adequate protection under the State Constitution.
In Salerno, supra, 481 U.S. at 755, 107 S. Ct. at 2105-06,
95 L. Ed. 2d at 714, the United States Supreme Court upheld the
constitutionality of the federal pretrial detention act, which
New Jersey’s Criminal Justice Reform Act tracks in many ways.
Compare 18 U.S.C.A. §§ 3141 to 3156, with N.J.S.A. 2A:162-15 to
-26. Salerno, supra, first considered and rejected a
substantive due process challenge. 481 U.S. at 746-51, 107 S.
Ct. at 2101-03, 95 L. Ed. 2d at 708-11. The Court explained
that “whether a restriction on liberty constitutes impermissible
punishment or permissible regulation” depends on “legislative
intent.” Id. at 747, 107 S. Ct. at 2101, 95 L. Ed. 2d at 708.
The Court concluded that pretrial detention “falls on the
regulatory side of the dichotomy” because it is meant to protect
society, not to punish dangerous individuals, and “[t]here is no
doubt that preventing danger to the community is a legitimate
regulatory goal.” Id. at 747, 107 S. Ct. at 2101, 95 L. Ed. 2d
at 708-09.
37
The Court next turned to procedural due process and noted
that,
[u]nder the Bail Reform Act, the procedures by
which a judicial officer evaluates the
likelihood of future dangerousness are
specifically designed to further the accuracy
of that determination. Detainees have a right
to counsel at the detention hearing. 18
U.S.C.A. § 3142(f). They may testify in their
own behalf, present information by proffer or
otherwise, and cross-examine witnesses who
appear at the hearing. Ibid. The judicial
officer charged with the responsibility of
determining the appropriateness of detention
is guided by statutorily enumerated factors,
which include the nature and the circumstances
of the charges, the weight of the evidence,
the history and characteristics of the
putative offender, and the danger to the
community. § 3142(g). The Government must
prove its case by clear and convincing
evidence. § 3142(f). Finally, the judicial
officer must include written findings of fact
and a written statement of reasons for a
decision to detain. § 3142(i). The Act’s
review provisions, § 3145(c), provide for
immediate appellate review of the detention
decision.
[Id. at 751-52, 107 S. Ct. at 2104, 95 L. Ed.
2d at 711-12.]
Without any provision for discovery in the Bail Reform Act, the
Court observed that those “extensive safeguards suffice to repel
a facial challenge.” Id. at 752, 107 S. Ct. at 2104, 95 L. Ed.
at 712.
Although the State Constitution “does not enumerate the
right to due process,” Article 1, Paragraph 1 “protects ‘values
like those encompassed by the principle[] of due process.’” Doe
38
v. Poritz, 142 N.J. 1, 99 (1995) (alteration in original)
(quoting Greenberg v. Kimmelman, 99 N.J. 552, 568 (1985)). To
examine a procedural due process claim, courts “first assess
whether a liberty or property interest has been interfered with
by the State, and second, whether the procedures attendant upon
that deprivation are constitutionally sufficient.” Ibid. To
assess the second question, we have applied the balancing test
outlined in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct.
893, 903, 47 L. Ed. 2d 18, 33 (1976). That standard consists of
three factors: (1) “the private interest that will be affected
by the official action;” (2) “the risk of an erroneous
deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute
procedural safeguards;” and (3) “the Government’s interest,
including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.” Ibid.
Here, there can be no dispute that pretrial detention
significantly interferes with a defendant’s liberty interest.
But the procedures to protect that vital interest are extensive.
The CJRA contains safeguards like the ones detailed in the
federal act. See Salerno, supra, 481 U.S. at 751-52, 107 S. Ct.
at 2104, 95 L. Ed. 2d at 711-12; supra at §§ I(A), (B). And
under Rule 3:4-2(c)(1)(B), defendants whom the State seeks to
39
detain will receive not only all exculpatory evidence and a copy
of the charging document, but also statements or reports that
relate to (1) the affidavit of probable cause and (2) additional
evidence the prosecution relies on at the detention hearing --
both to establish probable cause and to advance any relevant
risk factors.
A broader discovery requirement would of course also impose
a greater administrative burden on the State. In that case,
particularly in light of the very tight time constraints imposed
by the CJRA, the State might be forced to limit detention
motions based on the resources it can devote to discovery in the
days after an arrest, and not its assessment of the risk of
danger, flight, or obstruction that a defendant poses. That
would frustrate the purpose of the Act and upend the balance
that the revised Rule attempts to strike between important
interests.2
We conclude that the discovery protections afforded under
New Jersey’s Criminal Justice Reform Act satisfy the
requirements of due process and pass muster under the Federal
and State Constitutions.
2 The analogy to N.H., supra, 226 N.J. at 245, which addresses
discovery in a juvenile waiver setting, with its own distinct
timeframe, is not fitting.
40
VI.
Finally, we apply Rule 3:4-2(c), as clarified, to this
case. The affidavit of probable cause attached to defendant’s
complaint described what two eyewitnesses observed. The
affidavit also noted that the witnesses identified defendant
from a photo array or photo.
We agree with the trial court and Appellate Division that,
under the Rule, any initial police reports about the witnesses
must be disclosed. In addition, the prosecution must provide
copies of statements or reports of the two eyewitnesses. When
an eyewitness makes an identification, the State is required to
document the process and record certain details. See State v.
Henderson, 208 N.J. 208, 241, 252, 278 (2011); State v. Delgado,
188 N.J. 48, 63–64 (2006). That information should be disclosed
along with copies of any photo arrays or photos used in the
identification process.3
The prosecution need not disclose the surveillance video
under the language of the Rule. We note that the PLEIR also
3 This is an exception to the Rule, which requires discovery of
“statements or reports,” not photos, because photos shown to a
witness as part of an identification process receive special
treatment under the law. See Henderson, supra, 208 N.J. at 241,
252, 278; Delgado, supra, 188 N.J. at 63–64. By ordering
disclosure of the photo array and another photograph here, we do
not suggest that other documents or underlying evidence referred
to in an affidavit of probable cause would be subject to
disclosure under Rule 3:4-2(c)(1)(B).
41
identifies certain other information, namely, ballistics
evidence, a 9-1-1 call, and a consent search. Defendant did not
request any statements or reports about those items. Because
the State did not refer to the items in the affidavit of
probable cause or its presentation at the detention hearing, any
statements or reports about those items would not be subject to
discovery had they been requested.
VII.
For the reasons set forth above, we affirm and modify the
judgment of the Appellate Division. We also clarify and reframe
Rule 3:4-2(c). The revised Rule shall go into effect at once.
JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE
join in CHIEF JUSTICE RABNER’s opinion. JUSTICE ALBIN filed a
separate opinion, dissenting in part and concurring in part, in
which JUSTICE LaVECCHIA joins.
42
SUPREME COURT OF NEW JERSEY
A-40 September Term 2016
078900
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
HABEEB ROBINSON,
Defendant-Respondent,
JUSTICE ALBIN dissenting in part and concurring in part.
Today, the majority rewrites the discovery rule governing
pretrial detention hearings. In doing so, the majority turns a
blind eye to an evident flaw in the original version of Rule
3:4-2(c)(1)(B) and then engrafts a new flaw onto the redrafted
Rule. The result is that the prosecutor can withhold from the
defense -- and presumably the court -- relevant and critical
evidence that bears on whether there is probable cause to detain
a defendant.
Under the redrafted Rule, if the prosecutor possesses a
video surveillance tape that records the defendant allegedly
committing a crime, the prosecutor need only turn over a written
summary of what is depicted in the tape -- not a copy of the
tape itself. This is true even if the State’s only evidence to
support probable cause is the tape. Thus, at a pretrial
detention hearing, the court must rely on the written summary
1
prepared by the prosecutor, not on the actual video footage of
the crime, in making the probable cause determination. In
contrast, if an eyewitness statement is the basis for
establishing probable cause for a crime, the prosecutor must
tender the statement to the defense -- and the court.
Therefore, the court receives the eyewitness statement in its
original form whereas a surveillance tape is reduced to a bare
written summary.
The Rule sanctifies artificial distinctions, making highly
relevant evidence non-discoverable (a videotape) and second-hand
evidence discoverable (written summary of tape). The redrafted
Rule, moreover, gives the prosecutor a perverse incentive to
place information in the Preliminary Law Enforcement Information
Report (PLEIR), rather than the affidavit of probable cause,
because the underlying statements and reports in the PLEIR are
no longer subject to discovery.
Had the redrafted version of Rule 3:4-2(c)(1)(B) been
subjected to the rulemaking process, or some abbreviated
procedure that allows for public comment, perhaps we would be
better informed about the implications of the new Rule.
Relieving the prosecutor of legitimate discovery obligations may
be expedient, but it comes at the expense of fairness.
Ultimately, a just determination of whether a defendant is to be
2
detained pretrial should not be sacrificed for the sake of
expediency. For these reasons, I respectfully dissent.
I.
A.
In the case before us, the State sought the pretrial
detention of defendant on a murder charge. In support of its
application for pretrial detention, the State submitted an
affidavit of probable cause that referred to two eyewitness
statements recounting the crime and to the witnesses’
identification of defendant from a photo array. Attached to the
probable cause affidavit was the PLEIR, which also referenced a
surveillance video of the crime.
Rule 3:4-2(c)(1)(B) -- now the former Rule -- provided that
“if the prosecutor is seeking pretrial detention, the prosecutor
shall provide the defendant with all statements or reports in
its possession relating to the pretrial detention application.
All exculpatory evidence must be disclosed.” Based on its
interpretation of the “relating to” language in the Rule, the
trial court ordered the prosecutor to disclose the two witness
statements, the photo array, and the surveillance video. The
Appellate Division affirmed. State v. Robinson, 448 N.J. Super.
501, 519-20 (App. Div. 2017).
I agree with the majority that the Rule, as written, does
not require discovery of the surveillance tape. The trial court
3
and Appellate Division evidently attempted -- by force of logic
-- to bridge the gap in the Rule. I accept that we must enforce
the Rule according to its language, but now that the Court has
undertaken to amend the Rule, the majority has missed the
opportunity to correct the logical flaws in the original
version.
Common sense suggests that if the prosecutor is in
possession of a purported eyewitness account of a crime and a
videotape that actually recorded the crime, and both are
“relating to pretrial detention,” that both should be
discoverable. The majority does not question that the
eyewitness statement is discoverable. Yet, the majority will
not amend the Rule to require disclosure of perhaps the best
evidence -- the videotape. The prosecutor’s only obligation,
under the majority’s reconstructed Rule, is to provide a summary
of the video footage to the defense. There is no persuasive
rationale for denying the defense, and the court, the
opportunity to view a readily available videotape of a purported
crime.
To support its position, the majority mentions one bizarre
and idiosyncratic case -- without giving much detail -- where
the State was ordered to disclose video footage from twenty-five
body-worn cameras in connection with a detention hearing. Ante
at ___ (slip op. at 27-28). It makes perfect sense to deny
4
discovery when disclosure is impracticable or when public safety
or other legitimate concerns arise. It makes no sense to deny
disclosure in garden-variety cases when a videotape is highly
relevant and when disclosure is practicable.
The discordance in the majority’s approach is highlighted
by the fact that the redrafted Rule requires disclosure of
“copies of any photo arrays or photos used in the identification
process,” see ante at ___ (slip op. at 40), but not the video
footage of a crime from which the defense or the court could
determine the validity of the identification. The photo array
is no more a report or statement than video footage. The
production of the video footage of a crime would be as helpful
as the photo array -- if not more -- in determining probable
cause.
A pretrial detention hearing is a critical stage in the
criminal process. The artificial distinctions made by the
majority for allowing the release of relevant witness statements
and reports as well as photo arrays but not allowing the release
of relevant video footage will not enhance confidence in the
fairness of pretrial detention hearings.
B.
Further, the majority’s amended Rule gives prosecutors a
new pathway to minimize their discovery obligations at pretrial
detention hearings. Under the former Rule, prosecutors were
5
required to disclose statements and reports relating to the
detention hearing, such as those referenced in the affidavit of
probable cause and the PLEIR. Under the majority’s new Rule,
the prosecutor must disclose statements and reports relating to
the affidavit of probable cause, but any statements and reports
contained in the PLEIR are not discoverable. Courts will make
detention determinations after reviewing both the probable cause
affidavit and the PLEIR. However, prosecutors now know that
statements and reports referenced in the PLEIR are not subject
to disclosure. The new Rule incentivizes prosecutors to put
more information in the PLEIR (underlying statements and reports
not discoverable) and the minimum amount of information in the
affidavit of probable cause (underlying statements and reports
discoverable). Prompts that allow prosecutors to circumvent the
pretrial-detention discovery process will not advance the ends
of justice.
Furthermore, the majority’s retrenchment on the discovery
rule in pretrial detention hearings is at cross-purposes with
N.J.S.A. 2A:162-20(a) and (b), in which the Legislature decreed
that, at such hearings, “the court may take into account
information concerning . . . [t]he nature and circumstances of
the offense charged [and] [t]he weight of the evidence against
the eligible defendant.” Clearly, in many cases, relevant video
footage and statements and reports referenced in the PLEIR will
6
bear on the “nature and circumstances of the offense” and on the
“weight of the evidence against” the defendant. For example,
video footage may show that the defendant was not the aggressor
or even the assailant in a physical altercation. Neither the
defense nor the court should have to rely on the prosecutor’s
interpretation of the footage in a written summary. The
limitations set forth in the amended discovery rule will choke
off information that the court should consider in making the
pretrial detention determination.
II.
The majority’s new Rule makes substantial changes to the
discovery rule. This dissent shines a light on some defects in
the new Rule. Had we proceeded with the rulemaking process,
prosecutors, defense attorneys, judges, and academics might have
alerted us to others. The rulemaking process is beneficial,
even when it must proceed in an expedited and abbreviated
manner. Although prosecutors and defense attorneys have widely
divergent views on this subject, the voices of stakeholders and
experts in the field are always enlightening. I understand that
the majority believes this issue requires an accelerated
response. We should proceed with caution, however, in matters
that have such far-reaching consequences.
III.
7
For the reasons expressed, I dissent from the majority’s
decision to draft a new rule that denies the defense and the
court critical information bearing on the pretrial detention
determination. I concur in the judgment in this case based on
the language of the then-operative Rule.
8