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Criminal Defense Articles

• CRIMINAL LAWYER IN BERGEN AND PASSAIC COUNTIES: BAIL FORFEITURE AND THE BAIL REMITTITUR GUIDELINES
• CRIMINAL LAWYER IN BERGEN AND PASSAIC COUNTIES: BAIL FORFEITURE AND THE BAIL REMITTUR GUIDELINES
• CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: THE DYING DECLARATION EXCEPTION TO THE HEARSAY RULE
• IS THE MISSING WITNESS INFERENCE NOW MIA IN CRIMINAL CASES? (2 of 2)
• IS THE MISSING WITNESS INFERENCE NOW MIA IN CRIMINAL CASES? (1 of 2)

The Right to Bail in Jersey: Bail Options and Other Related Issues (1 of 4)

The Eighth Amendment of the United States Constitution provides that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” All people charged with a crime are entitled to bail in the state of New Jersey except those charged with a crime punishable by death, where the government can prove that there is a likelihood of a conviction and reasonable grounds to conclude that the death penalty may be imposed.

Bail can not be used to punish, nor as a device to eliminate any risk of future criminal activity, or to create “preventive detention.” The presumption of innocence, which is a critical presumption in our system of justice, is a very important consideration when fixing bail. The United States Supreme Court has stated that “the presumption of innocence. . . would lose its meaning” if there were no right to bail. In addition, the New Jersey Supreme Court has observed that “[t]o deny bail is to punish an accused before conviction, and to ignore the presumption of innocence which attends every citizen charged with crime.”
Another important consideration consistent with the presumption of innocence is the recognition that pretrial release “permits the unhampered preparation of a defense...”

The American Bar Association, in an introduction to its standards relating to pretrial release, made the following comments:

The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defense. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family. Moreover, there is strong evidence that a defendant’s failure to secure pretrial release has an adverse effect on the outcome of his case. Studies in Philadelphia, the District of Columbia and New York all indicate that the conviction rate for jailed defendants materially exceeds that of bailed defendants. For example, of defendants charged with grand larceny, forty-three percent of those on bail pending trial were convicted, while seventy-two percent of those in jail were convicted. In terms of the sentence imposed on convicted persons, the bailed defendant is far more likely to receive probation; his jailed counterpart, having been unable to demonstrate his reliability under supervision, more frequently goes to prison. Of course some of the factors, such as strong evidence of guilt or a long criminal record, that lead to high bail and hence detention, will also cause a court to find the defendant guilty and to sentence him to prison rather than to give him probation. But a recent study, which attempted to hold other causative factors constant, indicates that there is a strong relationship between detention and unfavorable disposition.

The purpose of bail is to guarantee the appearance of an accused in court for trial and all pre-trial events. In most of the more serious cases, the accused must post a sum of money with the clerk of the county where the offense occurred as security to insure his/her appearance and, if there is a failure to appear as required by the instructions of the court, the bail will be revoked and forfeited to the government. 1

The factors to be used by a judge to fix bail or reconsider the amount of bail are: (1) the seriousness of the crime charged, the apparent likelihood of conviction and the extent of the punishment prescribed by the Legislature. (2) the accused’s criminal record, if any, and previous record on bail, if any; (3) his reputation, and mental condition; (4) the length of his residence in the community; (5) his family ties and relationships; (6) his employment status, record of employment and his financial condition; (7) the identity of responsible members of the community who would vouch for the accused’s reliability; (8) any other factors indicating accused’s mode of life, or ties to the community or bearing on the risk of failure to appear.

The last five considerations in this list are commonly referred to as the “roots in the community” factors. Thus, an accused with deep “roots” or contacts in New Jersey will have a better opportunity to be released on bail and to obtain better bail options because the likelihood of flight is greatly reduced.

Bail may be set by the municipal court judge sitting in the municipality where the offense occurred or a superior court judge sitting in the county where the offense occurred. A municipal court judge can not fix bail involving certain serious crimes, including murder, kidnapping, aggravated sexual assault and manslaughter. A judge can impose special conditions on a bail, including a condition that would bar the accused from making any type of contact with certain people, including the victim or the victims family.

Ordinarily, bail must be set within 12 hours after arrest. Moreover, an application to reduce bail must be heard no later than seven days after it is filed. All information considered by the court in reviewing requests to reduce bail must be available to defense counsel for inspection, copying and transcription. A bail review hearing is a “critical stage” in the proceeding and as a result, the accused has a due process right to be present and a right to be represented by counsel.

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