Right to provisional release before conviction (2023)

RULE 3:26-1 -Right to provisional release before conviction

(a)headlines; Determination Rules.

(1) Accused Persons in a Complainant or Order of Prosecution.Except when the prosecutor issues a request for pre-trial detention under N.J.S.A. 2A:162-18 and 19 and R. 3:4A all persons for whom an arrest warrant or indictment is issued on a first charge of a convicted felony or misconduct offense must be released prior to sentencing, regardless of whether it involves a confession, enforcing an unsecured obligation to be present or the least restrictive non-monetary terms which the court determines reasonably justify your presence in court if necessary, protecting the safety of another person or the community and that the accused will not obstruct or attempt to obstruct the criminal proceedings. A defendant who is the subject of an indictment is a qualifying defendant under the N.J.S.A. 2A:162-15ff. In addition to these non-monetary terms, monetary terms may be imposed on an accused, but only if it is determined that no other release condition adequately guarantees the accused's appearance in court if required. The court will consider all of the circumstances, risk assessments and Pretrial Services Program recommendations, as well as any information that may have been provided by a prosecutor or defendant regarding the terms of the release, before making a decision on the pretrial release. If the court issues a dismissal order that contains conditions that contradict the recommendations of the Pretrial Services Program obtained through a risk assessment tool, the court will state its reasons for not accepting those recommendations. The court shall make a pre-trial release decision no later than 48 hours after the defendant is placed in the county jail.

When a defendant is charged with a domestic violence offense or felony, the court granting release may, as a condition of release, prohibit the defendant from any contact with the victim. The court may impose additional social distancing restrictions determined by the N.J.S.A. have been approved. 2C:25-26.

(2) Accused of the charge: subpoena or subpoena of the indictment.The accused charged in the summons to the complaint or indictment shall be released. If the accused fails to appear in court when requested and the court issues an arrest warrant for the accused, the court must at that time (A) order that the accused be released on parole at the time of arrest, or (B) determine that a monetary bond.

(b)contact restrictions.If the court imposes conditional release conditions that include restrictions on contact between the defendant and the defendant's minor child, (1) a copy of the order imposing the restrictions will be provided to the family party and (2) such restrictions will not be authorized to interfere with contact through a family directive in a child abuse/neglect case that began after social distancing was imposed under a bail directive.

(C)Crimes with bail restrictions defined in N.J.S.A. 2A:162-12.When a defendant is charged with a bail-limited felony, as in N.J.S.A. 2A:162-12, and the court has ordered cash bail or a combination of cash bail and non-monetary release terms, the defendant must, no later than the time cash bail is posted or bail is offered or bail is posted, notify the prosecutor in the Provide relevant information to the Attorney General's Investigating the Origin of Bail Questionnaire about the debtor, indemnifier, or person who posted the cash bail, the guarantee offered, and the origin of any funds or assets used to post bail money, or safe title or title.

(d)extradition procedure.If a person has been arrested in an extradition proceeding under the Uniform Criminal Extradition Act, N.J.S.A. 2A:160-6 et seq., the court may order bail or bail unless that person is charged with a crime punishable by death or life imprisonment. The court may also transfer the person to a county jail as per the Uniform Criminal Extradition Act, N.J.S.A. 2A:160-6ff.

(mi) Issuance of Restriction Orders by Electronic Communication.

(1)Domestic violence restraining orders.Procedures authorizing the issuance of domestic violence restraining orders through electronic communications are governed by Rule 5:7A(d).

(2) N.J.S.A. 2C:35-5.7 and N.J.S.A. 2C:14-12 Injunctions.A judge may grant a restraining order under the N.J.S.A. as a condition of release. 2C:35-5.7 (“Drug Offenders Restraint Orders Act of 1999”) and N.J.S.A. 2C:14-12 ("Nicole's Law") with oral testimony under oath by a police officer or prosecutor who is not physically present. Such oral testimony under oath may be transmitted to the judge by telephone, radio or other electronic means of communication. At the same time, the judge records this affidavit on a recording device, if available; otherwise, the judge takes appropriate notes summarizing what was said. After taking the oath, the bailiff or prosecutor must identify himself, state the purpose of the request and disclose the reason for the request. This affidavit will serve as an affidavit for the purpose of issuing an injunction. Once the restraining order is issued, the judge remembers the specific terms of the order. This commemoration is done by recording devices or by appropriate notes. The judge then directs the bailiff or attorney to enter into certain conditions approved by the judge on a form or other appropriate paper as a precautionary measure. This order is considered an injunction within the meaning of the N.J.S.A. 2C:35-5.7 (“Drug Offenders Restraint Orders Act of 1999”) and N.J.S.A. 2C:14-12 ("Nicole's Law"). The judge instructs the bailiff or prosecutor to write the judge's name on the restraining order. A copy of the restraining order will be given to the accused by any lawful officer. Within 48 hours, the bailiff or lawyer will deliver the signed order to the judge, together with the defendant's subpoena, in person, by fax or by other means of electronic communication. The certificate of subpoena contains the date and time the subpoena was served or attempted on the accused, in a form approved by the clerk of the courts. The judge verifies the accuracy of these documents by affixing his signature to the restraining order.

(3) Crime scene certification for drug offender restraining orders.If an electronic communications restriction order pursuant to N.J.S.A. 2C:35-5.7 ("Drug Offenders Restraining Orders Act of 1999") If the officer or prosecutor is not physically present at the same location as the court, the officer or prosecutor must make an oral statement describing the location of the offense . Within 48 hours, the bailiff or lawyer will provide the judge with a crime scene certificate in person, by fax or by other means of electronic communication.

Note: Source - R.R. 3:9-1(a)(b)(c)(d); Paragraph (a) amended on September 28, 1982 to take effect immediately; Paragraphs (a), (b), (c) and (d) as amended on July 13, 1994 and effective on January 1, 1995; Paragraph (a) amended July 10, 1998 to become effective September 1, 1998; new paragraph (b) adopted and previous paragraphs (b), (c) and (d) renamed paragraphs (c), (d) and (e) on June 15, 2007 to become effective September 1, 2007 ; new paragraph (c) adopted and previous paragraphs (c), (d) and (e) renamed paragraphs (d), (e) and (f) on July 9, 2008 to become effective September 1, 2008 ; amended paragraph (a) and new paragraph (g), adopted July 9, 2013, effective September 1, 2013; Title changed, text of paragraph (a) changed and renamed to paragraph (a)(1) with title added, new paragraph (a)(2) adopted, paragraphs (b) and (c) amended, old paragraphs (d) and (e) removed; old paragraph (f) amended and renamed paragraph (d), old paragraph (g) amended and renamed paragraph (e) August 30, 2016 effective January 1, 2017; Paragraph (a)(1) amended on November 14, 2016 to become effective on January 1, 2017; Paragraphs (a)(1), (a)(2) and (d) as amended on December 6, 2016 and effective on January 1, 2017; Subheadings and text of paragraphs (a)(1) and (a)(2) amended on July 28, 2017 to be effective September 1, 2017; Subparagraph (e)(1) was amended on July 29, 2019 to become effective on September 1, 2019.

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