State v. Amed Ingram (079079) (Camden and Statewide)

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. Amed Ingram (A-56-16) (079079)
Argued May 16, 2017 -- Decided August 1, 2017
RABNER, C.J., writing for the Court.
Under the Criminal Justice Reform Act (CJRA), which went into effect on January 1, 2017, prosecutors can
seek to detain defendants who pose a serious risk of danger, flight, or obstruction. N.J.S.A. 2A:162-18(a)(1). In this
appeal, the Court considers the manner in which the State may present its proofs when it moves for detention.
Police officers arrested defendant Amed Ingram on January 1, 2017, at 1:08 a.m., after an officer observed
him in possession of a defaced .45 caliber handgun loaded with eight rounds. The State charged defendant in a
complaint-warrant with second-degree unlawful possession of a handgun, second-degree possession of a firearm for
an unlawful purpose, second-degree possession of a firearm by certain persons with a prior conviction, and fourth-
degree receipt of a defaced firearm. The affidavit of probable cause in support of the complaint generally tracks the
language of the statutes under which defendant was charged and, in the space to explain how law enforcement
became aware of the stated facts, the officer wrote, “officer observations.” The officer also prepared a preliminary
law enforcement incident report (PLEIR), which, at the time, was incorporated into the affidavit. The PLEIR
offered these details: that the “complaining officer” and “[a]nother law enforcement officer[] personally observed
the offense”; that a handgun “was involved in the incident”; and that the officers recovered spent shell casings. A
Pretrial Services officer prepared a Public Safety Assessment (PSA). It rated defendant 6 out of 6—the highest
level—for risk of both failure to appear and new criminal activity. The PSA also noted defendant’s criminal history.
The State moved for detention and submitted the following documents: the complaint-warrant, the
affidavit of probable cause, the PSA, the PLEIR, and defendant’s criminal history. Defense counsel objected and
argued that the CJRA and court rules required the State to present a live witness to establish probable cause.
The trial court rejected defendant’s claims. The court first found that the State could proceed by proffer at
a detention hearing. The court relied on the language and legislative history of the CJRA and also looked to federal
law for support. The court noted as well that judges had discretion to order witness testimony. Next, the trial court
found that the documents the State had submitted established probable cause for the offenses charged. The court
also concluded that defendant would pose a risk of danger to the community if released, and, based on clear and
convincing evidence, ordered defendant detained.
Defendant appealed the order pursuant to N.J.S.A. 2A:162-18(c). In addition to the statutory claims he
raised before the trial court, defendant argued that to allow the prosecutor to proceed by proffer alone would violate
his right to due process.
The Appellate Division affirmed in a thorough and well-reasoned opinion. 449 N.J. Super. 94 (App. Div.
2017). The panel rejected defendant’s due process claim and held that the State was not required to produce a live
witness at a detention hearing to establish probable cause. Id. at 101. The court observed that procedures to
determine probable cause need not “be accompanied by the full panoply of adversary safeguards.” Id. at 102
(quoting Gerstein v. Pugh, 420 U.S. 103, 119 (1975)). The panel also drew on federal case law that construed the
Bail Reform Act of 1984, 18 U.S.C.A. §§ 3141 to 3156. The panel rejected defendant’s statutory arguments as well.
Id. at 114. The Appellate Division issued its ruling on March 1, 2017. Two weeks later, a grand jury returned an
indictment that charged defendant with four firearms offenses.
After defendant filed a motion for leave to appeal, the Attorney General superseded the Camden County
Prosecutor’s Office. The Court granted defendant’s motion on March 29, 2017. ___ N.J. ___ (2017).
1
HELD: Neither the statute’s plain language nor principles of due process require the State to present testimony from a
live witness at every detention hearing. Instead, the State may proceed by proffer to try to satisfy its burden of proof
and show that detention is warranted. Trial judges, however, retain discretion to require direct testimony when they are
dissatisfied with the State’s proffer.
1. At a detention hearing, a defendant has the right “to testify, to present witnesses, to cross-examine witnesses who
appear at the hearing, and to present information by proffer or otherwise.” N.J.S.A. 2A:162-19(e)(1). If a grand
jury has not returned an indictment, “the prosecutor shall establish probable cause that the eligible defendant
committed the predicate offense.” N.J.S.A. 2A:162-19(e)(2). To decide whether detention is warranted a court may
“take into account” a number of factors. N.J.S.A. 2A:162-20(a)-(f). (pp. 10-13)
2. Section 19(e)(1) grants defendants the right to “cross-examine witnesses who appear at the hearing.” N.J.S.A.
2A:162-19(e)(1) (emphasis added). In Section 19(e)(1), the Legislature afforded defendants the right to cross-
examine a witness who testifies at a hearing. The section does not require the State to call a witness. Section
19(e)(1) also permits a defendant “to present information by proffer.” The statute is silent about whether the State
may call witnesses, cross-examine witnesses, or ‘otherwise’ present information to the judge, all of which the Act
expressly permits a defendant to do. The Court cannot conclude that the Legislature’s silence either bars the State
from presenting proofs in those ways or obligates it to summon a live witness. Other parts of the statute reveal that
the Legislature intended for the parties to use documentary evidence at a detention hearing. (pp. 13-16)
3. Defendant claims that his right to due process requires the State to call a live witness at a pretrial detention
hearing. Defendant focuses on the need for live testimony for the State to establish probable cause, not to argue for
detention. As the Court observed in State v. Robinson, 229 N.J. 44, 61, 70 (2017), the CJRA, N.J.S.A. 2A:162-15 to
-26, in many respects follows the federal Bail Reform Act and the District of Columbia’s statutory scheme for
pretrial detention, D.C. Code. §§ 23-1321 to -1333. The Federal Constitution does not require the prosecution to
present live testimony to establish probable cause. Gerstein, supra, 420 U.S. at 120. The CJRA, in effect,
incorporated Gerstein’s mandate that a judge find probable cause as a prerequisite to detention after an arrest. The
Act did not elevate the standard. Grand jury presentations can include hearsay evidence that neither the defendant
nor defense counsel is present to observe, let alone cross-examine. Had a grand jury indicted defendant before the
detention hearing, the State would not have needed to establish probable cause. And defendant could not have
persuasively argued that the court’s reliance on the indictment violated his due process rights. (pp. 16-21)
4. United States v. Salerno, 481 U.S. 739, 752 (1987), recounted the procedural protections that the federal act
offers defendants and found that those “extensive safeguards” are sufficient “to repel” a constitutional challenge.
The CJRA provides identical safeguards. Circuit Courts that have decided the question have concluded that the
federal act allows the government to proceed by proffer at a detention hearing, subject to the judge’s discretion.
And in United States v. Edwards, 430 A.2d 1321 (D.C. 1981), the District of Columbia Court of Appeals found that
the D.C. Code allowed both the government and the defense to present information by proffer. The Court draws
guidance from precedent that interpreted a law similar to the CJRA. (pp. 21-26)
5. The traditional balancing test for due process claims does not require the State to present live testimony at every
hearing. Pretrial detention significantly interferes with a defendant’s liberty interest, but extensive safeguards
protect that critical interest. And to require the State to present a live witness at more than 10,000 detention hearings
each year would impose significant additional fiscal and administrative burdens on the court system, law
enforcement officers, the prosecution, and public defenders. The trial court has discretion to require direct
testimony if it is dissatisfied with the State’s proffer. In those instances, the State must proceed reasonably promptly
to avoid unduly prolonging a defendant’s detention while the hearing is pending. (pp. 26-29)
6. It would have been within the trial court’s discretion to require a witness here. The State did not establish
probable cause for possession for an unlawful purpose, and the affidavit should contain sufficient information in the
form of factual details, not legal conclusions, to explain how probable cause exists for each charge. (pp. 29-32)
The judgment of the Appellate Division is AFFIRMED.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and
TIMPONE join in CHIEF JUSTICE RABNER’s opinion.
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SUPREME COURT OF NEW JERSEY
A-56 September Term 2016
079079
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AMED INGRAM,
Defendant-Appellant.
Argued May 16, 2017 – Decided August 1, 2017
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 449
N.J. Super. 94 (App. Div. 2017).
Joseph E. Krakora, Public Defender, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Laura B. Lasota,
Assistant Deputy Public Defender, of counsel
and on the briefs).
Claudia Joy Demitro, Deputy Attorney
General, argued the cause for respondent
(Christopher S. Porrino, Attorney General of
New Jersey, attorney; Claudia Joy Demitro,
of counsel and on the briefs).
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 letter brief).
John K. McNamara, Jr., Morris County
Supervising Assistant Prosecutor, argued the
cause for amicus curiae, County Prosecutors
Association of New Jersey (Richard T. Burke,
President, attorney; John K. McNamara, Jr.,
of counsel and on the brief).
1
CHIEF JUSTICE RABNER delivered the opinion of the Court.
Under the Criminal Justice Reform Act (CJRA), which went
into effect on January 1, 2017, prosecutors can seek to detain
defendants who pose a serious risk of danger, flight, or
obstruction. N.J.S.A. 2A:162-18(a)(1). In this appeal, we
consider the manner in which the State may present its proofs
when it moves for detention.
Before the trial court in this case, the State proffered
various documents about the offense and defendant’s criminal
history in support of an application for detention. Defendant
asserted that the State was required to call a live witness with
firsthand knowledge of the offenses charged to establish
probable cause.
We agree with the trial court and the Appellate Division
that neither the statute’s plain language nor principles of due
process require the State to present testimony from a live
witness at every detention hearing. Instead, the State may
proceed by proffer to try to satisfy its burden of proof and
show that detention is warranted. Trial judges, however, retain
discretion to require direct testimony when they are
dissatisfied with the State’s proffer.
We therefore affirm the judgment of the Appellate Division.
2
I.
To recount the facts, we rely on the materials the State
submitted in connection with the detention hearing in this case.
Police officers arrested defendant Amed Ingram on January
1, 2017, at 1:08 a.m., after an officer observed him in
possession of a firearm: a defaced .45 caliber handgun loaded
with eight rounds. The arrest took place slightly more than one
hour after the CJRA went into effect.
The State charged defendant in a complaint-warrant with
four offenses: second-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b)(1) (Count One); second-degree possession of
a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (Count
Two); second-degree possession of a firearm by certain persons
with a prior conviction, N.J.S.A. 2C:39-7(b)(1) (Count Three);
and fourth-degree receipt of a defaced firearm, N.J.S.A. 2C:39-
9(e) (Count Four).
The affidavit of probable cause in support of the complaint
contained the following facts as to each count:
*Count One: “Defendant was found to be in possession of a
handgun.”
*Count Two: “Defendant was found to be in possession of a
handgun with no lawful purpose.”
3
*Count Three: “Defendant was found to be in possession of
a firearm with a prior conviction of possession of [a controlled
dangerous substance] on school property[, N.J.S.A.] 2C:35-7.”
*Count Four: “Defendant was found to be in possession of a
defaced firearm.”
The affidavit also had a space to explain how law
enforcement became aware of the stated facts. In this case, the
officer wrote, “officer observations.”
The officer also prepared a preliminary law enforcement
incident report (PLEIR), which, at the time, was incorporated
into the affidavit. See State v. Robinson, 229 N.J. 44, 61, 70
(2017). The PLEIR offered these details: that the “complaining
officer” and “[a]nother law enforcement officer[] personally
observed the offense”; that a handgun “was involved in the
incident”; and that the officers recovered spent shell casings.
A Pretrial Services officer prepared a Public Safety
Assessment (PSA) that rated defendant 6 out of 6 -- the highest
level -- for risk of both failure to appear and new criminal
activity. The PSA also noted defendant’s criminal history,
which included five indictable convictions, five failures to
appear, and six sentences of imprisonment. Three of the
failures to appear had occurred within the past two years. At
the time of the arrest, defendant also had a pending charge for
4
simple assault. The PSA recommended that defendant not be
released.
The State moved for detention and submitted the following
documents: the complaint-warrant, the affidavit of probable
cause, the PSA, the PLEIR, and defendant’s criminal history.
The last document listed adult convictions as well as juvenile
adjudications.
Defense counsel objected and argued that the CJRA and court
rules required the State to present a live witness to establish
probable cause. Counsel also advanced a number of reasons why
defendant should be released on electronic monitoring and not
detained.
The trial court rejected defendant’s claims. The court
first found that the State could proceed by proffer at a
detention hearing. The court relied on the language and
legislative history of the CJRA and also looked to federal law
for support. The court noted as well that judges had discretion
to order witness testimony.
Next, the trial court found that the documents the State
had submitted established probable cause for the offenses
charged. The court also concluded that defendant would pose a
risk of danger to the community if released and, based on clear
and convincing evidence, ordered defendant detained. The judge
relied, in particular, on the PSA’s recommendation against
5
release, which the court treated as prima facie evidence
sufficient to overcome the presumption of release. See R.
3:4A(b)(5). The trial court also pointed to the nature of the
offense, weight of the evidence, and defendant’s history,
including “a very serious juvenile adjudication” for which
defendant was “on probation for failure to register.”
Defendant appealed the order pursuant to N.J.S.A. 2A:162-
18(c). In addition to the statutory claims he raised before the
trial court, defendant argued that to allow the prosecutor to
proceed by proffer alone would violate his right to due process.
The American Civil Liberties Union of New Jersey (ACLU), which
first appeared as amicus curiae in this case in the Appellate
Division, also pressed a due process argument.
The Appellate Division affirmed in a thorough and well-
reasoned opinion. State v. Ingram, 449 N.J. Super. 94 (App.
Div. 2017). The panel rejected defendant’s due process claim
and held that the State was not required to produce a live
witness at a detention hearing to establish probable cause. Id.
at 101. The court observed that procedures to determine
probable cause need not “be accompanied by the full panoply of
adversary safeguards.” Id. at 102 (quoting Gerstein v. Pugh,
420 U.S. 103, 119, 95 S. Ct. 854, 866, 43 L. Ed. 2d 54, 68
(1975)). The panel surveyed various court rules on probable
6
cause and noted that they “passe[d] constitutional muster.” Id.
at 103.
The panel also drew on federal case law that construed the
Bail Reform Act of 1984, 18 U.S.C.A. §§ 3141 to 3156. Id. at
108. The federal act, which the CJRA tracks in a number of
ways, provides for pretrial detention, and the panel highlighted
multiple federal court decisions that permit the government to
proceed by proffer. Id. at 108-11.
The panel rejected defendant’s statutory arguments as well.
Id. at 114. The court pointed to language in the CJRA that
allows the State to “prove grounds for detention by . . .
documentary evidence alone.” Id. at 115 (citing N.J.S.A.
2A:162-20(c)(1), -20(f), & -25). The panel also declined to
draw a negative inference from the Act’s silence as to whether
the State may rely wholly on proffer. Id. at 116. In addition,
the court noted certain “practical considerations that [would]
arise if the State” were required to produce “a witness with
particularized knowledge at every detention hearing.” Id. at
117-18.
The panel added two cautionary notes: that a judge at a
detention hearing “may exercise his or her discretion and . . .
insist that the State produce a witness” to present “additional
proof,” id. at 116; and that a prosecutor’s “reliance upon
documentary proffers that provide the thinnest reeds of support
7
for probable cause” may lead a judge to exercise that
discretion, id. at 118.
Finally, the panel found that the State met its burden of
proof to justify pretrial detention in this case. Ibid. That
issue is not before the Court.
The Appellate Division issued its ruling on March 1, 2017.
Two weeks later, a grand jury in Camden County returned an
indictment that charged defendant with four firearms offenses.
After defendant filed a motion for leave to appeal, the
Attorney General superseded the Camden County Prosecutor’s
Office. We granted defendant’s motion on March 29, 2017. ___
N.J. ___ (2017).
II.
A.
Defendant argues that the State must call a live witness
with firsthand knowledge of the offense to establish probable
cause at a detention hearing. He claims that for the State to
proceed only by proffer violates the CJRA and his right to due
process.
Defendant points to several parts of the statute in support
of his plain language argument, which we discuss below. He also
argues that due process requires the State to call a witness
because pretrial detention implicates a defendant’s liberty
interest. Defendant contends that case law from federal Circuit
8
Courts and the District of Columbia is not instructive because
it relates to proofs about grounds for detention, not probable
cause. In addition, he submits that it is “common practice” in
the District of Columbia for the prosecution to call a witness
to establish probable cause.
Defendant also argues that the proffer in this case was
insufficient. At a minimum, defendant urges, courts should
require the State to present witness testimony in such
instances.
The ACLU, which retained its amicus status under Rule 1:13-
9(d), focuses on due process concerns and contends that a
witness is required to prove probable cause. The ACLU stresses
that hearsay statements that cannot be tested may not justify
detention on their own. The ACLU also agrees with defendant
that the State’s proffer in this case was inadequate.
B.
The Attorney General urges the Court to affirm the judgment
of the Appellate Division. The State first argues that allowing
it to proceed by proffer at a detention hearing satisfies
defendant’s due process rights. The State relies in part on
United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L.
Ed. 2d 697 (1987), which rejected a due process challenge to the
federal Bail Reform Act. The law survived constitutional
scrutiny, the State observes, even though it does not require
9
live testimony at detention hearings. The Attorney General also
challenges defendant’s effort to distinguish other federal case
law. According to the State, the CJRA incorporates Gerstein’s
probable cause finding, which can be established by hearsay and
a written proffer in a non-adversary proceeding. The State adds
that grand juries routinely rely on hearsay alone to determine
probable cause.
The State also counters defendant’s plain language argument
and maintains that the CJRA allows it to proceed by proffer.
Finally, the State submits that to require live testimony by
witnesses with firsthand knowledge at every detention hearing
would impose an extraordinary burden on the criminal justice
system and frustrate the aim of the statute.
We granted the motion of the County Prosecutors Association
of New Jersey (CPANJ) to appear as amicus curiae. The
Association echoes the State’s arguments. Among other points,
the CPANJ asserts that any discussion about whether live witness
testimony is required cannot overlook the State’s discovery
obligation under Rule 3:4-2(c)(1)(B).
III.
We reviewed the recent history of criminal justice reform
in New Jersey and parts of the text of the CJRA, N.J.S.A.
2A:162-15 to -26, in Robinson, supra, 229 N.J. at 52-62. Our
focus now is on a single legal issue: whether the State must
10
present a live witness at a pretrial detention hearing. We
therefore briefly recount the parts of the statute that address
pretrial detention.
Section 18(a) allows a judge to detain a defendant pretrial
if the State proves by clear and convincing evidence that no
release conditions would reasonably assure the defendant’s
appearance in court, the safety of the community, or the
integrity of the criminal justice process. N.J.S.A. 2A:162-
18(a).
Section 19(a) lists the circumstances in which a prosecutor
may seek pretrial detention. A prosecutor can do so when a
defendant is charged with certain serious crimes including
Graves Act offenses, see N.J.S.A. 2A:162-19(a)(1), (4), (5),
(6), or crimes that carry a life sentence, see N.J.S.A. 2A:162-
19(a)(2). Defendant here is charged with multiple Graves Act
crimes. See N.J.S.A. 2A:162-19(a)(5) (citing N.J.S.A. 2C:43-
6(c)).
A motion for detention is also permitted when a defendant
has committed multiple serious crimes in the past. See N.J.S.A.
2A:162-19(a)(3). Finally, the State may seek detention for “any
other crime for which the prosecutor believes there is a serious
risk that” a defendant will not appear in court, will pose a
danger to the community, or will obstruct or attempt to obstruct
justice. N.J.S.A. 2A:162-19(a)(7).
11
Except for certain offenses, there is a rebuttable
presumption of release under the law, potentially with
conditions. R. 3:4A(b)(5). A court may consider a
recommendation against release in a PSA “as prima facie evidence
sufficient to overcome the presumption of release.” Ibid.
If a court finds probable cause that a defendant committed
murder, N.J.S.A. 2C:11-3, or a crime that carries a sentence of
life imprisonment, a rebuttable presumption of detention
applies. N.J.S.A. 2A:162-19(b). A defendant can rebut that
presumption by a preponderance of the evidence. N.J.S.A.
2A:162-19(e)(2). The prosecutor may then try to establish that
detention is justified. Ibid.
A court must hold a hearing on a motion for pretrial
detention no later than the defendant’s first appearance or
three days from the date of the motion. N.J.S.A. 2A:162-
19(d)(1). A continuance of three days, on the prosecutor’s
motion, or five days, on the defendant’s, may be granted. Ibid.
The defendant is held in jail pending the hearing. N.J.S.A.
2A:162-19(d)(2).
Section 19(e) outlines various procedural safeguards. At a
detention hearing, a defendant has the right to counsel or, if
indigent, to court-appointed counsel. N.J.S.A. 2A:162-19(e)(1).
The defendant also has the right “to testify, to present
witnesses, to cross-examine witnesses who appear at the hearing,
12
and to present information by proffer or otherwise.” Ibid. The
rules of evidence do not apply at the hearing. Ibid.
If a grand jury has not returned an indictment at the time
of a detention hearing, “the prosecutor shall establish probable
cause that the eligible defendant committed the predicate
offense.” N.J.S.A. 2A:162-19(e)(2). Aside from certain
instances, the federal Bail Reform Act does not require the
government to establish probable cause at the detention hearing.
See 18 U.S.C.A. § 3142(e)(1), (3).
Next, to decide whether detention is warranted -- whether
any combination of conditions will reasonably guard against the
risk of flight, danger, or obstruction, see N.J.S.A. 2A:162-
19(c) -- a court may “take into account” a number of factors,
including the following: the nature of the offense, the weight
of the evidence, defendant’s history and characteristics, the
nature of the risk of danger and obstruction the defendant
poses, and the PSA’s release recommendation, N.J.S.A. 2A:162-
20(a)-(f).
IV.
We begin with defendant’s argument that the statute
requires the State to present live testimony to establish
probable cause at a pretrial detention hearing, and not the
constitutional question. See Comm. to Recall Robert Menendez
from the Office of U.S. Senator v. Wells, 204 N.J. 79, 95 (2010)
13
(“[W]e strive to avoid reaching constitutional questions unless
required to do so.”); see also Harris v. McRae, 448 U.S. 297,
306-07, 100 S. Ct. 2671, 2683, 65 L. Ed. 2d 784, 798 (1980)
(“[I]f a case may be decided on either statutory or
constitutional grounds, this Court, for sound jurisprudential
reasons, will inquire first into the statutory question.”). Our
review of the meaning of a statute is de novo. State v.
Scriven, 226 N.J. 20, 33 (2016).
Here, the statute plainly afforded the State more than one
basis to seek detention: sections 19(a)(5) (Graves Act offense
charged) and 19(a)(7) (risk of flight, danger, or obstruction).
The charges, though, did not trigger a presumption of detention.
N.J.S.A. 2A:162-19(b). Instead, defendant was entitled to a
rebuttable presumption of release. R. 3:4A(b)(5).
At the hearing, the State proceeded by proffer to establish
probable cause and grounds for detention. It relied on the
complaint-warrant, affidavit of probable cause, PSA, PLEIR, and
defendant’s criminal history. Defendant contends that the plain
language of the statute requires more -- that it compels the
State to call a live witness at a detention hearing to establish
probable cause. We do not find that the CJRA, either expressly
or implicitly, imposes that obligation.
Section 19(e)(1), on which defendant relies, does not
compel the State to present live testimony. Instead, the
14
provision, in part, grants defendants the right to “cross-
examine witnesses who appear at the hearing.” N.J.S.A. 2A:162-
19(e)(1) (emphasis added).
To give effect to the Legislature’s intent, we look to the
plain language of a statute and give the law’s words their
generally accepted meaning. N.J.S.A. 1:1-1; DiProspero v. Penn,
183 N.J. 477, 492 (2005). In section 19(e)(1), the Legislature
afforded defendants the right to cross-examine a witness who
testifies at a hearing -- no more, and no less. The section
does not require the State to call a witness.
Section 19(e)(1) also permits a defendant “to present
information by proffer.” Defendant draws a negative inference
from the statute’s silence as to whether the State may also
proceed by proffer. We agree with the Appellate Division that
defendant’s logic extends too far. The statute is also silent
about “whether the State may call witnesses, cross-examine
witnesses, or ‘otherwise’ present information to the judge, all
of which the Act expressly permits a defendant to do.” Ingram,
supra, 449 N.J. Super. at 116. We cannot conclude that the
Legislature’s silence either bars the State from presenting
proofs in those ways or obligates it to summon a live witness.
Other parts of the statute reveal that the Legislature
intended for the parties to use documentary evidence at a
detention hearing. Judges may consider a defendant’s criminal
15
history and record of court appearances, N.J.S.A. 2A:162-
20(c)(1), as well as the recommendations in the PSA, N.J.S.A.
2A:162-20(f). If that information is compelling, a judge may
find grounds for detention, by clear and convincing evidence,
based on those documents alone. See Ingram, supra, 449 N.J.
Super. at 115. Yet to establish that a defendant committed the
predicate offense, the prosecutor is required to establish only
probable cause. N.J.S.A. 2A:162-19(e)(2). In defendant’s view,
the statute requires more of the State to establish probable
cause -- a live witness -- than to satisfy the higher burden of
proof to show grounds for detention. It is difficult to read
the law in that way.
In sum, we do not find that the plain language of the CJRA
requires the State to present a live witness to establish
probable cause at a detention hearing. We therefore turn to
defendant’s constitutional arguments.
V.
Defendant claims that his right to due process requires the
State to call a live witness at a pretrial detention hearing.
Once again, the hearing has two components: the State must
establish probable cause when there is no indictment, N.J.S.A.
2A:162-19(e)(2), and it must establish grounds for detention,
N.J.S.A. 2A:162-18(a)(1).
16
Defendant focuses on the need for live testimony for the
State to establish probable cause, not to argue for detention.
But the two strands are linked to some extent. Defendant, in
fact, highlights that “a finding of probable cause has
significant consequences” at a detention hearing “not only
because it is a prerequisite for detention but also because it
establishes whether there is a presumption of detention or
release” under section 19(b). Also, to determine whether to
order detention, judges may rely on both the weight of the
evidence, which can be revealed through the State’s
demonstration of probable cause, and more traditional factors
that bear on detention -- risk of flight, danger, and
obstruction. See N.J.S.A. 2A:162-20. In either case, a
defendant seeks to test the facts on which the State relies to
detain him.
For reasons that follow, we do not find support in the law
for defendant’s argument that due process requires live
testimony.
A.
As the Court observed in Robinson, supra, the CJRA in many
respects 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. 229 N.J. at 56. The Legislature considered both
17
laws, among others, when it crafted New Jersey’s statute. Pub.
Hearing Before S. Law & Pub. Safety Comm., S. Con. Res. 128 2
(2014). Therefore, we give careful consideration to federal
case law that interprets the Bail Reform Act and the District of
Columbia statute. See State v. Ates, 217 N.J. 253, 269 (2014)
(considering federal decisions that interpret federal wiretap
statute when reviewing similar state law); see also State v.
Ball, 141 N.J. 142, 156 (1995) (same re federal racketeering
law).
B.
Both federal and New Jersey law require the prosecution to
prove grounds for detention by clear and convincing evidence.
18 U.S.C.A. § 3142(f)(2)(B); N.J.S.A. 2A:162-15, -18(a)(1), -
19(e)(3). As noted earlier, the CJRA, unlike the Bail Reform
Act, also specifically requires the prosecution to “establish
probable cause that the eligible defendant committed the
predicate offense” at the detention hearing. Compare N.J.S.A.
2A:162-19(e)(2), with 18 U.S.C.A. § 3142(e)(1).
That probable cause finding is the same in detention and
non-detention cases. When a defendant is arrested,
constitutional principles “require[] a judicial determination of
probable cause as a prerequisite to extended restraint of
liberty.” Gerstein, supra, 420 U.S. at 114, 95 S. Ct. at 863,
43 L. Ed. 2d at 65. To make that finding, a court can rely on
18
hearsay and a written proffer in a non-adversarial setting. Id.
at 120, 95 S. Ct. at 866, 43 L. Ed. 2d at 69. As the Supreme
Court explained,
adversary safeguards are not essential for the
probable cause determination required by the
Fourth Amendment. The sole issue is whether
there is probable cause for detaining the
arrested person pending further proceedings.
This issue can be determined reliably without
an adversary hearing. The standard is the
same as that for arrest. That standard --
probable cause to believe the suspect has
committed a crime -- traditionally has been
decided by a magistrate in a nonadversary
proceeding on hearsay and written testimony,
and the Court has approved these informal
modes of proof.
[Ibid.]
The Federal Constitution, thus, does not require the prosecution
to present live testimony to establish probable cause.
Gerstein left it to the states to design appropriate
pretrial procedures that “provide a fair and reliable
determination of probable cause as a condition for any
significant pretrial restraint of liberty, and this
determination must be made by a judicial officer either before
or promptly after arrest.” Id. at 123-25, 95 S. Ct. at 868-69,
43 L. Ed. 2d at 71-72. Judge Messano’s opinion carefully
reviews New Jersey’s rules of court in that regard. Ingram,
supra, 449 N.J. Super. at 103-07. For the reasons he expressed,
we agree that the court rules and related case law neither
19
compel the State to present live testimony nor violate due
process principles. Ibid. (citing R. 3:3-1, 3:4-1, 3:4-2, 3:4-
3, 3:4A; In re J.G., 151 N.J. 565, 592 (1997); In re Commitment
of M.G., 331 N.J. Super. 365, 383 (App. Div. 2000)); see also
Jamgochian v. State Parole Bd., 196 N.J. 222, 240 (2008) (noting
that requirements of due process are flexible).
The CJRA, in effect, incorporated Gerstein’s mandate that a
judge find probable cause as a prerequisite to detention after
an arrest. The Act did not elevate the standard.
We note as well that, under the CJRA, the State must
establish probable cause only when “there is no indictment.”
N.J.S.A. 2A:162-19(e)(2). Grand jury presentations can include
hearsay evidence that neither the defendant nor defense counsel
is present to observe, let alone cross-examine. See State v.
Holsten, 223 N.J. Super. 578, 585 (App. Div. 1988); State v.
Schmidt, 213 N.J. Super. 576, 584 (App. Div. 1986), rev’d on
other grounds, 110 N.J. 258 (1988); State v. Hart, 139 N.J.
Super. 565, 567 (App. Div. 1976); see also Costello v. United
States, 350 U.S. 359, 363, 76 S. Ct. 406, 408-09, 100 L. Ed.
397, 402-03 (1956).
Had a grand jury indicted defendant before the detention
hearing, the State would not have needed to establish probable
cause. N.J.S.A. 2A:162-19(e)(2). And defendant could not have
persuasively argued that the court’s reliance on the indictment
20
violated his due process rights. See Ingram, supra, 449 N.J.
Super. at 113.
C.
We recently considered a due process challenge to the CJRA
in Robinson. The defendant in that case argued that due process
required the State to make broad discovery available before a
detention hearing. Robinson, supra, 229 N.J. at 66. We found
that the discovery protections in the Act satisfied due process
under both the Federal and State Constitutions. Id. at 76. To
reach that conclusion, we considered the Supreme Court’s
decision in Salerno, supra, 481 U.S. at 741, 107 S. Ct. at 2098,
95 L. Ed. 2d at 705, which held that the federal pretrial
detention act is constitutional.
Salerno recounted the procedural protections that the
federal act offers defendants: the right to counsel, to
testify, and to “present information by proffer or otherwise,
and cross-examine witnesses who appear at the hearing.” Id. at
751, 107 S. Ct. at 2104, 95 L. Ed. 2d at 711-12. In addition, a
judge is guided by particular factors when reviewing a detention
request and must provide written findings and reasons for a
decision to detain a defendant; “[t]he Government must prove its
case by clear and convincing evidence”; and a defendant can seek
immediate appellate review of a detention decision. Id. at 751-
52, 107 S. Ct. at 2104, 95 L. Ed. 2d at 712. The law, however,
21
does not require testimony from a live witness at a detention
hearing.
The Court found that those “extensive safeguards” are
sufficient “to repel” a constitutional challenge and “far exceed
what we found necessary to effect limited postarrest detention
in Gerstein.” Id. at 752, 107 S. Ct. at 2104, 95 L. Ed. 2d at
712. The CJRA provides identical safeguards.
Other courts have spoken more directly to the question
raised in this appeal. They rejected similar challenges and
permit the prosecution to proceed by proffer at a detention
hearing.
In 1980, the District of Columbia Court of Appeals upheld
legislation that provided for pretrial detention based on
dangerousness and risk of flight. United States v. Edwards, 430
A.2d 1321, 1324 (D.C. 1981) (en banc) (interpreting District of
Columbia Court Reform and Criminal Procedure Act of 1970, 84
Stat. 473), cert. denied, 455 U.S. 1022, 102 S. Ct. 1721, 72 L.
Ed. 2d 141 (1982); see also D.C. Code §§ 23-1321 to -1333.
Like the CJRA, the D.C. Code provided that a defendant was
entitled “to present information by proffer or otherwise, to
testify, and to present witnesses,” Edwards, supra, 430 A.2d at
1334 (quoting D.C. Code § 23-1322(c)(4) (1973)), but was silent
22
as to how the prosecution could proceed.1 The Edwards court
found that the law allowed both the government and the defense
to present information by proffer and that the rules of evidence
did not apply to detention hearings. Ibid.
As the court explained, “[t]he legislative history of the
statute confirms Congress’s intent that the information upon
which the judicial officer makes his finding need not be sworn
testimony, and that the hearing is not designed to afford
defendants a discovery device.” Ibid. As a result, the court
observed, “hearsay evidence may be presented, although the court
may require direct testimony if dissatisfied with a proffer.”
Ibid.
The Edwards court next considered defendant’s due process
claim. The court relied heavily on Gerstein to dismiss an
argument that “the specific procedural protections of
confrontation and cross-examination . . . were constitutionally
required.” Id. at 1337. The court reasoned that “the liberty
interest at stake and the function of the two proceedings” -- a
preliminary hearing for probable cause under Gerstein and a
detention hearing -- “are so similar as to provide no basis for
1 The CJRA mirrors the current version of the D.C. Code. Both
provide that a defendant has the right “to present witnesses, to
cross-examine witnesses who appear at the hearing, and to
present information by proffer or otherwise.” N.J.S.A. 2A:162-
19(e)(1); D.C. Code § 23-1322(d)(4).
23
distinguishing them.” Id. at 1338. The government, thus, “may
proceed by proffer or hearsay” at both hearings. Ibid.
Defendant represents that at detention hearings in the
District of Columbia, the government routinely calls a witness
to testify. We are unable to comment on that practice other
than to note that Edwards does not require it.
The Bail Reform Act of 1984 -- enacted three years after
Edwards -- resembles the D.C. statute. See S. Comm. on the
Judiciary, Bail Reform Act of 1983, S. Rep. No. 98-147 (J. Comm.
Rep.) 44-45 (1983). Compare D.C. Code §§ 23-1321 to -1333, with
18 U.S.C.A. §§ 3141 to 3156. Section 3142(f) contains the same
language that appears in the D.C. law and the CJRA: at a
pretrial hearing, a defendant “shall be afforded an opportunity
to testify, to present witnesses, to cross-examine witnesses who
appear at the hearing, and to present information by proffer or
otherwise.” 18 U.S.C.A. § 3142(f)(2)(B).
Circuit Courts that have decided the question have
concluded that the federal act allows the government to proceed
by proffer at a detention hearing, subject to the judge’s
discretion. See United States v. Stone, 608 F.3d 939, 948-49
(6th Cir. 2010); United States v. El-Hage, 213 F.3d 74, 82 (2d
Cir. 2000); United States v. Smith, 79 F.3d 1208, 1209-10 (D.C.
Cir. 1996); United States v. Gaviria, 828 F.2d 667, 669 (11th
Cir. 1987); United States v. Winsor, 785 F.2d 755, 756 (9th Cir.
24
1986) (per curiam); United States v. Acevedo-Ramos, 755 F.2d
203, 207-08 (1st Cir. 1985).
Although the Third Circuit, in dicta, expressed concern
about whether judges may rely on a proffer, United States v.
Suppa, 799 F.2d 115, 118 (3d Cir. 1986), no decision since has
concluded that the government must present live testimony at
every detention hearing. In fact, courts have relied on a prior
opinion, United States v. Delker, 757 F.2d 1390, 1395-96 (3d
Cir. 1985), to recognize the government’s ability to proceed by
proffer. See, e.g., United States v. Schenberger, 498 F. Supp.
2d 738, 739 n.2 (D.N.J. 2007) (“As was its right the government
proceeded by proffer at the detention hearing.”); United States
v. Abdullahu, 488 F. Supp. 2d 433, 436 (D.N.J. 2007) (same).
To distinguish federal case law, defendant submits that the
cited cases largely addressed whether a proffer was sufficient
to establish grounds for detention, not probable cause. He
contends that probable cause was not an issue in those cases
because the defendants had already been indicted or the crimes
did not trigger a rebuttable presumption of detention under
federal law. See 18 U.S.C.A. § 3142(e)(3).
But in the seminal Edwards case, the defendant had been
charged but not indicted for armed rape, which formed the basis
for the government’s detention application. Edwards, supra, 430
A.2d at 1324 (citing D.C. Code § 23-1322(a)(1) (1973)). In any
25
event, the defendant was entitled to a determination of probable
cause soon after his arrest under Gerstein, supra, “as a
prerequisite to extended restraint of liberty,” 420 U.S. at 114,
95 S. Ct. at 863, 43 L. Ed. 2d at 65 -- even though that
determination was made apart from the D.C. detention statute.
The same is true for defendants under the federal Bail Reform
Act. Like the Appellate Division, we thus draw guidance from
federal precedent that interpreted a law similar to the CJRA.
See Ingram, supra, 449 N.J. Super. at 108-13.
We note, as well, that a pretrial detention hearing at
which the State must demonstrate probable cause is not a final
adjudication of contested facts or the merits of a charge. See
id. at 111-12 (discussing standards for commitment hearings
under Sexually Violent Predator Act and probation violation
hearings).
D.
Because we rely on persuasive case law, including
principles from Gerstein, Salerno, and Edwards, it is not
necessary to analyze defendant’s due process claim in depth
under the traditional balancing test from Mathews v. Eldridge,
424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33
(1976). We considered the test in Robinson, supra, in the
context of the State’s discovery obligations. 229 N.J. at 75-
76. We address the standard only briefly now and conclude that
26
it does not require the State to present live testimony at every
detention hearing.
The Mathews 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.” Mathews,
supra, 424 U.S. at 335, 96 S. Ct. at 903, 47 L. Ed. 2d at 33.
Pretrial detention, of course, “significantly interferes
with a defendant’s liberty interest.” Robinson, supra, 229 N.J.
at 76. We have already considered -- in this opinion and in
Robinson -- the extensive safeguards that protect that critical
interest. Ibid. (citing Salerno, supra, 481 U.S. at 751-52, 107
S. Ct. at 2104, 95 L. Ed. 2d at 711-12). We note again that
constitutional principles allow the government to establish
probable cause at a preliminary hearing without calling a
witness with firsthand knowledge.
The CJRA also affords defendants other means to contest the
State’s proofs at a detention hearing. For example, defendants
themselves can present witnesses and proffer information.
N.J.S.A. 2A:162-19(e)(1). Defendants also have the benefit of
27
discovery under Rule 3:4-2(c)(1), which is broader than what
federal law requires. See Robinson, supra, 229 N.J. at 61.
The third factor raises multiple concerns: the State’s
strong interest to promote public safety, protect witnesses, and
ensure that defendants appear in court, as well as related
practical considerations. According to the Administrative
Office of the Courts, the State moved for detention in 7824
cases in the first half of 2017. New Jersey Courts, Criminal
Justice Reform Statistical Reports 3 (June 30, 2017),
http://www.njcourts.gov/courts/assets/criminal
/cjrsummaryrpts.pdf. Courts held hearings in 5548 of those
cases, and 2276 motions were withdrawn or dismissed. Ibid. To
require the State to present a live witness at more than 10,000
detention hearings each year would impose significant additional
“fiscal and administrative burdens” on the court system, law
enforcement officers, the prosecution, and public defenders. In
short, the third factor weighs against defendant.
As then-Judge Breyer observed in Acevedo-Ramos, supra, a
court can balance the “competing demands of speed and
reliability, by selectively insisting upon the production of the
underlying evidence or evidentiary sources where their accuracy
is in question.” 755 F.2d at 207.
28
E.
We find that the State is not obligated to call a live
witness at each detention hearing. To be clear, though, we
repeat that the trial court has discretion to require direct
testimony if it is dissatisfied with the State’s proffer. See
Edwards, supra, 430 A.2d at 1334. In those instances, the State
must proceed reasonably promptly to avoid unduly prolonging a
defendant’s detention while the hearing is pending. That
approach conforms to the tight time deadlines the CJRA imposes
once a prosecutor applies for pretrial detention. N.J.S.A.
2A:162-19(d)(1).
VI.
Because a grand jury indicted defendant after the detention
hearing in this case, the adequacy of the proffer at the hearing
is now an academic question. But we find that it would have
been within the trial court’s discretion to require the State to
call a witness for two reasons.
First, the State’s presentation did not establish probable
cause for Count Two in the complaint. That count charges that
defendant “possess[ed] a firearm with a purpose to use it
unlawfully against the person or property of another,” in
violation of N.J.S.A. 2C:39-4(a)(1). By its own terms, the
statute requires proof that (1) the object was a firearm; (2)
defendant possessed it; (3) defendant’s purpose was to use the
29
firearm against the person or property of another; and (4)
defendant intended to use the firearm in an unlawful manner.
Ibid.; State v. Brims, 168 N.J. 297, 303 (2001).
To demonstrate probable cause, the State must show the
police had a “well grounded suspicion that a crime ha[d] been
. . . committed,” and that the defendant committed the offense.
State v. Gibson, 218 N.J. 277, 292 (2014) (quoting State v.
Sullivan, 169 N.J. 204, 211 (2001)). That showing calls for
“more than a mere suspicion of guilt,” ibid. (quoting State v.
Basil, 202 N.J. 570, 585 (2010)), but “less evidence than is
needed to convict at trial,” State v. Brown, 205 N.J. 133, 144
(2011).
Here, the affidavit of probable cause and PLEIR state that
two officers observed defendant in possession of a handgun “with
no lawful purpose” and recovered spent shell casings. Those
statements reveal little about the third and fourth elements of
the offense: defendant’s purpose to use the handgun against
another and his intent to use the weapon unlawfully. The
documents do not contain enough information to demonstrate
probable cause for the charge.2
2 We note that the charging language in the complaint-warrant
states that the handgun “was illegally discharged on the 3400
block of Cramer St.” No statements in the affidavit or PLEIR
offer support for that allegation.
30
Second, the assertions in the affidavit and the PLEIR in
this case generally track the statutory language and add only
that “[t]he complaining officer” and “[a]nother law enforcement
officer[] personally observed the offense.”
We remind the State that the better practice to establish
probable cause is to provide a narrative statement of facts in
the affidavit and identify the basis for the officer’s
knowledge. The affidavit should do more than merely recite
statutory language. It should contain sufficient information in
the form of factual details, not legal conclusions, to explain
how probable cause exists for each charge.
That said, officers do not have to follow a mathematical
formula. Since January 1, 2017, they have been required to
complete an electronic “Affidavit of Probable Cause” form in
each case. The form asks for two things: (1) a “[d]escription
of relevant facts and circumstances” that show “the offense[]
was committed and . . . the defendant is the one who committed
it”; and (2) how the officer became “aware of [those] facts . .
. (includ[ing] but not limited to . . . observations, statements
of eyewitnesses, defendant’s admission, etc.).” The responses
to those questions, of course, will depend on the circumstances
of each case.
We recognize that the arrest in this case was one of the
first to take place after the CJRA went into effect; law
31
enforcement arrested defendant on January 1, 2017, at 1:08 a.m.
We also do not suggest that the officer in any way attempted to
withhold information. In fact, he prepared an incident report
within hours of the arrest, which contains a three-paragraph,
narrative description of what he observed. The State disclosed
that report after the detention hearing.
Robinson and the current version of Rule 3:4-2 make clear
that the prosecution must disclose such reports before the
hearing. See Robinson, supra, 229 N.J. at 70; R. 3:4-2(c)(1).
Post-Robinson, then, defendants learn more details about the
charged offenses from the discovery they receive. Both sides
may proffer an incident report at the detention hearing, and the
trial court on its own can ask to review the report as well.
VII.
For the reasons set forth above, we affirm the judgment of
the Appellate Division.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.
32