STATE OF NEW JERSEY v. DAKEVIS A. STEWART

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(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0562-17T6

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
January 19, 2018
v.
APPELLATE DIVISION
DAKEVIS A. STEWART,

Defendant-Respondent.
___________________________________

Argued December 18, 2017 – Decided January 19, 2018

Before Judges Messano, Accurso, and Vernoia.

On appeal from Superior Court of New Jersey,
Law Division, Salem County, Complaint No.
W-2017-000472-1708.

David M. Galemba, Assistant Prosecutor,
argued the cause for appellant (John T.
Lenahan, Salem County Prosecutor, attorney;
David M. Galemba, of counsel and on the
brief).

Wayne Powell argued the cause for
respondent.

Alexander Shalom argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey (American Civil Liberties Union of
New Jersey Foundation, attorneys; Alexander
Shalom, Edward L. Barocas, and Jeanne
LoCicero, on the brief).

Molly O'Donnell Meng, Assistant Deputy
Public Defender, argued the cause for amicus
curiae New Jersey Office of the Public
Defender (Joseph E. Krakora, Public
Defender, attorney; Molly O'Donnell Meng, of
counsel and on the brief).

Claudia Joy Demitro, Deputy Attorney
General, argued the cause for amicus curiae
Attorney General (Christopher S. Porrino,
Attorney General, attorney; Claudia Joy
Demitro, of counsel and on the brief).

The opinion of the court delivered by

MESSANO, P.J.A.D.

This appeal presents an issue of first impression under the

Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to 2A:162-26

(the CJRA). N.J.S.A. 2A:162-19(e)(1) provides that at a

pretrial detention hearing, a "defendant has the right to be

represented by counsel, and . . . 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." (Emphasis added). We consider

whether this provision of the CJRA permits a defendant to

subpoena "adverse witnesses," in this case, police officers, to

testify at a pretrial detention hearing.

Defendant Dakevis A. Stewart was arrested by members of the

Penns Grove Police Department and charged with possession of a

firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1);

unlawful possession of a firearm, N.J.S.A. 2C:39-5(b);

2 A-0562-17T6
possession of a firearm by certain persons not to possess a

weapon, N.J.S.A. 2C:39-7(b)(1); tampering with physical

evidence,
N.J.S.A. 2C:28-6(1); and resisting arrest by flight,

N.J.S.A. 2C:29-2(a)(1).1 At the time, defendant was subject to

an order of pre-trial release with certain non-monetary

conditions that was entered following a June arrest for

possession of a controlled dangerous substance and other

offenses.

The following day, the State of New Jersey moved for

defendant's pre-trial detention on the new arrest, as well as

revocation of his release on the June arrest. At the pretrial

detention hearing, the State moved into evidence the complaint-

warrant; the Public Safety Assessment (PSA) prepared by Pretrial

Services; a Preliminary Law Enforcement Incident Report (PLEIR)

and affidavit of probable cause prepared by Patrolman Joseph

Johnson; the pretrial release order from the prior arrest; and a

pretrial monitoring violation report.

Pretrial Services assigned defendant PSA scores of five for

both risk of failure to appear (FTA) and new criminal activity

1
The statutory citations for some of the charges in the
complaint-warrant were incorrect.

3 A-0562-17T6
(NCA). There was no New Violent Criminal Activity (NCVA) flag.

Pretrial Services recommended against defendant's release.2

The affidavit of probable cause stated that on September

20, 2017, Johnson responded to a report of gunshots in the area

of the Penn Village Apartments. As the officer turned onto a

street near the apartment complex, he saw a vehicle, coming

toward him at high speed. Johnson intercepted the vehicle and

its driver, later identified as defendant, exited and ran

through a nearby cemetery. Other officers arrived and Johnson

advised them of his observations and gave a description of the

driver. These officers gave chase and saw defendant throw a

handgun to the ground. The gun was retrieved by police, who

later learned that defendant was prohibited from possessing a

handgun because of his criminal history.

The PLEIR supplied some additional information. Patrolman

Tim Haslett "personally observed the offense"; police recorded

the statement of a witness on a body camera; defendant appeared

to be under the influence of drugs or alcohol at the time and

was injured by a police dog after he tried to flee; and a member

of the public provided information to the 911 call center. The

2
The PSA recommendation also provided that the "charges include
non-Graves weapons/gun/explosives." We are unsure what that
reference means, because the State alleged the firearm was fully
operational, and defendant was subject to mandatory minimum
sentencing pursuant to
N.J.S.A. 2C:43-6(c).

4 A-0562-17T6
State advised the judge it would proceed by proffer and argued

the evidence established probable cause that defendant had

committed the charged offenses.

Defense counsel had served Johnson, who was present, with a

subpoena to testify. Counsel argued that
N.J.S.A. 2A:162-

19(e)(1) permitted defendant to call witnesses at a pretrial

detention hearing. He also intended to subpoena four other

police officers identified in the arrest report as having

supplied information to Johnson for the affidavit.3 Specifically

stating that the hearing was "at the probable cause stage," the

judge preliminarily ruled that defendant could call Johnson and

the other officers on the issue of probable cause.

Following a short recess, the State argued that allowing

defendant to call the State's witnesses to challenge the factual

statements in the affidavit would convert the detention hearing

into a "mini-trial." It requested a stay of the proceedings.

The judge indicated that she had not realized Johnson was the

affiant and concluded that defendant had not proffered any

information to challenge Johnson's statements in the affidavit.

The judge expressed concern that permitting defendant to attack

the credibility of Johnson's statements by calling him as a

3
The report is not in the record and the four other officers
have not been identified.

5 A-0562-17T6
witness would result in a "mini-trial." However, the judge

concluded defendant could challenge probable cause by calling

other witnesses who allegedly observed defendant commit the

offenses, such as the other four police officers, and ruled

defendant could subpoena the officers to testify as to probable

cause.4

The judge entered an order permitting defendant "to

subpoena the [police] officers at the scene of the incident to

testify at the [d]etention [h]earing." She stayed the hearing

so the State could seek emergent appellate review. We granted

the State's motion for leave to appeal, stayed further

proceedings in the Law Division and ordered defendant's

continued detention pending our decision. Thereafter, we

granted motions filed by the Office of the Attorney General

(AG), the Office of the Public Defender (OPD) and the American

Civil Liberties Union (ACLU) to appear as amici curiae.

4
As noted, the State also sought detention because defendant
violated the terms of the earlier pretrial release order, which
required defendant to refrain from committing another offense.
See
N.J.S.A. 2A:162-24 (permitting revocation upon a finding of
probable cause that defendant committed a "new crime while on
release"); see also State v. White, ___ N.J. Super. ___, ___
(App. Div. 2017) (discussing generally the revocation hearing
and the State's burden of proof). In this case, the hearing
focused only on the probable cause determination, a necessary
prerequisite to consideration of the State's additional basis
for detention.

6 A-0562-17T6
II.

Before us, the State argues that despite the plain language

of
N.J.S.A. 2A:162-19(e)(1), a defendant does not have an

absolute right to call potential State's witnesses, referred to

as "adverse witnesses," at a pretrial detention hearing. It

asserts that we should follow the majority of federal courts,

which hold that a defendant may call adverse witnesses at the

discretion of the trial court, but only after proffering how the

witnesses' testimony will be favorable and material. The State

contends this approach preserves defendants' constitutional due

process rights and statutory right to "produce witnesses" at

detention hearings,
N.J.S.A. 2A:162-19(e)(1), while preventing

those hearings from becoming time-consuming "mini-trials." It

also argues that allowing a defendant to call adverse witnesses

without limitation, while the State's investigation may be

incomplete, "unfairly gives the defendant a record that could

potentially be used against [a] witness" at trial. It

additionally argues that requiring a proffer from a defendant is

"necessary to prevent potential harassment and intimidation of

victims and witnesses" soon after a crime is committed.

The AG generally agrees, and asserts a defendant should be

permitted to call adverse witnesses only if he or she can by

proffer "articulate a good-faith basis for believing that the

7 A-0562-17T6
witness will testify favorably . . . on a critical issue related

to pretrial detention."

Defendant and the OPD counter by arguing that the plain

language of
N.J.S.A. 2A:162-19(e)(1) permits the accused to call

witnesses at a pretrial detention hearing without limitation.

Defendant asserts that we should adopt the holdings in a

different line of federal cases which generally grant judges

broad discretion in managing detention hearings and do not

require a proffer before a defendant presents any witness.

Defendant contends N.J.S.A. 2A:162-19(e)(1) provides an

unfettered ability to present any witness, "so long as the

integrity of the hearing is maintained and the scope of the

testimony confined to relevant issues." OPD agrees that judges'

discretionary "gatekeeping" powers are sufficient to ensure that

a detention hearing will not become a mini-trial or discovery

expedition.

The ACLU echoes those arguments but goes further. It

contends that our courts should always allow defendants to call

any witness, adverse or otherwise, unless the State demonstrates

a potential harm to a given witness that outweighs the value of

that witness's testimony.

The Court has already comprehensively addressed the history

and policy supporting the CJRA in State v. Ingram,
230 N.J. 190

8 A-0562-17T6
(2017), and State v. Robinson,
229 N.J. 44 (2017), and we draw

upon those decisions for guidance in this case as we consider

some of the statute's terms.

N.J.S.A. 2A:162-19(e)(2) provides that at a pretrial

detention hearing, the State must establish probable cause that

the defendant committed the charged offense whenever an

indictment has not yet been returned. If a defendant is not

charged with certain specific crimes enumerated in
N.J.S.A.

2A:162-19(b), to which a presumption of detention applies, the

State must additionally demonstrate by clear and convincing

evidence that there is a "serious risk" the defendant will not

appear in court as required, will pose a danger to any person or

the community, or will obstruct or attempt to obstruct justice.

N.J.S.A. 2A:162-19(a)(7). As noted,
N.J.S.A. 2A:162-19(e)(1)

states that at a pretrial detention hearing, the 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." (Emphasis

added). The rules of evidence do not apply at a detention

hearing. Ibid.

In Ingram, the Court addressed whether by providing

defendants with the right of cross-examination, the CJRA

necessarily implied the State must produce a witness at the

9 A-0562-17T6
detention hearing, rather than proceed by proffer. Although

N.J.S.A. 2A:162-19(e)(1) was silent on the subject, the Court

concluded that "neither the statute's plain language nor

principles of due process" require the State to present

witnesses at every detention hearing.
230 N.J. at 194. The

Court found 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."

Ibid. It also concluded that to require the State to present

live witnesses at every detention hearing would "impose

significant additional fiscal and administrative burdens on the

court system, law enforcement officers, the prosecution, and

public defenders." Id. at 212. See also Robinson,
229 N.J. at
68-69 (at a detention hearing, "the focus is not on guilt, and

the hearing should not turn into a mini-trial").

As the Court has noted, when the Legislature enacted the

CJRA, it consciously chose to follow in many respects the

federal Bail Reform Act of 1984 (the BRA), 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 (the D.C.

Code). Ingram,
230 N.J. at 205; Robinson,
229 N.J. at 56. In

language identical to
N.J.S.A. 2A:162-19(e)(1), the BRA provides

that a defendant shall be afforded an opportunity to testify,

10 A-0562-17T6
present witnesses, cross-examine appearing witnesses, and

present information by proffer or otherwise at a pretrial

detention hearing. 18 U.S.C. § 3142(f)(2); see also D.C. Code.

§ 23-1322(d)(4) (same).

Federal courts have adopted somewhat different approaches

to whether a defendant may call an adverse witness at the

detention hearing. A majority of federal courts have adopted

the rationale first set forth in United States v. Edwards,
430 A.2d 1321, 1337-39 (D.C. 1981), where the court interpreted the

D.C. Code, a forerunner of, and model for, the BRA. Ingram,
230 N.J. at 209-10.

In Edwards, the court found the D.C. Code provided a

defendant with "only a conditional right to call adverse

witnesses." Id. at 1334. It concluded that before permitting a

defendant to subpoena an adverse witness, a trial court "may

require" a proffer "regarding the manner in which [that]

witness' testimony will tend to negate substantial probability

that the accused committed the charged offense." Id. at 1338.

The court stated that because it had also held that the

government could proceed by proffer, "cross-examination for the

limited purpose of impeaching the witness' credibility is an

insufficient reason to compel a witness' presence." Ibid.

11 A-0562-17T6
In limiting a defendant's ability to call adverse witnesses

at a detention hearing, the Edwards court stressed that the

government has an "obvious interest in not conducting a full-

blown criminal proceeding twice, once for pretrial detention and

a second time for the trial on the charges." Id. at 1337. It

also stated that defendants and the government share a mutual

interest in holding the hearing soon after arrest, and found

this "necessarily precludes the full-scale preparation and

investigation that is commensurate with a criminal trial."

Ibid. Finally, the court noted that the government has

legitimate interests in "preventing premature discovery" and

"protecting the emotional and physical well-being of its

witnesses," particularly a complaining witness. Id. at 1338.

As a result, it held that a "simplified hearing" including a

"reasonable limitation" on the defendant's ability to call

witnesses was appropriate. Id. at 1337.

Many federal courts interpreting the BRA have followed the

Edwards' court's reasoning and held that a magistrate need not

permit a defendant to subpoena the government's witnesses at a

pretrial detention hearing without the defendant first making a

proffer demonstrating how the witness' testimony will be

helpful. In United States v. Winsor,
785 F.2d 755, 756 (9th

Cir. 1986), after the government proceeded by proffer at the

12 A-0562-17T6
detention hearing, the defendant argued he should be permitted

to examine the government witnesses who were involved in the

investigation and his arrest "to demonstrate that he was

arrested without probable cause." The Ninth Circuit found the

court was not required to allow him to do so without first

making a showing "that the government's proffered information

was incorrect." Id. at 757.

Similarly, in United States v. Accetturo,
783 F.2d 382,

388-89 (3rd Cir. 1986), the Third Circuit found the trial court

did not err by refusing to compel the appearance of a witness

upon whom the government had relied in creating the documentary

evidence it submitted at the detention hearing. The court found

there was "no reason to believe" that the witness "would give

evidence favorable to [the defendants] or would retract

information harmful to them." Id. at 388. The court

"acknowledge[d] the difficulty faced by defendants seeking to

discredit government evidence" when the government has chosen to

proceed by proffer, but found "the need for speed in reaching

pretrial detention determinations justifies the use of

procedures less demanding than those applicable to a 'full-blown

trial.'" Id. at 390 (quoting United States v. Delker,
757 F.2d 1390, 1398 (3rd Cir. 1985)).

13 A-0562-17T6
In United States v. Cabrera-Ortigoza,
196 F.R.D. 571, 575

(S.D. Cal. 2000), the district court stated that "absent

something credible to challenge the reliability or the

correctness of the government's proffer, the court need not

compel live witnesses to testify." Citing Winsor, the court

held that without a proffer from the defendant that the

government's proffered evidence is inaccurate, a judge is not

required to allow the examination of investigators and police

officers. Id. at 574.

Likewise, in United States v. Sanchez,
457 F. Supp. 2d 90,

93 (D. Mass. 2006), the district court stated that Edwards

offered "the best analysis" of when a judge should permit

defendants to subpoena government witnesses. It found a

defendant "must give the court some basis for believing" an

adverse witness the defendant wishes to subpoena will "produce

testimony favorable to [him or her] or that there is some reason

to question the reliability of hearsay evidence proffered by the

government." Ibid. The court concluded the defendant had not

done so, and that his apparent purpose in subpoenaing a

government witness was simply to use the pretrial detention

hearing as a discovery tool. Id. at 93-94.

A smaller number of federal courts agree with Edwards that

a defendant has only a conditional right to call adverse

14 A-0562-17T6
witnesses at a pretrial detention hearing, but following the

Eleventh Circuit's decision in United States v. Gaviria, 828 F.2d 667, 670 (11th Cir. 1987), do not impose Edwards'

procedural requirement that the defendant need make any proffer

beforehand. Ibid. The Gaviria court held, "the judicial

officer presiding at the detention hearing is vested with the

discretion whether to allow defense counsel to call an adverse

witness with or without an initial proffer of the expected

benefit of the witness' testimony." Ibid.

Other earlier cases seemingly agree that the judge's

inherent ability to control the conduct of the hearing is a

sufficient deterrent to abuse. In Delker, 757 F.2d at 1398, the

Third Circuit found a district court "may have some discretion

to curtail cross-examination based upon such criteria as

relevancy, or to prevent a pretrial hearing from becoming a

full-blown trial." Similarly, in United States v. Acevedo-

Ramos,
755 F.2d 203, 207-8 (1st Cir. 1985), the court stated

that a judge

possesses adequate power to reconcile the
competing demands of speed and of
reliability, by selectively insisting upon
the production of the underlying evidence or
evidentiary sources where their accuracy is
in question. Through sensible exercise of
this power of selection, the judicial
officer can make meaningful defendant's
right to cross-examine without unnecessarily
transforming the bail hearing into a full-

15 A-0562-17T6
fledged trial or defendant's discovery
expedition.

Although these cases specifically reference cross-

examination, rather than a defendant's ability to compel the

appearance of an adverse witness, they reflect the Gaviria

court's conclusion that a judge retains sufficient power to

control the admission of evidence at a pretrial detention

hearing without imposing specific procedural prerequisites upon

a defendant.

With this background, we consider the particular facts of

this case.5

5
Unlike our CJRA, the BRA requires the government to establish
probable cause at pretrial detention hearings only if a
defendant has not yet been indicted and is charged with certain
crimes to which a rebuttable presumption of detention applies.
Compare 18 U.S.C. § 3142(e)(3), with
N.J.S.A. 2A:162-19(e)(2).
As a result, the issue in most of the federal cases cited was
not whether the evidence supported a finding of probable cause,
but rather whether detention was appropriate.

Nevertheless, the Court in Ingram squarely addressed this
difference and concluded it was insignificant to its analysis.
The Court noted that "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." Ingram,

230 N.J. at 210 (citing Edwards, 430 A.2d at 1324). Despite
this difference in the statutory schemes, the Court "dr[ew]
guidance from federal precedent that interpreted a law similar
to the CJRA." Id. at 211 (citing State v. Ingram,
449 N.J.
Super. 94, 108-13 (App. Div. 2017)).

16 A-0562-17T6
III.

Initially, we reject the position urged by the ACLU that a

defendant may call any witness, whether under compulsion of

subpoena or otherwise, unless the State can affirmatively

demonstrate that potential harm to the witness outweighs the

value of the witness's testimony. That interpretation of the

CJRA runs counter to all the federal cases interpreting the BRA,

as well as the generally accepted axiom that trial judges have

"wide discretion in exercising control over their courtrooms,"

D.A. v. R.C.,
438 N.J. Super. 431, 461 (App. Div. 2014) (quoting

N.J. Div. of Youth & Family Servs. v. J.Y.,
352 N.J. Super. 245,

264 (App. Div. 2002)), and perform a necessary "gatekeeper role"

regarding testimony adduced at any proceeding. State v.

Nesbitt,
185 N.J. 504, 514 (2006). Even when constitutional

rights are at stake, requiring a defendant to make a proffer

before proceeding is hardly alien to our case law. See, e.g.,

State v. Henderson,
208 N.J. 208, 291 (2011) (noting defendant's

proffer of statements made by administrator of an identification

procedure may compel Wade6 hearing); State v. Cotto,
182 N.J.
316, 332-34 (2005) (considering proffered evidence of third-

party guilt and concluding exclusion did not violate the

defendant's Sixth Amendment rights); State v. Kelly,
97 N.J.
6
United States v. Wade,
388 U.S. 218 (1967).

17 A-0562-17T6
178, 197-98 (1984) (requiring consideration of defense proffer

regarding expert testimony on battered-woman's syndrome before

considering relevancy to a claim of self-defense).

We also reject defendant's and OPD's position that the CJRA

permits a defendant to subpoena or otherwise produce adverse

witnesses at the detention hearing without any proffer

beforehand, constrained only by the judge's inherent ability, as

outlined above, to control the proceedings and limit

interrogation as necessary. The probable cause determination

has historically been made without any constitutional or

statutory requirement that a defendant be entitled to present

any evidence, much less compel the presence and testimony of

adverse witnesses. Ingram,
449 N.J. Super. at 103-06. It would

be ironic, at the least, for the State to proceed by proffer, as

the Court allowed in Ingram, and still permit a defendant to

compel the appearance of the author of the proffered documents.

Requiring police witnesses to appear, without any showing as to

the relevancy of their testimony regarding the probable cause

determination, places enormous burdens on local resources and

the courts. See Ingram,
230 N.J. at 212 (describing these

concerns).

Instead, we believe the holdings in Edwards, Winsor and

Accetturo strike the proper balance by according a defendant the

18 A-0562-17T6
opportunity to "present [adverse] witnesses," while at the same

time providing an expeditious determination regarding probable

cause. Before permitting a defendant to subpoena adverse

witnesses to appear at the detention hearing, the judge should

require a proffer as to the witness' likely testimony, and how

that testimony will negate a finding that there is a

"substantial probability that the accused committed the charged

offense." Edwards, 430 A.2d at 1338.

Here, the judge never asked defendant to make such a

proffer, but, instead, entered an order permitting defendant to

subpoena all officers "present at the scene of the incident."

Defendant has yet to proffer the expected relevancy of this

testimony, much less how it might negate a finding of probable

cause. Compelling the appearance of four or five police

officers to challenge a finding of probable cause suggests that

defendant seeks only to impeach statements made by Johnson in

his affidavit of probable cause, engage in further discovery, or

lay the groundwork for potential inconsistencies between

testimony given at the detention hearing and a later trial. See

Edwards, 430 A.2d at 1338 (impeachment and "premature discovery"

are insufficient reasons to compel appearance of adverse

witnesses). None of these possibilities justifies defendant's

efforts, given the limited focus of the detention hearing. See

19 A-0562-17T6
Robinson,
229 N.J. at 68 ("[T]he 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.").

We therefore reverse the order under review and remand the

matter to the Law Division for continuation of the detention

hearing in this case. If defendant intends to call any adverse

witnesses to rebut the State's evidence of probable cause, the

judge must first ask for a proffer regarding the witness'

anticipated testimony and its relevancy to the issue of probable

cause, and how the anticipated testimony negates the State's

evidence already adduced at the hearing in this regard.

IV.

Because there was no probable cause determination reached

in this case, the detention hearing never proceeded to the

second stage. See id. at 69 (describing the second stage of the

detention hearing, i.e., where a "trial judge must assess the

risk of danger, flight, and obstruction"). Although the issue

is not squarely before us, at oral argument the parties posited

different views on whether a defendant must also make a proffer

before producing an adverse witness to challenge the State's

evidence supporting detention. Because the issue has

significant ramifications for the hundreds of detention hearings

20 A-0562-17T6
occurring continuously in our criminal courts, and in particular

for guidance in this case on remand, we choose to address the

question.

The CJRA "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." Id. at 57 (citing
N.J.S.A. 2A:162-

18(a)).
N.J.S.A. 2A:162-20 contains a number of factors the

court "may take into account" in reaching its decision,

including, in particular, "[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) and (b).

As a result, putting aside the question of probable cause,

the ACLU in particular asserted that a defendant at a pretrial

detention hearing may compel the appearance of an adverse

witness to rebut the State's evidence regarding the nature and

circumstances of the offense or the strength of the State's

case. The State and the AG do not categorically reject the

argument; however, they urge us to apply the same rationale

during this second phase of the detention hearing as we have

applied to the probable cause phase. In other words, they argue

that prior to compelling the appearance of an adverse witness, a

21 A-0562-17T6
defendant must make a proffer demonstrating how the anticipated

testimony would rebut or diminish the otherwise clear and

convincing evidence the State must produce to warrant detention.

We agree and reach this conclusion for at least two reasons.

First under the BRA, federal courts may consider the nature

and circumstances of the offense or the strength of the

government's case when deciding whether to detain a defendant.

See
18 U.S.C. 3142(g)(1) and (2). As already noted, ante at 6

n.4, in the line of federal decisions we choose to follow, the

detention hearing was not about whether the government had

demonstrated probable cause, but rather whether detention was

warranted. In Sanchez, for example, the defendant specifically

sought to call a police officer as a witness regarding "the

weight of the government's evidence of criminality."
457 F. Supp. 2d at 92. The court, however, denied the request, citing

Edwards as providing the "best analysis of what should inform

the . . . judge's exercise of . . . discretion as to whether to

permit defendant's counsel to subpoena the Government's

witnesses on the question of the 'weight of the evidence.'" Id.

at 93. See also United States v. Martir,
782 F.2d 1141, 1145

(2nd Cir. 1986) (considering pretrial detention hearing where

"flight presumption," 18 U.S.C. § 3142(e), was at issue, and

concluding "[i]n light of the Act's mandate for informality and

22 A-0562-17T6
the need for speed at a point where neither the defense nor the

prosecution is likely to have marshalled all its proof, the

government as well as the defendant should usually be able to

proceed by some type of proffer where risk of flight is at

issue").

Second, in Robinson,
229 N.J. at 69, the Court adopted a

comprehensive Court Rule that addressed the State's discovery

obligations at a detention hearing, "keyed to both" "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." As a result, a defendant in New Jersey is

provided with a significant amount of information about the

State's case before the hearing. Id. at 69-71. The CJRA

permits a defendant to proceed by proffer at the detention

hearing,
N.J.S.A. 2A:162-19(e)(1). That means a defendant need

not subpoena police officers, victims or State's witnesses to

provide the judge with a substantial amount of evidence that

goes to the nature and circumstances of the offense, the weight

of the evidence and any other factor that might impact the

judge's detention decision.

We wish to make clear that requiring a defendant to make a

proffer before an adverse witness is produced at a detention

23 A-0562-17T6
hearing does not limit the judge's discretionary authority to

grant such a request. As the Court stated in Ingram,
230 N.J.

at 213, the judge retains significant discretion to compel the

production of a witness when the State's proffer is inadequate;

we have no doubt the judge retains the same discretion to permit

the production of an adverse witness after considering a defense

proffer demonstrating the particular relevance of the

anticipated testimony to either the probable cause determination

or whether detention is warranted.

Reversed and remanded for further proceedings consistent

with this opinion. We do not retain jurisdiction.

24 A-0562-17T6

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