New Jersey v. Pinkston

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. Leo C. Pinkston (A-22-17) (080118)

Argued March 12, 2018 -- Decided June 14, 2018

RABNER, C.J., writing for the Court.

       The Criminal Justice Reform Act (CJRA) provides that defendants “shall be afforded
an opportunity . . . to present witnesses” at pretrial detention hearings. 
N.J.S.A. 2A:162-
19(e)(1). In this appeal, the Court considers whether the provision allows a defendant to
compel an adverse witness to testify at a detention hearing.

       The police spotted defendant Leo Pinkston in a car that matched the general
description of a vehicle used in a shooting. The officers “activated their lights and sirens.”
Defendant allegedly “disregarded” the lights and sirens and drove off. Ultimately, defendant
struck another car, and both vehicles collided with a light pole and caught on fire. Defendant
was charged with second-degree eluding and second-degree aggravated assault while
eluding. Pretrial Services recommended against defendant’s release, and the State moved to
detain defendant.

        Defense counsel asked for an adjournment to obtain additional discovery and
subpoena police officers to testify at the hearing. The trial court denied defendant’s request.
After it considered the complaint, affidavit of probable cause, Public Safety Assessment,
Preliminary Law Enforcement Incident Report, and the arguments of counsel, the court
concluded that (a) probable cause existed, and (b) clear and convincing evidence established
that defendant should be detained.

       The Appellate Division concluded that, under the circumstances, the trial judge did
not mistakenly exercise his discretion in denying defendant’s request to call adverse
witnesses. The panel affirmed the finding of probable cause and order of detention.

       The Court granted defendant’s motion for leave to appeal. 
231 N.J. 418 (2017).

       Shortly before this appeal was argued, defendant pled guilty, and the State moved to
dismiss as moot. The Court denied the motion because “the appeal raise[d] an issue of
public importance that is capable of repetition yet evades review.” 
232 N.J. 299 (2018).

HELD: The CJRA -- like the federal and D.C. laws on which it is based in part -- provides
defendants a qualified right to summon adverse witnesses. Before calling an adverse witness, a
                                               1
defendant must proffer how the witness’s testimony would tend to negate probable cause or
undermine the State’s evidence in support of detention in a material way.

1. The CJRA and case law outline various safeguards that apply to detention hearings. The
State must provide discovery before the hearing in accordance with State v. Robinson, 
229 N.J. 44, 69-71 (2017). At the hearing, the State must first establish probable cause that the
defendant committed the charged offenses, unless a grand jury has already returned an
indictment. 
N.J.S.A. 2A:162-19(e)(2). The State may proceed by proffer to satisfy its
burden of proof. See State v. Ingram, 
230 N.J. 190, 195 (2017). Defendants have various
rights at the hearing: to be represented by counsel, “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). To decide if detention is appropriate, “'the court may
take into account information’ about the nature and circumstances of the offense, the weight
of the evidence, the defendant’s history and characteristics, the nature of the risk of danger
and obstruction the defendant poses, and '[t]he release recommendation of the pretrial
services program.’” State v. Mercedes, ___ N.J. ___, ___ (2018) (slip op. at 14-15) (citing

N.J.S.A. 2A:162-20(a) to (f)). (pp. 8-9)

2. The text of the Criminal Justice Reform Act follows the federal Bail Reform Act of 1984
and the District of Columbia’s statutory scheme for pretrial detention in many respects. The
relevant text in all three laws is identical: a defendant “shall be afforded an opportunity . . .
to present witnesses.” Compare 
N.J.S.A. 2A:162-19(e)(1), with 18 U.S.C. § 3142(f)(2)(B),
and D.C. Code § 23-1322(d)(4). A number of federal courts have followed the reasoning of
United States v. Edwards, in which the District of Columbia Court of Appeals interpreted the
D.C. Code. 
430 A.2d 1321, 1323 (D.C. 1981) (en banc). Relying in part on the statute’s
legislative history, the court found that a defendant has “only a conditional right to call
adverse witnesses.” See id. at 1334. The Edwards court concluded that requiring a
preliminary proffer about how “a witness’ testimony will tend to negate substantial
probability that the accused committed the charged offense, is a reasonable limitation on the
accused’s right to call witnesses” at a pretrial detention hearing. Id. at 1338. Other courts
likewise call for some type of preliminary showing before they allow defendants to compel
adverse witnesses to testify at detention hearings. (pp. 10-13)

3. In State v. Stewart, the Appellate Division canvassed the CJRA and relevant case law and
concluded that Edwards struck “the proper balance.” 
453 N.J. Super. 55, 68 (App. Div.
2018). The Appellate Division set forth the following standards. Before a defendant may
call an adverse witness “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.” Id. at 69. To compel an adverse witness to appear on the issue of
detention, “a defendant must make a proffer demonstrating how the anticipated testimony
would rebut or diminish the otherwise clear and convincing evidence the State must
produce.” Id. at 70. In both instances, the trial court has “significant discretion to compel
the production of a witness.” Id. at 71. (p. 14)

                                               2
4. In light of the CJRA’s history, the Court agrees with Stewart that the law provides
defendants a qualified right to call witnesses at detention hearings. An alternative reading of
the statute would have far-reaching consequences. An absolute right would mean that a
defendant accused of rape, for example, could compel the victim to testify at a detention
hearing in many instances. There is no basis to believe the Legislature had that in mind when it
drafted the CJRA. To the contrary, it borrowed language from other laws that stood for a very
different approach. (pp. 15-16)

5. A detention hearing has two components: the State must establish probable cause, unless
there is an indictment, see 
N.J.S.A. 2A:162-19(e)(2), and must present clear and convincing
evidence to justify detention, see 
N.J.S.A. 2A:162-18(a)(1).

       a. Decisions about probable cause, both before and after the enactment of the CJRA,
       have routinely been made without live testimony. Ultimately, the question of
       probable cause presents judges with but one choice to make: either there is sufficient
       probable cause to proceed with a case, or there is not. Against that backdrop, as to the
       issue of probable cause, before being allowed to call an adverse witness, a defendant
       must proffer how the witness’s testimony would tend to negate the State’s showing of
       probable cause.

       b. A more flexible standard is needed to decide when a defendant may call an
       adverse witness to challenge the State’s case for detention because that decision is
       more complex. Both sides have the right to present information about the nature and
       circumstances of the offense, the weight of the evidence, the nature of the danger to
       the community, the risk of flight, and the risk of obstruction. Those issues invite
       qualitative judgments, not “yes” or “no” answers. Before being allowed to call an
       adverse witness on the issue of detention, a defendant must proffer how the witness’s
       testimony would tend to undermine the State’s evidence in support of detention in a
       material way.

After weighing a defense proffer, judges have discretion to accept and rely on the proffer, or
not, and to compel an adverse witness to appear, or not. See Stewart, 
453 N.J. Super. at 71.
A judge’s decision whether to allow a defendant to compel an adverse witness to testify at a
detention hearing is subject to review for abuse of discretion. See State v. S.N., 
231 N.J. 497, 500 (2018). Here, because defendant pled guilty, the Court does not review the trial
court’s decision to detain him pretrial. (pp. 16-20)

       Defendant’s appeal is DISMISSED AS MOOT.

    JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.




                                              3
                                     SUPREME COURT OF NEW JERSEY
                                       A-
22 September Term 2017
                                                080118

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

LEO C. PINKSTON,

    Defendant-Appellant.


         Argued March 12, 2018 – Decided June 14, 2018

         On appeal from the Superior Court, Appellate
         Division.

         Thomas R. Ashley argued the cause for
         appellant (Thomas R. Ashley, on the brief).

         Stephanie Davis Elson, Assistant Prosecutor,
         argued the cause for respondent (Esther
         Suarez, Hudson County Prosecutor, attorney;
         Stephanie Davis Elson, on the briefs).

         Laura B. Lasota, Assistant Deputy Public
         Defender, argued the cause for amicus curiae
         Office of the Public Defender (Joseph E.
         Krakora, Public Defender, attorney; Laura B.
         Lasota, of counsel and on the brief).

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

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


                               1
    CHIEF JUSTICE RABNER delivered the opinion of the Court.

    The Criminal Justice Reform Act (CJRA) provides that

defendants “shall be afforded an opportunity . . . to present

witnesses” at pretrial detention hearings.    
N.J.S.A. 2A:162-

19(e)(1).   In this appeal, we consider whether the provision

allows a defendant to compel an adverse witness to testify at a

detention hearing.   We find that the CJRA -- like the federal

and D.C. laws on which it is based in part -- provides

defendants a qualified right to summon adverse witnesses.

    There are two components to a detention hearing.       If no

indictment has been returned, the State must present proof of

probable cause.   
N.J.S.A. 2A:162-19(e)(2).   To justify

detention, the State must also present clear and convincing

evidence that no release conditions would reasonably guard

against the risk of danger, flight, or obstruction a defendant

poses.   
N.J.S.A. 2A:162-18(a)(1).   We find that, before calling

an adverse witness, a defendant must proffer how the witness’s

testimony would tend to negate probable cause or undermine the

State’s evidence in support of detention in a material way.

                                I.

    According to the affidavit of probable cause in this case,

the police spotted defendant Leo Pinkston on June 4, 2017 in a

car that matched the general description of a vehicle used in a

shooting the day before.   The officers observed the dark-colored

                                 2
car, with tinted windows, parked improperly.       From an unmarked

police vehicle, the officers “activated their lights and

sirens.”   Defendant allegedly “disregarded” the lights and

sirens and drove off; he then gained speed and ignored traffic

signals.   Because the police car had engine trouble, other

officers picked up the pursuit.       Ultimately, defendant struck

another car, and both vehicles collided with a light pole and

caught on fire.   The victim in the other car suffered burns and

was taken to the hospital for treatment.

    The accompanying complaint-warrant charged defendant with

second-degree eluding, 
N.J.S.A. 2C:29-2(b), and second-degree

aggravated assault while eluding, 
N.J.S.A. 2C:12-1(b)(6).

    Pretrial Services prepared a Public Safety Assessment (PSA)

that scored defendant 2 out of 6, with 6 being the highest, for

risk of failure to appear, and 4 out of 6 for risk of new

criminal activity.   The PSA also had a flag for new violent

criminal activity.   Among other things, the PSA noted that

defendant had four prior indictable convictions that included

identity theft, attempted murder, and possession of a weapon.

Pretrial Services recommended against defendant’s release.

    The State moved to detain defendant.        The day before the

scheduled hearing date, defense counsel asked for an adjournment

to obtain additional discovery and subpoena police officers to

testify at the hearing.   The State had provided two police

                                  3
reports in discovery.   The first noted that when the police

tried to conduct the motor vehicle stop, defendant’s car “began

to slowly travel,” and the police “were unable to clearly

identify the make and model of the” car because of low

visibility and poor lighting.   The second report referred to a

radio broadcast of “shots fired at the officers.”      The author of

the report spoke with an officer who said that he discharged his

weapon at defendant after hearing the transmission.      According

to the report, two other officers also “discharg[ed] their

firearms.”

    The trial court denied defendant’s request for an

adjournment.   The court explained that information related to

the pursuit and accident was not relevant to the detention

motion.   In addition, the court observed that federal courts had

uniformly held that “a defendant does not have the right to call

adverse witnesses at a detention hearing.”

    The detention hearing was held on June 22, 2017.        At the

outset, defense counsel pressed his request for an adjournment

to call the officers involved in the incident.      Counsel argued

that the circumstances of the pursuit weighed against a finding

of probable cause and detention.       He proffered that defendant

did not knowingly speed away from the officers and did not shoot

at them; that the officers violated departmental policy by

shooting from and at a moving car; and that defendant crashed

                                   4
the car because the police fired shots at him.     Counsel also

submitted that he had the right to call witnesses under the

statute.

     The court acknowledged that the CJRA allows live testimony.

However, it found that the evidence counsel sought to present

was not relevant to the issue of probable cause.    Defendant’s

arguments, the court noted, would probably be relevant at trial

instead.   After it considered the complaint, affidavit of

probable cause, PSA, Preliminary Law Enforcement Incident

Report, and the arguments of counsel, the court concluded that

(a) probable cause existed, and (b) clear and convincing

evidence established that defendant should be detained.

     Defendant filed an expedited appeal.   The Appellate

Division granted defendant’s motion to supplement the record

with the police reports recounted above, but the panel concluded

that, under the circumstances, the trial judge did not

mistakenly exercise his discretion in denying defendant’s

request to call adverse witnesses.   In an unpublished order, the

panel affirmed the trial court’s finding of probable cause and

its order of detention.1


1  While the appeal was pending, a Hudson County grand jury
returned an indictment against defendant. It contained the
charges for eluding and aggravated assault alleged in the
complaint, as well as two additional offenses, second-degree
aggravated assault, 
N.J.S.A. 2C:12-1(b)(1), and fourth-degree
assault by auto, 
N.J.S.A. 2C:12-1(c)(1). Had the indictment
                                 5
    We granted defendant’s motion for leave to appeal and

accelerated the timing for oral argument.     
231 N.J. 418 (2017).

We also granted the Attorney General, the Public Defender, and

the American Civil Liberties Union of New Jersey (ACLU) leave to

appear as amici curiae.

                                  II.

    Defendant argues that the trial court erred by not allowing

him to call witnesses at the detention hearing.     He contends the

police reports and officer testimony would have established that

probable cause did not exist because “it was very likely that

defendant never even realized that . . . officers were pursuing

him as he 'slowly’ departed the area,” and because “the car

crash was occasioned by defendant’s attempt to avoid death by

gunfire.”    Defendant claims the same evidence would have

rebutted the State’s argument that he posed a danger to the

community.

    The Public Defender and ACLU both argue that the CJRA

provides defendants who face detention an unconditional right to

call witnesses, aside from generic limits that apply in all

cases.   For support, they rely on the plain language of the

statute.     They also contend that live testimony can be relevant



been returned before the detention hearing, it would have
established probable cause for purposes of the hearing. See

N.J.S.A. 2A:162-19(e)(2).


                                   6
as to both probable cause and the need for detention, and that

the trial court abused its discretion in this case.

    The State contends that defendants do not have an absolute

right to call adverse witnesses under the statute.       Instead, the

State maintains, the Court should follow the majority view and

adopt the approach outlined in United States v. Edwards, 
430 A.2d 1321 (D.C. 1981) (en banc).       The State also argues that the

proffered reports and testimony were not relevant as to probable

cause, and that the record amply supported defendant’s

detention.

    The Attorney General echoes the State’s position and

contends that defendants do not have an “automatic and

unfettered right” to compel the State’s witnesses to testify.

The Attorney General submits that, consistent with Edwards,

defendants “should be required to either (1) proffer how [a]

witness’s testimony will negate probable cause, or (2)

articulate a good-faith basis for believing that the witness

will testify favorably to the accused on a critical issue

related to pretrial detention.”        Under that standard, the

Attorney General contends that the trial court did not abuse its

broad discretion when it denied defendant’s request to call

police officers to testify.




                                   7
                                 III.

    Shortly before this appeal was argued, defendant pled

guilty to second-degree eluding and fourth-degree aggravated

assault by auto.     The State then moved to dismiss defendant’s

appeal as moot.    We denied the motion because “the appeal

raise[d] an issue of public importance that is capable of

repetition yet evades review.”     
232 N.J. 299 (2018); see State

v. Mercedes, ___ N.J. ___, ___ (2018) (slip op. at 23).         For the

same reason, we now address when and under what circumstances

defendants may compel adverse witnesses to testify at a

detention hearing.     Given the current posture of this case,

however, we decline to evaluate whether the trial court abused

its discretion when it ordered defendant detained.

                                  IV.

                                  A.

    We begin with certain relevant principles under the CJRA.

The law favors the pretrial release of defendants “by non-

monetary means.”     
N.J.S.A. 2A:162-15.   A defendant may be

detained pretrial only if, after a hearing, a judge finds “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.”     State v. Ingram, 
230 N.J. 190, 200-01 (2017)

(citing 
N.J.S.A. 2A:162-18(a)).

                                   8
       The statute and case law outline various safeguards that

apply to detention hearings.    The State must provide discovery

before the hearing in accordance with State v. Robinson, 
229 N.J. 44, 69-71 (2017).   At the hearing, the State must first

establish probable cause that the defendant committed the

charged offenses, unless a grand jury has already returned an

indictment.   
N.J.S.A. 2A:162-19(e)(2).      The State may proceed by

proffer to satisfy its burden of proof.      See Ingram, 
230 N.J. at
 195.

       Defendants have various rights at the hearing:    to be

represented by counsel, “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).   Central to this appeal is the scope of a defendant’s

right “to present witnesses.”    See ibid.

       To decide if detention is appropriate, “'the court may take

into account information’ about the nature and circumstances of

the offense, the weight of the evidence, the defendant’s history

and characteristics, the nature of the risk of danger and

obstruction the defendant poses, and '[t]he release

recommendation of the pretrial services program.’”      Mercedes,

___ N.J. at ___ (slip op. at 14-15) (citing 
N.J.S.A. 2A:162-

20(a) to (f)).



                                  9
                                B.
    Defendant, the Public Defender, and the ACLU argue that the

plain language of the CJRA grants defendants an unconditional

right to call witnesses at detention hearings.    The State and

the Attorney General contend that defendants possess only a

qualified right in light of the history of the CJRA.

    When a court interprets a statute, its task is to ascertain

and give meaning to the Legislature’s intent.     State v. S.B.,


230 N.J. 62, 67 (2017).   As we noted in Robinson, “the text of

the Criminal Justice Reform Act follows the federal Bail Reform

Act of 1984, 18 U.S.C. §§ 3141 to 3156, and the District of

Columbia’s statutory scheme for pretrial detention, D.C. Code §§

23-1321 to -1333,” in many respects.   
229 N.J. at 56.    The

Legislature, in fact, “looked to both laws among others when it

framed New Jersey’s reform measure.”   Ibid. (citing sponsor’s

comment at public hearing, Pub. Hearing Before S. Law & Pub.

Safety Comm., S. Con. Res. 128 2 (2014)).   We therefore “give

careful consideration to federal case law that interprets the

Bail Reform Act and the District of Columbia statute.”     Ingram,


230 N.J. at 205.

    The relevant text in all three laws is identical:      a

defendant “shall be afforded an opportunity . . . to present

witnesses.”   Compare 
N.J.S.A. 2A:162-19(e)(1), with 18 U.S.C.

§ 3142(f)(2)(B), and D.C. Code § 23-1322(d)(4).    When, as here,


                                10
“the Legislature adopts or copies a law from another

jurisdiction, we presume that it was aware of the construction

given to that law by the courts of the other jurisdiction.”

Maeker v. Ross, 
219 N.J. 565, 575 (2014).

    A number of federal courts have followed the reasoning of

United States v. Edwards, in which the District of Columbia

Court of Appeals interpreted the D.C. Code.   430 A.2d   at 1323.

Relying in part on the statute’s legislative history, the court

found that a defendant has “only a conditional right to call

adverse witnesses.”   See id. at 1334.   The decision emphasized

that a

         court may require a proffer from the defense
         before compelling the presence of an adverse
         witness.    The pretrial detention statute
         provides the accused with a right to present
         witnesses in his favor. Such an opportunity
         to respond is a fundamental procedural right
         which the government has no interest in
         restricting. Nevertheless, with regard to the
         government’s witnesses, and particularly the
         complaining witness, the government does have
         an interest in preventing premature discovery.
         It also has an interest in protecting the
         emotional and physical well-being of its
         witnesses.     Under our holding that the
         government may proceed by proffer or hearsay,
         cross-examination for the limited purpose of
         impeaching the witness’ credibility is an
         insufficient reason to compel a witness’
         presence.

         [Id. at 1338 (citation omitted).]

The Edwards court concluded that requiring a preliminary proffer

about how “a witness’ testimony will tend to negate substantial

                                11
probability2 that the accused committed the charged offense, is a

reasonable limitation on the accused’s right to call witnesses”

at a pretrial detention hearing.     Ibid.

     Other courts likewise call for some type of preliminary

showing before they allow defendants to compel adverse witnesses

to testify at detention hearings.    In United States v. Winsor,

for example, the government proceeded by proffer.       
785 F.2d 755,

757 (9th Cir. 1986).   The defendant then sought to cross-examine

investigators and police officers to show “that he was arrested

without probable cause.”   Id. at 756.       The Ninth Circuit

concluded that, “[w]ithout a proffer” from the defendant “that

the government’s proffered information was incorrect, the

magistrate was not required to allow” the cross-examination.

Id. at 757; see also United States v. Cabrera-Ortigoza, 
196 F.R.D. 571, 575 (S.D. Cal. 2000) (“[A]bsent something credible

to challenge the reliability or the correctness of the

government’s proffer, the Court need not compel live witnesses

to testify.”).

     The Third Circuit, in United States v. Accetturo, similarly

found that the district court did not abuse its discretion when

it declined to compel a cooperating witness’s appearance at a


2  In a later amendment to the D.C. Code, “probable cause” was
substituted for the phrase “substantial probability.” See 
56 D.C. Reg. 7413, 7440 (Sept. 11, 2009) (amending D.C. Code § 23-
1322(c)).
                                12
detention hearing.    
783 F.2d 382, 388 (3d Cir. 1986).   The

Circuit Court stressed that the defense proffer gave “no reason

to believe” the witness “would give evidence favorable” to the

defendants “or would retract information harmful to them.”

Ibid.   The court also observed that “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; see also United States v. Sanchez, 
457 F. Supp. 2d 90, 92-93 (D. Mass. 2006) (finding that “a defendant

has no absolute 'right’ to subpoena adverse witnesses at a

detention hearing” and that defense counsel “must give the Court

some basis for believing that [a] witness would produce

testimony favorable to her client” or “some reason to question

the reliability of hearsay evidence proffered by the

Government”).

    The Eleventh Circuit, in United States v. Gaviria, agreed

with Edwards that defendants have “only a conditional right to

call adverse witnesses” at detention hearings.    
828 F.2d 667,

670 (11th Cir. 1987).    The court, however, declined to require

defendants to make an initial proffer.    Ibid.   Instead, the

court highlighted the presiding judge’s “discretion whether to

allow defense counsel to call an adverse witness with or

without” a proffer.     Ibid.



                                 13
                                 C.

    In a recent, thoughtful opinion by the Honorable Carmen

Messano, P.J.A.D., the Appellate Division canvassed the CJRA and

relevant case law and concluded that Edwards struck “the proper

balance.”    State v. Stewart, 
453 N.J. Super. 55, 68 (App. Div.

2018).   The defendant in Stewart sought to subpoena several

police officers -- who allegedly saw him commit the offenses

charged -- to testify at the detention hearing as to probable

cause.   Id. at 60.   The trial court granted the request in part.

Ibid.

    The Appellate Division reversed and set forth the following

standards.    Before a defendant may call an adverse witness “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.”      Id. at 69.   To compel an

adverse witness to appear on the issue of detention, “a

defendant must make a proffer demonstrating how the anticipated

testimony would rebut or diminish the otherwise clear and

convincing evidence the State must produce.”       Id. at 70.   In

both instances, the trial court has “significant discretion to

compel the production of a witness.”      Id. at 71.



                                 14
                                  V.

       We review the interpretation of a statute de novo.   State

v. S.S., 
229 N.J. 360, 380 (2017).     As noted earlier, we also

look to case law that interprets the Bail Reform Act and the

District of Columbia statute for guidance.     Ingram, 
230 N.J. at
 205.    The Legislature adopted the precise language used in both

of those laws when it granted defendants “an opportunity . . .

to present witnesses” at detention hearings.     
N.J.S.A. 2A:162-

19(e)(1); accord 18 U.S.C. § 3142(f)(2)(B); D.C. Code § 23-

1322(d)(4).   We presume that the Legislature was aware of how

other courts had interpreted that language -- namely, that the

text did not afford defendants an absolute right to compel the

testimony of adverse witnesses -- when it enacted the CJRA.        See

Maeker, 
219 N.J. at 575.    In light of the CJRA’s history, we

agree with Stewart that the law provides defendants a qualified

right to call witnesses at detention hearings.

       An alternative reading of the statute would have far-

reaching consequences.     An absolute right would mean that a

defendant accused of rape, for example, could compel the victim

to testify at a detention hearing in many instances.

Undoubtedly, the victim would have information that bears on the

nature and circumstances of the offense and the weight of the

evidence.   See 
N.J.S.A. 2A:162-20(a), (b).    The same would be

true in cases of attempted murder, robbery, aggravated assault,

                                  15
and many other offenses.    Yet there is no basis to believe the

Legislature had that in mind when it drafted the CJRA.     To the

contrary, it borrowed language from other laws that stood for a

very different approach.

    To determine the nature of the qualified right to present

witnesses, we consider the different aspects of a typical

detention hearing.    Once again, the hearing has two components:

the State must establish probable cause, unless there is an

indictment, see 
N.J.S.A. 2A:162-19(e)(2), and must present clear

and convincing evidence to justify detention, see 
N.J.S.A.

2A:162-18(a)(1).     We address each in turn.

    To establish probable cause in the context of an arrest,

courts examine whether the police had a “well-grounded suspicion

that a crime has been committed” and that the defendant

committed it.   State v. Dickerson, 
232 N.J. 2, 24 (2018)

(citation and internal quotation marks omitted).    “That showing

calls for more than a mere suspicion of guilt but less evidence

than is needed to convict at trial.”     Ingram, 
230 N.J. at 213-14

(citations and internal quotation marks omitted); see also

Illinois v. Gates, 
462 U.S. 213, 243 n.13 (1983) (“[P]robable

cause requires only a probability or substantial chance of

criminal activity, not an actual showing of such activity.”).

That “is not a high bar.”    District of Columbia v. Wesby, 583

U.S. ___, 
138 S. Ct. 577, 586 (2018).

                                  16
    Traditionally, judicial officers have reviewed written

affidavits to decide whether probable cause exists.     See R. 3:3-

1(a)(1); R. 3:4-1(a)(2).    Although defendants have a right to a

hearing to determine probable cause under Rule 3:4-3(a), that

hearing is not required by the Constitution.     State v. Smith, 
32 N.J. 501, 536 (1960); State v. Ingram, 
449 N.J. Super. 94, 104

(App. Div.), aff’d, 
230 N.J. 190 (2017).     And in practice,

probable cause hearings are rarely held.     Today, under the CJRA,

the State may proceed by proffer to establish probable cause at

detention hearings.     See Ingram, 
230 N.J. at 213.   According to

the Administrative Office of the Courts, the State ordinarily

does so.    In essence, decisions about probable cause, both

before and after the enactment of the CJRA, have routinely been

made without live testimony.

    Ultimately, the question of probable cause presents judges

with but one choice to make:    either there is sufficient

probable cause to proceed with a case, or there is not.      Against

that backdrop, as to the issue of probable cause, we find that

before being allowed to call an adverse witness, a defendant

must proffer how the witness’s testimony would tend to negate

the State’s showing of probable cause.

    Suppose the State presents an affidavit with a

straightforward set of facts that appear to establish probable

cause.     In practice, a defendant’s proffer would have to reveal

                                  17
how the testimony of an adverse witness would tend to show that

probable cause is lacking.    Minor inconsistencies in a witness’s

testimony, for example, might raise credibility questions but

would not tend to negate the existence of probable cause.     The

same is true for immaterial facts.     Undermining them could cast

doubt on parts of the State’s presentation yet not tend to show

that probable cause is absent.    In other words, it is not enough

for a defendant to proffer that a witness has evidence that may

be relevant in some way; the proffered evidence must tend to

negate probable cause.

    A more flexible standard is needed to decide when a

defendant may call an adverse witness to challenge the State’s

case for detention because that decision is more complex than

determining probable cause.    As to detention, both sides have

the right to present information about the nature and

circumstances of the offense, the weight of the evidence, the

nature of the danger to the community, the risk of flight, and

the risk of obstruction.     See 
N.J.S.A. 2A:162-20(a), (b), (d),

and (e).    Those issues invite qualitative judgments, not “yes”

or “no” answers.    The test advanced by the Attorney General

acknowledges that distinction.

    At the hearing, the State must shoulder its heavy burden of

establishing grounds for detention by clear and convincing

evidence.   
N.J.S.A. 2A:162-18(a)(1).    If it fails to do so, the

                                  18
CJRA calls for the defendant’s release, and there would be no

need for further testimony by witnesses the defense might wish

to call.   If, on the other hand, the court tentatively believed

the State had satisfied its burden, we conclude that the

following standard should apply:      Before being allowed to call

an adverse witness on the issue of detention, a defendant must

proffer how the witness’s testimony would tend to undermine the

State’s evidence in support of detention in a material way.

Thus, a defendant’s proffer must tend to reveal a good-faith

basis to believe that the witness will testify favorably to the

accused on an issue that is both relevant and material to the

decision whether to detain the defendant.      Stated otherwise, the

proffer must tend to negate the propriety of detention.

     At the hearing, defendants may of course proceed by proffer

and present relevant police reports and other documents to the

court.   
N.J.S.A. 2A:162-19(e)(1).3    In many instances, that may

well obviate the need to summon an adverse witness.      Before

being allowed to call a witness or victim whose testimony is

already described in a police report or affidavit, a defendant

would need to proffer why live testimony is needed as well.




3  The Appellate Division properly granted defendant’s motion to
supplement the record with police reports in this case, which
were plainly relevant.
                                19
    The above standard would limit efforts to summon a witness

to impeach her credibility on a non-material point, and would

avert a fishing expedition for discovery.

    To be clear, after weighing a defense proffer, judges have

discretion to accept and rely on the proffer, or not, and to

compel an adverse witness to appear, or not.   See Stewart, 
453 N.J. Super. at 71.   When a witness appears, trial courts also

retain broad discretion to control the proceedings.   Among other

steps, judges may curtail questioning to avoid repetition and

ensure that the testimony stays focused only on relevant issues;

they can limit examinations to “protect witnesses from

harassment or undue embarrassment,” see N.J.R.E. 611(a); and

they can limit questions about a witness’s whereabouts for

legitimate safety reasons.

    The above standards seek to balance a number of concerns.

They are designed to enable defendants to challenge motions for

pretrial detention and protect a vital liberty interest; to

spare the State’s witnesses from the equivalent of a mini-trial

shortly after an arrest; and to underscore the trial judge’s

authority to control detention hearings.

    A judge’s decision whether to allow a defendant to compel

an adverse witness to testify at a detention hearing is subject

to review for abuse of discretion.   See State v. S.N., 231 N.J.



                                20
497, 500 (2018).   Here, because defendant pled guilty, we do not

review the trial court’s decision to detain him pretrial.

                               VI.
    For the reasons stated above, we find that defendants have

a qualified right to call adverse witnesses at detention

hearings, and we outline standards to guide that issue.

Defendant’s appeal is dismissed as moot.



     JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.




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