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I. BEFORE CONVICTION
A. Sources
There are two primary sources governing bail -
constitution and court rule:
1. N.J. Const. 1947, Art.I, ¶ 11.
All persons shall, before conviction, be bailable by
sufficient sureties, except for capital offenses when the
proof is evident or presumption great.
2. R. 3:26-1(a).
All persons, except those charged with crimes
punishable by death when the prosecutor presents proof
that there is a likelihood of conviction and reasonable
grounds to believe that the death penalty may be
imposed, shall be bailable before conviction on such
terms as, in the judgment of the court, will ensure their
presence in court when required.
B. Standards for Fixing Bail
The New Jersey Supreme Court has established eight
criteria for evaluating a defendant’s motion for bail in
non-capital cases. State v. Johnson, 61 N.J. 351, 364-365
(1972); R. 3:26-1(a)(1)-(8). Bail also may be issued in
certain circumstances upon a failure to indict or failure to
move an indictment or accusation for trial, R. 3:26-
1(b),(c), and in extradition proceedings. R. 3:26-1(d).
Fixing bail is a “critical stage” in criminal proceedings
requiring courts to honor a defendant’s constitutional
rights to counsel, to appear in person, and to due process.
State v. Fann, 239 N.J. Super. 507 (Law Div. 1990).
C. Sources of Information in Bail Hearing
- Grand Jury Transcripts
Sealed grand jury transcripts and affidavits may be
used by the trial court in its consideration of motion for
bail. State v. Campisi, 64 N.J. 120 (1973); See State v.
Engel, 99 N.J. 453 (1985), regarding the admissibility of
hearsay evidence in capital bail hearings.
- Hearsay confession of codefendant may be used in
evaluating a defendant’s bail motion. See Subsection E.,
Crimes Punishable By Death, infra.
D. Ten Percent Cash Deposit Program. R. 3:26-4(a)
In any county, with the approval of the Assignment
Judge, a program may be instituted for the deposit in
court of cash in the amount of 10 percent of the amount
of bail fixed.- Standards
(a) Bail may not be set in such a manner as to
compensate for the 10 percent cash deposit program.
The 10 percent cash deposit program, as it is now
operative, is not to be utilized in lieu of reasonable bail.
Rather, it is to empower the trial judge, in counties where
the program has been approved by the assignment judge,
to permit the posting of 10 percent of the amount of bail
fixed. This avoids the necessity of paying for a surety
bond and enables a defendant to get back his deposit
upon compliance with the terms of the recognizance.
State v. Singleton, 182 N.J. Super. 87 (App. Div. 1981);
State v. McNeil, 154 N.J. Super. 479, 481 (App. Div.
1977).Like any other contract, a bail bond should be
construed to effectuate the reasonable intentions of the
parties. State v. Giordano, 283 N.J. Super. 323, 329
(App. Div. 1995).(b) The mandatory provisions of R. 3:26-5 on
justification of sureties are not automatically applicable
to the 10 percent cash deposit program. Compliance
with R. 3:26-4(f), requiring an affidavit as to lawful
ownership of the cash, is all that is necessary when bail is
posted by someone other than defendant. State v.
Moncrieffe, 158 N.J. Super. 528 (App. Div. 1978).2. Reduction of Bail.
See State v. McNeil, 154 N.J. Super. 479, 481 (App.
Div. 1977); Mecom v. United States, 434 U.S. 1340, 98
S.Ct. 19, 54 L.Ed.2d 49 (1977).3. Effect of Revocation of Bail.
In State v. Sutton, 132 N.J. 471 (1993) the New
Jersey Supreme Court held that pursuant to N.J.S.A.
2C:44-5, the sentencing court has the discretion of
whether to impose a consecutive or concurrent sentence
following a revocation of probation, parole, or bail for an
offense committed while a defendant was released. The
Sutton Court ruled that the imposition of a consecutive
sentence was not automatic.