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I. PRETRIAL PROCEDURES
A. Probable Cause Hearing
A defendant may not be retained in custody in the
absence of probable cause. Gerstein v. Pugh, 420 U.S. 103
(1975). The sole issue for determination in a pretrial
probable cause hearing is whether the facts and
circumstances are sufficient to warrant a prudent person
to believe that the suspect has committed an offense. Id.
at 120. A suspect who is detained before trial may
challenge the probable cause for confinement. Id. at 119.
However, a subsequent conviction will not be vacated on
the ground that defendant was improperly detained
pending trial because illegal detention alone is an
insufficient ground upon which to attack a conviction.
Id.
R. 3:4-3 sets forth the procedures to follow in this
State. A probable cause hearing may be waived by
defendant. If defendant does not waive this hearing and
if before the hearing an indictment has not been
returned, after notice to the county prosecutor, the court
shall hear the State’s evidence and defendant may cross-
examine witnesses against him. The issue to be
determined by the court is whether “there is probable
cause to believe that an offense has been committed and
defendant has committed it.” R. 3:4-3(a).
A probable cause hearing is not a constitutionally
guaranteed stage of the prosecution and may be
superseded by the grand jury’s prior return of an
indictment. See State v. Mitchell, 164 N.J. Super. 198
(App. Div. 1978); State v. Cox, 114 N.J. Super. 556 (App.
Div. 1971), certif. denied, 58 N.J. 93 (1971).
Probable cause may be established on the basis of
hearsay evidence. State in Interest of B.T., 145 N.J. Super.
268, 272-73 (App. Div. 1976), certif. denied, 73 N.J. 49
(1977). The judge may not draw an adverse interest
against the State for not calling witnesses with knowledge
to testify at the hearing. State in Interest of J.L.W., 236
N.J. Super. 336, 345-47 (App. Div. 1989).
B. Venue
In general, an offense shall be prosecuted in the
county in which it is committed. R. 3:14-1. In addition,
R. 3:14-1 sets forth eleven special rules to which reference
should be made if there are specific venue problems. See,
e.g., State v. Farlow, 176 N.J. Super. 548 (1980), certif.
denied, 87 N.J. 320 (1981), holding that where a murder
victim was shot in another state, defendant, pursuant to
R. 3:14-1(d), may be prosecuted in the county of the
victim’s death. The county of venue for purposes of trial
of indictments returned by a State Grand Jury is
designated by the Assignment Judge appointed to
impanel and supervise the State Grand Jury pursuant to
R. 3:6-11(b). R. 3:14-1(k). See N.J.S.A. 2A:73A-1, 8;
State v. Mullen, 126 N.J. Super. 355 (App. Div. 1974).Venue is not jurisdictional and the improper laying
of venue is a technical defect in the institution of
proceedings required to be raised by a pretrial motion or
may be deemed to have been waived. State v. DiPaolo, 34
N.J. 279, 288 (1961), cert. denied, 368 U.S. 880 (1961);
State v. Greco, 29 N.J. 94 (1959).R. 3:14-2 authorizes a change of venue or trial by a
foreign jury “if the court finds that a fair and impartial
jury cannot otherwise be had.”A motion to empanel a foreign jury may be made by
any party. R. 3:14-2. See State v. Harris, 282 N.J. Super.
409, 421 (App. Div. 1995), appeal after remand, 156
N.J. 122 (1997). For guidelines in selecting the county
for venue or the source of a foreign jury, see State v.
Timmendequas, 161 N.J. 515, 557-58 (1999).A motion for change of venue may be made only by
a defendant, R. 3:14-2, and is addressed to the sound
discretion of the court. State v. Belton, 60 N.J. 103, 107
(1972); State v. Wise, 19 N.J. 59, 73 (1955); State v. Gary,
229 N.J. Super. 102, 111 (App. Div. 1988). “The test
is whether an impartial jury could be obtained from
among the citizens of the county or whether they are so
aroused that they would not be qualified to sit as a jury
to try the case.” Id. at 110. Defendant must establish
“clear and convincing proof that a fair and impartial trial
cannot be had before a jury in the county in which the
indictment was found.” State v. Wise, 19 N.J. at 73-74;
State v. Gary, 229 N.J. Super. at 110.In a capital trial, the test is different. The test is
whether a change of venue is necessary to overcome a
realistic likelihood of prejudice from pretrial publicity.
State v. Harris, 156 N.J. 122, 133-34 (1998); State v.
Marshall I, 123 N.J. 1, 76 (1991). See generally, State v.
Timmendequas, 161 N.J. at 557-58 and CAPITAL
PUNISHMENT, this Digest.Note that where there is a realistic likelihood that the
trial of a capital case will be surrounded by presumptively