STATE OF NEW JERSEY VS. DAKEVIS A. STEWART
A-0562-17T6
At a detention hearing held pursuant to the Criminal Justice
Reform Act, N.J.S.A. 2A:162-15 to 2A:162-26 (the CJRA), the State
proceeded by proffer. Defendant subpoenaed the police officer,
who prepared the affidavit of probable cause as a witness, and
sought to subpoena other officers. Over the State's objection,
the judge entered an order that permitted defendant "to subpoena
the [police] officers at the scene of the incident to testify at
the [d]etention [h]earing." The court granted the State's motion
for leave to appeal and reversed.
The CJRA 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." N.J.S.A. 2A:162- 19(e)(1) (emphasis added). However, federal courts interpreting the Bail Reform Act that contains similar language have recognized the defendant's right to produce adverse witnesses is conditional, not absolute.
The court adopts the reasoning of the majority of federal
courts, which require a defendant make a proffer as to how the
anticipated testimony of an adverse witness, i.e., police
officers, victims, and State's witnesses, would 1) negate the
State's evidence as to probable cause; or 2) rebut or diminish the
State's proffered clear and convincing evidence supporting
detention.
