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Sunday, January 28, 2018

STATE OF NEW JERSEY VS. DAKEVIS A. STEWART A-0562-17T6

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.
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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.