A New Jersey appellate court on Wednesday ruled that prosecutors do not have to make witnesses available for cross-examination at detention hearings for criminal suspects.
The ruling is a loss for defense attorneys who said questioning witnesses allows defendants to push back on the charges lodged against them.
It comes as the New Jersey courts, prosecutors, and defense attorneys continue to work out the kinks of the New Jersey’s new pretrial system that began after the state scrapped cash bail starting this year.
The issue of witnesses at detention hearings came out of the case of Amed Ingram, who was arrested in Camden on Jan. 1 on gun possession charges.
Defense attorneys argued they should have been able to cross-examine the arresting officer before a judge decided to detain Ingram until trial.
But the appeals court disagreed, ruling that the police report and other documentary evidence were sufficient for the detention hearing.
Critics of the ruling said it would make future detention hearings less fair.
“Not only did [the justices] say, in general, one could call no witnesses,” said Alexander Shalom, a senior staff attorney with the state ACLU. “They said that in this case — where all the affidavit said was that the defendant was arrested with a gun — that that would be enough. And if that’s enough, really anything is enough.”
At detention hearings, which replaced bail hearings under the new system, judges decide whether to detain defendants in prison until trial or release them.
Judges are making those rulings by determining whether the defendant is a flight risk or a danger to the community.
State Attorney General Christopher Porrino praised the justices’ decision in a statement, saying, “the court has struck the right balance to maintain both defendants’ rights and the timely but fair judicial determinations required” under the new pretrial system.
Porrino’s office and county prosecutors had argued that requiring witnesses at all detention hearings would have turned them into “mini trials.”
The ruling does not ban witnesses at detention hearings; prosecutors are still permitted to call witnesses but it is not a requirement. When they do, defense attorneys will be allowed to cross-examine them.
Defendants can also call their own witnesses at detention hearings.
In their ruling, the appellate justices also noted that judges may ask for witnesses in individual cases when they feel they need the extra evidence to make a ruling on detention.