Article by Daniel A. Levy, Esq.

As part of my criminal practice, I often get calls from spouses, relatives, and friends of those recently arrested for various kinds of New Jersey felonies. Gone are the old days of monetary bail for the vast majority of New Jersey criminal cases where bail would be set and the person would have to post the amount to be released. And because of this, many people are completely in the dark about what to expect during the days that immediately follow an arrest for a felony.

Under the recently-enacted bail reform laws, monetary bail is not set when the criminal complaint is filed. Rather, if a person is arrested for a felony and taken into custody by the local police, they will be transported to the county jail. They are practically guaranteed to spend at least one night in jail, but it could be several days before the court takes any action. What happens is that a county prosecutor reviews the case documents that are available and a county judge makes arrangements to arraign the defendant. In some counties, this is done via video conference with the defendant in the jail.

At that first appearance, the prosecutor will either recommend that the person be released on their own recognizance and given a court date, or they ask that the defendant remain detained. There is a presumption for most people that they will be released, so the prosecutor would have to file a special motion to detain the person. This has to be done right away and the motion gets heard on an expedited basis for what is called a detention hearing. At the hearing (and sometimes in advance) various reports are made available to the defense attorney – essentially, the basic police reports and all other documents that support the two arguments of the hearing: That there is probable cause to believe that a crime took place and the defendant committed the crime; and that if the defendant is released there would be no conditions that would adequately protect the public and/or ensure that the person will show up to court. The prosecutor needs to prove this by clear and convincing evidence. This is a heavy burden to meet and the prosecutor may no win the motion. What may happen is that the person is released, with certain condition imposed by the court. This can be anything from scheduled check ins with the court, to an ankle bracelet, heavy restrictions on travel and movement, etc.

These detention hearings are a serious part of the case, especially since the outcome determines whether a person is quickly released after arrest or detained in the county jail until trial. Therefore, it’s very important that a defendant retain counsel right away after an arrest to represent them at the detention hearing.