3:9-1. Post-Indictment Procedure; Arraignment; Meet and Confer; Plea Offer;
Conferences; Pretrial Hearings; Pretrial Conference
(a) Post-Indictment Procedure. When an indictment is returned, or an indictment
sealed pursuant to R. 3:6-8 is unsealed, a copy of the indictment, together with all
available discovery as provided for in R. 3:13-3(b)(1) for each defendant named therein,
shall be either delivered to the criminal division manager's office, or be available through
the prosecutor's office. If a plea offer is tendered, it must be in writing and should be
included in the discovery package. Upon the return or unsealing of the indictment the
defendant shall be notified in writing by the criminal division manager's office of the date,
time and location to appear for arraignment which shall occur within 14 days of the return
or unsealing of the indictment. The criminal division manager's office shall ascertain
whether the defendant is represented by counsel and that an appearance has been filed
pursuant to Rule 3:8-1. Upon receipt of the indictment by the criminal division manager's
office, counsel for the defendant shall immediately be notified electronically of the return or
unsealing of the indictment and the date, time and location of the arraignment. If the
defendant is unrepresented, the criminal division manager's office shall ascertain whether
the defendant has completed an application form for public defender services and the
status of that application.
(b) Arraignment; In Open Court.
(1) The arraignment shall be conducted in open court no later than 14 days
after the return or unsealing of the indictment. If the defendant is unrepresented at
arraignment, upon completion of an application for services of the Public Defender, the
court may assign the Office of the Public Defender to represent the defendant for purposes
of the arraignment.
(2) At the arraignment, the judge shall (i) advise the defendant of the
substance of the charge; (ii) confirm that if the defendant is represented by the public
defender, discovery has been obtained, or if the defendant has retained private counsel,
discovery has been requested pursuant to R. 3:13-3(b)(1), or counsel has affirmatively
stated that discovery will not be requested; (iii) confirm that the defendant has reviewed
with counsel the indictment and, if obtained, the discovery; (iv) if so requested, allow the
defendant to apply for pretrial intervention; and (v) inform all parties of their obligation to
redact confidential personal identifiers from any documents submitted to the court in
accordance with Rule 1:38-7(b).
(3) The defendant shall enter a plea to the charges. If the plea is not guilty,
counsel shall report on the results of plea negotiations and such other matters discussed
by the parties which shall promote a fair and expeditious disposition of the case. Unless
otherwise instructed by the court, at the arraignment counsel shall advise the court of their
intention to make motions pursuant to R. 3:10-2(a).
(c) Meet and Confer Requirement; Plea Offer. Prior to the Initial Case Disposition
Conference, the prosecutor and the defense attorney shall discuss the case, including any
plea offer and any outstanding or anticipated motions, and shall report thereon at the Initial
Case Disposition Conference. The parties shall discuss any other matters as instructed by
the court. The prosecutor and defense counsel shall also confer and attempt to reach
agreement on any discovery issues, including any issues pertaining to discovery provided
through the use of CD, DVD, e-mail, internet or other electronic means. Any plea offer to
be made by the prosecutor shall be in writing and shall be included in the post-indictment
discovery package.
(d) Disposition Conferences. After arraignment, the court shall conduct the Initial
Case Disposition Conference, the Final Case Disposition Conference and the Pretrial
Conference, as described in paragraph (f) of this rule. At the Initial Case Disposition
Conference, if not filed consistent with R. 3:10-2(a), the court shall set date(s) for
submission of briefs, the hearing of pretrial motions, and schedule a Final Case Disposition
Conference, if necessary, according to the differentiated needs of each case. For good
cause, prior to the Pretrial Conference, the court may schedule a Discretionary Case
Disposition Conference. In advance of any scheduled disposition conference, the
prosecutor and the defense attorney shall discuss the case, including any plea offer and
any outstanding or anticipated motions, and shall report thereon at the conference. The
prosecutor and defense counsel shall also confer and attempt to reach an agreement as to
any discovery issues, including any issues pertaining to discovery provided through the
use of CD, DVD, email, internet or other electronic means. Any plea offer to be made by
the prosecutor shall be in writing and forwarded to the defendant's attorney. At the
conclusion of either the Final Case Disposition Conference or the granted Discretionary
Case Disposition Conference, the court may in its discretion set a trial date, schedule any
necessary pretrial hearings, or schedule another conference. Each of these conferences
shall be held in open court with the defendant present.
(e) Pretrial Hearings. Hearings to resolve issues relating to the admissibility of
statements by defendant, pretrial identifications of defendant, sound recordings, and
motions to suppress shall be held prior to the Pretrial Conference, unless upon request of
the movant at the time the motion is filed, the court orders that the motion be reserved for
the time of trial. Upon a showing of good cause, hearings as to admissibility of other
evidence may also be held pretrial.
(f) Pretrial Conference. If the court determines that discovery is complete; that all
motions have been decided or scheduled in accordance with paragraph (e); and that all
reasonable efforts to dispose of the case without trial have been made and it appears that
further negotiations or an additional conference will not result in disposition of the case, or
progress toward disposition of the case, the judge shall conduct a pretrial conference. The
conference shall be conducted in open court with the prosecutor, defense counsel and the
defendant present. Unless objected to by a party, the court shall ask the prosecutor to
describe, without prejudice, the case including the salient facts and anticipated proofs and
shall address the defendant to determine that the defendant understands: (1) the State's
final plea offer, if one exists; (2) the sentencing exposure for the offenses charged, if
convicted; (3) that ordinarily a negotiated plea should not be accepted after the pretrial
conference and a trial date has been set; (4) the nature, meaning and consequences of
the fact that a negotiated plea may not be accepted after the pretrial conference has been
conducted and a trial date has been set; and (5) that the defendant has a right to reject the
plea offer and go to trial and that if the defendant goes to trial the State must prove the
case beyond a reasonable doubt. If the case is not otherwise disposed of, a pretrial
memorandum shall be prepared in a form prescribed by the Administrative Director of the
Courts. The pretrial memorandum shall be reviewed on the record with counsel and the
defendant present and shall be signed by the judge who, in consultation with counsel, shall
fix the trial date. No admissions made by the defendant or defendant's attorney at the
conference shall be used against the defendant unless the admissions are reduced to
writing and signed by the defendant and defendant's attorney. The court shall also inform
the defendant of the right to be present at trial, the trial date set, and the consequences of
a failure to appear for trial, including the possibility that the trial will take place in
defendant's absence.
Note: Source-R.R. 3:5-1. Paragraph (b) deleted and new paragraph (b) adopted July 7, 1971 to be effective September 13, 1971; paragraph (b) amended July 29, 1977 to be effective September 6, 1977; paragraph (a) amended and paragraph (b) deleted July 21, 1980 to be effective September 8; 1980; paragraph (a) amended July 14, 1992 to be effective September 1, 1992; first three sentences of former paragraph (a) amended and redesignated paragraph (c), last sentence of former paragraph (a) amended and moved to new paragraph (e), new paragraphs (a), (b), (d) and (e) adopted July 13, 1994 to be effective January 1,1995; paragraph (e) amended July 12, 2002 to be effective September 3, 2002; paragraph (c) amended July 16, 2009 to be effective September 1, 2009; caption, paragraph (a), paragraph (b) caption and text, and paragraph (c) amended December 4, 2012 to be effective January 1, 2013; caption amended, paragraph (a) caption and text amended, former paragraph (b) amended and redesignated as paragraph (c), former paragraph (c) caption and text amended and redesignated as paragraph (b), paragraph (d) amended, new paragraph (e) added, and former paragraph (e) amended and redesignated as paragraph (f) April 12, 2016 to be effective May 20, 2016; paragraphs (b) and (c) amended, former paragraph (d) amended and redesignated as paragraph (e), former paragraph (e) caption and text amended and redesignated as paragraph (d), and paragraph (f) amended August 1, 2016 to be effective September 1, 2016.
Conferences; Pretrial Hearings; Pretrial Conference
(a) Post-Indictment Procedure. When an indictment is returned, or an indictment
sealed pursuant to R. 3:6-8 is unsealed, a copy of the indictment, together with all
available discovery as provided for in R. 3:13-3(b)(1) for each defendant named therein,
shall be either delivered to the criminal division manager's office, or be available through
the prosecutor's office. If a plea offer is tendered, it must be in writing and should be
included in the discovery package. Upon the return or unsealing of the indictment the
defendant shall be notified in writing by the criminal division manager's office of the date,
time and location to appear for arraignment which shall occur within 14 days of the return
or unsealing of the indictment. The criminal division manager's office shall ascertain
whether the defendant is represented by counsel and that an appearance has been filed
pursuant to Rule 3:8-1. Upon receipt of the indictment by the criminal division manager's
office, counsel for the defendant shall immediately be notified electronically of the return or
unsealing of the indictment and the date, time and location of the arraignment. If the
defendant is unrepresented, the criminal division manager's office shall ascertain whether
the defendant has completed an application form for public defender services and the
status of that application.
(b) Arraignment; In Open Court.
(1) The arraignment shall be conducted in open court no later than 14 days
after the return or unsealing of the indictment. If the defendant is unrepresented at
arraignment, upon completion of an application for services of the Public Defender, the
court may assign the Office of the Public Defender to represent the defendant for purposes
of the arraignment.
(2) At the arraignment, the judge shall (i) advise the defendant of the
substance of the charge; (ii) confirm that if the defendant is represented by the public
defender, discovery has been obtained, or if the defendant has retained private counsel,
discovery has been requested pursuant to R. 3:13-3(b)(1), or counsel has affirmatively
stated that discovery will not be requested; (iii) confirm that the defendant has reviewed
with counsel the indictment and, if obtained, the discovery; (iv) if so requested, allow the
defendant to apply for pretrial intervention; and (v) inform all parties of their obligation to
redact confidential personal identifiers from any documents submitted to the court in
accordance with Rule 1:38-7(b).
(3) The defendant shall enter a plea to the charges. If the plea is not guilty,
counsel shall report on the results of plea negotiations and such other matters discussed
by the parties which shall promote a fair and expeditious disposition of the case. Unless
otherwise instructed by the court, at the arraignment counsel shall advise the court of their
intention to make motions pursuant to R. 3:10-2(a).
(c) Meet and Confer Requirement; Plea Offer. Prior to the Initial Case Disposition
Conference, the prosecutor and the defense attorney shall discuss the case, including any
plea offer and any outstanding or anticipated motions, and shall report thereon at the Initial
Case Disposition Conference. The parties shall discuss any other matters as instructed by
the court. The prosecutor and defense counsel shall also confer and attempt to reach
agreement on any discovery issues, including any issues pertaining to discovery provided
through the use of CD, DVD, e-mail, internet or other electronic means. Any plea offer to
be made by the prosecutor shall be in writing and shall be included in the post-indictment
discovery package.
(d) Disposition Conferences. After arraignment, the court shall conduct the Initial
Case Disposition Conference, the Final Case Disposition Conference and the Pretrial
Conference, as described in paragraph (f) of this rule. At the Initial Case Disposition
Conference, if not filed consistent with R. 3:10-2(a), the court shall set date(s) for
submission of briefs, the hearing of pretrial motions, and schedule a Final Case Disposition
Conference, if necessary, according to the differentiated needs of each case. For good
cause, prior to the Pretrial Conference, the court may schedule a Discretionary Case
Disposition Conference. In advance of any scheduled disposition conference, the
prosecutor and the defense attorney shall discuss the case, including any plea offer and
any outstanding or anticipated motions, and shall report thereon at the conference. The
prosecutor and defense counsel shall also confer and attempt to reach an agreement as to
any discovery issues, including any issues pertaining to discovery provided through the
use of CD, DVD, email, internet or other electronic means. Any plea offer to be made by
the prosecutor shall be in writing and forwarded to the defendant's attorney. At the
conclusion of either the Final Case Disposition Conference or the granted Discretionary
Case Disposition Conference, the court may in its discretion set a trial date, schedule any
necessary pretrial hearings, or schedule another conference. Each of these conferences
shall be held in open court with the defendant present.
(e) Pretrial Hearings. Hearings to resolve issues relating to the admissibility of
statements by defendant, pretrial identifications of defendant, sound recordings, and
motions to suppress shall be held prior to the Pretrial Conference, unless upon request of
the movant at the time the motion is filed, the court orders that the motion be reserved for
the time of trial. Upon a showing of good cause, hearings as to admissibility of other
evidence may also be held pretrial.
(f) Pretrial Conference. If the court determines that discovery is complete; that all
motions have been decided or scheduled in accordance with paragraph (e); and that all
reasonable efforts to dispose of the case without trial have been made and it appears that
further negotiations or an additional conference will not result in disposition of the case, or
progress toward disposition of the case, the judge shall conduct a pretrial conference. The
conference shall be conducted in open court with the prosecutor, defense counsel and the
defendant present. Unless objected to by a party, the court shall ask the prosecutor to
describe, without prejudice, the case including the salient facts and anticipated proofs and
shall address the defendant to determine that the defendant understands: (1) the State's
final plea offer, if one exists; (2) the sentencing exposure for the offenses charged, if
convicted; (3) that ordinarily a negotiated plea should not be accepted after the pretrial
conference and a trial date has been set; (4) the nature, meaning and consequences of
the fact that a negotiated plea may not be accepted after the pretrial conference has been
conducted and a trial date has been set; and (5) that the defendant has a right to reject the
plea offer and go to trial and that if the defendant goes to trial the State must prove the
case beyond a reasonable doubt. If the case is not otherwise disposed of, a pretrial
memorandum shall be prepared in a form prescribed by the Administrative Director of the
Courts. The pretrial memorandum shall be reviewed on the record with counsel and the
defendant present and shall be signed by the judge who, in consultation with counsel, shall
fix the trial date. No admissions made by the defendant or defendant's attorney at the
conference shall be used against the defendant unless the admissions are reduced to
writing and signed by the defendant and defendant's attorney. The court shall also inform
the defendant of the right to be present at trial, the trial date set, and the consequences of
a failure to appear for trial, including the possibility that the trial will take place in
defendant's absence.
Note: Source-R.R. 3:5-1. Paragraph (b) deleted and new paragraph (b) adopted July 7, 1971 to be effective September 13, 1971; paragraph (b) amended July 29, 1977 to be effective September 6, 1977; paragraph (a) amended and paragraph (b) deleted July 21, 1980 to be effective September 8; 1980; paragraph (a) amended July 14, 1992 to be effective September 1, 1992; first three sentences of former paragraph (a) amended and redesignated paragraph (c), last sentence of former paragraph (a) amended and moved to new paragraph (e), new paragraphs (a), (b), (d) and (e) adopted July 13, 1994 to be effective January 1,1995; paragraph (e) amended July 12, 2002 to be effective September 3, 2002; paragraph (c) amended July 16, 2009 to be effective September 1, 2009; caption, paragraph (a), paragraph (b) caption and text, and paragraph (c) amended December 4, 2012 to be effective January 1, 2013; caption amended, paragraph (a) caption and text amended, former paragraph (b) amended and redesignated as paragraph (c), former paragraph (c) caption and text amended and redesignated as paragraph (b), paragraph (d) amended, new paragraph (e) added, and former paragraph (e) amended and redesignated as paragraph (f) April 12, 2016 to be effective May 20, 2016; paragraphs (b) and (c) amended, former paragraph (d) amended and redesignated as paragraph (e), former paragraph (e) caption and text amended and redesignated as paragraph (d), and paragraph (f) amended August 1, 2016 to be effective September 1, 2016.
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