Rule 3:26-2. Authority to Set Conditions of Pretrial Release
(a) Authority to Set Conditions of Pretrial Release. A Superior Court judge may
set conditions of pretrial release for a person charged with any offense and may set
monetary bail or take any action in accordance with the Uniform Criminal Extradition
Law, N.J.S.A. 2A:160-6 et seq., for any person arrested in any extradition proceeding.
Conditions of pretrial release for any offense except a person arrested in any extradition
proceeding may be set by any other judge provided that judge is setting conditions of
pretrial release as part of a first appearance pursuant to Rule 3:4-2(b).
(b) Conditions of Release. Conditions of pretrial release shall be set pursuant to
R. 3:4-2 (d) or (e) for persons for whom a complaint-warrant or a warrant on indictment
is issued for an initial charge involving an indictable offense or a disorderly persons
offense. A defendant who is the subject of a warrant on indictment is an eligible
defendant pursuant to N.J.S.A. 2A:162-15 et seq.
(1) The court shall order the pretrial release of a defendant on personal
recognizance or on the execution of an unsecured appearance bond when, after
considering all the circumstances, the Pretrial Services Program’s risk assessment and
recommendations on conditions of release prepared pursuant to N.J.S.A. 2A:162-25,
and any information that may be provided by a prosecutor or the defendant, the court
finds that the release would reasonably assure the defendant’s appearance in court
when required, the protection of the safety of any other person or the community, and
that the defendant will not obstruct or attempt to obstruct the criminal justice process.
When the court orders pretrial release pursuant to this subparagraph, the court shall, in
the document authorizing the release, notify the defendant that the defendant must
appear in court when required and that a failure to appear may result in the issuance of
a warrant for the defendant’s arrest.
(2) If the court does not find, after consideration, that the release
described in subparagraph (1) of this paragraph will reasonably assure the defendant’s
appearance in court when required, the protection of the safety of any other person or
the community, and that defendant will not obstruct or attempt to obstruct the criminal
justice process, the court may order the pretrial release of the defendant subject to the
following:
(A) the defendant shall appear in court as required;
(B) the defendant shall not commit any offense during the period of
release;
(C) the defendant shall avoid all contact with an alleged victim of the
crime; and
(D) the defendant shall avoid all contact with all witnesses who may testify
concerning the offense that are named in the document authorizing the defendant’s
release or in a subsequent court order.
The court may impose other non-monetary conditions of release as set
forth in subparagraph (3).
(3) The non-monetary condition or conditions of a pretrial release ordered
by the court pursuant to this paragraph shall be the least restrictive condition, or
combination of conditions, that the court determines will reasonably assure the
defendant’s appearance in court when required, the protection of the safety of any other
person or community, and that the defendant will not obstruct or attempt to obstruct the
criminal justice process, which may include that the defendant:
(A) remain in the custody of a designated person, who agrees to assume
supervision and to report any violation of a release condition to the court, if the
designated person is able to reasonably assure the court that the defendant will appear
in court when required, will not pose a danger to the safety of any other person or the
community, and will not obstruct or attempt to obstruct the criminal justice process;
(B) will maintain employment, or, if unemployed, actively seek
employment;
(C) maintain or commence an educational program;
(D) abide by specified restrictions on personal associations, place of
abode or travel;
(E) report on a regular basis to a designated law enforcement agency, or
other agency, or Pretrial Services Program;
(F) comply with a specified curfew;
(G) refrain from possessing a firearm, destructive device, or other
dangerous weapon;
(H) refrain from excessive use of alcohol, or any use of a narcotic drug or
other controlled substance without a prescription by a licensed medical practitioner;
(I) undergo available medical, psychological, or psychiatric treatment,
including treatment for drug or alcohol dependency, and remain in a specified institution
if required for that purpose;
(J) return to custody for specified hours following release for employment,
schooling, or other limited purposes;
(K) be placed in a pretrial home supervision capacity with or without the
use of an approved electronic monitoring device. The court may order the defendant to
pay all or a portion of the costs of the electronic monitoring, but the court may waive the
payment for a defendant who is indigent and who has demonstrated to the court an
inability to pay all or a portion of the costs; or
(L) satisfy any other condition that is necessary to reasonably assure the
defendant’s appearance in court when required, the protection of the safety of any other
person or the community, and that the defendant will not obstruct or attempt to obstruct
the criminal justice process.
If the court enters a release order that is contrary to the release
recommendations, including release conditions, of the Pretrial Services Program
obtained by using a risk assessment instrument, then the court shall set forth in the
document authorizing the release its reasons for not accepting the release
recommendations.
(c) Modification of Release Conditions.
(1) Monetary Bail Reductions. If a defendant is unable to post monetary
bail, the defendant shall have that monetary bail reviewed promptly and may file an
application with the court seeking a monetary bail reduction which shall be heard in an
expedited manner.
(2) Review of Conditions of Release. Except as provided in paragraphs
(d) or (e) a Superior Court judge may review the conditions of pretrial release set
pursuant to Rule 3:26-1 on its own motion, or upon motion by the prosecutor or the
defendant alleging that there has been a material change in circumstance that justifies a
change in conditions. Any review of conditions pursuant to this rule shall be decided
within 30 days of the filing of the motion. Upon a finding that there has been a material
change in circumstance, the judge may set new conditions of release but may not order
the defendant detained except as provided in Rule 3:4A.
(d) Violations of Conditions of Release.
(1) Violation of Condition of Release When Defendant Released from Jail.
Upon the motion of the prosecutor, when a defendant for whom a complaint-warrant or
warrant on indictment was issued is released from custody, the court, upon a finding, by
a preponderance of the evidence, that the defendant while on release violated a
restraining order or condition of release, or upon a finding of probable cause to believe
that the defendant has committed a new crime while on release, may revoke the
defendant's release and order that the defendant be detained pending trial where the
court, after considering all relevant circumstances including but not limited to the nature
and seriousness of the violation or criminal act committed, finds clear and convincing
evidence that no monetary bail, non-monetary conditions of release or combination of
monetary bail and conditions would reasonably assure the defendant's appearance in
court when required, the protection of the safety of any other person or the community,
or that the defendant will not obstruct or attempt to obstruct the criminal justice process.
(2) Hearing on Violations of Conditions of Release. The defendant shall
have a right to be represented by counsel and, if indigent, to have counsel appointed if
he or she cannot afford counsel. The defendant shall be afforded the right to testify, to
present witnesses, to cross-examine witnesses who appear at the hearing and to
present information by proffer or otherwise. Testimony of the defendant given during
the hearing shall not be admissible on the issue of guilt in any other judicial proceeding,
but the testimony shall be admissible in proceedings related to the defendant’s
subsequent failure to appear, proceedings related to any subsequent offenses
committed during the defendant’s release, proceedings related to the defendant’s
subsequent violation of any conditions of release, any subsequent perjury proceedings,
and for the purpose of impeachment in any subsequent proceedings. The defendant
shall have the right to be present at the hearing. The rules governing admissibility of
evidence in criminal trials shall not apply to the presentation and consideration of
information at the hearing.
(3) Discovery. If the prosecutor is seeking release revocation, and the
prosecutor had not previously moved to detain defendant, then the prosecutor no later
than 24 hours before the release revocation hearing must comply with the discovery
obligations as set forth in R. 3:4-2(c)(2), as well as provide defendant with (A) all
statements or reports relating to evidence the State relies on to establish the violation,
(B) all statements or reports relating to the factors listed in N.J.S.A. 2A:162-24 that the
State relies upon to support release revocation at the hearing, and (C) all exculpatory
evidence.
(e) Person Released on a Complaint-Summons or Summons on Indictment Who
is Thereafter Arrested on a Warrant for a Failure to Appear. If a defendant charged on a
complaint-summons or a summons on indictment is subsequently arrested on a warrant
for a failure to appear in court when required, that defendant shall be eligible for release
on personal recognizance or release on monetary bail by sufficient sureties at the
discretion of the court. If monetary bail was not set when an arrest warrant for the
defendant was issued, the court shall set monetary bail without unnecessary delay, but
in no case later than 12 hours after arrest.
Note: Source -- R.R. 3:9-3(a) (b) (c); amended July 24, 1978 to be effective September 11, 1978;
amended May 21, 1979 to be effective June 1, 1979; amended August 28, 1979 to be effective
September 1, 1979; amended July 26, 1984 to be effective September 10, 1984; caption amended,
former text amended and redesignated paragraph (a) and new paragraphs (b), (c) and (d) adopted July
13, 1994 to be effective January 1, 1995; paragraph (b) amended January 5, 1998 to be effective
February 1, 1998; paragraph (d) amended July 9, 2013 to be effective September 1, 2013; paragraph (a) amended July 27, 2015 to be effective September 1, 2015; caption amended, paragraphs (a) and (b) caption and text amended, former paragraphs (c) and (d) deleted, and new paragraphs (c), (d), and (e) adopted August 30, 2016 to be effective January 1, 2017; paragraphs (b) and (d)(1) amended November 14, 2016 to be effective January 1, 2017; paragraph (a) amended December 6, 2016 to be effective January 1, 2017; paragraphs (b) and (d)(1) amended, and caption and text of paragraph (e) amended July 28, 2017 to be effective September 1, 2017; paragraphs (a) and (b) amended, subparagraph (d)(2) amended, and new subparagraph (d)(3) adopted July 27, 2018 to be effective September 1, 2018.
(a) Authority to Set Conditions of Pretrial Release. A Superior Court judge may
set conditions of pretrial release for a person charged with any offense and may set
monetary bail or take any action in accordance with the Uniform Criminal Extradition
Law, N.J.S.A. 2A:160-6 et seq., for any person arrested in any extradition proceeding.
Conditions of pretrial release for any offense except a person arrested in any extradition
proceeding may be set by any other judge provided that judge is setting conditions of
pretrial release as part of a first appearance pursuant to Rule 3:4-2(b).
(b) Conditions of Release. Conditions of pretrial release shall be set pursuant to
R. 3:4-2 (d) or (e) for persons for whom a complaint-warrant or a warrant on indictment
is issued for an initial charge involving an indictable offense or a disorderly persons
offense. A defendant who is the subject of a warrant on indictment is an eligible
defendant pursuant to N.J.S.A. 2A:162-15 et seq.
(1) The court shall order the pretrial release of a defendant on personal
recognizance or on the execution of an unsecured appearance bond when, after
considering all the circumstances, the Pretrial Services Program’s risk assessment and
recommendations on conditions of release prepared pursuant to N.J.S.A. 2A:162-25,
and any information that may be provided by a prosecutor or the defendant, the court
finds that the release would reasonably assure the defendant’s appearance in court
when required, the protection of the safety of any other person or the community, and
that the defendant will not obstruct or attempt to obstruct the criminal justice process.
When the court orders pretrial release pursuant to this subparagraph, the court shall, in
the document authorizing the release, notify the defendant that the defendant must
appear in court when required and that a failure to appear may result in the issuance of
a warrant for the defendant’s arrest.
(2) If the court does not find, after consideration, that the release
described in subparagraph (1) of this paragraph will reasonably assure the defendant’s
appearance in court when required, the protection of the safety of any other person or
the community, and that defendant will not obstruct or attempt to obstruct the criminal
justice process, the court may order the pretrial release of the defendant subject to the
following:
(A) the defendant shall appear in court as required;
(B) the defendant shall not commit any offense during the period of
release;
(C) the defendant shall avoid all contact with an alleged victim of the
crime; and
(D) the defendant shall avoid all contact with all witnesses who may testify
concerning the offense that are named in the document authorizing the defendant’s
release or in a subsequent court order.
The court may impose other non-monetary conditions of release as set
forth in subparagraph (3).
(3) The non-monetary condition or conditions of a pretrial release ordered
by the court pursuant to this paragraph shall be the least restrictive condition, or
combination of conditions, that the court determines will reasonably assure the
defendant’s appearance in court when required, the protection of the safety of any other
person or community, and that the defendant will not obstruct or attempt to obstruct the
criminal justice process, which may include that the defendant:
(A) remain in the custody of a designated person, who agrees to assume
supervision and to report any violation of a release condition to the court, if the
designated person is able to reasonably assure the court that the defendant will appear
in court when required, will not pose a danger to the safety of any other person or the
community, and will not obstruct or attempt to obstruct the criminal justice process;
(B) will maintain employment, or, if unemployed, actively seek
employment;
(C) maintain or commence an educational program;
(D) abide by specified restrictions on personal associations, place of
abode or travel;
(E) report on a regular basis to a designated law enforcement agency, or
other agency, or Pretrial Services Program;
(F) comply with a specified curfew;
(G) refrain from possessing a firearm, destructive device, or other
dangerous weapon;
(H) refrain from excessive use of alcohol, or any use of a narcotic drug or
other controlled substance without a prescription by a licensed medical practitioner;
(I) undergo available medical, psychological, or psychiatric treatment,
including treatment for drug or alcohol dependency, and remain in a specified institution
if required for that purpose;
(J) return to custody for specified hours following release for employment,
schooling, or other limited purposes;
(K) be placed in a pretrial home supervision capacity with or without the
use of an approved electronic monitoring device. The court may order the defendant to
pay all or a portion of the costs of the electronic monitoring, but the court may waive the
payment for a defendant who is indigent and who has demonstrated to the court an
inability to pay all or a portion of the costs; or
(L) satisfy any other condition that is necessary to reasonably assure the
defendant’s appearance in court when required, the protection of the safety of any other
person or the community, and that the defendant will not obstruct or attempt to obstruct
the criminal justice process.
If the court enters a release order that is contrary to the release
recommendations, including release conditions, of the Pretrial Services Program
obtained by using a risk assessment instrument, then the court shall set forth in the
document authorizing the release its reasons for not accepting the release
recommendations.
(c) Modification of Release Conditions.
(1) Monetary Bail Reductions. If a defendant is unable to post monetary
bail, the defendant shall have that monetary bail reviewed promptly and may file an
application with the court seeking a monetary bail reduction which shall be heard in an
expedited manner.
(2) Review of Conditions of Release. Except as provided in paragraphs
(d) or (e) a Superior Court judge may review the conditions of pretrial release set
pursuant to Rule 3:26-1 on its own motion, or upon motion by the prosecutor or the
defendant alleging that there has been a material change in circumstance that justifies a
change in conditions. Any review of conditions pursuant to this rule shall be decided
within 30 days of the filing of the motion. Upon a finding that there has been a material
change in circumstance, the judge may set new conditions of release but may not order
the defendant detained except as provided in Rule 3:4A.
(d) Violations of Conditions of Release.
(1) Violation of Condition of Release When Defendant Released from Jail.
Upon the motion of the prosecutor, when a defendant for whom a complaint-warrant or
warrant on indictment was issued is released from custody, the court, upon a finding, by
a preponderance of the evidence, that the defendant while on release violated a
restraining order or condition of release, or upon a finding of probable cause to believe
that the defendant has committed a new crime while on release, may revoke the
defendant's release and order that the defendant be detained pending trial where the
court, after considering all relevant circumstances including but not limited to the nature
and seriousness of the violation or criminal act committed, finds clear and convincing
evidence that no monetary bail, non-monetary conditions of release or combination of
monetary bail and conditions would reasonably assure the defendant's appearance in
court when required, the protection of the safety of any other person or the community,
or that the defendant will not obstruct or attempt to obstruct the criminal justice process.
(2) Hearing on Violations of Conditions of Release. The defendant shall
have a right to be represented by counsel and, if indigent, to have counsel appointed if
he or she cannot afford counsel. The defendant shall be afforded the right to testify, to
present witnesses, to cross-examine witnesses who appear at the hearing and to
present information by proffer or otherwise. Testimony of the defendant given during
the hearing shall not be admissible on the issue of guilt in any other judicial proceeding,
but the testimony shall be admissible in proceedings related to the defendant’s
subsequent failure to appear, proceedings related to any subsequent offenses
committed during the defendant’s release, proceedings related to the defendant’s
subsequent violation of any conditions of release, any subsequent perjury proceedings,
and for the purpose of impeachment in any subsequent proceedings. The defendant
shall have the right to be present at the hearing. The rules governing admissibility of
evidence in criminal trials shall not apply to the presentation and consideration of
information at the hearing.
(3) Discovery. If the prosecutor is seeking release revocation, and the
prosecutor had not previously moved to detain defendant, then the prosecutor no later
than 24 hours before the release revocation hearing must comply with the discovery
obligations as set forth in R. 3:4-2(c)(2), as well as provide defendant with (A) all
statements or reports relating to evidence the State relies on to establish the violation,
(B) all statements or reports relating to the factors listed in N.J.S.A. 2A:162-24 that the
State relies upon to support release revocation at the hearing, and (C) all exculpatory
evidence.
(e) Person Released on a Complaint-Summons or Summons on Indictment Who
is Thereafter Arrested on a Warrant for a Failure to Appear. If a defendant charged on a
complaint-summons or a summons on indictment is subsequently arrested on a warrant
for a failure to appear in court when required, that defendant shall be eligible for release
on personal recognizance or release on monetary bail by sufficient sureties at the
discretion of the court. If monetary bail was not set when an arrest warrant for the
defendant was issued, the court shall set monetary bail without unnecessary delay, but
in no case later than 12 hours after arrest.
Note: Source -- R.R. 3:9-3(a) (b) (c); amended July 24, 1978 to be effective September 11, 1978;
amended May 21, 1979 to be effective June 1, 1979; amended August 28, 1979 to be effective
September 1, 1979; amended July 26, 1984 to be effective September 10, 1984; caption amended,
former text amended and redesignated paragraph (a) and new paragraphs (b), (c) and (d) adopted July
13, 1994 to be effective January 1, 1995; paragraph (b) amended January 5, 1998 to be effective
February 1, 1998; paragraph (d) amended July 9, 2013 to be effective September 1, 2013; paragraph (a) amended July 27, 2015 to be effective September 1, 2015; caption amended, paragraphs (a) and (b) caption and text amended, former paragraphs (c) and (d) deleted, and new paragraphs (c), (d), and (e) adopted August 30, 2016 to be effective January 1, 2017; paragraphs (b) and (d)(1) amended November 14, 2016 to be effective January 1, 2017; paragraph (a) amended December 6, 2016 to be effective January 1, 2017; paragraphs (b) and (d)(1) amended, and caption and text of paragraph (e) amended July 28, 2017 to be effective September 1, 2017; paragraphs (a) and (b) amended, subparagraph (d)(2) amended, and new subparagraph (d)(3) adopted July 27, 2018 to be effective September 1, 2018.
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