The Jersey Lawyer

After both the New Jersey Supreme Court and the Criminal Practice Committee declined to allocate the burden of proof to either the State or the defendant during a bail source hearing pursuant to N.J.S.A. 2A:162-13(b) and Rule3:26-8(b), Superior Court Judge Mitchel E. Ostrer of Mercer County held that the State bears the burden of persuasion and must prove that the bail offered by the defendant is inadequate by a preponderance of the evidence.  Once the State makes a prima facie case that the bail offered by the defendant is inadequate, the burden of proof shifts to the defendant to produce evidence to the contrary.

In State v. Wright, defendant Jermaine Wright was arrested and was alleged to have possessed 305 grams of powder cocaine and 70 grams of crack cocaine.  Bail was set by the municipal court at $150,000 cash or bond.  A bail hearing was held before the Presiding Judge of the Mercer County Superior Court.  During the hearing, the State argued that defendant was a flight risk because he faced exposure to significant terms of incarceration.  The Presiding Judge set bail at $200,000.

After the Presiding Judge announced his decision, the State announced its interest for a bail source hearing.  Defendant was then indicted on several charges, including first degree possession of CDS with intent to distribute.  Shortly thereafter, the bail source hearing was assigned to Judge Ostrer.  The first issue raised by the Court in anticipation of the hearing was whether the State or the defendant bore the burden of persuasion at the bail source hearing.

The purpose of a bail source hearing is for the Court to inquire into the source of bail money posted by a defendant so as to determine whether the bail posted is adequate to secure the defendant’s presence during subsequent court proceedings.  The Court must hold a bail source hearing upon a prosecutor’s request if the defendant is charged with a crime subject to bail restrictions, which includes first and second degree drug offenses.  If the Court holds a hearing, the Court may approve the issuance of bail only upon affirmatively finding that the source is reliable, the source’s relationship to the defendant is close enough to assure his appearance in court, and the funds are untainted.

After reviewing general principles of allocations of burden of proof, the Court held that the initial burden of proof should be upon the prosecution.  The Court first noted that the New Jersey State Constitution guarantees that all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great.  The Constitution also expressly bans excessive bails.  The right to bail, which is grounded in the presumption of innocence, is a fundamental right founded in freedom and human dignity.  Because of the defendant’s strong interest in liberty before conviction, the burden of persuasion should be on the State.

Anyone arrested in New Jersey or charged with a criminal offense in New Jersey should consult with a New Jersey criminal defense lawyer.  A New Jersey criminal defense lawyer is invaluable in protecting a defendant’s liberty.