Criminal Justice Reform - Prosecutor's Role in Pretrial Monitoring Violations
Proceedings
Date: December 30, 2016
This directive outlines the procedure
for the · prosecution of violations of conditions
of
pretrial release as referenced in R. 3:26-2,
· which establishes, among other things,
two types of
proceedings for violations of conditions
of pretrial release: (1) violations filed by the State
seeking revocation of pretrial release,
and (2) violations filed by the State or the court on its own
motion seeking modification of
conditions of release.
Although violations of conditions of
pretrial release are new proceedings under Criminal
Justice Reform, the role of the prosecutor in similar types of
proceedings has previously been
considered. Specifically, on July 11, 1966, then Administrative Director Edward B.
McConnell
issued Directive #34A-65, which
established that Prosecutors, not Probation Officers, are
responsible for the prosecution of
defendants charged with violating the terms of their probation.
Thereafter, in 2006, the issue was once again revisited due to considerable variation
in vicinage
practice with respect to the prosecution
of violations of probation (VOPs). In some counties, the
Prosecutor was involved in VOP
proceedings, while in others Probation staff was handling all
aspects of the VOP process. As a result, the Conferences of Criminal Presiding Judges and
Vicinage Chief Probation Officers
reviewed the practice at that time and concluded that the
policy contained in the 1966 Directive
should be reaffirmed. The Criminal Presiding
Judges
reasoned that because a VOP involves a
violation of court ordered conditions, it is akin to
contempt for violating a court order,
and since the Prosecutor represents the State's interest at
contempt proceedings, the same should hold true for VOP proceedings. The
Presiding Criminal
Judges also reasoned that the Prosecutor
has a fundamental role at VOP proceedings to
represent the interests of the State and
the victim(s), and that the Probation Officer ought not to
act as both witness and prosecutor. At
the direction of the Supreme Court, then Acting
Administrative Director Philip S.
Carchman on April 7, 2006 issued Directive #04-06 restating
the substance of the earlier directive.
The same reasoning holds true for violations of conditions of pretrial release.
Conditions
of pretrial release are set via court
order; therefore, violations of these conditions are likewise
akin to contempt proceedings. Since the prosecutor represents the State's interest at both
contempt and VOP proceedings, the same
should hold true for violations of
conditions of pretrial
release filed pursuant to R. 3:26-2. During the pretrial phase of a criminal proceeding,
the
prosecutor plays a vital role in
representing the interest of the State and victims during the
pretrial process. Further, as in the case of VOP proceedings, Pretrial Services
Officers should
not be required to act as both the
witness and the prosecutor during violations of conditions of
pretrial release proceedings. Therefore, to ensure statewide consistency, it must follow that
County Prosecutors, and not Pretrial
Services Officers, are responsible for
the prosecution of
violations of conditions of pretrial
release filed pursuant to R. 3:26-2.
Questions regarding this directive or the procedure for violations of conditions of
pretrial
release may be directed to Sue
Callaghan, Assistant Director for Criminal Practice, by email at
Sue.Callaghan@njcourts.gov or by phone at (609) 292-4638.
cc: Chief Justice Stuart Rabner
Criminal Presiding Judges
Family Presiding Judges
Municipal Presiding Judges
Steven D. Banville, Chief of Staff
AOC Directors and Assistant Directors
Clerks of Court
Melaney Payne, Special Assistant
Ann Marie Fleury, Special Assistant
Criminal Division Managers
Family Division
Managers
Municipal Division Managers
G.A.G.
Assistant Criminal Division Managers-Pretrial Services
I.
Isource http://www.judiciary.state.nj.us/directive/2016/dir_05_16.pdf
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