New Jersey Bail Factors. Following NJSA Rule 3:26,every non-death row defendant is entitled to bail. However, certain NJ Crimesrequire a Bail Source. In a NJ Bail Source hearing, the prosecutors and/or thejudge will determine whether the funds used to post the cash bail or secure thebail bond was acquired as a result of criminal or unlawful conduct. If it was,that bail may be forfeited to the state. Additionally, if the bail set for theDefendant to to high for the defendant to make, a skilled attorney can alwaysrequest a Bail Reduction Hearing to get the bail lowered.
The amount of Bail in NJ is typically set by a eithera Municipal Court Judge or a Superior Court Judge. Moreover, the judges do notget to arbitrarily decide the bail amount. The legislature has provided specificBail Guidelines. These Bail Guidelines provide specific monetary ranges whichthe Judges may properly set the initial bail, without hearing all the evidencein the case. Also, following Rule
In most minor offenses, when a person, also known asa defendant, is charged with a fourth degree felony, a disorderly personsoffense or a petty disorderly persons’ offense, that defendant should not berequired to post bail exceeding $2,500, unless the Court finds that the personpresents a serious threat to physical safety or there are other circumstanceswhich would not reasonably insure the appearance of the person in Court asrequired. N.J.S.A. 2C:6-1.
In all other cases involving serious crimes, a personis entitled to apply for bail upon arrest and while charges are pending and theCourt will consider such application with a view toward ensuring that thedefendant will be present in Court as required.
Generally, the Court will consider the followingfactors in deciding on bail:
3. defendant’s reputation in thecommunity;
4. the length of defendant’sresidence in the community;
5. defendant’s family ties andrelationships;
6. defendant’s employment status andfinancial condition;
7. the identity of responsiblemembers of the community who would vouch for defendant’s reliability;and
8. any other factors bearing onwhether or not the defendant is a risk for failure to appear.
The Court can establish such conditions andrestrictions on bail as it deems appropriate in each case.
NJSA RULE 3:26. Bail
3:26-1. Right to Bail Before Conviction
(a) Persons Entitled; Standards for Fixing. Allpersons, except those charged with crimes punishable by death when theprosecutor presents proof that there is a likelihood of conviction andreasonable grounds to believe that the death penalty may be imposed, shall bebailable before conviction on such terms as, in the judgment of the court, willensure their presence in court when required. Thefactors to be considered in setting bail are: (1) the seriousness of the crimecharged against defendant, the apparent likelihood of conviction, and the extentof the punishment prescribed by the Legislature; (2) defendant’s criminalrecord, if any, and previous record on bail, if any; (3) defendant’s reputation,and mental condition; (4) the length of defendant’s residence in the community;(5) defendant’s family ties and relationships; (6) defendant’s employmentstatus, record of employment, and financial condition; (7) the identity ofresponsible members of the community who would vouch for defendant’sreliability; (8) any other factors indicating defendant’s mode of life, or tiesto the community or bearing on the risk of failure to appear, and, particularly,the general policy against unnecessary sureties and detention. In its discretionthe court may order the release of a person on that person’s own recognizance.The court may also impose terms or conditions appropriate to the defendant’srelease including conditions necessary to protect persons in thecommunity.
(b) Restrictions on Contact. If the court imposesconditions of bail that include restrictions on contact between the defendantand defendant’s minor child, (1) a copy of the order imposing the restrictionsshall be transmitted to the Family Part, and (2) such restrictions shall notaffect contact authorized by an order of the Family Part in a childabuse/neglect case entered after any restriction on contact was imposed as partof a bail order.
(c) Crimes with Bail Restrictions Defined in N.J.S.A.2A:162-12. If a defendant is charged with a crime with bail restrictions asdefined in N.J.S.A. 2A:162-12, no later than the time of posting bail orproffering the surety or bail bond, the defendant shall provide to theprosecutor, on the Bail Source Inquiry Questionnaire promulgated by the AttorneyGeneral, relevant information about the obligor, indemnifier or person postingcash bail, the security offered, and the source of any money or property used topost the cash bail or secure the surety or bail bond.
(d) On Failure to Indict. If a person committed for acrime punishable by death is not indicted within 3 months after commitment, ajudge of the Superior Court, for good cause shown, may admit the person tobail.
(e) On Failure to Move Indictment. If an indictmentor accusation is not moved for trial within 6 months after arraignment, a judgeof the Superior Court, for cause shown, may discharge the defendant upon thedefendant’s own recognizance.
(f) Extradition Proceedings. Where a person has beenarrested in any extradition proceeding, that person may be admitted to bailexcept where that person is charged with a crime punishable by death.
Note: Source-R.R. 3:9-1(a)(b)(c)(d); paragraph (a)amended September 28, 1982 to be effective immediately; paragraphs (a), (b), (c)and (d) amended July 13, 1994 to be effective January 1, 1995; paragraph (a)amended July 10, 1998 to be effective September 1, 1998; new paragraph (b)adopted, and former paragraphs (b), (c), and (d) redesignated as paragraphs (c),(d), and (e) June 15, 2007 to be effective September 1, 2007; new paragraph (c)adopted and former paragraphs (c), (d), and (e) redesignated as paragraphs (d),(e), and (f) July 9, 2008 to be effective September 1, 2008.
3:26-2. Authority to Set Bail
(a) Authority to Set Initial Bail. A Superior Courtjudge may set bail for a person charged with any offense. Bail for any offenseexcept murder, kidnapping, manslaughter, aggravated manslaughter, aggravatedsexual assault, sexual assault, aggravated criminal sexual contact, a personarrested in any extradition proceeding or a person arrested under N.J.S.A.2C:29-9b for violating a restraining order may be set by any other judge, or inthe absence of a judge, by a municipal court administrator or deputy courtadministrator.
(b) Initial Bail Set. Initial bail shall be setpursuant to R. 3:4-1(a) or (b) on indictable or non-indictableoffenses.
(c) Review of Initial Set. Any person unable to postbail shall have his or her bail reviewed by a Superior Court judge no later thanthe next day which is neither a Saturday, Sunday nor a legal holiday.
Except in those indictable cases in which a SuperiorCourt judge has set bail, a municipal court judge has the authority to make bailrevisions up to and including the time of the defendant’s first appearancebefore the court. A municipal court judge has the authority to make bailrevisions on any non-indictable offense at any time during the course of theproceedings.
(d) Bail Reductions. A first motion for bailreduction shall be heard by the court no later than seven days after it isfiled.
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 effectiveJune 1, 1979; amended August 28, 1979 to be effective September 1, 1979; amendedJuly 26, 1984 to be effective September 10, 1984; caption amended, former textamended and redesignated paragraph (a) and new paragraphs (b), (c) and (d)adopted July 13, 1994 to be effective January 1, 1995; paragraph (b) amendedJanuary 5, 1998 to be effective February 1, 1998.
3:26-3. Bail for Witness
(a) Authority to Issue. A Superior Court judge may,on application, conduct proceedings under N.J.S.A. 2C:104-1 et seq. as to anyperson who can give testimony relevant to the prosecution or defense of apending indictment, accusation, or complaint for a crime or a criminalinvestigation before a grand jury.
(b) Application. The application shall be captionedin Superior Court and entitled “In the Matter of (name of person alleged to be amaterial witness)”. The application shall include a copy of the pendingindictment, complaint, or accusation and an affidavit containing: (1) the nameand address of the person alleged to be a material witness, (2) a summary of thefacts believed to be known by the alleged material witness and the relevance tothe criminal action or investigation, (3) the groundsfor belief that the person has material and necessary information concerning thepending criminal action or investigation, and (4) the reasons why the allegedmaterial witness is unlikely to respond to a subpoena. If the applicationrequests an arrest warrant, the affidavit shall set forth why immediate arrestis necessary.
(c) Order to Appear. If there is probable cause tosupport issuance of a material-witness order against the person named in theapplication, the court may order the person to appear at a hearing to determinewhether the person should be adjudged a material witness. The order and a copyof the application shall be served personally on the alleged material witness atleast 48 hours before the hearing, unless the judge adjusts the time period forgood cause, and shall advise the person of: (1) the time and place of thehearing, and (2) the right to be represented by an attorney and to have anattorney appointed if the person cannot afford one.
(d) Warrant for Immediate Detention. If there isclear and convincing evidence that the person will not be available as a witnessunless immediately detained, the court may issue an order requiring that theperson be brought before the court immediately. If the detention does not takeplace during regular court hours, the person shall be brought to theemergency-duty Superior Court judge. The judge shall inform the person: (1) thereason for detention, (2) the time and place of the hearing to determine whetherthe person is a material witness, and (3) that the person has a right to anattorney and to have an attorney appointed if the person cannot afford one. Thejudge shall set conditions for release, or, if there is clear and convincingevidence that the person will not be available as a witness unless detention iscontinued, the judge may order the person held until the material-witnesshearing, which shall take place as soon as practicable but no later than 48hours after detention.
(e) Detention Without Prior Court Authorization.Where a law enforcement officer has detained an alleged material witness withoutprior court authorization, the law enforcement officer shall immediately bringthe person before a Superior Court judge. If the detention does not take placeduring regular court hours, the person shall be brought to the emergent dutySuperior Court judge. The judge shall determine whether there is probable causeto believe that the person is a material witness of a crime and, if anindictment, accusation, or complaint for that crime has not issued or if a grandjury has not commenced a criminal investigation of that crime, the judge shalldetermine whether there is probable cause to believe that, within 48 hours ofthe detention, an indictment, accusation, or complaint will issue or a grandjury investigation will commence. The judge will then proceed as if anapplication for an order had been made under paragraph (b).
(f) Material Witness Hearing. At the material-witnesshearing, the person shall have the rights: (1) to be represented by an attorneyand to have an attorney appointed if the person cannot afford one, (2) to beheard and to present witnesses and evidence, and (3) unless otherwise sealed bythe court for exceptional circumstances, to have all of the evidence in supportof the application, and (4) to confront and cross-examine witnesses. If there isprobable cause to believe that the person possesses information material to theprosecution of a defense of a pending indictment, accusation or complaint for acrime, or a criminal investigation before a grand jury and is unlikely torespond to subpoena, the judge shall: (1) set forth findings of facts on therecord, and (2) set the conditions of release of the materialwitness.
(g) Conditions of Release orDetention. Conditions of release for a material-witness or for a person held onan application for a material-witness order shall be the least restrictive toeffect the order of the court including but not limited to: (1) placing thewitness in the custody of a designated person or organization agreeing tosupervise the person; (2) restricting the travel, association, or place of abodeof the person during the period of detention; (3) requiring the person toreport; (4) setting bail, or (5) imposing other reasonable restrictions on thematerial witness. No person may be detained unless the judge finds, by clear andconvincing evidence, that detention is the only method that will secure theappearance of the material witness. A person detained as a material witness orpending a material-witness hearing shall be lodged in appropriate quarters andshall not be held in a jail or prison.
(h) Deposition. The prosecutor, defendant, ormaterial witness may apply to the Superior Court for an order directing that adeposition be taken to preserve the witness’s testimony, for use at trial if thewitness becomes unavailable, as provided by R. 3:13-2. After a deposition hasbeen taken, the judge shall vacate the material-witness order and impose theleast restrictive conditions to secure the appearance of the materialwitness.
(i) Reconsideration of Material Witness Order. Onmotion of the material witness, prosecutor, or defendant, a material witnessorder may be reconsidered at any time by the court that entered theorder.
Note: Source-R.R. 3:9-4; first paragraphre-designated paragraph (a) and paragraphs (b), (c) (d), (e), (f) and (g) addedJuly 14, 1992 to be effective September 1, 1992; paragraph (g) amended July 13,1994 and December 9, 1994, to be effective January 1, 1995; paragraphs (a), (b),(c) and (d) amended, former paragraphs (e), (f), and (g) amended andredesignated as paragraphs (f), (g), and (h), and new paragraphs (e) and (i)adopted July 10, 1998 to be effective September 1, 1998.
3:26-4. Form and Place of Deposit; Location of RealEstate; Record of Recognizances, Discharge and Forfeiture Thereof
(a) Deposit of Bail. A person admitted to bail shall,together with that person’s sureties, sign and execute a recognizance before theperson authorized to take bail or, if the defendant is in custody, the person incharge of the place of confinement. The recognizance shall contain the terms setforth in R. 1:13-3(b) and shall be conditioned upon the defendant’s appearanceat all stages of the proceedings until final determination of the matter, unlessotherwise ordered by the court. One or more sureties may be required. Cash maybe accepted, and in proper cases no security need be required. A corporatesurety shall be one approved by the Commissioner of Insurance and shall executethe recognizance under its corporate seal, cause the same to be dulyacknowledged and shall annex thereto proof of authority of the officers oragents executing the same and of corporate authority and qualification. Bailgiven in the Superior Court shall be deposited with the Finance Division Managerin the county in which the offense was committed, provided that upon order ofthe court bail shall be transferred from the county of deposit to the county inwhich defendant is to be tried. Real estate offered as bail for indictable andnon-indictable offenses shall be approved by and deposited with the clerk of thecounty in which the offense occurred and not with the Municipal Court clerk. Inany county, with the approval of the Assignment Judge,a program may be instituted for the deposit in court of cash in the amount of 10percent of the amount of bail fixed.
(b) Limitation on Individual Surety. Unless the courtfor good cause otherwise permits, no surety, other than an approved corporatesurety, shall enter into a recognizance or undertaking for bail if there remainsundischarged any previous recognizance or bail undertaken by thatsurety.
(c) Real Estate in Other Counties. Real estate ownedby a surety located in a county other than the one in which the bail is takenmay be accepted, in which case the clerk of the court in which the bail is takenshall forthwith transmit a copy of the recognizance certified by that clerk tothe clerk of the county in which the real estate is situated, who shall recordit in the same manner as if the recognizance had been taken in that clerk’scounty.
(d) Record of Recognizance. The clerk of every court,except the municipal court, before which any recognizance shall be entered intoshall record immediately into the Central Automated Bail System (CABS), thenames of the persons entering into the recognizance, the amount thereof and thedate of its acknowledgment. The Central Automated Bail System shall be kept inthe clerk’s office of the county of which such court shall be held, and be openfor public inspection. In municipal court proceedings the record of therecognizance shall be entered in the docket book maintained by theclerk.
(e) Record of Discharge; Forfeiture. When anyrecognizance shall be discharged by court order upon proof of compliance withthe conditions thereof or by reason of the judgment in any matter, the clerk ofthe court shall enter the word “discharged” and the date of discharge at the endof the record of such recognizance. When any recognizance is forfeited, theFinance Division Manager shall enter the word “forfeited”, and the date offorfeiture at the end of the record of such recognizance, and shall give noticeof such forfeiture to the county counsel. When real estate of the surety locatedin a county other than the one in which the bail was taken is affected, theclerk of the court in which such recognizance is given shall forthwith sendnotice of the discharge or forfeiture and the date thereof to the clerk of thecounty where such real estate is situated, who shall make the appropriate entryat the end of the record of such recognizance.
(f) Cash Deposit. When a person other than thedefendant deposits cash in lieu of bond, the person making the deposit shallfile an affidavit or certification concerning the lawful ownership thereof, andon discharge such cash may be returned to the owner named in the affidavit orcertification.
(g) Ten Percent Cash Bail. Except in first or seconddegree cases as set forth in N.J.S.A. 2A:162-12 and unless the order settingbail specifies to the contrary, whenever bail is set pursuant to Rule 3:26-1,bail may be satisfied by the deposit in court of cash in the amount often-percent of the amount of bail fixed and defendant’s execution of arecognizance for the remaining ninety percent. No surety shall be requiredunless the court fixing bail specifically so orders. When cash equal toten-percent of the bail fixed is deposited pursuant to this Rule, if the cash isowned by someone other than the defendant, the owner shall charge no fee for thedeposit other than lawful interest and shall submit an affidavit orcertification with the deposit so stating and also listingthe names of any other persons for whom the owner hasdeposited bail. The person making the deposit authorized by this subsectionshall file an affidavit or certification concerning the lawful ownershipthereof, and on discharge such cash may be returned to the owner named in theaffidavit or certification.
Note: Source-R.R. 3:9-5(a)(b)(c)(d)(e)(f)(g).Paragraph (a) amended June 29, 1973 to be effective September 10, 1973;paragraph (a) amended July 16, 1979 to be effective September 10, 1979;paragraph (g) adopted November 5, 1986 to be effective January 1, 1987;paragraph (a) amended November 7, 1988 to be effective January 2, 1989;paragraphs (f) and (g) amended July 14, 1992 to be effective September 1, 1992;paragraphs (a), (b) and (c) amended July 13, 1994 to be effective September 1,1994; paragraph (g) amended February 27, 1995 to be effective immediately;paragraphs (a), (d), (e),(f) and (g) amended June 15, 2007 to be effectiveSeptember 1, 2007.
3:26-5. Justification of Sureties
Every surety, except an approved corporate surety,shall justify by affidavit and be required to describe therein the property bywhich the surety proposes to justify and the encumbrances thereon, the numberand amount of other recognizances and undertakings for bail entered into by thesurety and remaining undischarged, if any, and all the surety’s otherliabilities. No recognizance shall be approved unless the surety thereon shallbe qualified.
Note: Source-R.R. 3:9-6; amended July 13, 1994 to beeffective September 1, 1994.
(a) Declaration; Notice. Upon breach of a conditionof a recognizance, the court on its own motion shall order forfeiture of thebail, and the finance division manager shall forthwith send notice of theforfeiture, by ordinary mail, to county counsel, the defendant, and any suretyor insurer, bail agent or agency whose names appear on the bail recognizance.Notice to any insurer, bail agent or agency shall be sent to the addressrecorded in the Bail Registry maintained by the Clerk of the Superior Courtpursuant to R. 1:13-3. The notice shall direct that judgment will be entered asto any outstanding bail absent a written objection seeking to set aside theforfeiture, which must be filed within 75 days of the date of the notice. Thenotice shall also advise the insurer that if it fails to satisfy a judgmententered pursuant to paragraph (c), and until satisfaction is made, it shall beremoved from the Bail Registry and its bail agents and agencies, guarantors, andother persons or entities authorized to administer or manage its bail bondbusiness in this State will have no further authority to act for it, and theirnames, as acting for the insurer, will be removed from the Bail Registry. Inaddition the bail agent or agency, guarantor or other person or entityauthorized by the insurer to administer or manage its bail bond business in thisState who acted in such capacity with respect to the forfeited bond will beprecluded, by removal from the Bail Registry, from so acting for any otherinsurer until the judgment has been satisfied. The court shall not enterjudgment until the merits of any objection are determined either on the papersfiled or, if the court so orders for good cause, at a hearing. In the absence ofobjection, judgment shall be entered as provided in paragraph (c), but the courtmay thereafter remit it, in whole or part, in the interest ofjustice.
(b) Setting Aside. The court may, either before orafter the entry of judgment, direct that an order of forfeiture or judgment beset aside, in whole or in part, if its enforcement is not required in theinterest of justice upon such conditions as it imposes.
(c) Enforcement; Remission. In the absence of amotion, when a forfeiture is not set aside or satisfied, the court shall, uponexpiration of the 75 days provided for in paragraph (a), summarily enter ajudgment of default for any outstanding bail and execution may issue thereon.After entry of such judgment, the court may remit it in whole or in part in theinterest of justice. If, following the court’s decision on an objection pursuantto paragraph (a) of this rule, the forfeiture is not set aside or satisfied inwhole or part, the court shall enter judgment for any outstanding bail and, inthe absence of satisfaction thereof, execution may issue thereon.
Judgments entered pursuant to this rule shall alsoadvise the insurer that if it fails to satisfy a judgment, and untilsatisfaction is made, it shall be removed from the Bail Registry and its bailagents and agencies, guarantors, and other persons or entities authorized toadminister or manage its bail bond business in this State will have no furtherauthority to act for it, and their names, as acting for the insurer, will beremoved from the Bail Registry, as provided in paragraph (a). A copy of thejudgment entered pursuant to this rule is to be served by ordinary mail tocounty counsel, and on any surety or any insurer, bail agent or agency named inthe judgment. Notice to any insurer, bail agent or agency shall be sent to theaddress recorded in the Bail Registry. In any contested proceeding, countycounsel shall appear on behalf of the government. County counsel shall beresponsible for collection of forfeited amounts.
Note: Source-R.R. 3:9-7 (a)(b)(c) (first sentence)(d); paragraphs (a) and (c) amended July 10, 1998 to be effective September 1,1998; paragraphs (a), (b) and (c) amended July 28, 2004 to be effectiveSeptember 1, 2004.
When the condition of the recognizance has beensatisfied or the forfeiture thereof has been set aside or remitted, the courtshall exonerate the obligors and release any bail. A surety may be exonerated bya deposit of cash in the amount of the recognizance or by a timely surrender ofthe defendant into custody.
Note: Source-R.R. 3:9-8.
3:26-8. Bail Sufficiency; Source Hearing
(a) Time and Notice. The State may request eitherorally or in writing, at any time prior to the commencement of trial, a hearingpursuant to N.J.S.A. 2A:162-13. The request shall be made on notice to thedefendant’s counsel, or on notice to the defendant if he or she is unrepresentedat the time the request is made.
(b) Request for Hearing. Ifthe State requests a hearing pursuant to N.J.S.A. 2A:162-13 and the defendant ischarged with a crime enumerated in paragraph (a) of N.J.S.A. 2A:162-12, thecourt shall conduct a hearing within the time prescribed by section (c) hereof.If the State requests a hearing pursuant to N.J.S.A. 2A:162-13 and the defendantis not charged with a crime enumerated in paragraph (a) of N.J.S.A. 2A:162-12,the State must demonstrate a reasonable and well grounded basis to warrant aninquiry by the court regarding:
(1) the reliability of the obligor or person postingcash bail, the value and sufficiency of any security offered, the relationshipof the obligor or person posting cash bail to the defendant, and the defendant’sinterest in ensuring that the bail is not forfeited, or
(2) whether the funds used to post the cash bail orsecure the bail bond were acquired as a result of criminal or unlawfulconduct.
If the court grants the State’s request for a hearingas to a defendant who is not charged with a crime enumerated in paragraph (a) ofN.J.S.A. 2A:162-12, the court shall set forth on the record and in the bailorder the reasons for granting the request.
(c) Time of Hearing. The court shall conduct ahearing required or authorized pursuant to N.J.S.A. 2A:162-13 within three (3)business days after bail is posted or proffered if defendant is incarcerated, orwithin a reasonable period of time after granting the request if the defendanthas been released on bail.
(d) Release of Defendant; Failure to Appear. If thedefendant has not yet been released when the State requests a hearing for aperson charged with a crime enumerated in N.J.S.A. 2A:162-12 or when the courtgrants a request for a hearing for any other offense, the defendant shall remainin custody until further order of the court. If the defendant has already beenreleased after posting bail, the defendant’s bail status shall be maintaineduntil the completion of the hearing and the defendant will be notified when toappear in court for the hearing. Should the defendant fail to appear for thehearing the bail shall be forfeited and a warrant shall issue for the arrest ofthe defendant.
(e) Hearing. At the hearing pursuant to N.J.S.A.2A:162-13, the court may order the examination, under oath or otherwise, of anyperson who may possess relevant information, and may inquire into any matterappropriate to its determination, including, but not limited to, thefollowing:
(1) The character, background and reputation of theperson posting cash bail;
(2) The relationship of the person posting cash bailor securing a bail bond to the defendant;
(3) The source of any money posted as cash bail andwhether any such money constitutes the fruits of criminal or unlawfulconduct;
(4) The character, background and reputation of anyperson who has indemnified or agreed to indemnify an obligor on thebond;
(5) The character,background, and reputation of any obligor, or, in the case of a surety bond, thequalifications of the surety and its executing agent;
(6) The source of any money or property deposited byany obligor as security and whether such money or property constitutes thefruits of criminal or unlawful conduct; and
(7) The source of any money or property delivered oragreed to be delivered by any obligor as indemnification on the bond and whethersuch money or property constitutes the fruits of criminal or unlawfulconduct.
(f) Order. At the conclusion of the hearing, thecourt shall make specific findings of fact and issue an order complying withN.J.S.A. 2A:162-13(b) regarding the person posting or proffering cash bail orserving as obligor on any bond, the sufficiency and value of the security forbail posted or proffered by the defendant, the source of funds used to post cashbail or secure a bail bond and identifying the approved source(s) of bail. Thedefendant shall not be released from custody unless he or she complies with theconditions of the court’s order. If the defendant has already been released, heor she shall be returned to custody, immediately, and not be released until theconditions of the court order regarding the bail are satisfied.
(g) Nothing herein shall prevent the court fromotherwise setting bail, or altering bail on motion therefor, in accordance withthe rules of court.
Note: Adopted July 9, 2008 to be effective September1, 2008.