New Jersey Bail Factors. Following NJSA Rule 3:26, every non-death row defendant is entitled to bail. However, certain NJ Crimes require a Bail Source. In a NJ Bail Source hearing, the prosecutors and/or the judge will determine whether the funds used to post the cash bail or secure the bail 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 the Defendant to to high for the defendant to make, a skilled attorney can always request a Bail Reduction Hearing to get the bail lowered.
The amount of Bail in NJ is typically set by a either a Municipal Court Judge or a Superior Court Judge. Moreover, the judges do not get to arbitrarily decide the bail amount. The legislature has provided specific Bail Guidelines. These Bail Guidelines provide specific monetary ranges which the Judges may properly set the initial bail, without hearing all the evidence in the case. Also, following Rule
In most minor offenses, when a person, also known as a defendant, is charged with a fourth degree felony, a disorderly persons offense or a petty disorderly persons’ offense, that defendant should not be required to post bail exceeding $2,500, unless the Court finds that the person presents a serious threat to physical safety or there are other circumstances which would not reasonably insure the appearance of the person in Court as required. N.J.S.A. 2C:6-1.
In all other cases involving serious crimes, a person is entitled to apply for bail upon arrest and while charges are pending and the Court will consider such application with a view toward ensuring that the defendant will be present in Court as required.
Generally, the Court will consider the following factors in deciding on bail:
1. The seriousness of the crime,
2. defendant’s criminal history;
3. defendant’s reputation in the community;
4. the length of defendant’s residence in the community;
5. defendant’s family ties and relationships;
6. defendant’s employment status and financial condition;
7. the identity of responsible members of the community who would vouch for defendant’s reliability; and
8. any other factors bearing on whether or not the defendant is a risk for failure to appear.
The Court can establish such conditions and restrictions 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. All persons, except those charged with crimes punishable by death when the prosecutor presents proof that there is a likelihood of conviction and reasonable grounds to believe that the death penalty may be imposed, shall be bailable before conviction on such terms as, in the judgment of the court, will ensure their presence in court when required. The factors to be considered in setting bail are: (1) the seriousness of the crime charged against defendant, the apparent likelihood of conviction, and the extent of the punishment prescribed by the Legislature; (2) defendant’s criminal record, 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 employment status, record of employment, and financial condition; (7) the identity of responsible members of the community who would vouch for defendant’s reliability; (8) any other factors indicating defendant’s mode of life, or ties to the community or bearing on the risk of failure to appear, and, particularly, the general policy against unnecessary sureties and detention. In its discretion the 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’s release including conditions necessary to protect persons in the community.
(b) Restrictions on Contact. If the court imposes conditions of bail that include restrictions on contact between the defendant and defendant’s minor child, (1) a copy of the order imposing the restrictions shall be transmitted to the Family Part, and (2) such restrictions shall not affect contact authorized by an order of the Family Part in a child abuse/neglect case entered after any restriction on contact was imposed as part of 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 as defined in N.J.S.A. 2A:162-12, no later than the time of posting bail or proffering the surety or bail bond, the defendant shall provide to the prosecutor, on the Bail Source Inquiry Questionnaire promulgated by the Attorney General, relevant information about the obligor, indemnifier or person posting cash bail, the security offered, and the source of any money or property used to post the cash bail or secure the surety or bail bond.
(d) On Failure to Indict. If a person committed for a crime punishable by death is not indicted within 3 months after commitment, a judge of the Superior Court, for good cause shown, may admit the person to bail.
(e) On Failure to Move Indictment. If an indictment or accusation is not moved for trial within 6 months after arraignment, a judge of the Superior Court, for cause shown, may discharge the defendant upon the defendant’s own recognizance.
(f) Extradition Proceedings. Where a person has been arrested in any extradition proceeding, that person may be admitted to bail except 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 Court judge may set bail for a person charged with any offense. Bail for any offense except murder, kidnapping, manslaughter, aggravated manslaughter, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, a person arrested 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 in the absence of a judge, by a municipal court administrator or deputy court administrator.
(b) Initial Bail Set. Initial bail shall be set pursuant to R. 3:4-1(a) or (b) on indictable or non-indictable offenses.
(c) Review of Initial Set. Any person unable to post bail shall have his or her bail reviewed by a Superior Court judge no later than the next day which is neither a Saturday, Sunday nor a legal holiday.
Except in those indictable cases in which a Superior Court judge has set bail, a municipal court judge has the authority to make bail revisions up to and including the time of the defendant’s first appearance before the court. A municipal court judge has the authority to make bail revisions on any non-indictable offense at any time during the course of the proceedings.
(d) Bail Reductions. A first motion for bail reduction shall be heard by the court no later than seven days after it is filed.
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.
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 any person who can give testimony relevant to the prosecution or defense of a pending indictment, accusation, or complaint for a crime or a criminal investigation before a grand jury.
(b) Application. The application shall be captioned in Superior Court and entitled “In the Matter of (name of person alleged to be a material witness)”. The application shall include a copy of the pending indictment, complaint, or accusation and an affidavit containing: (1) the name and address of the person alleged to be a material witness, (2) a summary of the facts believed to be known by the alleged material witness and the relevance to the criminal action or investigation, (3) the grounds for belief that the person has material and necessary information concerning the pending criminal action or investigation, and (4) the reasons why the alleged material witness is unlikely to respond to a subpoena. If the application requests an arrest warrant, the affidavit shall set forth why immediate arrest is necessary.
(c) Order to Appear. If there is probable cause to support issuance of a material-witness order against the person named in the application, the court may order the person to appear at a hearing to determine whether the person should be adjudged a material witness. The order and a copy of the application shall be served personally on the alleged material witness at least 48 hours before the hearing, unless the judge adjusts the time period for good cause, and shall advise the person of: (1) the time and place of the hearing, and (2) the right to be represented by an attorney and to have an attorney appointed if the person cannot afford one.
(d) Warrant for Immediate Detention. If there is clear and convincing evidence that the person will not be available as a witness unless immediately detained, the court may issue an order requiring that the person be brought before the court immediately. If the detention does not take place during regular court hours, the person shall be brought to the emergency-duty Superior Court judge. The judge shall inform the person: (1) the reason for detention, (2) the time and place of the hearing to determine whether the person is a material witness, and (3) that the person has a right to an attorney and to have an attorney appointed if the person cannot afford one. The judge shall set conditions for release, or, if there is clear and convincing evidence that the person will not be available as a witness unless detention is continued, the judge may order the person held until the material-witness hearing, which shall take place as soon as practicable but no later than 48 hours after detention.
(e) Detention Without Prior Court Authorization. Where a law enforcement officer has detained an alleged material witness without prior court authorization, the law enforcement officer shall immediately bring the person before a Superior Court judge. If the detention does not take place during regular court hours, the person shall be brought to the emergent duty Superior Court judge. The judge shall determine whether there is probable cause to believe that the person is a material witness of a crime and, if an indictment, accusation, or complaint for that crime has not issued or if a grand jury has not commenced a criminal investigation of that crime, the judge shall determine whether there is probable cause to believe that, within 48 hours of the detention, an indictment, accusation, or complaint will issue or a grand jury investigation will commence. The judge will then proceed as if an application for an order had been made under paragraph (b).
(f) Material Witness Hearing. At the material-witness hearing, the person shall have the rights: (1) to be represented by an attorney and to have an attorney appointed if the person cannot afford one, (2) to be heard and to present witnesses and evidence, and (3) unless otherwise sealed by the court for exceptional circumstances, to have all of the evidence in support of the application, and (4) to confront and cross-examine witnesses. If there is probable cause to believe that the person possesses information material to the prosecution of a defense of a pending indictment, accusation or complaint for a crime, or a criminal investigation before a grand jury and is unlikely to respond to subpoena, the judge shall: (1) set forth findings of facts on the record, and (2) set the conditions of release of the material witness.
(g) Conditions of Release or Detention. Conditions of release for a material-witness or for a person held on an application for a material-witness order shall be the least restrictive to effect the order of the court including but not limited to: (1) placing the witness in the custody of a designated person or organization agreeing to supervise the person; (2) restricting the travel, association, or place of abode of the person during the period of detention; (3) requiring the person to report; (4) setting bail, or (5) imposing other reasonable restrictions on the material witness. No person may be detained unless the judge finds, by clear and convincing evidence, that detention is the only method that will secure the appearance of the material witness. A person detained as a material witness or pending a material-witness hearing shall be lodged in appropriate quarters and shall not be held in a jail or prison.
(h) Deposition. The prosecutor, defendant, or material witness may apply to the Superior Court for an order directing that a deposition be taken to preserve the witness’s testimony, for use at trial if the witness becomes unavailable, as provided by R. 3:13-2. After a deposition has been taken, the judge shall vacate the material-witness order and impose the least restrictive conditions to secure the appearance of the material witness.
(i) Reconsideration of Material Witness Order. On motion of the material witness, prosecutor, or defendant, a material witness order may be reconsidered at any time by the court that entered the order.
Note: Source-R.R. 3:9-4; first paragraph re-designated paragraph (a) and paragraphs (b), (c) (d), (e), (f) and (g) added July 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 and redesignated 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 Real Estate; 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 the person authorized to take bail or, if the defendant is in custody, the person in charge of the place of confinement. The recognizance shall contain the terms set forth in R. 1:13-3(b) and shall be conditioned upon the defendant’s appearance at all stages of the proceedings until final determination of the matter, unless otherwise ordered by the court. One or more sureties may be required. Cash may be accepted, and in proper cases no security need be required. A corporate surety shall be one approved by the Commissioner of Insurance and shall execute the recognizance under its corporate seal, cause the same to be duly acknowledged and shall annex thereto proof of authority of the officers or agents executing the same and of corporate authority and qualification. Bail given in the Superior Court shall be deposited with the Finance Division Manager in the county in which the offense was committed, provided that upon order of the court bail shall be transferred from the county of deposit to the county in which defendant is to be tried. Real estate offered as bail for indictable and non-indictable offenses shall be approved by and deposited with the clerk of the county in which the offense occurred and not with the Municipal Court clerk. In any county, with the approval of the Assignment Judge, a program may be instituted for the deposit in court of cash in the amount of 10 percent of the amount of bail fixed.
(b) Limitation on Individual Surety. Unless the court for good cause otherwise permits, no surety, other than an approved corporate surety, shall enter into a recognizance or undertaking for bail if there remains undischarged any previous recognizance or bail undertaken by that surety.
(c) Real Estate in Other Counties. Real estate owned by a surety located in a county other than the one in which the bail is taken may be accepted, in which case the clerk of the court in which the bail is taken shall forthwith transmit a copy of the recognizance certified by that clerk to the clerk of the county in which the real estate is situated, who shall record it in the same manner as if the recognizance had been taken in that clerk’s county.
(d) Record of Recognizance. The clerk of every court, except the municipal court, before which any recognizance shall be entered into shall record immediately into the Central Automated Bail System (CABS), the names of the persons entering into the recognizance, the amount thereof and the date of its acknowledgment. The Central Automated Bail System shall be kept in the clerk’s office of the county of which such court shall be held, and be open for public inspection. In municipal court proceedings the record of the recognizance shall be entered in the docket book maintained by the clerk.
(e) Record of Discharge; Forfeiture. When any recognizance shall be discharged by court order upon proof of compliance with the conditions thereof or by reason of the judgment in any matter, the clerk of the court shall enter the word “discharged” and the date of discharge at the end of the record of such recognizance. When any recognizance is forfeited, the Finance Division Manager shall enter the word “forfeited”, and the date of forfeiture at the end of the record of such recognizance, and shall give notice of such forfeiture to the county counsel. When real estate of the surety located in a county other than the one in which the bail was taken is affected, the clerk of the court in which such recognizance is given shall forthwith send notice of the discharge or forfeiture and the date thereof to the clerk of the county where such real estate is situated, who shall make the appropriate entry at the end of the record of such recognizance.
(f) Cash Deposit. When a person other than the defendant deposits cash in lieu of bond, the person making the deposit shall file an affidavit or certification concerning the lawful ownership thereof, and on discharge such cash may be returned to the owner named in the affidavit or certification.
(g) Ten Percent Cash Bail. Except in first or second degree cases as set forth in N.J.S.A. 2A:162-12 and unless the order setting bail 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 of ten-percent of the amount of bail fixed and defendant’s execution of a recognizance for the remaining ninety percent. No surety shall be required unless the court fixing bail specifically so orders. When cash equal to ten-percent of the bail fixed is deposited pursuant to this Rule, if the cash is owned by someone other than the defendant, the owner shall charge no fee for the deposit other than lawful interest and shall submit an affidavit or certification with the deposit so stating and also listing the names of any other persons for whom the owner has deposited bail. The person making the deposit authorized by this subsection shall file an affidavit or certification concerning the lawful ownership thereof, and on discharge such cash may be returned to the owner named in the affidavit 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 effective September 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 by which the surety proposes to justify and the encumbrances thereon, the number and amount of other recognizances and undertakings for bail entered into by the surety and remaining undischarged, if any, and all the surety’s other liabilities. No recognizance shall be approved unless the surety thereon shall be qualified.
Note: Source-R.R. 3:9-6; amended July 13, 1994 to be effective September 1, 1994.
(a) Declaration; Notice. Upon breach of a condition of a recognizance, the court on its own motion shall order forfeiture of the bail, and the finance division manager shall forthwith send notice of the forfeiture, by ordinary mail, to county counsel, the defendant, and any surety or 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 address recorded in the Bail Registry maintained by the Clerk of the Superior Court pursuant to R. 1:13-3. The notice shall direct that judgment will be entered as to any outstanding bail absent a written objection seeking to set aside the forfeiture, which must be filed within 75 days of the date of the notice. The notice shall also advise the insurer that if it fails to satisfy a judgment entered pursuant to paragraph (c), and until satisfaction is made, it shall be removed from the Bail Registry and its bail agents and agencies, guarantors, and other persons or entities authorized to administer or manage its bail bond business in this State will have no further authority to act for it, and their names, as acting for the insurer, will be removed from the Bail Registry. In addition the bail agent or agency, guarantor or other person or entity authorized by the insurer to administer or manage its bail bond business in this State who acted in such capacity with respect to the forfeited bond will be precluded, by removal from the Bail Registry, from so acting for any other insurer until the judgment has been satisfied. The court shall not enter judgment until the merits of any objection are determined either on the papers filed or, if the court so orders for good cause, at a hearing. In the absence of objection, judgment shall be entered as provided in paragraph (c), but the court may thereafter remit it, in whole or part, in the interest of justice.
(b) Setting Aside. The court may, either before or after the entry of judgment, direct that an order of forfeiture or judgment be set aside, in whole or in part, if its enforcement is not required in the interest of justice upon such conditions as it imposes.
(c) Enforcement; Remission. In the absence of a motion, when a forfeiture is not set aside or satisfied, the court shall, upon expiration of the 75 days provided for in paragraph (a), summarily enter a judgment 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 the interest of justice. If, following the court’s decision on an objection pursuant to paragraph (a) of this rule, the forfeiture is not set aside or satisfied in whole or part, the court shall enter judgment for any outstanding bail and, in the absence of satisfaction thereof, execution may issue thereon.
Judgments entered pursuant to this rule shall also advise the insurer that if it fails to satisfy a judgment, and until satisfaction is made, it shall be removed from the Bail Registry and its bail agents and agencies, guarantors, and other persons or entities authorized to administer or manage its bail bond business in this State will have no further authority to act for it, and their names, as acting for the insurer, will be removed from the Bail Registry, as provided in paragraph (a). A copy of the judgment entered pursuant to this rule is to be served by ordinary mail to county counsel, and on any surety or any insurer, bail agent or agency named in the judgment. Notice to any insurer, bail agent or agency shall be sent to the address recorded in the Bail Registry. In any contested proceeding, county counsel shall appear on behalf of the government. County counsel shall be responsible 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 effective September 1, 2004.
When the condition of the recognizance has been satisfied or the forfeiture thereof has been set aside or remitted, the court shall exonerate the obligors and release any bail. A surety may be exonerated by a deposit of cash in the amount of the recognizance or by a timely surrender of the 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 either orally or in writing, at any time prior to the commencement of trial, a hearing pursuant to N.J.S.A. 2A:162-13. The request shall be made on notice to the defendant’s counsel, or on notice to the defendant if he or she is unrepresented at the time the request is made.
(b) Request for Hearing. If the State requests a hearing pursuant to N.J.S.A. 2A:162-13 and the defendant is charged with a crime enumerated in paragraph (a) of N.J.S.A. 2A:162-12, the court 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 defendant is 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 an inquiry by the court regarding:
(1) the reliability of the obligor or person posting cash bail, the value and sufficiency of any security offered, the relationship of the obligor or person posting cash bail to the defendant, and the defendant’s interest in ensuring that the bail is not forfeited, or
(2) whether the funds used to post the cash bail or secure the bail bond were acquired as a result of criminal or unlawful conduct.
If the court grants the State’s request for a hearing as to a defendant who is not charged with a crime enumerated in paragraph (a) of N.J.S.A. 2A:162-12, the court shall set forth on the record and in the bail order the reasons for granting the request.
(c) Time of Hearing. The court shall conduct a hearing 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, or within a reasonable period of time after granting the request if the defendant has been released on bail.
(d) Release of Defendant; Failure to Appear. If the defendant has not yet been released when the State requests a hearing for a person charged with a crime enumerated in N.J.S.A. 2A:162-12 or when the court grants a request for a hearing for any other offense, the defendant shall remain in custody until further order of the court. If the defendant has already been released after posting bail, the defendant’s bail status shall be maintained until the completion of the hearing and the defendant will be notified when to appear in court for the hearing. Should the defendant fail to appear for the hearing the bail shall be forfeited and a warrant shall issue for the arrest of the 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 any person who may possess relevant information, and may inquire into any matter appropriate to its determination, including, but not limited to, the following:
(1) The character, background and reputation of the person posting cash bail;
(2) The relationship of the person posting cash bail or securing a bail bond to the defendant;
(3) The source of any money posted as cash bail and whether any such money constitutes the fruits of criminal or unlawful conduct;
(4) The character, background and reputation of any person who has indemnified or agreed to indemnify an obligor on the bond;
(5) The character, background, and reputation of any obligor, or, in the case of a surety bond, the qualifications of the surety and its executing agent;
(6) The source of any money or property deposited by any obligor as security and whether such money or property constitutes the fruits of criminal or unlawful conduct; and
(7) The source of any money or property delivered or agreed to be delivered by any obligor as indemnification on the bond and whether such money or property constitutes the fruits of criminal or unlawful conduct.
(f) Order. At the conclusion of the hearing, the court shall make specific findings of fact and issue an order complying with N.J.S.A. 2A:162-13(b) regarding the person posting or proffering cash bail or serving as obligor on any bond, the sufficiency and value of the security for bail posted or proffered by the defendant, the source of funds used to post cash bail or secure a bail bond and identifying the approved source(s) of bail. The defendant shall not be released from custody unless he or she complies with the conditions of the court’s order. If the defendant has already been released, he or she shall be returned to custody, immediately, and not be released until the conditions of the court order regarding the bail are satisfied.
(g) Nothing herein shall prevent the court from otherwise setting bail, or altering bail on motion therefor, in accordance with the rules of court.
Note: Adopted July 9, 2008 to be effective September 1, 2008.