RULE 5:21. Custody, PretrialDetention
5:21-1. Taking Into Custody, InitialProcedure
A law enforcement officer may take into custodywithout process a juvenile who the officer has probable cause to believe isdelinquent as defined by N.J.S. 2A:4A-23. When a juvenile has been taken intocustody for delinquency, a complaint, if not already filed, shall immediately befiled as provided by R. 5:20-1. The taking of a juvenile into custody shall notbe construed as an arrest but shall be deemed a measure to protect the health,morals and well-being of the juvenile, and the person taking the juvenile intocustody shall immediately notify the juvenile’s parents, guardian or othercustodian.
Note: Source-R.R.. (1969)5:8-2(a) (first and second sentence), (e). Adopted December 20, 1983, tobe effective December 31, 1983; amended July 13, 1994 to be effective September1, 1994.
- (a) Pre-hearing Release. Whenever it will notadversely affect the health, safety or welfare of a juvenile, the juvenile shallbe released pending disposition to an authorized person or agency upon writtenassurance that such person or agency shall assume responsibility for thejuvenile subject to conditions which may be imposed by the court and shall bringthe juvenile before the court at all scheduled hearings or as otherwise ordered.In any event no juvenile shall be placed in detention without the permission ofa judge or the court intake service.
- (b) Judicial Release. At any time between thefiling of the complaint and the disposition, the judge may order the release ofany juvenile from detention or shelter care facility and fix the terms of suchrelease pursuant to N.J.S. 2A:4A-34(d).
- (c) Release on Own Recognizance. A lawenforcement officer may and the judge or court intake officer shall, whereappropriate, release the juvenile on his or her own recognizance on terms andconditions prescribed if: (a) The nature of the offense charged is such that thejuvenile’s release would not constitute a danger to the community; (b) There isno parent, guardian or other appropriate adult custodian to whom the juvenilecould be released and all reasonable measures have been exhausted by eitherpolice or court personnel to locate and contact any such person; (c) Thejuvenile is at least 14 years of age; (d) The identity and address of thejuvenile are verified; and (e) Reasonable certainty exists on the part of thereleasing authority that upon release, the juvenile will return to school orhome safely and will appear at the hearing.
Note: Source-R.R.. (1969)5:8-2(a) and (d) (third and fourth sentence), R. (1969) 5:8-6(b). AdoptedDecember 20, 1983, to be effective December 31, 1983; paragraph (c) amended June29, 1990 to be effective September 4, 1990; paragraph (c) amended July 13, 1994to be effective September 1, 1994.
5:21-3. Detention Hearings
- (a) Initial Detention Hearing. If the juvenilehas not been released pursuant to R. 5:21-2, an initial hearing to determinewhether pretrial detention is required pursuant to the standards of R. 5:21-5shall be held no later than the morning following the juvenile’s placement incustody, including holidays and weekends. Said hearing shall be on oral orwritten notice to the juvenile and the juvenile’s parents or guardian, all ofwhom shall be present at the hearing. The hearing, however, shall not beadjourned if such notice or process fails to produce the attendance of theparents or guardian. If a complaint has not been filed by the time the initialhearing is held, the juvenile shall be immediately released from custody. If thejuvenile is not represented by counsel at the initial hearing and if the courtdetermines that the juvenile should be detained, a second detention hearingshall be held within two court days after the initial hearing at which thejuvenile shall be represented by assigned or retainedcounsel or by the Public Defender as the circumstances require.
- (b) Probable Cause Hearing. If the juvenile isdetained following the initial detention hearing, the court shall conduct aprobable cause hearing within two court days after the initial hearing. Where asecond detention hearing is required by paragraph (a), it shall be held with theprobable cause hearing. If the prosecutor has filed a motion seeking waiver ofjurisdiction pursuant to Rule 5:22-2 or indicates an intention to file such amotion, or the court determines based on the circumstances that such a motion islikely, the court shall permit the parties to present evidence regarding theissues of age of the juvenile and other standards for referral which may beaddressed at the time of the probable cause hearing. If the court determinesthat there is no probable cause to believe that the juvenile has committed theconduct alleged in the complaint, the juvenile shall be forthwith released. Ifprobable cause is found, detention review hearings shall be conducted asprovided in paragraph (c).
- (c) Detention Review Hearing. If the courtdetermines that the juvenile should continue to be detained, a detention reviewhearing shall be held within 14 court days after the prior detention hearing. Ifdetention is again continued, review hearings shall be held thereafter atintervals not to exceed 21 court days. The juvenile shall be represented bycounsel at all such hearings.
- (d) Findings. Whenever the court places ajuvenile in detention, it shall state the reasons therefor on the record, givingconsideration to the following factors among others:
- (1) The nature and circumstances of theoffense charged;
- (2) The age of the juvenile;
- (3) The juvenile’s ties to thecommunity;
- (4) The juvenile’s record of prioradjudications, if any; and
- (5) The juvenile’s record of appearance ornon-appearance at previous court proceedings.
- (e) Credit for Time Served. A juvenile shallreceive credit on the term of a custodial sentence for any time served indetention or court-ordered shelter care between apprehension anddisposition.
Note: Source-R.R.. (1969)5:8-2(c) and (d); R. (1969) 5:8-6(d). Adopted December 20, 1983, to beeffective December 31, 1983; paragraph (e) adopted November 1, 1985 to beeffective January 2, 1986; paragraph (b) amended July 14, 1992 to be effectiveSeptember 1, 1992; paragraphs (a) and (e) amended July 13, 1994 to be effectiveSeptember 1, 1994.
5:21-4. Place of Detention or ShelterCare
No juvenile shall be placed in detention or sheltercare in any place other than that specified by the State Juvenile JusticeCommission or Department of Children and Families as provided by law. Nojuvenile shall be detained or placed in any prison, jail, lockup, or policestation. If however, no other facility is reasonably available and if a briefholding is necessary to allow the release of the juvenile to the juvenile’sparent, or guardian, or other suitable person, or approved facility, a juvenilemay be held in a police station in a place other than one designed for thedetention of prisoners and apart from any adult charged with or convicted ofcrime. Nor shall a juvenile be placed in a detention facility which has reachedits maximum population capacity as determined by the Juvenile JusticeCommission.
Note: Source-R.R.. (1969)5:8-6(a). Adopted December 20, 1983, to be effective December 31,1983; amended July 13, 1994 to be effective September 1, 1994; amended July 10,1998 to be effective September 1, 1998; amended July 16, 2009 to be effectiveSeptember 1, 2009.
5:21-5. Standards for Detention
- (a) Juveniles Over the Age of11. The court shall only order pretrial detention of a juvenile over the ageof 11 if it finds, pursuant to subparagraphs (1) and (2) hereof, either thatdetention is necessary to secure the presence of the juvenile at the nexthearing or that the physical safety of persons or property of the communitywould be seriously threatened if a juvenile, charged with an offense ashereafter set forth, were not detained.
- (1) The necessity of detention to secure thepresence of a juvenile at the next hearing may be demonstrated by the juvenile’srecord of recent willful failure to appear at juvenile court proceedings or thejuvenile’s unauthorized departure from a placement made by the court or thecourt intake service.
- (2) For purposes of this rule a juvenile maybe detained to protect the physical safety of persons or property only if thejuvenile is charged with an offense which, if committed by an adult, wouldconstitute a crime. If the charge would constitute a repetitive disorderlypersons offense, the juveniles shall be detained only if the judge determinesthat there is a likelihood that upon adjudication of delinquency a custodialdisposition will be ordered.
- (3) When the criteria for detention are metand the juvenile is charged with an offense which, if committed by an adult,would constitute a disorderly persons or petty disorderly persons offense, thejuvenile may be placed in detention temporarily. Police and court intakepersonnel shall make all reasonable efforts to locate a parent or guardian toaccept custody of the juvenile prior to requesting or approving the juvenile’splacement in detention. If, after the initial detention hearing, continueddetention is necessary, the juvenile shall not be detained in a secure facilitybut shall be transferred to a shelter or other non-secureplacement.
- (b) Juvenile Not Over the Age of 11. The courtmay order pretrial detention of a juvenile not over the age of 11 only if thejuvenile is charged with an offense which, if committed by an adult, wouldconstitute a crime of the first or second degree or arson and provided furtherthat the juvenile otherwise meets either of the detention criteria of paragraph(a) of this rule.
Note: Source-R.R.. (1969)5:8-6(e). Adopted December 20, 1983, to be effective December 31, 1983;paragraphs (a)(1), (a)(2), and (b) amended July 13, 1994 to be effectiveSeptember 1, 1994; paragraphs (a)(1) and (a)(2) amended and paragraph (a)(3)adopted July 10, 1998 to be effective September 1, 1998.
5:21-6. Post-complaint Detention
At any time after the filing of a complaint the courtmay, after a detention or shelter care hearing and pursuant to these rules,direct that a juvenile be placed in an appropriate facility.
Note: Source-R.R.. (1969)5:8-6(c). Adopted December 20, 1983, to be effective December 31,1983.
5:21-7. Adjudicatory Hearing
If a juvenile has been detained the adjudicatoryhearing shall be held within 30 days after the date of initial detention. If theadjudicatory hearing is not held within said time, the court shall, within 72hours after a motion by the juvenile so requesting, fix a date certain for theadjudicatory hearing unless an extension is granted by the court for good causeshown. Written notice of any application for a postponement shall be furnishedthe juvenile’s counsel, who shall have a right to be heard on theapplication.
Note: Source-new. Adopted December 20,1983, to be effective December 31, 1983.
5:21-8. Custody and Detention of MaterialWitness
The judge of the Family Part shall be notified whenany juvenile under 18 years of age has been taken into custody or detained as amaterial witness. The custody and conditions of detention of such juvenilematerial witness, pending the arraignment and the trial of the adult involved,shall be determined by the court upon notice to the prosecutor and other properparties. If a juvenile is held in detention as a material witness, the trial forwhich the juvenile is held shall be brought on with all possible dispatch. Thecourt may, in a proper case, dismiss a complaint for juvenile delinquency anddesignate the juvenile a material witness. Insofar as applicable, the provisionsof R. 5:21 apply to the detention of a juvenile as a materialwitness.