At a detention hearing held pursuant to the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to 2A:162-26 (the CJRA), the State proceeded by proffer. Defendant subpoenaed the police officer, who prepared the affidavit of probable cause as a witness, and sought to subpoena other officers. Over the State's objection, the judge entered an order that permitted defendant "to subpoena the [police] officers at the scene of the incident to testify at the [d]etention [h]earing." The court granted the State's motion for leave to appeal and reversed.
The CJRA provides that at a pretrial detention hearing, a "defendant has the right to be represented by counsel, and . . . shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise." N.J.S.A. 2A:162-19(e)(1) (emphasis added). However, federal courts interpreting the Bail Reform Act that contains similar language have recognized the defendant's right to produce adverse witnesses is conditional, not absolute.
The court adopts the reasoning of the majority of federal courts, which require a defendant make a proffer as to how the anticipated testimony of an adverse witness, i.e., police officers, victims, and State's witnesses, would 1) negate the State's evidence as to probable cause; or 2) rebut or diminish the State's proffered clear and convincing evidence supporting detention.