PA Superior Court: Bail Appeals Are Limited to the Record Made at the Bail Hearing

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided Commonwealth v. Younger, 2026 PA Super 125, a new published case affirming an Allegheny County judge’s decision to deny bail in two pending criminal cases. The opinion is important because it shows how difficult it can be to overturn a bail decision when the defense does not present a complete record at the hearing. A bail appeal is not a new hearing. The Superior Court reviews the evidence that was actually presented to the trial judge, and helpful facts that never made it into that record may come too late.

The decision also provides an opportunity to explain the different ways a defendant may seek release while waiting for trial: a motion to modify bail under Rule 529, a motion for nominal bail under Rule 600(B) after the adjusted deadline, and a petition for specialized review if the trial court denies relief. These procedures are not interchangeable. Most importantly, Younger did not decide a Rule 600(B) claim. The defendant mentioned Rule 600, but the court never calculated its deadline or ruled on a written motion for nominal bail.

The Charges and Bail History in Commonwealth v. Younger

The defendant was facing criminal charges in two Allegheny County cases. In the first case, filed in 2024, the Commonwealth charged him with five drug-related offenses. Bail was initially denied, but it was later modified to nonmonetary bail with electronic monitoring. The court subsequently changed the conditions to require in-person reporting. In April 2025, the defendant failed to appear for a status conference, and the court issued a bench warrant.

The second case involved twenty charges, including corrupt organizations, conspiracy, drug delivery, and drug possession charges. The court initially set unsecured bail in that case. The defendant then missed a preliminary hearing. His bail was revoked and forfeited, and another bench warrant was issued.

On March 10, 2026, the trial court lifted the bench warrant in the first case and held a hearing to decide whether to set bail. Pretrial Services recommended no release. Its representative told the court that the defendant had multiple prior arrests, four prior bond forfeitures, three pending cases, and a separate Indiana County hold connected to another missed court date. Pretrial Services also reported that it could not reach the personal reference the defendant had provided.

The prosecutor relied on that history and argued that the defendant had been a fugitive for approximately a year. The defendant disputed the characterization. He argued that he was not a danger or a flight risk, invoked the Pennsylvania Supreme Court's decision in Commonwealth v. Talley, and asked the judge to consider conditions less restrictive than incarceration.

What Happened at the Bail Hearing?

A central problem for the defendant was that the record contained little favorable evidence under Pennsylvania Rule of Criminal Procedure 523. Rule 523 directs a bail court to consider the charges, employment and finances, family relationships, residence in the community, character and mental condition, prior compliance with bail, history of flight, criminal record, and other information relevant to appearance and compliance.

The trial judge repeatedly asked the defendant whether he had anything else to present about bail. The defendant continued to discuss a possible plea and tried to raise Rule 600, but he offered little evidence concerning his job, finances, family, residence, character, or other community ties. He did not present a detailed release plan or verified evidence that could answer the court's concerns about his history of missing court.

The judge relied on the prior failures to appear, bond forfeitures, pending cases, criminal history, and Indiana County hold. The court considered electronic monitoring but rejected it on the ground that monitoring is an alert system and would not reasonably assure the defendant’s appearance. The court also found no meaningful change in circumstances that supported a different result.

The judge therefore denied bail.

The Superior Court Affirms the Denial of Bail

The defendant filed a petition for specialized review under Pennsylvania Rule of Appellate Procedure 1610. He argued that the judge had denied bail without adequately evaluating the charges, had prevented him from fully presenting his position, and had failed to explain why less restrictive conditions would not work.

The Superior Court rejected those arguments. It held that bail orders are reviewed for an abuse of discretion. That is a deferential standard. An appellate court will generally affirm when the trial court's factual findings have support in the record and its legal conclusions are correct.

More importantly, the Superior Court explained that its review was limited to the evidence presented at the bail hearing and the trial court's findings. It viewed that record in the light most favorable to the party that had prevailed below. The appellate court concluded that the trial judge gave Younger repeated opportunities to address the bail factors and that the record supported the denial.

The court emphasized the seriousness of the pending charges, prior failures to appear, noncompliance with release conditions, bond forfeitures, reported fugitive status, Indiana County hold, and the absence of reliable conditions that would reasonably assure appearance and address safety concerns. It therefore found no abuse of discretion and affirmed the order.

The practical lesson is straightforward: a defendant should not wait for the appeal to assemble the best evidence. A petition for specialized review cannot replace the record that should have been made at the hearing.

How Does Bail Work in Pennsylvania?

Article I, Sections 13 and 14 of the Pennsylvania Constitution prohibit excessive bail and generally give an accused person the right to bail before trial. The constitutional exceptions include capital offenses, offenses carrying a maximum sentence of life imprisonment, and cases in which no conditions short of imprisonment can reasonably protect a person or the community. Under Commonwealth v. Talley, the Commonwealth must present competent evidence making it substantially more likely than not that one of those exceptions applies; the label attached to a charge is not enough by itself.

Bail does not always require a cash payment. Rule 524 recognizes release on recognizance, nonmonetary bail, unsecured bail, nominal bail, and monetary bail. The court uses the individualized Rule 523 factors to decide which conditions are reasonably necessary to assure appearance and compliance. If the court imposes a monetary condition, the amount may not be greater than reasonably necessary, and Rule 528 requires the court to consider the defendant's financial ability.

What Evidence Can Help Win a Bail Reduction?

A regular request to reduce or modify bail is governed by Rule 529. Before verdict, a Common Pleas judge may modify bail after notice to the parties and a hearing. Once a Common Pleas judge has set or modified bail, a later modification must generally come from a Common Pleas judge after notice and a hearing or from a court of superior jurisdiction.

The passage of time can strengthen a renewed request, particularly when the prosecution is not ready for trial, but time alone may not be enough. A stronger motion answers each concern with specific evidence: verified housing and a responsible custodian; employment, finances, family ties, transportation, and a reliable method for receiving court notices; any necessary medical, mental-health, or substance-use treatment; and documents explaining earlier failures to appear.

The defense should also propose conditions directed at the identified risk, such as electronic monitoring, house arrest, reporting to Pretrial Services, treatment, drug testing, a stay-away order, or surrender of a passport. Documents and witnesses give the trial judge something concrete to rely on and the appellate court something to review.

Prior failures to appear require special attention. Ignoring them allows the Commonwealth's version of events to control the hearing. The defense should explain what happened, distinguish an innocent mistake from an effort to flee, show what has changed, and propose conditions directed at preventing another missed court date.

How Do You Appeal a Bail Decision in Pennsylvania?

Before sentence, when no regular appeal is already pending, a defendant does not challenge a Common Pleas bail order by filing an ordinary notice of appeal. The proper procedure is a petition for specialized review under Rule 1610, usually filed in the Pennsylvania Superior Court.

Under Rule 1602, the petition generally must be filed within 30 days of the bail order unless another rule or court order provides a different deadline. Prompt filing is usually important because the defendant remains in custody. The petition must contain the appellate argument and the necessary record documents; no separate supporting brief is permitted. The trial judge must also state the reasons for the bail decision on the record or identify where those reasons can be found.

The Superior Court confirmed that it must review a properly filed Rule 1610 petition, but mandatory review does not mean a new hearing or an automatic victory. Counsel should make sure favorable evidence is admitted, challenge unsupported assertions, ask the judge to address the proposed conditions, and obtain clear findings for appellate review.

What Is a Rule 600(B) Motion for Nominal Bail?

Pennsylvania Rule of Criminal Procedure 600 contains two different protections that are often confused.

Rule 600(A) generally requires the Commonwealth to bring a defendant to trial within 365 days of the filing of the criminal complaint. A successful motion under Rule 600(A) and Rule 600(D)(1) may result in dismissal of the charges with prejudice. That calculation asks whether delay was caused by the Commonwealth when it failed to exercise due diligence.

Rule 600(B) addresses pretrial incarceration rather than dismissal. In the ordinary case, a bailable defendant may not remain incarcerated past a run date that ordinarily falls 180 days after the complaint was filed and is extended by periods of delay caused by the defendant. Rule 600 provides separate 120-day periods after an order granting a new trial or an appellate remand.

The difference in the calculation matters. For the 180-day custody limit, Rule 600(C)(2) excludes only periods of delay caused by the defendant. Delay caused by the court or the Commonwealth generally remains in the calculation. The Commonwealth's due diligence, which is important to a Rule 600(A) dismissal motion, is not the test for a Rule 600(B) nominal-bail motion.

The 180-day point is therefore not automatically six calendar months after the complaint was filed. Defense continuances and other defendant-caused delay can move the date. Counsel should review the docket, continuance orders, and custody history and prepare a date-by-date calculation.

Release is not automatic. After the adjusted deadline passes, Rule 600(D)(2) permits the defense to file a written motion requesting immediate release on nominal bail. The motion must be served on the Commonwealth concurrently with filing, and the judge must hold a hearing. A passing reference to Rule 600 during a general bail hearing is not the same as filing the motion with a supported calculation.

Rule 524 defines nominal bail as a token cash deposit, such as $1, with an approved person, organization, or bail agency acting as surety. The court may impose lawful nonmonetary conditions, including house arrest, electronic monitoring, regular reporting, treatment, drug testing, or a stay-away order.

The remedy is release, not dismissal. The criminal case continues, and the defendant must return for all future proceedings. A separate probation, parole, immigration, or out-of-county detainer may also keep the person in custody even if nominal bail is granted in the pending case.

Rule 600(B) does not apply to a defendant who is not legally entitled to bail. The Pennsylvania Supreme Court addressed the dangerousness exception in Talley. The Commonwealth cannot defeat the right to bail through argument and untested allegations alone. It must satisfy the constitutional standard with evidence, and the judge must consider whether available conditions can manage the alleged danger. Younger also shows why a release plan must directly address any history of missed court dates and forfeitures.

Again, Younger did not decide a Rule 600(B) claim. The opinion does not identify a written Rule 600(D)(2) motion, calculate an adjusted run date, analyze continuances, or decide entitlement to nominal bail. A proper motion should address each of those issues and specify the proposed conditions. If the trial court denies the motion, the resulting order may be presented to the Superior Court through a timely petition for specialized review.

The Takeaway

Commonwealth v. Younger reinforces the need to treat the first meaningful bail hearing as the foundation for any appeal. Favorable Rule 523 facts should be supported with documents or testimony, missed court dates should be explained, and proposed conditions should be tied to the risks the judge identifies. While a criminal case remains pending, counsel should continue looking for a stronger basis to renew the request and separately audit the docket as the Rule 600(B) deadline approaches.

A person should not remain in jail simply because an unaffordable bail order was entered early in the case and no one revisited it. Pennsylvania law provides multiple opportunities to seek release, but those remedies work best when counsel acts promptly, develops the facts, and preserves a record that a higher court can review.

Facing Criminal Charges or Appealing a Criminal Case in Pennsylvania? We Can Help.

Criminal Defense Lawyer Zak Goldstein

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Bail Pending Appeal After a Criminal Conviction in Pennsylvania

Criminal Defense Lawyer Zak T. Goldstein, Esquire

Many criminal defendants who go to trial and are convicted or who plead guilty and receive a harsher sentence than expected opt to appeal their convictions and sentences to the Pennsylvania Superior Court. In general, it is usually possible to challenge both the underlying conviction as well as the resulting sentence that the judge imposed. There may be all sorts of reasons to appeal - the judge may have committed an error of law or imposed an excessive sentence, or the evidence may have been insufficient and the jury got it wrong. But criminal appeals in Pennsylvania can take time. Post-sentence motions may be decided quickly, but a full appeal to the Superior Court or beyond can take a year or two. Accordingly, we often receive questions from clients as to whether they may be eligible for bail pending sentencing or bail pending appeal.

Bail Pending Sentencing

The Pennsylvania Rules of Criminal Procedure govern bail pending appeal. Specifically, Pa.R.Crim.P. 521 deals with Bail After Finding of Guilt.

In general, the rule provides that before sentencing, a defendant who has been found guilty of an offense which is punishable by a life sentence or the death penalty shall not be released on bail.

In other cases, whether a defendant is entitled to bail pending sentencing depends on the length of the potential sentence. Prior to sentencing, where the maximum possible sentence cannot exceed three years, the defendant should presumptively remain on bail.

Where the maximum possible sentence could exceed three years, a defendant who was on bail pending trial should generally remain on bail pending sentencing unless the judges finds:

(i)   that no one or more conditions of bail will reasonably ensure that the defendant will appear and comply with the conditions of the bail bond; or

(ii)   that the defendant poses a danger to any other person or to the community or to himself or herself.

If the judge finds that either of these factors exist, the judge may revoke or deny bail. Such a ruling can be appealed to the Superior Court, but bail appeals can take a few months.

Bail Pending Appeal

After sentencing, the rules change, and the defendant’s right to bail pending appeal depends on the length of the actual sentence imposed. For a defendant who has received a county jail sentence (meaning a sentence with a maximum of less than two years), the defendant has the same right to bail pending appeal as before the trial. Again, the judge may revoke bail for the same reasons that would justify revoking bail pending sentence.

For a defendant who received a state prison sentence (meaning a sentence with a maximum longer than two years), there is no longer a right to bail pending appeal. A judge, however, retains the discretion to allow such a defendant to remain on bail pending appeal where the judge thinks it’s appropriate.

For both groups of defendants, the judge can obviously require the defendant to actually file post-sentence motions and/or the actual appeal in order to remain on bail.

Finally, the rules require the judge to state the reasons for the denial or revocation of bail on the record so that the defendant may seek review in the Superior Court by filing a petition for specialized review should the defendant wish to appeal the bail ruling. The petition for specialized review is a separate appeal to the Superior Court which will usually be resolved more quickly than the full appeal.

Changes in Bail Conditions

It is important to note that in either case, a defendant who receives bail pending appeal may not receive the exact same bail. The judge could change the conditions or increase the bail.

Additionally, this rule does not typically apply to defendants who have appealed from a judgment of the Philadelphia Municipal Court. The Municipal Court has its own unique appeal procedures in which the defendant may seek a trial de novo. Filling a notice of appeal for a trial de novo actually vacates the original conviction, so the defendant then remains on the same pre-trial bail that existed prior to trial.

The rules for bail pending sentencing and bail pending appeal depend on the potential sentence and the actual sentence imposed. Short sentences for less serious offenses will typically allow for bail pending appeal, while judges are much less likely to grant bail pending appeal in serious cases or for cases involving lengthy sentences.

Bail Pending PCRA

Finally, the rules are silent on whether a defendant may be entitled to bail while a Post-Conviction Relief Act Petition is pending. In general, most defendants will not receive bail during PCRA litigation. The case law, however, does provide judges the authority to release a defendant on bail pending PCRA litigation when the judge believes the petition has strong merit. This is much less common than bail pending appeal, but it is not out of the question should the petitioner have a particularly strong PCRA issue.

Facing criminal charges or appealing a conviction? We can help.

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Attorney Goldstein Wins Release of Wrongfully Convicted Man Who Spent 33 Years in Prison

Last week, I obtained the dismissal of all charges for a client who had been convicted of first-degree murder 33 years ago and sentenced to life without parole.

In 1989, Philadelphia Police arrested Kevin Bowman and charged him and his co-defendant with murder for a shooting incident that left one man dead and another injured. The only evidence against Mr. Bowman was supposedly the statements of the surviving complainant. At the preliminary hearing and at trial, that man denied that Mr. Bowman shot him and that he had ever told the police that Mr. Bowman was involved in the shooting.

Nonetheless, five police detectives, many of whom have already been sued for misconduct by other wrongfully convicted men, took the stand and each testified that the complainant had made five statements to them and identified Mr. Bowman as one of the shooters. The complainant denied making the statements, and four of them were unsigned. The detectives, however, swore to the jury that the complainant was physically unable to sign the statements at the time due to a hand injury.

Under the oft-abused Brady-Lively rule, the court permitted the prosecution to introduce the statements into evidence as substantive evidence of Mr. Bowman’s guilt even though the complainant denied making them. The prosecution then argued that the jury should believe that the complainant made the statements and told the truth at the time of the statements rather than at trial or the preliminary hearing. The prosecution had no other evidence, so the jury was left to guess as to whether the statements were true or the trial testimony was true. Without any corroboration whatsoever, the jury convicted, and Mr. Bowman was sentenced to life without parole. He had been in custody for 33 years. Last week, a Philadelphia judge ordered his release.

After learning from his co-defendant, who was also convicted, that the co-defendant’s lawyers had obtained access to the file and found potentially exculpatory material which was never disclosed to the defense, Mr. Bowman retained me to investigate his case. I also gained access to the District Attorney’s file, and I found medical records for the complainant and interviews with the hospital personnel that showed that the detectives’ story was impossible. On many of the same dates that the detectives claimed the complainant had a hand injury which prevented him from singing the statements, the complainant had actually signed medical treatment consent forms. The records also showed that his injuries would not have prevented him from signing anything, and one nurse even told the detectives that he had been communicating with the providers by writing notes.

Other doctors told the detectives that the complainant would have been under the influence of medication which could have impacted his ability to tell them what happened. The complainant also told a hospital social worker that he thought someone else might have been responsible for the shooting. And shortly before trial, the Commonwealth submitted the one signed statement for handwriting comparison against other known signatures of the complainant, showing that they had even begun to doubt the testimony of their own detectives. Unsurprisingly, the results were inconclusive, suggesting that even the signed statement may have been a forgery. Finally, and perhaps most outrageously, the file contained a statement from another man who had approached police a day or two later and told them that he had been involved in the shooting and might have hurt someone. Police records showed that they transported the man to the hospital, but it is unclear what they did after that. The prosecutor did not provide any of this critical information to the defense.

Despite the prosecutor having material in his file which showed that the complainant could sign the statements, that the complainant was on strong medication, that the complainant thought someone else might have been the shooter, that the signature might not be the complainant’s, and that someone else had confessed to the crime, the Commonwealth proceeded to trial. Each detective took the stand and insisted that the complainant was unable to sign the four unsigned statements because his hand was injured. And a jury quickly convicted Mr. Bowman. The Commonwealth sought the death penalty, but fortunately, the jury sentenced Mr. Bowman to life in prison.

After finding this material, I filed a Post-Conviction Relief Act Petition arguing that Mr. Bowman should receive a new trial because the Commonwealth committed a Brady violation by suppressing exculpatory material that would have led to an acquittal. After two or three years of delays as we navigated the COVID shut downs and waited for the Commonwealth’s response, the Commonwealth did the right thing and agreed to a new trial. It then agreed that the charges against Mr. Bowman should be withdrawn, and Mr. Bowman was finally released last week. I went to meet him at SCI Chester and make sure that he was released the same day.

Mr. Bowman’s story is both unique and far too routine. It’s unique because he is one of the lucky few who received relief in a court system that is far too focused on upholding convictions even in the face of egregious error and misconduct. Mr. Bowman and his co-defendant had excellent defense attorneys at the time, but those attorneys could not overcome the Commonwealth’s complete failure to comply with its constitutional obligations and produce the exculpatory documents. It’s also unique in that he is truly an inspiring individual who had a perfect record at SCI Chester and prior institutions, helped create critical programming for other inmates, taught a class at Swarthmore College, and even after learning he was due to be released, went to work at his job in the prison.

It is too routine because people go to jail every day, sometimes for decades or even life, based on the testimony of a police officer that a witness who fails to even show up for court said something a few years ago. And in most cases, they don’t have the resources to investigate the case thirty years later or the good luck to find blatant evidence that the prosecution committed misconduct. Fortunately, Mr. Bowman’s criminal case is finally over, he is finally home with his family, and I know he is going to do big things.

Facing criminal charges? We can help.

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

If you are facing criminal charges or under investigation by the police, we can help. Our experienced and understanding Philadelphia criminal defense attorneys have successfully defended clients and obtained new trials after conviction in cases involving charges as serious as Aggravated Assault, Rape, Murder, and Fraud. We have also won criminal appeals and post-conviction relief in state and federal court. At the same time, our extensive experience in the Philadelphia criminal justice system and skills in the courtroom often allow us to obtain outcomes like this one even in relatively less serious cases in the Philadelphia Municipal Court. We offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with a defense attorney today.

Pre-trial Release in New Jersey

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges in New Jersey, we can help. The first step anytime you are facing charges or believe you may be under investigation is to speak with an experienced criminal defense attorney about your options. We regularly defend clients who are charged with a wide variety of offenses in New Jersey, including in counties such as Camden, Somerset, Hunterdon, Ocean, Cape May, and Atlantic County. We offer a free 15-minute criminal defense strategy session to any potential client who is under investigation or who is facing criminal charges. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

How does bail work in New Jersey?

New Jersey recently implemented a bail system which is very different from the systems in place in most of the rest of the country in that New Jersey no longer relies on cash bail. New Jersey's system closely mirrors the systems in use in Washington, D.C. and the federal courts. However, the system is probably more favorable to defendants in that the majority of criminal defendants are released pending trial.

The first step in the criminal justice system in any state is typically the bail determination. In other words, the first hearing is to determine whether the defendant will be released pending trial or detained. In Pennsylvania, courts still rely on cash bail in determining whether or not a defendant should be released pending trial. This means that a magistrate sets the bail amount at a preliminary arraignment, and if the defendant can pay that bail (usually 10% of the set amount), then the defendant will be released pending trial and will not spend any time in jail unless convicted.

A cash bail system is inherently unfair because it allows wealthier defendants to be released pending trial in even the most serious cases short of homicide while poorer defendants could languish in jail for years until their trial date. Because they are stuck in jail pending trial dates, which often get delayed, those defendants face a tremendous incentive to take a plea deal in order to get out of jail. Although Philadelphia’s new District Attorney has made promises to end cash bail, this has not happened yet.

Changes to New Jersey’s Bail System  

New Jersey’s new bail system, although not perfect, resolves many of those problems. In January 2017, New Jersey switched to an entirely new system that almost completely does away with cash bail. According to a recent Philly.com article, only 44 New Jersey defendants were required to pay bail in exchange for release in 2017. Instead, when a defendant is arrested in New Jersey, it is generally presumed for most offenses that the defendant will be released. If the prosecution looks at the offense and the defendant’s background and believes either that the defendant is a risk to the community, likely to try to intimidate witnesses, or unlikely to appear for court, then the prosecution may file a motion for pre-trial detention.

The first court date in New Jersey is typically the first appearance. Most defendants will receive a summons to appear for the first appearance, and it is generally expected that the prosecution will file a motion for pre-trial detention prior to the first appearance. If the prosecution does not file the motion for pre-trial detention, then the defendant will be released pending trial and will remain free unless the circumstances change. A change in circumstances could include the defendant picking up new criminal charges or failing to appear for court. Barring that, the defendant will usually remain free pending trial. 

What offenses could result in pre-trial detention in New Jersey?

The prosecution may only file a motion for pre-trial detention in cases involving indictable offenses or in disorderly persons offenses involving domestic violence. If you are charged with a disorderly persons offense that does not involve domestic violence, then you should not ordinarily be detained pending trial.   

When will the detention hearing occur?

If the prosecution files a motion for pre-trial detention, then the Superior Court judge assigned to the case or to pre-trial detention hearings must hold a hearing on the motion within three days of the filing of the motion. The prosecution or defense counsel may request a continuance of the hearing, but unless one of the parties shows good cause, the continuance may not exceed five business days if made by the defense. If made by the prosecution, the continuance of the pre-trial detention hearing may not exceed three business days. The court has the authority to detain the defendant until the hearing, which is why the rule limits the length of these continuances absent a showing of good cause. 

What happens at a pre-trial detention hearing in New Jersey?

The pre-trial detention hearing looks relatively similar to a bail hearing under the previous law. The defendant has the right to an attorney, meaning he or she may retain an attorney and have that attorney present. If the defendant cannot afford an attorney, then the court must appoint an attorney for the defendant. The defense has the right to present witnesses and evidence and cross-examine the prosecution’s witnesses, and the defendant always has the right to be present at the hearing. In order to have a defendant held pending trial, the prosecution must show two things:

First, the prosecution must show that there is probable cause to believe that the defendant has committed the crime charged. If the defendant has not been indicted yet, then the prosecution must present evidence to the court to establish probable cause. This would often involve presenting police reports or testimony from the lead detective in the case to the court. If the defendant has already been indicted by a grand jury, then probable cause exists and the prosecution does not again have to show probable cause.

Second, the prosecution must show that the defendant is a flight risk, likely to obstruct justice, or a danger to the community. The prosecution must make this showing at a clear and convincing evidence standard. For a limited number of offenses, there is a presumption that the defendant is a flight risk and danger to the community. These are offenses like murder, rape, and other offenses which are punishable with a life sentence in prison. For most offenses, however, there is a presumption that the defendant should be released. If there is a presumption that the defendant should be detained due to the nature of the offense charged, then the defendant must present evidence in order to rebut the presumption assuming that the prosecution establishes probable cause. If the presumption is that the defendant should be released, then the prosecutor must present evidence that the defendant should be held pending trial.

New Jersey’s new law created a new office of Statewide Pretrial Services which is charged with creating risk assessment reports for each defendant who is charged with an offense for which they could be detained. The Pretrial Services office will gather information about the defendant and prepare a report for the court along with a recommendation as to whether the defendant should be released. When making its detention decision, the trial court is directed to consider the following factors:

a. The nature and circumstances of the offense charged;

b. The weight of the evidence against the eligible defendant, except that the court may consider the admissibility of any evidence sought to be excluded;

c. The history and characteristics of the eligible defendant, including:

(1)the eligible defendant's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and

(2)whether, at the time of the current offense or arrest, the eligible defendant was on probation, parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any other state;

d. The nature and seriousness of the danger to any other person or the community that would be posed by the eligible defendant's release, if applicable;

e. The nature and seriousness of the risk of obstructing or attempting to obstruct the criminal justice process that would be posed by the eligible defendant's release, if applicable; and

f. The release recommendation of the pretrial services program obtained using a risk assessment instrument under section 11 of P.L.2014, c.31 (C.2A:162-25).

The recommendation of the Pretrial Services report is extremely important to the court. However, if either side disagrees with the recommendation, that attorney for that party may present evidence and argument as to why the recommendation is wrong.  

Because there is a presumption that most defendants be released, the result of this new system has been that most defendants are being released pending trial.

What conditions could the court impose on my release? 

New Jersey provides for different levels of supervision upon release which could include checking in regularly with a pre-trial officer by phone or in person or even house arrest with electronic monitoring. However, even in very serious cases, many defendants who would have been detained on exorbitant bail under the old system are now released pending trial. This means that they may continue working, going to school, and will have much easier access to their attorney and a greater ability to prepare for trial.

Can I appeal a pre-trial detention decision? Can the prosecutor appeal?

Both the defense and the prosecution may appeal a pre-trial detention decision to New Jersey’s appellate court. Either side may appeal to the appellate court by filing a notice of appeal within 48 hours of the trial court’s decision to either detain or release the defendant. Additionally, either side may file a motion to re-open the trial court’s decision with the trial judge if new circumstances or information comes to light.  

Facing Criminal Charges in New Jersey? We can help.

Criminal Lawyer Zak Goldstein

Our Philadelphia criminal defense lawyers regularly defend clients in the criminal courts throughout New Jersey. We have successfully defended thousands of clients in state and federal courts throughout Pennsylvania and New Jersey. If you are facing criminal charges or under investigation for a crime, we offer a free 15-minute criminal defense strategy session. Call 267-225-2545 to speak with an experienced and understanding criminal defense attorney today.

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New Jersey’s Pre-trial Detention Rule

Rule 3:4A. Pretrial Detention

(a) Timing of Motion. A prosecutor may file a motion at any time seeking the pretrial detention of a defendant for whom a complaint-warrant or warrant on indictment is issued for an initial charge involving an indictable offense, or a disorderly persons offense involving domestic violence, as provided in N.J.S.A. 2A:162-15 et seq. A defendant who is the subject of a warrant on indictment is an eligible defendant pursuant to N.J.S.A. 2A:162-15 et seq.

(b) Hearing on Motion.

(1) A pretrial detention hearing shall be held before a Superior Court judge no later than the defendant’s first appearance unless the defendant or the prosecutor seeks a continuance or the prosecutor files a motion at or after the defendant’s first appearance. If the prosecutor files a motion at or subsequent to the defendant’s first appearance the pretrial detention hearing shall be held within three working days of the date of the prosecutor’s motion unless the defendant or prosecutor seek a continuance. Except for good cause, a continuance on motion of the defendant may not exceed five days, not including any intermediate Saturday, Sunday or holiday. Except for good cause, a continuance on motion of the prosecutor may not exceed three days, not including any intervening Saturday, Sunday or holiday. The Superior Court judge in making the pretrial detention decision may take into account information as set forth in N.J.S.A. 2A:162-20.

(2) The defendant shall have a right to be represented by counsel and, if indigent, to have counsel appointed if he or she cannot afford counsel. The defendant shall be provided discovery pursuant to Rule 3:4-2(c)(1)(B). The defendant shall be afforded the right to testify, to present witnesses, to cross-examine witnesses who appear at the hearing and to present information by proffer or otherwise. Testimony of the defendant given during the hearing shall not be admissible on the issue of guilt in any other judicial proceeding, but the testimony shall be admissible in proceedings related to the defendant’s subsequent failure to appear, proceedings related to any subsequent offenses committed during the defendant’s release, proceedings related to the defendant’s subsequent violation of any conditions of release, any subsequent perjury proceedings, and for the purpose of impeachment in any subsequent proceedings. The defendant shall have the right to be present at the hearing. The rules governing admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing. The return of an indictment shall establish probable cause to believe that the defendant committed any offense alleged therein. Where there is no indictment at the point of the detention hearing, the prosecutor shall establish probable cause that the defendant committed the predicate offense.

(3) A hearing may be reopened at any time before trial if the court finds that information exists that was not known by the prosecutor or defendant at the time of

the hearing and that information has a material bearing on the issue of whether there are conditions of release that will reasonably assure the defendant’s appearance in court when required, the protection of the safety of any other person or the community, or that the defendant will not obstruct or attempt to obstruct the criminal justice process.

(4) Presumption of detention. When a motion for pretrial detention is filed pursuant to paragraph (a), there shall be a rebuttable presumption that the defendant shall be detained pending trial because no amount of monetary bail, non-monetary condition or combination of monetary bail and conditions would reasonably assure the defendant’s appearance in court when required, the protection of the safety of any other person or the community, and that the defendant will not obstruct or attempt to obstruct the criminal justice process, if the court finds probable cause that the defendant: (i) committed murder pursuant to N.J.S.A. 2C:11-3; or (ii) committed any crime for which the defendant would be subject to an ordinary or extended term of life imprisonment.

(5) Presumption of release. Except when a presumption of detention is required pursuant to paragraph (b)(4), when a motion for pretrial detention is filed pursuant to paragraph (a), there shall be a rebuttable presumption that some amount of monetary bail, non-monetary conditions of pretrial release or combination of monetary bail and conditions would reasonably assure the defendant’s appearance in court when required, the protection of the safety of any other person or the community, and that the defendant will not obstruct or attempt to obstruct the criminal justice process.

The standard of proof for the rebuttal of the presumption of pretrial release shall be by clear and convincing evidence. The court may consider as prima facie evidence sufficient to overcome the presumption of release a recommendation by the Pretrial Services Program established pursuant to N.J.S.A. 2A:162-25 that the defendant’s release is not recommended (i.e., a determination that “release not recommended or if released, maximum conditions”). Although such recommendation by the Pretrial Services Program may constitute sufficient evidence upon which the court may order pretrial detention, nothing herein shall preclude the court from considering other relevant information presented by the prosecutor or the defendant in determining whether no amount of monetary bail, non-monetary bail conditions of pretrial release or combination of monetary bail and conditions would reasonably assure the defendant’s appearance in court when required, the protection of the safety of any other person or the community, and that the defendant will not obstruct the criminal justice process.

(c) Pretrial Detention Order. If the court determines that pretrial detention is necessary it shall issue an order containing written findings of fact and a written statement of reasons for the detention. That order shall also direct that the defendant be afforded reasonable opportunity for private consultation with counsel.

(d) Temporary Release Order. The court may issue an order temporarily releasing the defendant, subject to conditions, to the extent that the court determines the release is necessary for the preparation of a defendant’s defense or for another compelling reason.

(e) Interlocutory Order from Appellate Division. Nothing in this Rule shall be deemed to preclude the State’s right to seek an interlocutory order from the Appellate Division within 48 hours.