SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

State v. Habeeb Robinson (A-40-16) (078900)

Argued March 29, 2017 -- Decided May 10, 2017

RABNER, C.J., writing for a majority of the Court.

In this appeal, the Court considers the newly enacted Criminal Justice Reform Act for the first time and 

addresses the type and scope of discovery the State must provide when it seeks to detain a defendant pretrial.

The Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26, has three principal components. 

First, it allows for pretrial detention of defendants who present such a serious risk of danger, flight, or obstruction 

that no combination of release conditions would be adequate. Second, it replaced the system’s prior heavy reliance 

on monetary bail and instead calls for an objective evaluation of risk level and consideration of conditions of release. 

Finally, the Act establishes statutory speedy trial deadlines. The CJRA took effect on January 1, 2017.

N.J.S.A. 2A:162-18(a) authorizes the court to order pretrial detention if it finds by clear and convincing 

evidence that no conditions of release would reasonably assure a defendant’s appearance in court, the safety of the 

community, and the integrity of the criminal justice process. A rebuttable presumption of detention exists when the 

court finds probable cause for murder or a crime subject to life imprisonment. N.J.S.A. 2A:162-19(b).

When a prosecutor applies for pretrial detention, the defendant is held pending a hearing. N.J.S.A. 2A:162-

19(d)(2). “In pretrial detention proceedings for which there is no indictment, the prosecutor shall establish probable 

cause that the eligible defendant committed the predicate offense.” N.J.S.A. 2A:162-19(e)(2). A defendant can 

rebut a presumption of detention, when one applies, by a preponderance of the evidence. Ibid. If a court orders 

detention, its decision must be supported by clear and convincing evidence. N.J.S.A. 2A:162-19(e)(3).

At the hearing, “the court may take into account”: (a) “[t]he nature and circumstances of the offense 

charged; (b) [t]he weight of the evidence against the eligible defendant”; (c) the defendant’s “history and 

characteristics”; (d) the danger posed by release; (e) the risk of obstruction of justice; “and (f) [t]he release 

recommendation” of the Public Safety Assessment (PSA) prepared under N.J.S.A. 2A:162-25. N.J.S.A. 2A:162-20.

After the Legislature enacted the CJRA, the Court asked the Criminal Practice Committee to propose 

amendments to the court rules. The Committee divided sharply about the amount and type of discovery that should 

be required for pretrial detention hearings. The Court struck a compromise: “if the prosecutor is seeking pretrial 

detention, the prosecutor shall provide the defendant with all statements or reports in its possession relating to the 

pretrial detention application. All exculpatory evidence must be disclosed.” R. 3:4-2(c)(1)(B).

The police arrested defendant Habeeb Robinson for killing a victim. According to the affidavit, two 

eyewitnesses saw the shooting. One identified defendant from a six-person photo array; the other identified a photo 

of defendant. The Preliminary Law Enforcement Incident Report (PLEIR) adds that a surveillance camera recorded 

the incident. The pending complaint charges defendant with first-degree murder and weapons offenses. The PSA 

recommended that defendant not be released.

The State moved for pretrial detention. At the hearing, the State relied on the hearsay statements in the 

affidavit of probable cause (which refer to the two eyewitnesses); the presumption of detention under N.J.S.A.

2A:162-19(b)(1) (based on the murder charge); defendant’s criminal history and record of court appearances; and 

the release recommendation in the PSA. The trial court directed the State to disclose the two witness statements, the 

photos used in the identification process, the surveillance video, and any incident report that the police prepared.

The Appellate Division affirmed the trial court’s order. 448 N.J. Super. 501, 506 (App. Div. 2017). The 

Court agreed to hear the State’s motion for leave to appeal on an accelerated basis.
2

HELD: Both the trial court and the Appellate Division directed the State to disclose the statements of two 

eyewitnesses, photos used in the identification process, any incident report of the crime prepared by the police, and a 

surveillance video. Rule 3:4-2(c)(1)(B) required disclosure of the reports and the photos but not the video. The Court 

also clarifies and reframes the Rule to help ensure that it strikes the proper balance between two important concerns: a 

defendant’s liberty interest and the State’s ability to seek to detain high-risk defendants before trial.

1. Thoughtful people have wrestled over the scope of discovery that should be required at a detention hearing. A 

number of considerations factor into the ongoing debate: the language of the statute; important concerns for public 

safety; and the defendants’ liberty interests. In addition, the discovery rule should not impose impractical demands 

on law enforcement. The administration of justice calls for fair and efficient proceedings. In the case of a detention 

application, the focus is not on guilt, and the hearing should not turn into a mini-trial. (pp. 26-29)

2. To balance those aims, the Court sets forth principles to govern the disclosure of evidence at a detention hearing: 

(1) because the Act calls for a determination of probable cause and an assessment of the risk of danger, flight, and 

obstruction, which may include consideration of the nature and circumstances of the offense and the weight of the 

evidence, discovery should likewise be keyed to both areas; (2) the complaint, (3) the PSA, (4) the affidavit of 

probable cause, and (5) any available PLEIR must be disclosed; (6) all statements and reports relating to the 

affidavit of probable cause should be disclosed; (7) all statements or reports that relate to any additional evidence the 

State relies on to establish probable cause at the detention hearing should be disclosed; (8) statements and reports 

related to items that appear only in the PLEIR need not be disclosed; (9) statements and reports relating to the risk of 

flight, danger, and obstruction, which the State advances at the hearing, should be disclosed; the phrase “statements 

and reports” (10) refers to items that exist at the time of the hearing and does not encompass video and audio files as 

a general rule, but does (11) encompass reports that are in the possession of the prosecutor, law enforcement 

officials, and other agents of the State; and (12) all exculpatory evidence must be disclosed. (pp. 29-32)

3. With those principles in mind, and based on the Rule’s practical application since January 1, 2017, the Court 

clarifies and revises Rule 3:4-2(c), effective at once. The revisions are to be read with Rule 3:13-3, which obligates 

the State to provide full discovery when it makes a pre-indictment plea offer or when an indictment is returned or 

unsealed. In appropriate cases, the prosecutor may apply for a protective order directly to the judge who will preside 

over the detention hearing. If, after an extensive, long-term investigation, the State seeks permission to provide 

more limited discovery, judges may direct that a representative sample of statements and reports be disclosed before 

the detention hearing. When the Court adopted the original Rule, it unanimously rejected the recommendation that 

videotapes be disclosed before a detention hearing. The revised rule maintains that approach. (pp. 32-36)

4. The discovery rule—in its original and revised form—satisfies the requirements of due process and passes muster 

under the Federal and New Jersey Constitutions. (pp. 37-40)

5. Applying Rule 3:4-2(c), as clarified, to this case, any initial police reports about the witnesses must be disclosed, 

and the prosecution must provide copies of statements or reports of the two eyewitnesses. When an eyewitness 

makes an identification, the State must document the process and record certain details. That information should be 

disclosed along with copies of any photo arrays or photos used in the identification process. Because photos shown 

as part of an identification receive special treatment under the law, their disclosure is an exception to the rule. 

Neither the original nor the revised Rule calls for disclosure of surveillance videos and similar items. (pp. 41-42)

The judgment of the Appellate Division is AFFIRMED and MODIFIED. The revised Rule 3:4-2(c) shall 

go into effect at once.

JUSTICE ALBIN, DISSENTING IN PART, concurs in the judgment in this case based on the language 

of the then-operative Rule but dissents from the majority’s decision to draft a new rule. In Justice Albin’s view, the 

redrafted Rule sanctifies artificial distinctions, making highly relevant evidence non-discoverable (a videotape) and 

second-hand evidence discoverable (written summary of tape). The redrafted Rule also gives the prosecutor a 

perverse incentive to place information, not in the affidavit of probable cause, but rather in the PLEIR because 

reports and statements referenced in the PLEIR are non-discoverable.

JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in CHIEF 

JUSTICE RABNER’s opinion. JUSTICE ALBIN filed a separate opinion, dissenting in part and concurring 

in part, in which JUSTICE LaVECCHIA joins.
3

Rule 3:4-2(c)

(c) Procedure in Indictable Offenses. At the defendant’s first appearance before 

a judge, if the defendant is charged with an indictable offense, the judge shall

(1) give the defendant a copy of the complaint, discovery as provided 

in subsections (A) and (B) below, and inform the defendant of the 

charge;

(A) if the prosecutor is not seeking pretrial detention, the 

prosecutor shall provide the defendant with a copy of any 

available preliminary law enforcement incident report 

concerning the offense and the affidavit of probable cause;

(B) if the prosecutor is seeking pretrial detention, the 

prosecutor shall provide the defendant with (i) the discovery 

listed in subsection (A) above, (ii) all statements or reports 

relating to the affidavit of probable cause, (iii) all statements or 

reports relating to additional evidence the State relies on to 

establish probable cause at the hearing, (iv) all statements or 

reports relating to the factors listed in N.J.S.A. 2A:162-18(a)(1) 

that the State advances at the hearing, and (v) all exculpatory 

evidence.
1

SUPREME COURT OF NEW JERSEY

A-40 September Term 2016

078900

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

HABEEB ROBINSON,

Defendant-Respondent.

Argued March 29, 2017 – Decided May 10, 2017

On appeal from the Superior Court, Appellate 

Division, whose opinion is reported at 448 

N.J. Super. 501 (App. Div. 2017).

Elie Honig, Director, Division of Criminal 

Justice, Office of the Attorney General, 

argued the cause for appellant (Christopher 

S. Porrino, Attorney General, attorney; 

Claudia Joy Demitro, Deputy Attorney 

General, of counsel and on the briefs).

Joseph E. Krakora, Public Defender, argued 

the cause for respondent (Joseph E. Krakora, 

Public Defender, attorney; Elizabeth C. 

Jarit, Assistant Deputy Public Defender, of 

counsel and on the briefs).

Paul H. Heinzel, Somerset County Assistant 

Prosecutor, argued the cause for amicus 

curiae, County Prosecutors Association of 

New Jersey (Richard T. Burke, President, 

attorney).

Alexander R. Shalom argued the cause for 

amicus curiae American Civil Liberties Union 

of New Jersey (Edward L. Barocas, Legal 

Director, attorney; Alexander R. Shalom, 

Edward L. Barocas, and Jeanne M. LoCicero on 

the brief).
2

CHIEF JUSTICE RABNER delivered the opinion of the Court.

In this appeal, we consider the newly enacted Criminal 

Justice Reform Act for the first time and address the type and 

scope of discovery the State must provide when it seeks to 

detain a defendant pretrial. 

The new law changed the landscape of the State’s criminal 

justice system relating to pretrial release. The statute marked 

a shift away from heavy reliance on monetary bail. Judges now 

have the authority to detain defendants prior to trial if they 

present a serious risk of danger, flight, or obstruction. 

N.J.S.A. 2A:162-18(a)(1). Defendants who pose less risk can be 

released on their own recognizance or on conditions that 

pretrial services officers monitor. N.J.S.A. 2A:162-17, -25(d). 

The law also sets forth new speedy trial rules that apply to 

defendants who are detained. N.J.S.A. 2A:162-22.

In this case, defendant Habeeb Robinson was arrested on 

January 4, 2017 and charged with murder and weapons offenses. 

The State moved to detain him. In connection with the detention 

hearing, both the trial court and the Appellate Division 

directed the State to disclose the statements of two 

eyewitnesses, photos used in the identification process, any 

incident report of the crime prepared by the police, and a

surveillance video. 
3

We find that Rule 3:4-2(c)(1)(B), on which the courts 

relied, required disclosure of the reports and the photos but 

not the video. We also take this opportunity to clarify and 

reframe the Rule to help ensure that it strikes the proper 

balance between two important concerns: a defendant’s liberty 

interest and the State’s ability to seek to detain high-risk 

defendants before trial. 

I.

We begin with an overview of the Criminal Justice Reform 

Act (CJRA or Act), N.J.S.A. 2A:162-15 to -26, and certain 

related court rules to offer context for the discussion that 

follows.

A.

Before this year, New Jersey had long guaranteed defendants 

the right to bail. The 1844 Constitution added a provision that 

had existed by statute for more than a century: “All persons 

shall, before conviction, be bailable by sufficient sureties, 

except for capital offences, when the proof is evident or 

presumption great.” N.J. Const. of 1844, art. I, ¶ 10; see also

State v. Johnson, 61 N.J. 351, 354 (1972). The 1947 

Constitution retained the same language. N.J. Const. of 1947, 

art. I, ¶ 11 (2016).

Beginning in 2007, when the Legislature eliminated the 

death penalty for murder, see State v. Fortin, 198 N.J. 619, 624 
4

(2009), the constitutional right to bail applied in all cases, 

see Report of the Joint Committee on Criminal Justice 18–19, 18 

n.42 (Mar. 10, 2014), http://www.judiciary.state.nj.us/pressrel/

2014/FinalReport_3_20_2014.pdf (JCCJ Report).

In practice, New Jersey’s system of pretrial release relied 

heavily on the use of monetary bail “to insure [the] presence of 

the accused at the trial.” Johnson, supra, 61 N.J. at 364. 

Defendants had to post cash or arrange for a bond to secure 

their release. 

The system had direct consequences: any defendants -- even 

those who posed a substantial risk of flight or danger to the 

community -- could be released if they had access to untainted 

funds to post as bail. See N.J.S.A. 2A:162-13(b). Meanwhile, 

poorer defendants accused of less serious crimes, who presented 

minimal risk, were held in custody if they could not post even 

modest amounts of bail. 

A March 2013 study of New Jersey’s county jails revealed 

that twelve percent of inmates were in custody pretrial because 

they could not pay $2500 or less. Marie VanNostrand, Ph.D., 

Luminosity & the Drug Policy Alliance, New Jersey Jail 

Population Analysis 13 (Mar. 2013), https://university.pretrial.

org/viewdocument/new-jersey-jail-popu. About 800 inmates “could 

have secured their release for $500 or less”; “an additional 259 

inmates could have secured their release for between $501 and 
5

$1,000[;] and an additional 489 inmates could have secured their 

release for between $1,001 and $2500.” Ibid. In other words, 

one in eight inmates, who posed little risk, sat in jail 

pretrial because they were poor, while defendants charged with 

serious crimes who posed a substantial risk of danger or flight 

could be released into the community without monitoring so long 

as they could make bail. 

A number of steps were taken in the past five years to 

address those system-wide problems. In 2012, Governor Christie 

called for a constitutional amendment to allow for pretrial 

detention in serious cases. Administrative Office of the 

Courts, Criminal Justice Reform: Annual Report to the Governor 

& Legislature 1 (2016), https://www2.njcourts.gov/courts/assets/

criminal/2016cjrannual.pdf. The following year, the Judiciary 

established the Joint Committee on Criminal Justice, “comprised 

of members from all three branches of state government including 

the Attorney General, Public Defender, private attorneys, 

judges, court administrators, and representatives of the 

Legislature and the Governor’s Office, to examine New Jersey’s 

criminal justice system.” Ibid. The Committee issued a report 

in March 2014, which recommended a series of changes to New 

Jersey’s criminal justice system and focused, in particular, on 

bail reform and the need for a speedy trial act. See JCCJ 

Report, supra, at 1.
6

The Legislature held hearings to consider the Committee’s 

findings and recommendations, and ultimately adopted a proposal 

to amend the State Constitution to permit detention

if the court finds that no amount of monetary 

bail, non-monetary conditions of pretrial 

release, or combination of monetary bail and 

non-monetary conditions would reasonably 

assure the person’s appearance in court when 

required, or protect the safety of any other 

person or the community, or prevent the person 

from obstructing or attempting to obstruct the 

criminal justice process.

[S. Con. Res. No. 128, 216th Leg. (2014).] 

The Legislature also drafted a bill, S. 946/A. 1910 (2014),

discussed in detail below, to reform the system of pretrial 

release and provide for more timely trials for defendants who 

are detained. Governor Christie signed the new law on August 

11, 2014. L. 2014, c. 31 (codified at N.J.S.A. 2A:162-15 to -

26). 

The Criminal Justice Reform Act has three principal 

components. First, it allows for pretrial detention of 

defendants who present such a serious risk of danger, flight, or 

obstruction that no combination of release conditions would be 

adequate. N.J.S.A. 2A:162-18(a)(1). Second, the Act replaced 

the system’s prior heavy reliance on monetary bail. The law 

instead calls for an objective evaluation of each defendant’s 

risk level and consideration of conditions of release that 

pretrial services officers will monitor. N.J.S.A. 2A:162-17, -
7

25(d). In that way, low-level offenders will not be penalized 

because they cannot afford to post bail. Finally, the Act

establishes statutory speedy trial deadlines for defendants who 

are detained pending trial. N.J.S.A. 2A:162-22. 

The law was contingent on passage of the proposed 

constitutional amendment, which voters approved by a wide margin 

of 61.8 to 38.2 percent in November 2014. Div. of Elections, 

Dep’t of State, Official List: Public Question Results for 

11/04/2014 General Election Public Question No. 1 1 (Dec. 2, 

2014), http://nj.gov/state/elections/2014-results/2014-officialgeneral-public-question-1.pdf.

The Criminal Justice Reform Act took effect on January 1, 

2017. N.J.S.A. 2A:162-15 to -26. We summarize its provisions 

and focus in particular on parts of the law that relate to 

pretrial detention. 

The Act “shall be liberally construed” to effect its 

purpose: to rely primarily on “pretrial release by non-monetary

means to reasonably assure” that a defendant will “appear[] in 

court when required,” will not endanger “the safety of any other 

person or the community,” and “will not obstruct or attempt to 

obstruct the criminal justice process.” N.J.S.A. 2A:162-15. If

a court finds by clear and convincing evidence that “no 

condition or combination of conditions” would achieve those 
8

goals, the court, upon motion by the prosecutor, may order that 

a defendant be held pending trial. Ibid. 

A court may set monetary bail “only when . . . no other 

conditions of release will reasonably assure the eligible 

defendant’s appearance in court.” Ibid. The statute defines 

“eligible defendant” as a person initially charged in a 

complaint-warrant with an indictable offense or a disorderly 

persons offense, unless otherwise stated. Ibid.

After a complaint-warrant is issued, eligible defendants 

“shall be temporarily detained to allow the Pretrial Services 

Program to prepare a risk assessment” and recommend conditions 

of release. N.J.S.A. 2A:162-16(a); see also N.J.S.A. 2A:162-25. 

Within 48 hours of a defendant’s commitment to jail, the court 

must “make a pretrial release decision.” N.J.S.A. 2A:162-

16(b)(1). Defendants who are released must receive notice of 

any conditions imposed and the consequences for violating them. 

N.J.S.A. 2A:162-23(a)(1); see also N.J.S.A. 2A:162-24 (noting 

process for violations).

The CJRA outlines a hierarchy of release decisions to 

assure a defendant’s return to court and protect both public 

safety and the integrity of the criminal justice process: (i) 

release on personal recognizance or an unsecured appearance 

bond, N.J.S.A. 2A:162-16(b)(2)(a), -17(a); (ii) if that is 

inadequate, release on non-monetary conditions that are the 
9

least restrictive conditions necessary, N.J.S.A. 2A:162-

16(b)(2)(b), -17(b); (iii) if that is inadequate, release on

monetary bail -- but only to reasonably assure the defendant’s 

appearance in court, N.J.S.A. 2A:162-16(b)(2)(c), -17(c); (iv) 

if that is inadequate, release on both monetary and non-monetary 

conditions, N.J.S.A. 2A:162-16(b)(2)(c), -17(d); and (v) if that 

is inadequate and the prosecutor has moved for pretrial 

detention, order that the defendant remain detained pending a 

pretrial detention hearing, N.J.S.A. 2A:162-16(b)(2)(d).

Sections 18 to 20 of the Act set forth procedures for 

pretrial detention hearings, N.J.S.A. 2A:162-18 to -20, and are 

discussed in the following section. 

The Act’s speedy trial deadlines appear in section 22. 

Except for “excludable time for reasonable delays,” defendants 

cannot remain in jail for more than 90 days before the return of 

an indictment, or more than 180 days after indictment and before 

the start of trial. N.J.S.A. 2A:162-22(a)(1)(a), (a)(2). The 

statute lists thirteen periods of excludable time, N.J.S.A.

2A:162-22(b), and sets an outer limit of two years for pretrial 

detention in a single matter, aside from any delays attributable 

to the defendant. N.J.S.A. 2A:162-22(a)(2)(a), (a)(2)(c); see 

also R. 3:25-4(d).

Section 25 establishes a Pretrial Services Program. Among 

other responsibilities, pretrial services officers prepare a 
10

risk assessment for each defendant for the court’s use, N.J.S.A.

2A:162-25(b), (c), and monitor defendants who are released on 

conditions, N.J.S.A. 2A:162-25(d). 

In many respects, the text of the Criminal Justice Reform 

Act follows the federal Bail Reform Act of 1984, 18 U.S.C.A. §§ 

3141 to 3156, and the District of Columbia’s statutory scheme 

for pretrial detention, D.C. Code. §§ 23-1321 to -1333. As 

State Senator Norcross, one of the Act’s sponsors, noted at a 

public hearing, the Legislature looked to both laws among others 

when it framed New Jersey’s reform measure. Pub. Hearing Before 

S. Law & Pub. Safety Comm., S. Con. Res. 128 2 (2014). The 

CJRA, however, contains additional safeguards for pretrial 

detention hearings. We turn to those now. 

B.

Several sections of the Criminal Justice Reform Act are 

critical to this appeal: N.J.S.A. 2A:162-18, -19, and -20.

Section 18(a) authorizes the court to order pretrial 

detention if it finds by clear and convincing evidence that no 

conditions of release would reasonably assure a defendant’s 

appearance in court, the safety of the community, and the 

integrity of the criminal justice process. N.J.S.A. 2A:162-

18(a). 

Prosecutors may seek detention when an eligible defendant 

is charged with:
11

(1) any crime of the first or second degree 

enumerated under [N.J.S.A. 2C:43-7.2(d)];

(2) any crime for which the eligible 

defendant would be subject to an ordinary or 

extended term of life imprisonment;

(3) any crime if the eligible defendant has 

been convicted of two or more offenses under 

paragraph (1) or (2) of this subsection;

(4) any crime enumerated under [N.J.S.A.

2C:7-2(b)(2)] or crime involving human 

trafficking pursuant to [N.J.S.A. 2C:13-8] or 

[N.J.S.A. 52:17B-237 et al.] when the victim 

is a minor, or the crime of endangering the 

welfare of a child under N.J.S.A. 2C:24-4;

(5) any crime enumerated under N.J.S.A.

2C:43-6(c);

(6) any crime or offense involving domestic 

violence as defined in [N.J.S.A. 2C:25-19(a)]; 

or

(7) any other crime for which the prosecutor 

believes there is a serious risk that:

(a) the eligible defendant will not 

appear in court as required;

(b) the eligible defendant will pose a 

danger to any other person or the 

community; or

(c) the eligible defendant will 

obstruct or attempt to obstruct justice, 

or threaten, injure, or intimidate, or 

attempt to threaten, injure or 

intimidate, a prospective witness or 

juror.

[N.J.S.A. 2A:162-19(a).]

 

A rebuttable presumption of detention exists when the court 

finds probable cause for two categories of offenses: murder, 
12

under N.J.S.A. 2C:11-3, or a crime that would subject a 

defendant to life imprisonment. N.J.S.A. 2A:162-19(b).

When a prosecutor applies for pretrial detention, the 

defendant is held pending a hearing. N.J.S.A. 2A:162-19(d)(2). 

The hearing must take place no later than the defendant’s first 

appearance or within three days of the prosecutor’s motion. 

N.J.S.A. 2A:162-19(d)(1). The court may grant a continuance of 

up to three days upon the prosecutor’s request or up to five 

days at the defendant’s request. Ibid.

At the hearing, the defendant has the right to counsel and, 

if indigent, to court-appointed counsel. N.J.S.A. 2A:162-

19(e)(1). The defendant also has the right to testify, to call 

witnesses, to cross-examine witnesses who appear, and to present 

information by proffer or otherwise. Ibid.

Of particular note in this appeal, “[i]n pretrial detention 

proceedings for which there is no indictment, the prosecutor 

shall establish probable cause that the eligible defendant 

committed the predicate offense.” N.J.S.A. 2A:162-19(e)(2). In 

that way, the CJRA differs from federal law, which does not 

require the government to establish probable cause to prevail on 

a motion for pretrial detention. See 18 U.S.C.A. § 3142(e)(1). 

A defendant can rebut a presumption of detention, when one 

applies, by a preponderance of the evidence. N.J.S.A. 2A:162-

19(e)(2). If the defendant succeeds, the prosecution may seek 
13

to establish that detention is warranted. Ibid. In the end, if 

a court orders detention, its decision must be supported by 

clear and convincing evidence. N.J.S.A. 2A:162-19(e)(3). The 

court may reopen the hearing to consider new and material 

evidence. N.J.S.A. 2A:162-19(f). 

At the hearing itself, “the court may take into account” 

the following:

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;
14

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 [N.J.S.A. 2A:162-

25].

[N.J.S.A. 2A:162-20 (emphases added).]

If a court orders a defendant detained pretrial, the judge 

must “include written findings of fact and a written statement 

of . . . reasons” in an order. N.J.S.A. 2A:162-21(a). If a 

judge instead authorizes a defendant’s release, “contrary to a 

recommendation made in a risk assessment,” “the court shall 

provide an explanation” in the order of release. N.J.S.A.

2A:162-23(a)(2) (requiring explanation whenever court enters 

order contrary to recommendation in PSA). A defendant has the 

right to file an appeal from a detention order, which “shall be 

heard in an expedited manner.” N.J.S.A. 2A:162-18(c). 

C.

After the Legislature enacted the Criminal Justice Reform 

Act, the Court asked the Criminal Practice Committee to propose 

amendments to the court rules. That able Committee is comprised 

of judges, representatives of the Attorney General and the 

Public Defender, county prosecutors, and private counsel. The 

Committee recommended dozens of rule changes to implement the 
15

new law. See Report of the Supreme Court Committee on Criminal 

Practice on Recommended Court Rules to Implement the Bail Reform 

Law, Part I: Pretrial Release (CPC Report I) (May 9, 2016),

http://njcourts.gov/reports2016/bailreform.pdf, & Part II: 

Pretrial Detention & Speedy Trial (May 12, 2016), 

http://njcourts.gov/reports2016/bailreformlaw.pdf. The 

Committee divided sharply about the amount and type of discovery 

that should be required for pretrial detention hearings. 

The Committee’s recommendation called for broad discovery: 

“if the prosecutor is seeking pretrial detention, the prosecutor 

shall provide all relevant material in its possession that would 

be discoverable at the time of indictment as set forth in 

paragraph (a) of Rule 3:13-3.” CPC Report I, supra, at 46. The 

Committee also acknowledged that “[t]here were strong concerns 

raised about the nature of a detention hearing, and that it is 

supposed to be limited in scope. Some members noted that it 

would be overly burdensome for prosecutors to be required to 

provide ‘complete’ discovery . . . .” Id. at 51.

In a dissent to the Committee’s recommendation, the 

Attorney General asserted that the proposed rule “would signal 

to the bench and bar that a defendant may probe and contest the 

State’s case-in-chief at a detention hearing as if it were a 

trial to decide guilt or innocence.” Office of the Attorney 

General, Dissent to Proposed Rule 3:4-2(c)(1)(b) Governing 
16

Discovery for Pretrial Detention Hearings 2 (May 4, 2016), 

reprinted in CPC Report I, supra, at 109. The Attorney General

advocated for the narrower rule that Judge Martin Cronin, a 

Committee member, had initially recommended. Id. at 1, 

reprinted in CPC Report I, supra, at 108. They proposed the 

following language: “if the prosecutor is seeking pretrial 

detention or release revocation, the prosecutor shall provide 

the defendant with all statements or reports in its possession 

that relate to the facts upon which the prosecutor relies in 

these motions.” Id. at 5, reprinted in CPC Report I, supra, at 

112.

The Public Defender challenged the dissent’s formulation

and argued that “[i]t would permit the State to withhold 

evidence that is arguably exculpatory or that the defense could 

use to demonstrate weaknesses in the case.” Office of the 

Public Defender, Comments on Part I Proposed Rules 2 (Apr. 27, 

2016), reprinted in CPC Report I, supra, at 107.

The Court struck a compromise and adopted a rule closer to 

the dissent’s proposal: “if the prosecutor is seeking pretrial 

detention, the prosecutor shall provide the defendant with all 

statements or reports in its possession relating to the pretrial 

detention application. All exculpatory evidence must be 

disclosed.” R. 3:4-2(c)(1)(B).
17

Rule 3:4-2(c)(1)(B) guarantees far broader discovery than

federal law does. The Bail Reform Act of 1984 has no discovery 

provision. Consistent with the Jencks Act, the government is 

obligated to disclose witness statements only after a witness 

testifies at a hearing. See 18 U.S.C.A. § 3500; see also Fed. 

R. Crim. P. 26.2, 46(j). Similarly, the ABA’s model standards 

for pretrial detention hearings call for disclosure of 

exculpatory evidence only. ABA Standards for Criminal Justice: 

Pretrial Release § 10.5-10(c) (3d ed. 2007).

For non-detention cases, by contrast, the Court adopted a 

new rule that calls for more limited disclosure of “a copy of 

any available preliminary law enforcement incident report 

[PLEIR] concerning the offense and any material used to 

establish probable cause.” R. 3:4-2(c)(1)(A).

The PLEIR is “an electronic document that succinctly 

describes the relevant factual circumstances” relating to a 

defendant’s arrest. Office of the Attorney General, Directive 

Establishing Interim Policies, Practices, and Procedures to 

Implement Criminal Justice Reform Pursuant to P.L. 2014, c. 31 § 

5.2, at 48 (Oct. 11, 2016), http://www.state.nj.us/lps/dcj/ 

agguide/directives/2016-6_Law-Enforcement.pdf. PLEIRs are 

designed to enable law enforcement officers to prepare them 

quickly and easily. Id. at 49. The electronic form lists 

“commonly occurring facts and circumstances” that officers may 
18

select, including whether law enforcement officers or other 

eyewitnesses observed the offense, whether the defendant made a 

recorded admission, what type of weapon was involved, and 

whether any physical evidence was recovered, among other things. 

Id. at 49-51. The Administrative Office of the Courts (AOC) 

developed a form that states that the PLEIR “is designed to be 

appended to, and is expressly incorporated by reference in, the 

affidavit of probable cause.” 

In addition, the CJRA specifically calls for the use of a 

“risk assessment instrument approved by the” AOC. N.J.S.A.

2A:162-25(c). Pretrial services officers use the device “to 

prepare a risk assessment with recommendations on conditions of 

release . . . and for the court to issue a pretrial release 

decision.” N.J.S.A. 2A:162-16(a). 

To prepare for the onset of the CJRA, the Judiciary worked 

with the Laura and John Arnold Foundation to develop an 

objective risk-assessment tool. The tool is designed to measure 

two types of risk: whether a defendant will fail to appear for 

court proceedings and whether he or she will engage in new 

criminal activity while on release. The tool considers nine

factors: (1) the defendant’s age at the time of the current 

offense; (2) whether the offense is violent and, if so, whether 

the defendant is age 20 or older; (3) any additional pending 

charge(s) at the time of the current offense; and whether the 
19

defendant has any prior (4) disorderly persons convictions, (5) 

indictable convictions, (6) violent convictions, (7) failures to 

appear pretrial in the past two years or (8) more than two years

ago, or (9) sentences of incarceration of fourteen days or more.

Within hours of an arrest, pretrial services officers 

gather this and other relevant information about each eligible 

defendant to prepare a “Public Safety Assessment” (PSA). 

N.J.S.A. 2A:162-16(a), (b)(1). The PSA assesses the level of 

risk for failure to appear and for new criminal activity on a 

scale of 1 to 6, with 6 being the highest, and may include a

flag to denote new violent criminal activity. The PSA also 

recommends whether to release a defendant and what, if any,

conditions of release to impose. The court can use a 

recommendation against release as “prima facie evidence 

sufficient to overcome the presumption of release.” R.

3:4A(b)(5). 

Trial judges consider the PSA but make the ultimate 

decision on release after reviewing other relevant information

as well. See N.J.S.A. 2A:162-20. 

Against that backdrop, we turn to the facts of this case 

and the parties’ arguments.

II.

Based on a complaint and a supporting affidavit of probable 

cause, the police arrested defendant Habeeb Robinson for 
20

shooting and killing a victim on December 25, 2016. According 

to the affidavit, two eyewitnesses saw the shooting. One 

identified defendant from a six-person photo array; the other 

identified a photo of defendant. The affidavit does not name 

either witness and states that both wish “to stay anonymous out 

of fear.” The PLEIR adds that a surveillance camera recorded 

the incident. 

The pending complaint charges defendant with first-degree 

murder, N.J.S.A. 2C:11-3(a)(1); second-degree unlawful 

possession of a handgun, N.J.S.A. 2C:39-5(b)(1); and seconddegree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(a)(1).

Pretrial Services prepared a Public Safety Assessment for 

defendant on January 5, 2017, one day after his arrest. The PSA

rates defendant 3 out of 6 for risk of flight and 4 out of 6 for 

new criminal activity; it also flags defendant for “new violent 

criminal activity.” According to the PSA, defendant has prior 

convictions for disorderly persons offenses, indictable 

offenses, and prior violent offenses. He has been sentenced to 

prison for more than fourteen days on three prior occasions. He 

also failed to appear in court three times in 2004 and 2005. 

The PSA recommended that defendant not be released. 

The State moved for pretrial detention, and the court 

scheduled a hearing for January 10, 2017. Before the hearing, 
21

the State disclosed the complaint-warrant, the affidavit of 

probable cause, an affidavit in support of the arrest warrant, 

the PSA, and the PLEIR. The PLEIR briefly refers to seven types 

of relevant information: recorded statements by eyewitnesses; a 

recording from a surveillance camera; the fact that defendant 

and the victim were strangers; the use of a handgun; ballistics

evidence; a 9-1-1 call; and a consent search. The surveillance 

video was from a private security camera. State v. Robinson, 

448 N.J. Super. 501, 517 n.7 (App. Div. 2017). The State also 

disclosed defendant’s exculpatory statement to the police in 

which he denied that he was involved in the shooting. 

At the hearing, the State relied on the hearsay statements 

in the affidavit of probable cause (which refer to the two 

eyewitnesses); the presumption of detention under N.J.S.A.

2A:162-19(b)(1) (based on the murder charge); defendant’s 

criminal history and record of court appearances; and the 

release recommendation in the PSA. The State argued that all 

three grounds set forth in the statute -- risk of flight, 

danger, and obstruction -- justified pretrial detention. See

N.J.S.A. 2A:162-18.

Defense counsel requested additional discovery. After 

hearing argument from the parties, the trial court rejected the 

State’s view of Rule 3:4-2(c)(1)(B) and ordered it to turn over 

“any discovery in [its] possession that the State is relying 
22

upon for [the] pretrial detention hearing.” In particular, the 

trial court directed the State to disclose the two witness 

statements referred to in the affidavit, the photos used in the 

identification process, the surveillance video, and any incident 

report of the crime that the police prepared. The court granted 

the prosecutor’s request to stay the order. 

The Appellate Division granted the State’s motion for leave 

to appeal and later affirmed the trial court’s order. Robinson,

supra, 448 N.J. Super. at 506. 

The panel did a careful and thorough review of the CJRA and 

the history of Rule 3:4-2(c)(1)(B). Id. at 509-15. The court 

focused in particular on the part of the Rule that requires the 

prosecution to disclose all statements and reports in its 

possession “relating to the pretrial detention application.” 

Id. at 504. The panel interpreted the phrase to mean that the 

prosecutor must “provide a defendant with those materials in the 

State’s possession that relate to the facts on which the State 

bases its pretrial detention application.” Id. at 519-20. 

The panel agreed with the trial court that a defendant is 

entitled to the factual materials themselves “and not merely the 

hearsay description of those materials set forth in the probable 

cause affidavit and the PLEIR.” Id. at 505. As a result, the 

panel concluded that the State had to turn over the witness 

statements described in the affidavit of probable cause, the 
23

identification photos, the surveillance video listed in the 

PLEIR, and any initial police reports of the crime. Id. at 506, 

517. The panel noted that those materials relate to both 

probable cause and the weight of the evidence, which the court 

may consider under N.J.S.A. 2A:162-20(b). Id. at 505-06. The 

panel also explained that materials in the possession of the 

police are in the prosecutor’s possession for discovery 

purposes. Id. at 507.

The panel reasoned “that the very limited discovery for 

which the State advocates could deny a defendant a fair 

opportunity to defend against the State’s application, and could 

hamper the trial court’s ability to fairly assess the nature and 

circumstances of the offense and the weight of the evidence.” 

Id. at 518 (citing N.J.S.A. 2A:162-20(a), (b)). 

We agreed to hear the State’s motion for leave to appeal on 

an accelerated basis. The Court denied the State’s motion for a 

stay but preserved its right to obtain review of a “recurring 

issue of great public importance” that “would otherwise evade 

review.” 

The Office of the Attorney General superseded the Essex 

County Prosecutor and now represents the State on appeal. The 

American Civil Liberties Union of New Jersey (ACLU) appeared as 

amicus curiae before the Appellate Division and has continued to 

participate in this appeal. See Rule 1:13-9(d). We also 
24

granted the County Prosecutors Association of New Jersey leave 

to appear as amicus. 

III.

The State contends that the appellate panel ignored the 

plain language and history of Rule 3:4-2(c)(1)(B), that its 

decision will inappropriately expand the scope of detention 

hearings and make compliance extremely onerous for prosecutors, 

and that due process does not require broad discovery at 

detention hearings. At oral argument, the State asserted that

it was sufficient in this case to disclose the affidavit of 

probable cause and the PLEIR, and not the underlying documents 

to which they refer. 

The County Prosecutors Association shares the State’s 

concerns. The Association argues that the Appellate Division 

grievously misinterpreted the reach of the Rule, which the 

Association claims imposes a far more limited discovery 

obligation.

Defendant submits that the Appellate Division’s decision 

comports with the Rule and should be affirmed. He argues that 

the ruling will not turn detention hearings into mini-trials and 

does not create a burdensome standard. Defendant also claims 

that the State’s interpretation of the Rule would violate due 

process. 
25

The ACLU agrees with defendant’s view of the State’s 

discovery obligations and supports the appellate ruling. The 

group adds that the Rule encompasses information in the 

possession of law enforcement officers. The ACLU also claims 

that the State’s reliance on hearsay at a detention hearing does 

not relieve it of the responsibility to supply underlying 

statements or reports in its possession.

IV.

The trial court and Appellate Division interpreted Rule

3:4-2(c)(1)(B) to require the disclosure of reports and a 

surveillance video. Our review of the meaning of a court rule 

is de novo. State v. Hernandez, 225 N.J. 451, 461 (2016). 

A.

For convenience, we recite the text of the Rule again: 

“the prosecutor shall provide the defendant with all statements 

or reports in its possession relating to the pretrial detention 

application. All exculpatory evidence must be disclosed.” R.

3:4-2(c)(1)(B).

We apply ordinary principles of statutory construction to 

interpret the court rules and start with the plain language of 

the Rule. Wiese v. Dedhia, 188 N.J. 587, 592 (2006). Rule 3:4-

2(c)(1)(B) calls for discovery of “statements or reports,” not 

videos. We therefore conclude that disclosure of the 

surveillance video was not required. For reasons that follow, 
26

we agree that the other items should be disclosed. We also 

clarify the role that the PLEIR should play in future discovery 

decisions. 

Thoughtful people have wrestled over the scope of discovery 

that should be required at a detention hearing. As noted 

earlier, the members of the Criminal Practice Committee sharply 

divided on that issue, and the Court compromised among different 

positions when it adopted Rule 3:4-2(c)(1)(B).

A number of considerations factor into the ongoing debate. 

The language of the statute is the proper starting point. 

Although the new law is silent on the question of discovery, 

several sections help frame the discussion.

Under the CJRA, the prosecutor must “establish probable 

cause that the eligible defendant committed the predicate 

offense” at a detention hearing. N.J.S.A. 2A:162-19(e)(2). The 

trial court must also determine whether there are no conditions 

that “would reasonably assure” the “defendant’s appearance in 

court,” “the protection of the safety of any other person or the 

community, or that the eligible defendant will not obstruct or 

attempt to obstruct the criminal justice process.” N.J.S.A.

2A:162-20. To make that assessment, the court may consider 

information about “[t]he nature and circumstances of the offense 

charged” and “[t]he weight of the evidence against the eligible 

defendant.” N.J.S.A. 2A:162-20(a), (b).
27

The statute, thus, requires both some proof about the crime 

-- sufficient to establish probable cause -- and proof relating 

to the risk of flight, danger, or obstruction. In cases where 

detention is presumed, N.J.S.A. 2A:162-19(b), factors relevant 

to those risks can still play a role in the defendant’s rebuttal 

or the prosecution’s response, N.J.S.A. 2A:162-19(e)(2).

In addition to the guidance we find in the Act, the scope 

of the discovery rule in detention cases must reflect what is at 

stake. Balanced against important concerns for public safety 

are the defendants’ liberty interests. As Chief Justice 

Rehnquist observed in a related context, “[i]n our society 

liberty is the norm, and detention prior to trial or without 

trial is the carefully limited exception.” United States v. 

Salerno, 481 U.S. 739, 755, 107 S. Ct. 2095, 2105, 95 L. Ed. 2d 

697, 714 (1987). 

To be sure, defendants who must report to pretrial services 

officers are inconvenienced. But defendants who are detained 

pretrial face a complete loss of liberty. Rule 3:4-2(c)(1)

therefore requires broader discovery in detention cases than in 

non-detention cases, so that a person who is accused of a crime 

and subject to possible detention is better able to challenge 

the State’s application and presentation.

Another important consideration is self-evident. A 

discovery rule should set forth a workable standard. In light 
28

of the law’s tight timeframe, N.J.S.A. 2A:162-19(d), the rule 

should not impose impractical demands on law enforcement. The 

supplemental record before us highlights a matter in Union 

County in which the trial court, relying on the current rule and 

the Appellate Division’s decision in this case, ordered the 

State to disclose video footage from 25 body-worn police cameras 

in connection with a detention hearing. The State may not be 

able to review all of those videos within days of an arrest or 

apply for any needed protective orders. It is also difficult to 

imagine how defense counsel could review, let alone use, dozens 

of videos in connection with a detention hearing. 

Beyond that, the administration of justice calls for fair 

and efficient proceedings. In the case of a detention 

application, the focus is not on guilt, and the hearing should 

not turn into a mini-trial. A trial judge must instead examine 

two sets of questions. First, unless there is an indictment, 

the judge must determine probable cause -- whether an officer 

has a “well grounded suspicion that a crime has been” committed 

and that defendant committed the offense. State v. Gibson, 218 

N.J. 277, 292 (2014). That, of course, calls for “less evidence 

than is needed to convict at trial.” State v. Brown, 205 N.J.

133, 144 (2011). Second, a trial judge must assess the risk of 

danger, flight, and obstruction. 
29

We note another concern as well. Before the new law’s 

effective date, the Attorney General developed a new document --

a “preliminary law enforcement incident report.” The PLEIR is 

designed to get the parties information they need about 

categories of evidence in a case at the very earliest stage. 

Prosecutors, defendants, and judges alike benefit from that 

approach. It helps the parties prepare for the hearing and make 

a preliminary assessment of the overall case. The current court 

rules call for disclosure of the PLEIR only in non-detention 

cases. R. 3:4-2(c)(1)(A). The rules should create an incentive 

to prepare a PLEIR in detention cases as well.

B.

To balance those aims, we believe that the following 

principles should govern the disclosure of evidence at a 

detention hearing: 

1. As set forth above, because the Act calls for a 

determination of probable cause and an assessment of the risk of 

danger, flight, and obstruction, which may include consideration 

of the nature and circumstances of the offense and the weight of 

the evidence, discovery should likewise be keyed to both areas. 

See N.J.S.A. 2A:162-18(a)(1); -19(e)(2); -20(a), (b).

2. The complaint must be disclosed.

3. The Public Safety Assessment must be disclosed.
30

4. The affidavit of probable cause must be disclosed. If 

a similar document with a different name is used to establish 

probable cause, that document should be disclosed.1 

5. Any available PLEIR should be disclosed.

6. All statements and reports relating to the affidavit of 

probable cause should be disclosed. In other words, if an 

affidavit of probable cause describes what a police officer or 

witness observed, an initial police report or witness statement 

that relates to those factual assertions must be disclosed.

7. All statements or reports that relate to any additional 

evidence the State relies on to establish probable cause at the 

detention hearing should be disclosed. For example, if the 

State, at the detention hearing, refers to a witness whose 

observations are not discussed in the affidavit of probable 

cause, all statements and reports relating to the additional 

witness should be disclosed.

8. Statements and reports related to items that appear 

only in the PLEIR need not be disclosed. Thus, statements 

related to a witness who is referred to in both the affidavit of 

probable cause and the PLEIR must be disclosed; but, if the 

 

1 In a long-term investigation or some other matter in which 

there is an indictment at the time of the detention hearing, the 

indictment standing alone establishes probable cause, and no 

separate evaluation is required under N.J.S.A. 2A:162-19(e)(2). 

The indictment would trigger discovery under Rule 3:13-3(b).
31

PLEIR alone references an expert report, and the State does not 

otherwise rely on it at the hearing, the report need not be 

disclosed for the detention hearing. We ask the AOC to revise 

the standard form for the PLEIR to clarify that it is not 

incorporated into the affidavit of probable cause.

9. Statements and reports relating to the risk of flight, 

danger, and obstruction, N.J.S.A. 2A:162-18(a)(1), which the 

State advances at the hearing, should be disclosed. For 

example, if the defendant conveyed a threat to a witness or said 

he would flee if caught, and the State relied on the statements 

in support of detention, all statements and reports relating to 

those comments should be disclosed.

10. The phrase “statements and reports” refers to items 

that exist at the time of the hearing. The terms plainly 

include relevant police reports. The terms also include witness 

statements that are maintained only in recorded form and have 

not yet been reduced to writing. In those cases, a copy of the 

recording should be disclosed. The phrase “statements and 

reports,” however, does not encompass video and audio files from 

body cameras, dash cameras, surveillance cameras, cellphones, 9-

1-1 calls, or similar items, except as noted earlier in this 

point. We do not consider those items the functional equivalent 

of a statement for purposes of a discovery rule for detention 

hearings. To the extent an affidavit of probable cause refers 
32

to a surveillance video or comparable item, though, an existing 

statement or report that summarizes the video or item must be 

disclosed. The video itself shall be disclosed at the time of 

indictment, or a pre-indictment plea offer, in accordance with 

Rule 3:13-3. 

11. Consistent with longstanding practice, statements and 

reports encompass reports that are in the possession of the 

prosecutor, law enforcement officials, and other agents of the 

State. See State v. W.B., 205 N.J. 588, 608 (2011) (noting that 

once “a case is referred to the prosecutor following arrest by a 

police officer . . . , local law enforcement is part of the 

prosecutor’s office for discovery purposes” (internal citations 

omitted)); State v. Murphy, 36 N.J. 172, 184 (1961) (“[A]lthough 

the State may, as it necessarily must, diffuse its total power 

among many offices and agencies, yet when the State brings its 

authority to bear upon one accused of crime, all of its agents 

must respond to satisfy the State’s obligation to the 

accused.”). A contrary approach could create an incentive to 

delay furnishing reports to the prosecutor. 

12. All exculpatory evidence must be disclosed.

C.

With those principles in mind, and based on what we have 

learned from the Rule’s practical application since January 1,

2017, we clarify and revise Rule 3:4-2(c) as follows:
33

(c) Procedure in Indictable Offenses. At the 

defendant’s first appearance before a judge, 

if the defendant is charged with an indictable 

offense, the judge shall

(1) give the defendant a copy of the 

complaint, discovery as provided in 

subsections (A) and (B) below, and inform 

the defendant of the charge;

(A) if the prosecutor is not seeking 

pretrial detention, the prosecutor shall 

provide the defendant with a copy of any 

available preliminary law enforcement 

incident report concerning the offense 

and the affidavit of probable cause;

(B) if the prosecutor is seeking 

pretrial detention, the prosecutor shall 

provide the defendant with (i) the 

discovery listed in subsection (A) above, 

(ii) all statements or reports relating 

to the affidavit of probable cause, (iii) 

all statements or reports relating to 

additional evidence the State relies on 

to establish probable cause at the 

hearing, (iv) all statements or reports 

relating to the factors listed in 

N.J.S.A. 2A:162-18(a)(1) that the State 

advances at the hearing, and (v) all 

exculpatory evidence.

The revisions to subsection (A) are cosmetic; subsection 

(B) incorporates the principles outlined above. Both 

subsections are to be read in conjunction with Rule 3:13-3,

which obligates the State to provide full discovery when it 

makes a pre-indictment plea offer or when an indictment is 

returned or unsealed. R. 3:13-3(a), (b)(1). When a defendant 

is detained, the State must obtain an indictment within 90 days 
34

or qualify for an extension of time under the new speedy trial 

provision. N.J.S.A. 2A:162-22(a)(1)(a), (b)(1).

In appropriate cases, the prosecutor “may apply for a 

protective order to redact, delay, or withhold the disclosure of 

materials that would expose witnesses and others to harm, hinder 

or jeopardize ongoing investigations or prosecutions, undermine 

the secrecy of informants and confidential information which the 

law recognizes, or compromise some other legitimate interest.” 

State in Interest of N.H., 226 N.J. 242, 256 (2016) (citing R.

3:13-3(a)(1), (e)(1)). The prosecutor may bring an application 

directly to the judge who will preside over the detention 

hearing.

Judges must also be mindful of practical concerns in 

another area. For example, after an extensive, long-term 

investigation into the activities of an organized criminal 

group, there may be dozens of police reports at the time of 

arrest that arguably relate to the affidavit of probable cause. 

If the State seeks permission to provide more limited discovery 

within days of an arrest in those situations, judges may 

exercise their discretion and direct that a representative 

sample of statements and reports be disclosed before the 

detention hearing.

Neither the original nor the revised version of Rule 3:4-

2(c) calls for disclosure of surveillance videos and similar 
35

items. Instead, as noted above, if the affidavit of probable 

cause refers to a video, the State must disclose any existing 

statement or report that summarizes its contents. 

On that point, we do not start with a clean slate. When we 

adopted the original Rule, the Court unanimously rejected the 

Committee’s recommendation that videotapes and similar evidence 

be disclosed before a detention hearing. After considering that 

suggestion, the full Court called for disclosure of only 

statements and reports. The revised rule maintains that 

approach. It is still a fair and sensible approach in light of 

the more limited purpose of a detention hearing: to assess 

probable cause -- which judges do tens of thousands of times a 

year without video or audio files -- and to measure the risk of 

danger, flight, and obstruction. Once again, we note that 

detention hearings are not full-scale trials designed to assess 

guilt.

We believe that the Rule, as clarified, is faithful to the 

statute and addresses legitimate concerns of both defendants and 

prosecutors. We also believe that prosecutors will apply the 

Rule in good faith, in the same manner in which the Attorney 

General and Public Defender have proceeded throughout the

ongoing criminal justice reform effort. To the extent that a 

prosecutor might seek to work around the Rule by presenting a 

barebones affidavit of probable cause alongside a more expansive 
36

PLEIR, counsel would act at his or her peril. Judges will 

reject affidavits that fall below the standard of probable 

cause. And the prosecution may not rely on information listed 

only in a PLEIR to advocate for detention without disclosing 

relevant statements or reports about that information. 

Ordinarily, we would refer an opinion to an appropriate 

Court committee and ask it to craft a proposed rule. We have 

not done so here for several reasons. The matter has been fully 

vetted once recently, and we recognize that the Criminal 

Practice Committee might well divide again as to the scope of a 

discovery rule. We also had the benefit of hearing from key 

stakeholders in this appeal. The written and oral arguments of 

the Attorney General, Public Defender, County Prosecutors 

Association, and ACLU represented the highest level of 

professionalism and advocacy. In addition, we are aware that 

judges, prosecutors, and defense counsel alike need prompt 

guidance in this area. 

We therefore adopt the rule set forth above and make it 

effective at once. In doing so, we rely on the Court’s 

authority under Article VI, Section 2, Paragraph 3 of the State 

Constitution to make rules that govern the administration of the 

court system. 
37

V.

Defendant correctly notes that the court rule must satisfy 

due process concerns. We find that the discovery rule -- in its 

original and revised form -- amply lives up to that requirement. 

Rule 3:4-2(c) extends far beyond what federal law requires. It 

also provides adequate protection under the State Constitution.

In Salerno, supra, 481 U.S. at 755, 107 S. Ct. at 2105-06, 

95 L. Ed. 2d at 714, the United States Supreme Court upheld the 

constitutionality of the federal pretrial detention act, which 

New Jersey’s Criminal Justice Reform Act tracks in many ways. 

Compare 18 U.S.C.A. §§ 3141 to 3156, with N.J.S.A. 2A:162-15 to 

-26. Salerno, supra, first considered and rejected a 

substantive due process challenge. 481 U.S. at 746-51, 107 S. 

Ct. at 2101-03, 95 L. Ed. 2d at 708-11. The Court explained 

that “whether a restriction on liberty constitutes impermissible 

punishment or permissible regulation” depends on “legislative 

intent.” Id. at 747, 107 S. Ct. at 2101, 95 L. Ed. 2d at 708. 

The Court concluded that pretrial detention “falls on the 

regulatory side of the dichotomy” because it is meant to protect 

society, not to punish dangerous individuals, and “[t]here is no 

doubt that preventing danger to the community is a legitimate 

regulatory goal.” Id. at 747, 107 S. Ct. at 2101, 95 L. Ed. 2d

at 708-09.
38

The Court next turned to procedural due process and noted 

that,

[u]nder the Bail Reform Act, the procedures by 

which a judicial officer evaluates the 

likelihood of future dangerousness are 

specifically designed to further the accuracy 

of that determination. Detainees have a right 

to counsel at the detention hearing. 18 

U.S.C.A. § 3142(f). They may testify in their 

own behalf, present information by proffer or 

otherwise, and cross-examine witnesses who 

appear at the hearing. Ibid. The judicial 

officer charged with the responsibility of 

determining the appropriateness of detention 

is guided by statutorily enumerated factors, 

which include the nature and the circumstances 

of the charges, the weight of the evidence, 

the history and characteristics of the 

putative offender, and the danger to the 

community. § 3142(g). The Government must 

prove its case by clear and convincing 

evidence. § 3142(f). Finally, the judicial 

officer must include written findings of fact 

and a written statement of reasons for a 

decision to detain. § 3142(i). The Act’s 

review provisions, § 3145(c), provide for 

immediate appellate review of the detention 

decision.

[Id. at 751-52, 107 S. Ct. at 2104, 95 L. Ed.

2d at 711-12.]

Without any provision for discovery in the Bail Reform Act, the 

Court observed that those “extensive safeguards suffice to repel 

a facial challenge.” Id. at 752, 107 S. Ct. at 2104, 95 L. Ed.

at 712.

Although the State Constitution “does not enumerate the 

right to due process,” Article 1, Paragraph 1 “protects ‘values 

like those encompassed by the principle[] of due process.’” Doe 
39

v. Poritz, 142 N.J. 1, 99 (1995) (alteration in original)

(quoting Greenberg v. Kimmelman, 99 N.J. 552, 568 (1985)). To 

examine a procedural due process claim, courts “first assess 

whether a liberty or property interest has been interfered with 

by the State, and second, whether the procedures attendant upon 

that deprivation are constitutionally sufficient.” Ibid. To 

assess the second question, we have applied the balancing test 

outlined in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct.

893, 903, 47 L. Ed. 2d 18, 33 (1976). That standard consists of 

three factors: (1) “the private interest that will be affected 

by the official action;” (2) “the risk of an erroneous 

deprivation of such interest through the procedures used, and 

the probable value, if any, of additional or substitute 

procedural safeguards;” and (3) “the Government’s interest, 

including the function involved and the fiscal and 

administrative burdens that the additional or substitute 

procedural requirement would entail.” Ibid.

Here, there can be no dispute that pretrial detention 

significantly interferes with a defendant’s liberty interest. 

But the procedures to protect that vital interest are extensive. 

The CJRA contains safeguards like the ones detailed in the 

federal act. See Salerno, supra, 481 U.S. at 751-52, 107 S. Ct.

at 2104, 95 L. Ed. 2d at 711-12; supra at §§ I(A), (B). And 

under Rule 3:4-2(c)(1)(B), defendants whom the State seeks to 
40

detain will receive not only all exculpatory evidence and a copy 

of the charging document, but also statements or reports that 

relate to (1) the affidavit of probable cause and (2) additional 

evidence the prosecution relies on at the detention hearing --

both to establish probable cause and to advance any relevant 

risk factors. 

A broader discovery requirement would of course also impose 

a greater administrative burden on the State. In that case, 

particularly in light of the very tight time constraints imposed 

by the CJRA, the State might be forced to limit detention 

motions based on the resources it can devote to discovery in the 

days after an arrest, and not its assessment of the risk of 

danger, flight, or obstruction that a defendant poses. That 

would frustrate the purpose of the Act and upend the balance 

that the revised Rule attempts to strike between important 

interests.2

We conclude that the discovery protections afforded under 

New Jersey’s Criminal Justice Reform Act satisfy the 

requirements of due process and pass muster under the Federal 

and State Constitutions. 

 

2 The analogy to N.H., supra, 226 N.J. at 245, which addresses 

discovery in a juvenile waiver setting, with its own distinct 

timeframe, is not fitting. 
41

VI.

Finally, we apply Rule 3:4-2(c), as clarified, to this 

case. The affidavit of probable cause attached to defendant’s 

complaint described what two eyewitnesses observed. The 

affidavit also noted that the witnesses identified defendant 

from a photo array or photo. 

We agree with the trial court and Appellate Division that, 

under the Rule, any initial police reports about the witnesses 

must be disclosed. In addition, the prosecution must provide 

copies of statements or reports of the two eyewitnesses. When 

an eyewitness makes an identification, the State is required to 

document the process and record certain details. See State v. 

Henderson, 208 N.J. 208, 241, 252, 278 (2011); State v. Delgado, 

188 N.J. 48, 63–64 (2006). That information should be disclosed 

along with copies of any photo arrays or photos used in the 

identification process.3

The prosecution need not disclose the surveillance video 

under the language of the Rule. We note that the PLEIR also 

 

3 This is an exception to the Rule, which requires discovery of 

“statements or reports,” not photos, because photos shown to a 

witness as part of an identification process receive special 

treatment under the law. See Henderson, supra, 208 N.J. at 241, 

252, 278; Delgado, supra, 188 N.J. at 63–64. By ordering 

disclosure of the photo array and another photograph here, we do 

not suggest that other documents or underlying evidence referred 

to in an affidavit of probable cause would be subject to 

disclosure under Rule 3:4-2(c)(1)(B). 
42

identifies certain other information, namely, ballistics 

evidence, a 9-1-1 call, and a consent search. Defendant did not 

request any statements or reports about those items. Because 

the State did not refer to the items in the affidavit of 

probable cause or its presentation at the detention hearing, any 

statements or reports about those items would not be subject to 

discovery had they been requested.

VII.

For the reasons set forth above, we affirm and modify the 

judgment of the Appellate Division. We also clarify and reframe 

Rule 3:4-2(c). The revised Rule shall go into effect at once.

JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE 

join in CHIEF JUSTICE RABNER’s opinion. JUSTICE ALBIN filed a 

separate opinion, dissenting in part and concurring in part, in 

which JUSTICE LaVECCHIA joins.
1

SUPREME COURT OF NEW JERSEY

A-40 September Term 2016

078900

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

HABEEB ROBINSON,

Defendant-Respondent,

JUSTICE ALBIN dissenting in part and concurring in part.

Today, the majority rewrites the discovery rule governing 

pretrial detention hearings. In doing so, the majority turns a 

blind eye to an evident flaw in the original version of Rule

3:4-2(c)(1)(B) and then engrafts a new flaw onto the redrafted 

Rule. The result is that the prosecutor can withhold from the 

defense -- and presumably the court -- relevant and critical 

evidence that bears on whether there is probable cause to detain 

a defendant. 

Under the redrafted Rule, if the prosecutor possesses a 

video surveillance tape that records the defendant allegedly 

committing a crime, the prosecutor need only turn over a written 

summary of what is depicted in the tape -- not a copy of the 

tape itself. This is true even if the State’s only evidence to 

support probable cause is the tape. Thus, at a pretrial 

detention hearing, the court must rely on the written summary 
2

prepared by the prosecutor, not on the actual video footage of 

the crime, in making the probable cause determination. In 

contrast, if an eyewitness statement is the basis for 

establishing probable cause for a crime, the prosecutor must 

tender the statement to the defense -- and the court. 

Therefore, the court receives the eyewitness statement in its 

original form whereas a surveillance tape is reduced to a bare 

written summary. 

The Rule sanctifies artificial distinctions, making highly 

relevant evidence non-discoverable (a videotape) and second-hand 

evidence discoverable (written summary of tape). The redrafted 

Rule, moreover, gives the prosecutor a perverse incentive to 

place information in the Preliminary Law Enforcement Information 

Report (PLEIR), rather than the affidavit of probable cause, 

because the underlying statements and reports in the PLEIR are 

no longer subject to discovery.

Had the redrafted version of Rule 3:4-2(c)(1)(B) been 

subjected to the rulemaking process, or some abbreviated 

procedure that allows for public comment, perhaps we would be 

better informed about the implications of the new Rule. 

Relieving the prosecutor of legitimate discovery obligations may 

be expedient, but it comes at the expense of fairness. 

Ultimately, a just determination of whether a defendant is to be 
3

detained pretrial should not be sacrificed for the sake of 

expediency. For these reasons, I respectfully dissent.

I.

A.

In the case before us, the State sought the pretrial 

detention of defendant on a murder charge. In support of its 

application for pretrial detention, the State submitted an 

affidavit of probable cause that referred to two eyewitness 

statements recounting the crime and to the witnesses’ 

identification of defendant from a photo array. Attached to the 

probable cause affidavit was the PLEIR, which also referenced a 

surveillance video of the crime. 

Rule 3:4-2(c)(1)(B) -- now the former Rule -- provided that 

“if the prosecutor is seeking pretrial detention, the prosecutor 

shall provide the defendant with all statements or reports in 

its possession relating to the pretrial detention application. 

All exculpatory evidence must be disclosed.” Based on its 

interpretation of the “relating to” language in the Rule, the 

trial court ordered the prosecutor to disclose the two witness 

statements, the photo array, and the surveillance video. The 

Appellate Division affirmed. State v. Robinson, 448 N.J. Super.

501, 519-20 (App. Div. 2017). 

I agree with the majority that the Rule, as written, does 

not require discovery of the surveillance tape. The trial court 
4

and Appellate Division evidently attempted -- by force of logic 

-- to bridge the gap in the Rule. I accept that we must enforce 

the Rule according to its language, but now that the Court has 

undertaken to amend the Rule, the majority has missed the 

opportunity to correct the logical flaws in the original 

version. 

Common sense suggests that if the prosecutor is in 

possession of a purported eyewitness account of a crime and a 

videotape that actually recorded the crime, and both are 

“relating to pretrial detention,” that both should be 

discoverable. The majority does not question that the 

eyewitness statement is discoverable. Yet, the majority will 

not amend the Rule to require disclosure of perhaps the best 

evidence -- the videotape. The prosecutor’s only obligation, 

under the majority’s reconstructed Rule, is to provide a summary 

of the video footage to the defense. There is no persuasive 

rationale for denying the defense, and the court, the 

opportunity to view a readily available videotape of a purported 

crime. 

To support its position, the majority mentions one bizarre 

and idiosyncratic case -- without giving much detail -- where 

the State was ordered to disclose video footage from twenty-five 

body-worn cameras in connection with a detention hearing. Ante

at ___ (slip op. at 27-28). It makes perfect sense to deny 
5

discovery when disclosure is impracticable or when public safety 

or other legitimate concerns arise. It makes no sense to deny 

disclosure in garden-variety cases when a videotape is highly 

relevant and when disclosure is practicable.

The discordance in the majority’s approach is highlighted 

by the fact that the redrafted Rule requires disclosure of 

“copies of any photo arrays or photos used in the identification 

process,” see ante at ___ (slip op. at 40), but not the video 

footage of a crime from which the defense or the court could 

determine the validity of the identification. The photo array 

is no more a report or statement than video footage. The 

production of the video footage of a crime would be as helpful 

as the photo array -- if not more -- in determining probable 

cause.

A pretrial detention hearing is a critical stage in the 

criminal process. The artificial distinctions made by the 

majority for allowing the release of relevant witness statements 

and reports as well as photo arrays but not allowing the release 

of relevant video footage will not enhance confidence in the 

fairness of pretrial detention hearings.

B.

Further, the majority’s amended Rule gives prosecutors a 

new pathway to minimize their discovery obligations at pretrial 

detention hearings. Under the former Rule, prosecutors were 
6

required to disclose statements and reports relating to the 

detention hearing, such as those referenced in the affidavit of 

probable cause and the PLEIR. Under the majority’s new Rule, 

the prosecutor must disclose statements and reports relating to 

the affidavit of probable cause, but any statements and reports 

contained in the PLEIR are not discoverable. Courts will make 

detention determinations after reviewing both the probable cause 

affidavit and the PLEIR. However, prosecutors now know that 

statements and reports referenced in the PLEIR are not subject 

to disclosure. The new Rule incentivizes prosecutors to put 

more information in the PLEIR (underlying statements and reports 

not discoverable) and the minimum amount of information in the 

affidavit of probable cause (underlying statements and reports 

discoverable). Prompts that allow prosecutors to circumvent the 

pretrial-detention discovery process will not advance the ends 

of justice.

Furthermore, the majority’s retrenchment on the discovery 

rule in pretrial detention hearings is at cross-purposes with 

N.J.S.A. 2A:162-20(a) and (b), in which the Legislature decreed 

that, at such hearings, “the court may take into account 

information concerning . . . [t]he nature and circumstances of 

the offense charged [and] [t]he weight of the evidence against 

the eligible defendant.” Clearly, in many cases, relevant video 

footage and statements and reports referenced in the PLEIR will 
7

bear on the “nature and circumstances of the offense” and on the 

“weight of the evidence against” the defendant. For example, 

video footage may show that the defendant was not the aggressor 

or even the assailant in a physical altercation. Neither the 

defense nor the court should have to rely on the prosecutor’s 

interpretation of the footage in a written summary. The 

limitations set forth in the amended discovery rule will choke 

off information that the court should consider in making the 

pretrial detention determination. 

II.

The majority’s new Rule makes substantial changes to the 

discovery rule. This dissent shines a light on some defects in 

the new Rule. Had we proceeded with the rulemaking process, 

prosecutors, defense attorneys, judges, and academics might have 

alerted us to others. The rulemaking process is beneficial, 

even when it must proceed in an expedited and abbreviated 

manner. Although prosecutors and defense attorneys have widely 

divergent views on this subject, the voices of stakeholders and 

experts in the field are always enlightening. I understand that 

the majority believes this issue requires an accelerated 

response. We should proceed with caution, however, in matters 

that have such far-reaching consequences.

III.
8

For the reasons expressed, I dissent from the majority’s 

decision to draft a new rule that denies the defense and the 

court critical information bearing on the pretrial detention 

determination. I concur in the judgment in this case based on 

the language of the then-operative Rule.