Under the state's revamped bail system, criminal defendants can't compel adverse witnesses, such as police officers, to the witness stand in pretrial detention hearings, which would constitute “mini trials,” the Appellate Division ruled.

A three-judge panel consisting of Judges Carmen Messano, Allison Accurso and Francis Vernoia reversed the judge below, who ruled that the Criminal Justice Reform Act provision saying defendants “shall be afforded an opportunity to … present witnesses” allows defendant Dakevis Stewart to call police officers who witnessed his arrest to testify in his pretrial detention hearing.

According to the decision, Stewart was arrested for illegal possession of a firearm and apprehended by officers of the Penns Grove Police Department. His counsel, joined by the ACLU, argued Stewart could subpoena adverse witnesses to challenge probable cause so long as the testimony they give is relevant.

Prosecutors countered that pretrial defendants are not entitled to call adverse witnesses and that the practice would turn pretrial detention hearings into time-consuming miniature trials.

The appellate panel agreed with the latter position, and in Messano's opinion, reasoned, “we reject the position urged by the ACLU that a defendant may call any witness, whether under compulsion of subpoena or otherwise, unless the state can affirmatively demonstrate that potential harm to the witness outweighs the value of the witness's testimony.”

He continued, “We also reject defendant's and [the public defenders'] position that the CJRA permits a defendant to subpoena or otherwise produce adverse witnesses at the detention hearing without any proffer beforehand, constrained only by the judge's inherent ability, as outlined above, to control the proceedings and limit interrogation as necessary. The probable cause determination has historically been made without any constitutional or statutory requirement that a defendant be entitled to present any evidence, much less compel the presence and testimony of adverse witnesses.”

The court remanded to the Law Division and ordered the detention hearing continue with instructions that if the defendant asks to call any adverse witnesses, he provide a proffer.

Messano went further and addressed whether a proffer is necessary for a pretrial defendant, stating that it would have “significant ramifications” for hundreds of detention hearings.

“The CJRA permits a defendant to proceed by proffer at the detention hearing,” Messano said. “That means a defendant need not subpoena police officers, victims or State's witnesses to provide the judge with a substantial amount of evidence that goes to the nature and circumstances of the offense, the weight of the evidence and any other factor that might impact the judge's detention decision.”

Cherry Hill attorney Wayne Powell argued the case for Stewart and did not return a call seeking comment.

Assistant Prosecutor David Galemba, who argued on behalf of the Salem County Prosecutor's Office, declined to comment beyond saying “we're pleased with the result.”