Learn about New Jersey Criminal Procedure
What is New Jersey Criminal procedure in a New Jersey County Superior Court?
After police investigation - interrogation, confession, search and seizure - is complete and an arrest - based on well grounded suspicion that a crime has been committed - is made, the prosecutor presents their case to a County Grand Jury who decide whether to indict - charge - or "No Bill" - not charge - the accused.
What is a Grand Jury?
New Jersey criminal procedure allows a group of randomly selected individuals from the community, to be selected in a manner free of any taint or discriminatory purpose to form a grand jury.
They must number between 16-23 to form a quorum.
Defense counsel are typically not allowed to enter a Grand Jury while in session.
Grand Jury proceedings are shrouded in secrecy and all those who appear before them must take an oath of secrecy.
A Grand Jury determines whether an individual should be indicted.
Generally, the matter is indicted and it is rare for a matter to get a No Bill although it does happen from time to time.
What is an indictment?
In accordance with New Jersey criminal procedure an indictment is a written statement of the essential facts constituting the crime charged produced by a grand jury.
Felony v. Misdemeanor
A felony is generally a criminal offense whereby the alleged offender is exposed to more than 1 year of incarceration while a misdemeanor is an offense that exposes the alleged offender to less than 1 year of incarceration.
Are there felonies or misdemeanors in the State of New Jersey?
No. There are no felonies or misdemeanors in New Jersey criminal procedure or law.
In the State of New Jersey Criminal Code violations are categorized as "indictable," "disorderly persons" or "petty disorderly persons" offenses rather than felonies or misdemeanors.
An indictable offense is analogous to a felony while a non indictable offense is analogous to a misdemeanor.
Indictable crimes are separated into 1st, 2nd, 3rd and 4th degrees.
What are indictable and non-indictable charges?
In New Jersey, indictable offenses are leveled against an alleged criminal offender that exposes him or her to more than 6 months of incarceration while alleged offenders of non indictable offenses - disorderly persons and petty disorderly persons offenses - are generally exposed to less than six months of jail.
Indictable offenses are crimes of the 1st, 2nd, 3rd or 4th degree while non indictable offenses are called disorderly persons or petty disorderly persons offenses.
Indictable charges are handled in the Superior Court within the County that the alleged offense was committed while non indictable offenses are handled in the Municipal Court within the City, Township or Borough where the alleged offense was committed.
Also a defendant is entitled to a trial by jury in an indictable offense but before then the matter must be submitted to a grand jury who may pass a no bill - refusal to indict - on the matter if they deem that to be warranted.
Non indictable offenses are not presented to a grand jury and defendants charged with disorderly or petty disorderly persons offenses are not afforded a trial by jury.
Do I have the right to waive an indictment?
Yes, such as in the case of a pre indictment plea bargain.
What happens if a grand jury passes a No Bill on a matter presented before them?
Pursuant to New Jersey criminal procedure the prosecutor may not proceed against the defendant with the charge in the Superior Court.
Pursuant to New Jersey criminal procedure, however, related non indictable charges may still proceed against the defendant in the lower court called the Municipal Court - Quasi Criminal Court - where the alleged offense was committed.
Within two weeks of indictment, the Court is notified and within three weeks of that notification a pre arraignment conference is scheduled whereby defendant is advised of the charges and allowed to apply for Pre Trial Intervention (PTI).
However, if defendant is represented by an attorney the pre arraignment conference may be waived.
Thereafter, under New Jersey criminal procedure an arraignment - the reading of the complaint or the stating of the substance of the charge to the defendant by the Court together with their rights to an attorney and right to remain silent - is scheduled whereby defendant typically pleads Not Guilty and defense counsel is provided with the discovery - State evidence - in the case.
Once all discovery is complete defense counsel decides what motions, if any, he or she should file.
What is a motion?
Motion is a request of the Judge to rule in your favor on a given issue that you are contesting.
The most common motions that are filed in New Jersey courts are as follows:
to suppress evidence - after discovery is complete this is a request by an attorney of the court to suppress evidence against a client if certain constitutional rights were violated by police action;
statute of limitations;
dismiss for failure to identify defendant;
dismiss for failure to prove a prima facie case;
dismiss as double jeopardy;
dismiss for failure to give defendant notice of the offense alleged;
to stay sentence pending appeal;
to dismiss for failure to comply with discovery request.
Also once all discovery is complete defense counsel and the prosecutor negotiate a possible plea bargain resolution.
During negotiations the prosecutor, for example, may offer a non custodial sentence.
Although non custodial sounds like the prosecutor is waiving a jail term, actually the prosecutor intends to send defendant away to County Jail for up to 364 days instead of 1 year or more in a State penitentiary.
From the prosecutor's point of view, it is non custodial because it is not more than 1 year and it is County jail instead of State prison.
In reality though, the defendant is still incarcerated.
What type of discovery must the State provide?
The State must provide any discovery that it intends to introduce at trial or that may potentially exculpate - clear - the defendant.
In accordance with New Jersey criminal procedure the State must provide or permit defense counsel to inspect any copy or photograph, report or material that the State intends to introduce at trial against the defendant.
Any such information not afforded to defense counsel review and inspection is barred from being introduced at trial as evidence against the defendant.
From time to time defense counsel and their client are to make an appearance in court for a pre-trial status conference - status conference about the discovery of the case and whether all the information the attorney needs to have in order to go to trial or file a motion is made available to him or her.
These take place approximately once a month after the indictment until the parties reach a plea agreement or the Judge sets a plea cutoff date.
Assuming there is an agreement the Judge will then set the matter for sentencing which takes place approximately two months after the last pre trial status conference.
In the interim, under New Jersey criminal procedure the Judge will be issued a pre sentencing report recommending a sentence.
Although Judges generally follow the sentencing report, it is in their discretion to do so.
If no plea agreement is reached and the case is not dismissed by the Judge pursuant to defense counsel motion, then the parties move forward to trial whereby the State has a burden of proving their case against the defendant - accused - under the legal standard of beyond reasonable doubt.
Should the matter proceed to trial a defendant is entitled to a trial by jury of his or her peers provided he or she is facing more than six months incarceration upon conviction.
How many jurors hear a case?
Between 6 and 12.
If less than 12 jurors sit on a case then their decision must be unanimous.
Are there depositions in criminal court?
Unlike in civil cases depositions are rarely used in criminal cases and they are only used if a Judge is convinced that a witness will likely be unable to testify at trial due to death or physical or mental incapacity.
If a defendant is found not guilty at trial by a judge or jury then the process ends without moving any further towards sentencing.
Upon conviction, however, whether as a result of trial or plea, the court imposes a sentence.
Sentence may include jail time.
Consecutive v. Concurrent Sentences.
New Jersey criminal procedure permits judges at sentencing for two separate offenses to impose incarceration to be served concurrent or consecutive.
In the event that the Judge elects the term to be served Concurrent then defendant will serve both jail terms in one time.
For example, if the Judge sentences defendant to 6 month for third DUI and 6 months for resisting arrest to be served concurrently then the defendant serves only 6 months of jail time.
However, if the Judge imposes the sentence consecutively then defendant would have to serve 12 months.
Under New Jersey criminal law an adverse decision in the Superior Court may be appealed to the Appellate Division of the State of New Jersey and an adverse decision in the Appellate Division may be appealed to the State of New Jersey Supreme Court.
New Jersey criminal procedure also allows for Post Conviction Relief - PCR.
If facing a greater conviction because of a prior offense then Post Conviction Relief allows a defendant to challenge that prior conviction to mitigate exposure to the current charge.
Did You Know?
The Constitution protects individuals against being tried or punished twice for the same offense.
This is called Double Jeopardy.
If you have any questions for a New Jersey criminal defense attorney about New Jersey criminal procedure, please do not hesitate to contact us.