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Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He has been selected to write the new ABA book: DUI and Drug Possession Defense".

Saturday, March 26, 2011

Right to Bail


Bail is the money or property deposited with the court to secure the release of a person held in custody awaiting the resolution of charges against him or her.

a. Right to Bail

The right to bail, except in capital cases, is guaranteed by the New Jersey Constitution and is provided for in the Court Rules. See R. 3:26-1(a). The New Jersey Constitution, Article I, paragraph 11, provides that

All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great.

Paragraph 12 further provides that

excessive bail shall not be required . . .

The Court, in interpreting this right, has said that the right to bail means that

the accused has the right to pre-trial liberty on such bond and in such amount as in the judgment of the trial court under the circumstances of the case will assure his appearance at the trial. State v. Johnson, 61 N.J. 351, 359-360 (1972). 8

However, the Court has recognized that bail may not always be possible. In Johnson, the Court also said

if, however, the court is satisfied from the evidence presented on the application for bail that regardless of the amount of bail fixed, the accused if released will probably flee to avoid trial, bail may be denied. Id. at 360.

Note also that a person may be denied bail in a capital case where the prosecutor presents proof that there is a likelihood of conviction and reasonable grounds to believe that the death penalty may be imposed. See R. 3:26-1(a).