Volume 4: The First 72 Hours

From The Simon Law Group Field Guides

A New Jersey criminal-defense guide.

The first few days. As a general matter, much of the early posture of a New Jersey criminal case tends to take shape during this period. The phone call a person places. The statement a person chooses to hold. The conditions of release a person reads carefully. The social-media post a person chooses not to make. The lawyer a person brings in before the first court appearance. Each of these tends to shape how the matter unfolds.

This guide offers general suggestions and insights of the kind Simon Law Group attorneys often share with criminal-defense clients at a first phone call. It is written for orientation, not as legal advice, and reading it does not create an attorney-client relationship. There is no charge, no email required to view it on this page, and no obligation to retain Simon Law Group. When a person is ready to talk, calling promptly can help, so counsel can consider the charge, deadlines, release conditions, and next steps. The firm is reachable at (800) 709-1131. Phones are generally answered after hours for active arrests.

Hours 0-24: The first day.

1. Saying little, and asking for a lawyer.

A person who has been arrested or charged generally has two long-standing constitutional rights worth understanding in plain terms: the Fifth Amendment right to remain silent and the Sixth Amendment right to counsel. Many people choose to say little until they have spoken with a lawyer, and to state clearly that they would like an attorney. As a general matter, conversations in custody settings can become part of the record, and "off the record" is rarely truly off the record. The detention-bay conversation with the officer who seems sympathetic, the cellmate making small talk, the spouse on a recorded jail phone line — these tend to find their way into the prosecution's file. Under Miranda v. Arizona, 384 U.S. 436 (1966), and its New Jersey progeny, an invocation tends to carry more weight when it is clear and unambiguous.

2. Being cautious about social media.

Many people choose to be cautious about posting about the situation online, whether the charge, the arrest, a statement of innocence, frustration with the system, photos from the night in question, or whereabouts on the date of the alleged offense. As a general matter, posts and messages can take on a significance later that was not intended at the time. Under Davis v. Disability Rights New Jersey, 475 N.J. Super. 122 (App. Div. 2023), private posts and direct messages can be subject to discovery when relevant. Prosecutors can subpoena the platforms, and "private" is often not private once a case is filed.

3. Being cautious about contact with others involved.

It can help to be cautious about reaching out to other people connected to the matter — a call to the alleged victim, a text to a co-defendant, a message to a witness. As a general matter, even apologetic, conciliatory communications can be charged as witness tampering, obstruction, or contempt, and they can become evidence. When contact is being initiated by the other side, many people choose to document it (screenshots, voicemails) rather than respond, and to share that documentation with counsel at the consultation.

4. Reading the conditions of release carefully.

Whether a case proceeds on a summons, on Pretrial Services supervision, or on bail, the conditions of release tend to carry real weight. No-contact orders, residence restrictions, travel limits, weapons-surrender obligations, drug-and-alcohol testing — as a general matter, each condition can be treated as a separate offense if it is not observed. Pretrial Services violations under N.J.S.A. 2A:162-24source can result in detention before trial. It can help to read any conditions of release carefully and to ask counsel about anything unclear rather than guessing at what a term means.

Hours 24-48: The second day.

5. Keeping private notes — for counsel.

Many people find it helpful to keep private notes of events for their own lawyer, written while memories are fresh — a detailed account that can include locations, times, who was present, what was said, what the person did, what others did, what was seen, and what was photographed. As a general matter, a document dated at the top and marked "Confidential — Prepared for Counsel" can carry a different status under the attorney-client privilege; without that designation, the same writing can become a potential exhibit. This is a detail counsel can explain.

6. Noting witnesses and their contact information.

It can help to note who may have seen or heard relevant events, such as anyone who was present, anyone who can establish where a person was, or anyone who observed relevant facts, along with full names, phone numbers, addresses, and the substance of what they may have observed. As a general matter, people move and phone numbers change, so the witnesses reachable in the 48 hours after an arrest are sometimes unreachable in the months it can take for a case to come up for trial. Noting them early tends to be useful.

7. Observing the conditions of release closely — even technically.

Some situations carry more risk than people expect — appearing at the workplace of a person covered by a no-contact order, driving past the alleged victim's home "to drop off a child's homework," crossing into a different county without permission, or possessing a firearm during the pendency of a charge, even one inherited or legally owned before the arrest. As a general matter, each technical violation can be a separate offense and a separate procedural posture, which is part of why many people treat the conditions with care.

Hours 48-72: The third day.

8. Involving counsel before the first appearance.

First appearances in New Jersey generally occur within 48 hours of a complaint-warrant under R. 3:4-2source; CDR-2 detention hearings under the Bail Reform Act tend to fall within 48 hours of detention. Many people find it helpful to have counsel involved before either. As a general matter, the first appearance tends to work better as a moment for a lawyer who already knows the situation to make initial procedural arguments on the record than as the moment to begin interviewing lawyers. When counsel is brought in later, default conditions can be set that are more difficult to modify afterward.

9. Noting documents that may later be subpoenaed.

It can help to note where relevant records might be kept — phone records, GPS records, employment records, financial records, and security-camera footage from any location relevant to the date and time in question. As a general matter, many of these have short retention windows, some as little as 30 days. Records preserved early tend to remain available, while records left for later are sometimes lost to evidence that no longer exists.

One thing worth keeping in mind — the roles involved.

In the early days, a person may speak with several people who seem helpful — an officer who suggests "we can work this out if you just give a statement," or a prosecutor who mentions "a quick resolution before things get worse." As a general matter, an officer's or a prosecutor's role is different from that of a person's own lawyer. Their responsibilities do not include advocating for the person who has been accused — that is the role of defense counsel. Understanding this distinction is less about suspicion and more about knowing who, in the process, is there to speak for the accused.

Where Simon Law Group practices criminal defense.

Simon Law Group accepts criminal-defense and DUI/DWI matters across all 21 New Jersey counties in the practice areas the firm handles:

Criminal-defense matters are reviewed by charge type, county, urgency, court date, and matter details so the right team can evaluate the next step.

Related reading

• Criminal Defense — pillar overview
• DUI / DWI Defense in New Jersey
• Disorderly Persons Offenses
• Drug Offenses & CREAMMA
• Expungement & Clean Slate