*1 JERSEY, PLAINTIFF-APPELLANT, OF STATE NEW MALLON, JAMES A. DEATORE AND DE DAVID J. FEND ANTS-RESPONDENTS. Reargued September 23, April 13, 1975 Decided 1976. *3 Mr. Richard W. Berg, General, Deputy Attorney argued cause William plaintiff-appellant (Mr. Hyland, F. Mr. Jersey, Berg, of New attorney; General Attorney on the and brief). counsel Elberg, attorney, argued
Mr. Philip designated A. Deatore (Mr. James for defendant-respondent cause Ness, Defender, Elberg, Mr. attorney; Van Public C. Stanley and on brief). of counsel F. for defend Alexander the cause McGimpsey argued
Mr. Ness, C. Van Stanley David Mallon (Mr. ant-respondent & McGimpsey, Messrs. Defender, Orlando attorney; Public Jr., Orlando, of counsel attorneys, Stephen Mr. designated brief). on the of the Court was delivered The opinion de a jury, jointly C. J. been tried Hughes, Having A. J. S. (N. were of armed robbery fendants convicted aof 2A.151-5) proprietor N. J. S. A. store 2A.141-1, Appellate at the The store time. customer present de in separate unreported reversed convictions Division on certification cisions, petitions and we granted N. J. 425 502 (1973).1 State. delayed but we were in due course appeals argued comparable view of somewhat the pendency
decision its Court issued Supreme States in which United case Hale, 422 U. S. States v. 23, 1975. (United on June invited Counsel were 99). 45 L. Ed. 2d 171, 95 S. (or on the bearing significance briefs supplemental to file Hale, then reargued. and the were appeals otherwise) defended at the trial Deatore here are these: facts *4 The he of crime alibi, the time the asserting the basis of the in a room in a woman motel of company in the was imprisoned under have remained reversals defendants Since such convictions, imposed maxima of the on unrelated other sentences to credits less commutation reached in which will be 140). 30:4-92, (N. A. N. J. S. J. S. A. under statute earned 30:4 — area. This evidence was own presented through his testi- mony and that of the companion. female Mallon alleged neither took the stand nor offered evidence in his defense. The of proof both was guilt defendants overwhelming only through identification the victims also by but reason of much evidence, incriminating checks and especially credit and personal victims, the on search, cards found pur- a warrant, suant to motel the rooms occupied by defend- ants. Appellate Division reversed Deatore’s conviction be-
cause the trial judge permitted the ask him prosecution on cross-examination, objection, over of questions series bearing on failure to make any exculpatory statement after he police was arrested. Mallon’s was re- conviction versed because court felt that “the nature of the error as to Mallon prejudice was such affect as well as Deatore circumstances,” in the light surrounding although had not Mallon’s brief urged been ground appeal. In its in Deatore’s case the Appellate Division another issue. After the box been jury discussed had filled jurors had asked whether prospective judge they counsel, knew or any the defendants State’s proposed One witnesses. answered that she knew the customer-victim holdup business.” The “personally judge then view whether, in of this she could inquired acquaintanceship, “render a verdict would be free of any partiality any * * She At prejudice replied she could. the con- dire clusion voir examination2 court’s and before any B. under 1:8-3 peremptory challenges (d) exercised,3 were bar, counsel for at side Deatore, moved to dismiss the juror obligation upon primarily judge 2An east reason (a) ; Manley, see amendment of R. 1:8-3 State v. N. J. “* * * 1:8-3(d) per 3R. : the defendant shall be entitled emptory challenges challenges if tried alone when * * *” jointly; tried *5 for refused, cause. When was he examine asked leave to her on the extent of her with the knowl- victim, relationship of the crime him edge like, committed and against the was also request denied. Counsel then summarily exercised a peremptory matter challenge juror. excused the of possible bias came a voir dire examina- up again during tion the by court after all defense peremptory challenges had been attorney exhausted. Deatore’s the suggested po- tential partiality juror of a who mentioned two relatives by marriage employed as correction officers in a Pennsylvania state He asked prison. for an additional peremptory challenge reason of the claimed erroneous denial of the challenge of the earlier juror cause. This was likewise refused. Mallon’s counsel joined in each of these motions. in
Having
the
mind
basic
every
defendant
to a fair and
trial,
impartial
we have no doubt that
the
court committed fundamental error in its refusal
conduct
or
permit
further examination of the first
in the
juror
circumstances, which error in itself
reversal of
requires
the
judgments
conviction
both
defendants
remand for
trial,
new
and so
affirmance
Appellate Division
both
(the
cases
was not
point
mentioned in the Motion
it was the
although
principal ground
appeal
urged). We
adopt
Division in
language
Appellate
Deatore
out
spelling
the reason:
juror]
acquainted
[the
it was disclosed
Once
that she was
with
victims,
robbery
duty
judge
one of
it became
the trial
explore
permit
explore
juror
to himself
or to
counsel
with the
acquaintance
the nature and extent of his
with the victim. Without
information,
neither counsel nor the court could make an in
telligent appraisal
any bias,
as to the likelihood of the existence of
prejudice
partiality
in favor of the State or
favor
credibility
Jackson,
of the victim. State v.
N. J.
157-161
(1964) ,
den.,
cert.
[85
We add the way that obvious and practical the with situation of connections prospective juror having or party witness which affect possibly impartiality might that outset, is to excuse the with juror at the by consent it. course if suggested by propose the counsel do judge And if should that arrangement rejected, judge is the with the above men proceed supplemental interrogation tioned, discretion, or test counsel to permit do so in his the or for cause. legitimacy necessity of excusal on the basis could be disposed both
Although cases of the contention State error, of this we the vigorous note and that the of Deatore was proper that its cross-examination conviction on in reversing Division was Appellate wrong importance, the raised is of ground. point general Since a remarkable variance subject is we shall note later) (as far New Jersey be settled so judicial views, should merits; this, concerned, are we will decide it on the courts evidence of was guilt even be said that the might though trial error in this was harmless any regard so strong further that we say a reasonable doubt. We should beyond as with the Division’s the Appellate holding disagree “rubbed necessarily error the Deatore questioning serted well off” him as so as to require on Mallon and prejudiced Our opposite of his on that ground. reversal conviction evidence of on guilt view based upon overwhelming or from and of silence Mallon, irrespective part apart Deatore, any rendering pos- other conduct on the part Deatore’s challenge sible effect Mallon State’s Compare doubt. silence, beyond harmless error reasonable Macon, Davis, with 67 N. J. State we 335-41 In this respect distinguish N. result- of both defendants exposure prejudice equally of the first from the failure to probe qualification ing to sit challenged juror judgment. impartial indicated, involved here related to questions As voice matter of Deatore’s silence and failure to exculpatory the time of his arrest. police information to about *7 cross-examination, These came in the course of questions after had testified on direct that at the he he was elsewhere the crime. He asked any time of was whether he had made to effect to when he arrested police statements the was when he learned of and later the him. specific charge against was that he remembered reply only thing saying His money was that taken receipt police he wanted had from He denied that he told the he person. police his concluded to with the nothing say, interrogation whether it not he had was so that refused prosecutor asking make The answer was: asked any “Nobody to statement.4 be added that while there was may testimony by me.” It officers that “defendant was his arresting one read we mean at to rights” police headquarters (which interpret Arizona, Miranda Miranda v. that he was given warning; Ed. 2d 694 384 U. S. L. (1966)), there was no evidence that he was at all. No questioned re was offered with testimony buttal the State to respect above, outlined and no the line mention was interrogation stenographic transcript 4There is obvious mistake in the trial point. We have treated it as if corrected. made of it the balance of the trial either during in the State’s summation or otherwise.
The State takes the position purpose of its trial elicit, was to whether had an questioning Deatore opportunity and, assert his alibi at or about the defense time of arrest if so, to to the attention he had not as- bring jury’s serted have it until would testimony trial, at the is, the effect of impeaching testimony. reasoning course, that an man innocent would have withheld such an exculpatory trial, would have asserted story prior to but to someone in- the earliest authority opportunity avoid arrest, trial; that, therefore, indictment and natural inference that, would follow a rational unless ex- planation for the could failure to make such disclosure be presented, the later exculpatory testimony is untrue.
Here the State also that its cross-examination did suggests not go to the full had Deatore whether he length asking ever told anyone trial, of his alibi claim because it prior to developed that statement, since no one asked him for a he had no opportunity tell the of his alibi and that police any error was therefore harmless since the left impression with jury was entirely innocuous. While this be may well so, we pass the question order to with the deal merits of the State’s full extent. position its This we understand defendant, Deatore, to be that if a like exculpatorily testifies at trial and had not told that but story, silent, at remained near arrest, the time of his his silence and failure to volun- then, teer whether he or not was questioned, may properly *8 brought jury attention on cross-examination in order to permit the inference that the exculpatory testi- mony therefore untrue. We emphasize that position this beyond situation where goes defendant did amake state-. arrest, ment at or near which is his inconsistent with or where testimony, (as conduct distinct from silence) at time crime or thereafter is inconsistent with the told story at trial.
We are convinced that the State’s position should not be adopted and that such cross-examination of a defendant is improper. Division reached Appellate that result on a federal basis,
constitutional of this kind questioning saying could not but help penalize defendant exercising Plfth Amendment self-incrimination privilege against re (by on Miranda v. maining silent), authority Arizona 468, at supra, 37, U. S. n. 86 S. Ct. at L. Ed. 1624-25, 16 at and was as unfairly as prejudicial would be com ment on failure prosecutor of a defendant testify in his defense, own forbidden v. California, Griffin U. S. 14 L. Ed. S. Ct. 2d 106 (1965).
Cases in jurisdictions, other both federal and state, have reached on differing conclusions question approached from- a federal constitutional base (and otherwise); be- Hale, cause the decision United v. States supra, rested aon different and non-constitutional ground,5 there has been as yet no definitive decision of the United States Supreme Court, on the constitutional issue. A all catalog the various cases would serve no useful We purpose. mention fewa cases in the system federal as illustrative of the different results reached. Sale, Supreme respondent 5In Court held that Hale’s silence
during police interrogation exculpatory- and failure then to offer statement, trial, significant such as that later testified to at lack a probative value, weighed against “intolerably at least when prejudicial impact” might jury result were a to attach more weight than thought warranted to such invited silence. The Court particularly non-probative to be silence ambivalent possible view of hearing reliance on the remain silent after warning, the Miranda “variety but mentioned also that a of rea might sons” might “influence decision” and that there “many explanations pretrial alternative for his silence.” 422 U. S. 176-80, 2136-38, Ct. L. Ed. 2d at 104-07. question We are aware that the federal constitutional is now pending Supreme Doyle the United Ohio, States before Court Ohio, argued No. 23, Wood February No. 75— 75— Rep. 1976. See 18 Crim. L. 4184-86 *9 110 Anderson, 305, D. 498 162 S. C. App. U. States v.
United nom. on other sub United grounds 2d 1038 F. (1974), aff’d Hale, of the federal cases many in which supra, v. States held that such discussed, questioning are collected reason of the by prohibition at trial was improper defendant Arizona, supra: Miranda v. in 37 in laid down footnote impermissible penalize today, to is with our decision In accord privilege exercising when Fifth Amendment individual his prosecution may interrogation. police The he under custodial is therefore, not, claimed use at trial he stood mute or fact (quoting privilege F. [498 2d at 1041 his accusation. face of Miranda, 468, 1624-25, supra, S. S. Ct. 16 from 384 U. 86 Anderson)] by 720) (emphasis Md. the court L. 2d at view, an a (Under certainly it is situation when fortiori defendant, Deatore, like subject police was not to interroga tion, but his to be im exculpatory testimony sought peached by volunteer that when story arrested.) failure Chief Bazelon went on hold Judge that this interdiction York, in Miranda had been Harris v. New not undercut 401 U. 222, 643, S. 91 L. S. Ed. 2d 1 (1971), held the use proper inconsistent prior utterances to im peach defendant’s trial even testimony the utter though ances were made before the defendant was adequately ap prised of his and therefore would rights have been inad missible on the prosecution’s chief case reason of Mi Hass, randa violation. See also v. Oregon 714, U. S. S. Ct. L. Ed. 2d 570 He in nothing found consistent with remaining silent at interrogation offering exculpatory trial. F. testimony at 2d at 1042-44. Hale Court in discussed and distinguished its de States, cision in United U. S. 46 S. Ct. Raffel 70 L. Ed. Hale (1926),6 considering the fac- .Supreme testimony 6In held that a Court defendant’s Raffel impeached by at a retrial could be cross-examination which dis- defendant, prosecution testimony, closed that the face of similar testify trial, saying chosen had at his first “[h]is
Ill Grunewald that of closely parallel tual more pattern States, 1 L. Ed. 77 S. Ct. United U. *10 931 (1957).7 Harp, United States F.
In 513 786 1975) Cir. (5th 2d defendants had escape contended at their trial attempted one Chapman had them forced them to kidnapped enter a railroad car in an peni- to from the attempt escape commented tentiary. prosecutor his closing argument on story the between inconsistency this “kidnapping” the failure of bizarre any defendant to even mention this any fact to official to the prior rejected trial. The court contention that the comment on their Fifth Amend- infringed silent, ment to remain stating: * * * sponsors when a defendant at accusa- a defense to the against him, good tion laid which common sense and assert reason totally pretrial testifying is inconsistent with silence of the de- pursuit witness, may penetration or his fendant the of truth allow shielded, credibility is of what otherwise to test defense (footnote omitted)] [Id. he offers. at 790 Harp
The court further cautioned
“[b]ecause
tactic makes collateral
of a
prosecutorial
use
constitutionally
subject
to
protected right,
it is
strict
It
scrutiny.”
premises
admissibility of such evidence
upon
conditions:
following
* * *
exceptional
is the rare and
it
comment on silence
where
case
permissible.
inconsistency
any
is
Total
is the criterion.
If
rational
explanation for the defendant’s invocation of his Fifth Amendment
privilege exists,
prosecution’s impeachment
use of a failure to
speak
safeguard
would be error. This
assures that collateral use
partial;
having
waiver
munity
is
aside
once cast
the cloak
im
may
he
not resume
at will.”
United States v. F. 2d 950 cert. (5th Cir.), den., 404 U. S. L. Ed. cited frequently as the leader of the line federal cases
validating
testimony
the basis that silence at the time
of arrest is an act inconsistent with the
testimony given
trial. The court found an
Harris
“inescapable”
analogy
and said that once the defendant elected
testify
assert
a defense, “he became
to the
subject
Traditional
truth-test
*11
devices
ing
of the adversary
process’, including
of
right
the prosecution to show
prior
his
inconsistent act
re
of
silent at the
maining
F.
time of
arrest.” 441
2d at 954.
The
in
disarray
decisional treatment of this question,
whether on a
of constitutional
not,
basis
or
right
is not con
See,
Bates,
fined to the federal
e.
v.
jurisdiction.
g., State
140
Conn.
99
326,
A.
133
Ct. Err.
in
(Sup.
1953)
(silence
Simmons,
;
v.
admissible) People
28
2d 699,
Cal.
172 P. 2d
(Sup.
In
1946)
(silence admissible).
context,
this
since the
fate
ultimate
of this
of
type
cross-examination
aof
defendant
remains so unsettled and since it has recently
been arising
in criminal
in
quite frequently
our
trials
state
courts, we feel it should be settled now far
as
as the courts
of this state are concerned.
indicated,
As has been
we are of
view
that such
questioning
improper. We reach that
conclusion
of
as matter
law
state
and policy,
toas which
we may impose standards more strict than
required by
Constitution,
federal
which standards will control regardless
of the final outcome of the
in the
question
federal sphere.
Hass,
v.
Oregon
v.
supra; Cooper California, 386 U.
58,
S.
62, 87
788, 791,
S. Ct.
The reasons for the stated self- against from the privilege The first derives gories. law;8 the in the common which is enshrined incrimination the extent law. To from basic of evidence second principles self- the privilege against rests on that the conclusion stated of majority incrimination, speaks evi of rests upon principles Court. To the it extent writer law, only it the views represents dence Mountain. Justice one’s to incriminate compelled not
The (as from the state Constitution New Jersey, self in arises law, common but as part other states) in most does 236, 4, c. p. in (L. statute enacted confirmed § A. 2A:81-5: “No witness N. which later became 668) the answer any answer if question compelled shall be or to prosecution penalty him to criminal will expose Pillo, In J. 8, re 11 N. 15—17 a forfeiture of his estate.” N. J. 434-35 Fary, (1952); different, not essentially of the privilege, statement modern concerned, case is from the original far the present as began privilege against law self-incrimination common 8The response emerge abuses of the Star Stuart Chamber eventually England, criminal law well-entrenched it became History Stephen, England. the Criminal Lato En See 1 Compare gland (18S3). Trial Lilburn and Whar John John (1637) ton, Trial Lil St. Tr. with John 3 How. 1326-27 burne, Tr. How. St. 1292-93 Trial William *12 (1670). Mead, Tr. and William How. St. Penn 957-58 English to the American where tradition was carried over colonies generally privilege was exalted to stature. See Mor constitutional Privilege Against Self-Incrimination”, gan, Minn. L. Rev. 1 “The ; Pittman, History “The Colonial Constitutional of America”, Privilege Against Self-Incrimination 21 U. Va. L. Rev. Jersey, although privilege (1935). In New not was included provision, doctrine, in a “the common constitutional law unaltered by legislation by practice,” lax continued have its full force. (E. Zdanowicz, 1903). 69 N. J. A. & L. enactment, is found in Rules statutory Evidence 24 and of 25, N. J. S. A. 2A :84A-18 and 19. The reason for the privi was lege expressed Brennan, Mr. Justice when a member Pillo, Court, in In re supra: * * * concept acceptance interpre In modern wide and broad its compelling person tation rest on the view that a to convict himself “contrary government” principles of crime is to the of a free American,” “abhorrent the instincts that while * * * practice “may purposes despotic power, a eoercive suit pure atmosphere political liberty personal it cannot abide the Boyd States, 616, 632, v. United freedom.” 116 U. S. 6 S. Ct. 29 L. Ed. N. J. [11 15-16] can
There
be no doubt that the
of an
right
accused
aor
suspect to remain
when
silent
police
or under
custody
interrogation has
been a
always
fundamental
aspect
privilege in this state. In State v.
45 N. J. 199
Ripa,
(1965),
the Court'stated:
“Feedless to
a
under no
say,
suspect is
duty to give
statement)
a
on the
he is
contrary
privileged
say nothing.” Id. at 204. This
course,
underlies
right,
the decision
Illinois,
in Escobedo v.
478, 485,
378 U. S.
S. Ct. 1758, 1762, 12 L.
Ed. 2d
and is the
(1964),
basis of the Fifth Amendment
in Mi
privilege implemented
randa, supra, 384 U.
467-68,
S. at
115 him but to also to put incriminating responses inquiries be free from the themselves.”-9 inquiries silent to remain of the practical privilege effect is, we when a defendant expressly held a decade “that ago, as un him against refused to no can be drawn answer, inference other con or any der the doctrine of silence by acquiescence v. N. and no comment 204, State 45 J. at cept,” Ripa, supra, Lanzo, J. 44 N. may thereon be made to the jury, This 563 v. California, supra. (1965), following Griffin under so, it should defendant being certainly follow that a no op to volunteer the authorities at the first obligation later portunity exculpatory story he tells at his cannot be if he not. penalized or does directly indirectly While the situation in Ripa offering was that of the State evidence of a refusal to answer of proof guilty as substantive case, on its own we think he no different the result should when a presented it is of of by way attempted impeachment testimony defendant’s exculpatory cross-examina- through 9Despite strength age privilege, there existed century countervailing or more in this state and elsewhere assenting silence, adoptive admission, or the tacit doctrine arising accusation was circumstances in which when an made bespeak said accused in the face of it could be silence g., Donnelly agreement charge. See, with the of the e. an State, truth 1857) ; D’Adame, (E. 26 N. J. L. & State v. 613-14 A. 1913) ; Kobylarz, (E. L. & State v. 84 N. J. 391-92 A. Super. 250, (App. Div.), den., 24 N. J. 256-59 certif. N. J. 548 Annotation, “Admissibility inculpatory (1957). See also state presence denied ments made accused or contradicted by him,” (1932), supplemented, A. L. R. A. L. R. questioned years, seriously In recent we the sound See, g., Butler, e. State v. N. ness doctrine. 32 1074, den., (1960), cert. U. S. 4 L. 181-84 80 S. Ed. ; Ripa, supra, Although State v. at 203-04. adoptive recognized admission continues our evidence (Evid. 63(8) (b)), R. we consider rules doctrine is no longer viable, far as as of a criminal silence defendant is con cerned, paragraph and that the first of Evid. R. 25 is to be so read. Comm, Jersey Report Supreme also of the New Court Evi S.ee (1963), mentioning assenting dence 164 abuses silence doctrine. tion, and we hold matter state law. The privilege so *14 upon silence it unjusti- is and reliance substantially eroded fiably We add we penalized may in situation. either York, do a not Harris v. New indicate interpret supra, to but, if it us, different result in situation before even the should, matter we choose to stricter standard as a impose of state law.
That conclusion is buttressed by appropriate application fundamental law be principles (It of evidence. will recalled that in is above, this noted the writer regard, as only for speaking himself and for Justice While Mountain.) “all relevant evidence is courts of this admissible” in the state, except as otherwise in provided the Eules or other law of the state R. (Evid. 7), evidence5 “‘[rjelevant means evidence any having tendency any in reason to prove material fact” R. (Evid. the test of still 1(2)), relevancy be ought value of probative with re proffered evidence spect issue, points in or another put way, whether such evidence renders the desired inference more than it probable would be without the evidence. is Although even test broad and favors admissibility, relevant evidence still may be, be, should excluded when “its value probative is substantially by the risk outweighed its admission will * * * (b) create substantial danger undue prejudice or of confusing the or of issues Evid. R. misleading jury." A. (N. 2A:84A-16).
And basic such was the thrust of the Supreme Court’s Hale, in reasoning supra. ambiguity custodial silence dilutes its force and probative contraindicates that concept threshold and total inconsistency (with later exculpatory statements which is the trial) very base of its evidential worth. 3A Wigmore, Evidence rev. (Chadbourn § 1970); United States Harp, supra. Add to in- this the volved factors confusion and potential one prejudice and can why see quite clearly exclusion is the desirable and fairer rule. a criminal or under suspect custody
Por silence form or in the face of accusation interrogation v. Bipa, refusal certainly equivocal. to answer queries is amounts when it 45 N. J. at 203. even more so supra, It is many are There story. an exculpatory to failure to volunteer say choose may reasons situation why person reliance A is conscious nothing. likely explanation it feeling is a general remain silent. Another by police not at all when surrounded say is better anything case another, in the in a fearful Still atmosphere. or officials recollec alibi, lack of immediate of an be the simple might time of tion of the defendant as to his whereabouts such silence evidence of occurrence. it would seem that So if it “relevant,” even but truly probative soundly so, capacity prejudice should has thought great *15 that excluded on of the to be misleading jury ought ground.10 taken however, already we have that
The State urges, type impeaching of this in favor of the propriety position Burt, in of the decision State cross-examination virtue 1047, 92 S. 404 den., cert. U. 59 N. J. 156 (1971), which affirmed the Appellate 30 L. Ed. 735 (1972), the re opinion in latter’s Division for the reasons expressed underlying N. J. The Super. in 107 ported in the in- from those different markedly were circumstances impropriety a de cross-examination think the rule We developed custody respect police in fendant to silence with depend defendant or not the not on whether in this case should Super. Griffin, warnings. N. J. received his Miranda (1972), den., (App. that 1972), N. J. 73 held Div. certif. warnings given, improper questioning had been when the was apparently error if warn found no that court would have but Morales, given. ings J. Su State v. 127 N. not See also had been meaningful 1974). per. (App. dis basis for a see no Div. We long Miranda; right remain silent existed before tinction. The only required decision, present purposes, that a defendant for appropriate choice that he could be reminded of it so make any interrogation. before
stant ease and the has to be read light in thereof. We are satisfied that in the result Burt was correct. —
The in that charge case was murder of a shooting friend. The defense at was was acci- shooting dental.11 The proofs up to the of the cross-examination point in question established had medical sought that defendant or other incident, assistance his friend after the injured had left the locale without whether he was dead knowing alive and had not when reported police occurrence to the he was arrested for another (the offense few hours later police that time know of nor indeed shooting), did not to anyone. was, in of the cross-examination es- purpose sence, to all this out and convince the bring jury thus the trial testimony of accidental could not true. shooting full course of set forth (See separate questioning 59 N. J. It fact not a true opinion, 161-62). was case as to an custody exculpatory story, of silence but police conduct, non-action, rather after one of albeit the charged crime defendant’s at trial. story such, inconsistent with As a defendant thereon runs into none of the questioning difficulties of the self-incrimination or of privilege the law of evidence and is It entirely proper.12 is akin to equally ap- Appellate previously 11The Division had stated the facts of the case, testimony but a fuller narration and trial events con separate opinion, tained in Justice N. Hall’s J. at 158-63. sought corpus 12Burt later habeas in the federal courts. The District Court awarded the writ on the basis that re *16 by main silent had been violated the cross-examination. United Yeager, Supp. (D. States ex rel. Burt 1972). v. F. N. J. Appeals reversed, opinions, The Circuit Court of with two (3d 1973), F. 2d 234 Cir. and certiorari was denied the United Supreme Court, dissenting. States 938, three Justices 414 U. S. 94 S. Ct. L. opin Ed. 2d 165 Both Circuit Court express e., ions can here, be read to view we take i. this prior conduct, was a case of may properly inconsistent which probed by cross-examination, the State on rather than a situation police custody. of mere silence in F. 2d See 475 id. at 238. Where the non-verbal conduct is intended to be communicative with re- testimony cross-examination or rebuttal propriate statements with the prior exculpatory inconsistent spect See, e. v. N. J. g., Kimbrough,, trial. State story told 57, 65-68 1970). Div. Super. (App. to be given here is not retroactive today
The rule settle we review is pending as to eases where direct except application date. In we follow regard available as of this or remains Supreme United Court course States adopted Shott, L. Ed. Tehan 383 U. S. v. a after like the decision problem 453 (1966), concerning had held invalid comment California, supra, Griffin exercise of the self-incrimination. privilege against on the Division are affirmed. judgments Appellate I think the result). majority (concurring Sullivan, a de- probe is too restrictive of the State’s right as a witness. A defendant credibility right fendant’s has trial, to remain silent when arrested or at and no adverse in- can be drawn therefrom. This right guaranteed ference also, the majority Eifth Amendment but as by the only in the common law.” A defendant’s notes, enshrined “is substantive ad- can never be evidence guilt mere silence main ease. of the State’s part missible as to waive his to re- elects However, a defendant where defense, own he in his at trial silent, and testifies main To end credibility as witness. in issue his thereby puts testimony of his veracity he be tested may or conceived he is fabricated tells story whether or not the case, facts of the particular after the event. Depending consideration in weighing can be relevant silence prior revealed for the first time story credibility exculpatory at trial. act, however, privilege being a
rather than mere non-assertive Super. may apply. Williams, 97 N. J. 599-600 Cf. 1967). (Cty. Ct. *17 can he person who demonstrate that not involved was in a criminal will episode innocence at ordinarily protest his the opportunity. first when Should he choose to remain silent arrested and then at trial a completely exculpatory present of events, version the State the ask ought right to have him from he did tell the what he now why says not police If he was witness stand. his answer is that retying say hostile and nothing, was atmosphere he was confused, or wanted to an frightened to talk at first, whatever torney he can consider this in says, jury the credibility of his courtroom It is testimony. weighing unheard defendant in criminal case to listen to all of the incriminating proved details and then by tailor an exculpatory story neatly fits into what the State has proved. Silence at the can time of arrest never be substantive evidence of but it can be relevant guilt to the credibility of defendant’s later version of innocence. In circumstances, cross-examination as to the prior silence and I believe within proper the rationale of Harris v. York, New U. S. 91 S. Ct. L. 643, 28 Ed. 2d 1 as well (1971), our Evidence being permitted Rule A. 25(d) S. (N. 2A:84A-19).
In the instant case it does not appear de fendant Deatore was at all questioned when he was arrested. Por that reason his silence at that time could be said to have little or no probative weight in considering veracity of his testimony Hale, as to alibi trial. United given States U. 95 Ct. L. S. S. Ed. 2d 99 (1975). But these were facts presented jury and presumably con sidered it in considering as a credibility defendant’s wit ness. Even if the cross-examination considered technically since the because of improper foregoing, proof guilt of both I defendants was would overwhelming, find error any to be under Chapman California, harmless 386 U. S. L. However, Ed. 2d I agree we must reverse both because the juror convictions incident referred to in majority opinion. joins
Justice in this opinion. Schreiber *18 Passman, J. in (concurring result and In dissenting). inter alia a basic and important principle ease, this we decide of law to which I fully adhere: that at trial the prosecution may not comment upon pose to a defendant questions con- cerning his silence or in- his failure to disclose exculpatory formation to the at police or about his arrest. the time of Such will questioning not be even where the permitted State seeks to establish defendant’s for the sole reticence pur- pose his after he has testified at undermining credibility trial to an exculpatory story.
The majority of this Court predicates this holding upon the fundamental Ante privilege against self-incrimination. at 113. Justice, The Chief for himself and speaking Justice Mountain, also this grounds decision upon basic principles law. Ante evidence 116. To the extent that the several opinions of this Court reach the above, result noted I in am accord with them.1 I differ from however, these opinions, the following important respects. Sullivan, 1To the extent that which Justice joins, upon ground Justice Schreiber relies neither and would reject important principle totally altogether, this I must em phatically part ways with it. Arguing story exculpatory defendant as to that where a testifies trial, question prosecution should be allowed to a defendant arrest, to his to remain silent at as Sullivan seeks to decision the time his Justice distinguish evidence which concerns defendant’s veracity from which relates to a evidence issue in the substantive making distinction, impliedly argues In case. he also thereby puts whenever a defendant testifies at trial bility credi- issue, probative veracity all evidence of his should be position fact, ignores (see admissible. This noted elsewhere infra), probative footnote 3 that evidence which is otherwise as to credibility frequently grounds a witness’ excluded on the policy. See, important g., it contravenes other e. State v. some Boone, (1974). My position N. J. Brothers’ also fails to recognize testimony infringe upon that where will a defendant’s privilege against self-incrimination, our rules of evidence no make exception permitting testimony introduction such for the purpose testing credibility. limited a defendant’s See State v.
Miller, (Pashman, J., dissenting). N. 242—43 Pirst, holding with the agree majority I cannot from accruing impermissible questioning prejudice 106-107. It is “rub on Mallon. Ante at off” Deatore does in dis juries experience difficulty well known that often and testimony testimony between tinguishing impeachment Por example, which issues in the case. goes to substantive of a testi jurors confuse the impeachment frequently with evidence guilt, defendant direct of the defendant’s fying rather alibi than evidence discredits his viewing without In cir any independent on his bearing guilt. cumstances, considered in cautionary usually instructions are adequate clarify this distinction cure the erroneous Boone, association. State v. 66 N. J. (1974); *19 Miller, 229, v. 67 J., N. dissenting) (Pashman, (1975) ac are cases therein. Because and Mallon Deatore cited complices, evidence which Deatore’s guilt tends to establish In regard, prej will Mallon. certainly incriminate has udicial cross-examination effect which impermissible effect on have an identical on the will defendant-witness are found If both defendants defendant. non-testifying allow the unjust improperly to manifestly be would guilty, trial, af to a new while have defendant (Deatore) impeached co- his prejudiced to equally relief whatsoever fording no reasons, I would that these hold Por (Mallon). defendant or and are accomplices are tried together where codefendants related, the inextricably prej otherwise where their guilt silence of one to the from illegal questioning udice arising de on the other will in most instances “rub off” defendant fendant. Sullivan, correctly observes, de- “[a]
Finally, himself as Justice trial, and right when arrested at silent to remain a has fendant (emphasis Ante at 119 therefrom.” drawn can be no adverse inference effectively undermining a defendant’s supplied). used In order time silent at the credibility, a chose to remain defendant the fact give inference” which burdens “adverse to an rise his arrest must just right if the fact his silence as much as silent remain in the case. issue establish a substantive were used to Since majority has .grounds other ordered new for both Deatore ante at Mallon, 104-106, I find it unnecessary to with dissent the Court’s respect disposi- tion of this case.
Second, I wish to dissociate from emphatically myself those portions of the majority opinion impliedly sup port the view the United Supreme States Court in adopted York, Harris v. New 401 U. S. 91 S. Ct. Ed. L. (1971) 2d that statements taken from in viola defendant Arizona, tion of Miranda v. 384 U. S. 86 S. Ct. 1602, 16 L. Ed. 2d are admissible for the limited purpose of impeachment where the defendant chooses to testify trial. IAs discussed at length my dissenting Miller, State v. supra, v. I that Harris New believe firmly York, supra, was decided on wrongly both technical and policy and for grounds these reasons not have been should Miller, as a matter of State law. State v. adopted supra, N. J. J., (Pashman, I continue to dissenting). adhere to this view.2 Miller, supra, argued, example, authorizing 2In I for illegally testimony purpose use of for obtained even limited testing credibility severely defendant’s would the de burden self-incrimination, sig free fendant’s to remain from would nificantly undermine the effect of Miranda would deterrent government Id., wrongdoing.” make the courts “a vehicle J., dissenting). regard, (Pashman, N. J. at 238-40 In this I note approval Supreme recently with the California voted Court People Nudd, Rptr. overrule decision in 12 Cal. its 115 Cal. *20 372, (Sup. 1974), adopted 2d 524 P. Ct. which the had Harris ra thereby law, held, and has
tionale
as a matter of state
that
the
against
privilege
impeachment
self-incrimination forbids
of a de
inculpatory
with an
fendant
from
statement obtained
him in viola
safeguards
People
Disbrow,
tion of the
in
set forth
Miranda.
Rptr.
101,
360,
(Sup.
16 Cal.
127 Cal.
3d
In his the opinion, have found “in- Court, some courts of observes that this to Harris and cases similar the between escapable” analogy a the that when Harris for proposition instant case. Citing all subject trial he becomes testify elects to defendant adversary of the truth-testing traditional devices of the July 1974, join majority 31, in over X now the filed on my change explanation ruling opinion, of that I a brief believe principal position New Tork 1, raised Harris v. in on the issue in 643, is war (1971) Ed. 2d L. S. S. Ct. U. primarily my signed I Hudd I was motivated ranted.' When although perjured testimony possibility as of the abhorrence of recognized long-time judge crim I defendants that well perjury prone when their inal a “little” actions were to commit liberty course, I, of did condone such life or was at not stake. Further, that I could conceive evi conduct. that time present flagrant obtained in as viola dence incidents such the (1966) of tion Miranda v. Arizona U. 86 S. People Ed. 16 L. v. Fioritto Rptr. 817, ever be Cal. 2d 441 P. 2d would 68 Cal. presented to a of Miranda a sound and trier fact. articulates exclusionary is still this land. rule which law of workable police recognize I when now that rule is eviscerated officers can give warnings case, ignore duty or, instant requirements knowing violate Miranda and Fioritto full well that illegally may impeach- obtained statements be for admissible testify. purposes ment if a defendant elects to forth, Moreover, majority opinion convincingly sets as the so numerous, adherence to Nudd will revival of Harris force elusive tests of determine if obtained voluntariness statements pur- in violation of Miranda for are admissible or inadmissible poses impeachment. appellate opinions this im- A host of precise spawned. test would soon Miranda eliminated need be inquiries salutary for such and I believe effect should not be thwarted. Finally, I to individuals accused find fundamental fairness public Harris-Nudd demands that offense of the commission precision limiting rejected. Regardless of instructions illegally obtained state- of fact to consideration the trier simply solely impeachment purposes, unrealistic ments by the will not be considered trier believe that such statements recognize guilt. I now fact as substantive evidence illegally manifestly prejudicial use ob- and unfair of form Miranda into a rule tained evidence would transform Such transformation should not rather than substance. one occur California. *21 process,3 courts have allowed a prosecutors question defendant as to his failure informa exculpatory to disclose tion See e. g., silent at the time of his arrest. remaining Ramirez, United v. F. States 2d 950 cert. 1971), Cir. (5 den., 91, 30 L. U. S. Ct. 2d 113 Ed.
I view, note with approval that in this the Court rejecting Miller, has in State adopted portions the dissent v. supra, and has stated: expressly may interpret York, add that we v. do not Harris New We supra, us, to indicate a in the different result situation before but should, impose higher if
even we choose standard as a matter [Ante state 116]. law. at I have no with this statement. I quarrel strongly urged this Miller, court in v. State 67 N. J. supra, J., (Pashman, “to a matter of State dissenting) adopt law more rigorous rules for the protection individual, .” . . .
However, Miller, as a my result of position State v. supra, I must dissociate from myself portion the ma- jority seeks distinguish situation in Miller, Davis, State supra, and its companion case, 67 N. J. 222 from that of (1975), the instant case. emphasize position goes beyond We a situation where arrest, defendant did make a at or statement near which is incon- testimony.....[Ante 108], sistent with his trial Apparently, majority chooses to fully those de- protect fendants who remain silent at or near of their ar- the time rest, but fails to provide de- comparable protection to those Miller, sought supra, fallacy 3In State v. I to show inherent by noting proposition of this State’s make use of truth-testing devices” is “traditional not absolute: is common “It phenomenon probative law that evidence as to substantive credibility issues a witness excluded ad- because its important policies.” mission [67 would conflict with other N J. at 241; emphasis supplied]. g., See, e. Evid. R. Evid. R. Evid. supra. Boone, R. R. Evid. Evid. R. 52 and State v. *22 fendants in circumstances who make statements to the similar police without full constitutional knowledge rights of their and under the coercive pressures police interrogation which Miranda. I fully were considered in find this distinc- tion to be and illogical unpersuasive. reasons,
For similar
I wish
myself
to dissociate
from the
reference
v.
N.
majority’s
to State
109
J.
Kimbrough,
Super.
57
Div.
its
that ease to State
(App.
1970)
analogizing
Burt,
59 N.
1047,
J.
cert. den. 404 U. S.
(1971),
728,
S. Ct.
Nevertheless, principles of evidence law do buttress our conclusion. It is a fundamental rule of evidence even relevant, if evidence is still be ex clearly may certain cluded where is the risk probative outweighed by value its See R. A. undue Evid. 2A.-84A- prejudice. (N. 16). Clifford Conford cor as Justice Although, Judge observe, value of rectly the task of the probative prof weighing . "normally fered . evidence the risk of . against prejudice left to administration the trial em (ante at judge” phasis where such supplied), fundamental rights the privi lege self-incrimination against involved, may are Court determine, law, should as matter the tainted evi dence is I would, inadmissible. therefore, conclude that of a relevance defendant’s at or near silence the time of his arrest, which is at best only equivocal and (see ambiguous *23 Hale, United States v. supra, 422 U. S. 95 S. Ct. 176-178, 2136-2138, 45 L. Ed. 2d at out 104^106), always is weighed by the for potential prejudice privilege where the against self-incrimination sense, is In find implicated. I that the principles of evidence law free and the right to from self-incrimination are and are related inextricably relevant equally to the in decision this case. J., and Conford, P. D., J. A.
Clifford, Temporarily Assigned, We concur in concurring. the results reached in the of the Chief Justice. present opinion is only the in prompted by partial resting opin ion of the of comment disapproval or cross-examination by the State to a testifying arrest, defendant’s silence upon upon its asserted We probative insufficiency. thoroughly with and agree join in the opinion to the extent that it forbids comment or cross-examination of the kind mentioned on the ground of the erosion or depreciation of the against privilege self-incrimination. That of ground the ruling strong to sustain enough it. justification the Adding of insufficiency of probative weight is unwarranted on the intrinsic merits of the proposition may have the untoward effect of weaken by ing analogy the vital role of the trial in judge ruling of and relevance in other matters evidential con- weight texts, civil and criminal. or rele weight of in to probative
Pules evidence relation trial are left to administration normally wisely vance “ any having evidence ‘Relevant means judge. evidence’ Evid. B. in material fact.” tendency any reason to prove safety- the for added). Our rules provide 1(2) (emphasis of evidence discretionary valve of exclusion judge the risk outweighed whose value is probative substantially or confusion of time, undue undue consumption prejudice Evid. 4. jury B. re circumstances well be attendant may Concededly there the silence weight minimal probative ato level of ducing con of criminal assertions an face of police accused when case, example, be said to be duct. This might warnings Miranda administration of such silence follows J.N. Griffin, Super. State v. the defendant. See too, So, 62 N. J. 73 den., (1973). 1972), Div. certif. (App. of an context silence is prior where the defendant’s an investigating before privilege assertion express States, U. S. United jury. Grunewold grand But the fore 963, L. Ed. 2d 931 none of fundamentally principle is to established gainsay going was made an statement admissibility accusatory proof and that his re accused hearing the presence inference justify or absence thereof was such as to sponse accusation. McCormiclc he with or agreed “adopted” *24 Evidence ed 353. As there stated : p. (Hid.) on (2d 1972) “Underlying assumption prompts is human the rule nature deny consequently false an man to accusations innocent a deny particular prove accusation tends belief in failure the truth of the accusation.” v. California, 46, 60, also Adamson 332 U. S. 67 S. Ct.
See L. J., Ed. 2d 1903 concur- (Frankfurter, . ring)
True that, it is in view Eifth of Amendment and Miranda implications, the evidence stated principle has been hedged about with context, in the criminal McCor- qualifications mick, cit., op. 353-356, particularly by confinement of the use of such silence arrest to upon impeachment of the credi- bility of the as a defendant witness-. See the of opinion Jus- Burt, tice (then Sullivan in State v. Judge) 107 N. J. Super. 390, 393, aff’d N. o.b. 59 J. 156 cert. den. 404 (1971), U. S. Ed,. 1047, 92 Ct. 728, S. 30 L. 2d 735 (1972).
But insofar as probative such, is weight, concerned, and until of recent spate on the litigation point following Arizona, the decision in Miranda v. 384 U. S.
1602,
We are of course aware that a majority of the United States
arrive
Court chose to
at the same
Supreme
result this court
Hale,
case,
does in
in United States v.
present
422 U. S.
credible case in that the tests of common against regard human and reflected the evidence ex- experience rule logic McCormick from above. pressed by the text quoted Sullivan, Schreiber, J., Conford, Clifford and D., P. J. A. the result. concurring Pashman, J., and dissenting. the result concurring For Hughes, Justice Justices Moun- affirmance —Chief tain, Sullivan, Pashman, Clifford Schreiber Judge Conford —7.
For reversal —Hone. MONT ASSOCIATION OF PATROLMAN’S BENEVOLENT 53, PLAINTIFF-APPELLANT, CLAIR, LOCAL NO. MONTCLAIR, A TOWN OF MUNICIPAL CORPORATION MACLACHLAN, DE AND THEODORE DIRECTOR OF SAFETY, PARTMENT OF PUBLIC DEFENDANTS-RE SPONDENTS. Argued February 24, May 11, 1976 Decided 1976.