*1 argued in this gather Court. We that the award was chal- lenged ground below on the plaintiff was not a successful claimant, and if allowed, fees are to be the amount should be reduced. Plaintiff was successful. The trial court’s exer- cise of approving discretion in the amount is sustainable.
JUDGMENT AFFIRMED.
For WILENTZ, Justice and Justices- affirmance—Chief CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN—7.
Opposed —None. JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW v. LARRY IRVING, DEFENDANT-APPELLANT. Argued 1, 1987 December Decided March 1989. *4 Defender, ar Deputy Assistant Public Jeffrey Steinfeld, B. Slocum, Defend gued appellant (Alfred for A. Public the cause Desig er, Flynn, B. attorney; Jeffrey B. James Steinfeld briefs; supple Counsel, Larry Irving on the submitted nated brief, se). pro mental Friedman, Prosecutor, argued
Marc Assistant J. cause (Herbert Tate, Jr., Prosecutor, respondent County H Essex attorney). opinion of the Court was delivered
CLIFFORD, J.
certification,
(1987),
granted
We
course of the defendant shot and wounded the tor, Frisco, despite long-time emрloyee, Vito which Frisco and a Tutt, gave Clarence chase but were unable to catch the robbers. Shortly robbery, of the Newark after the Detective Colicelli Department neighborhood surrounding Police canvassed Luncheonette, “putting the word out” about the crime. Frisco’s anyone having He asked that information communicate with obtained, department. on that he him at the Based information six-per- Larry Irving’s picture in a Detective Colicelli included Both photo array, Tutt. son showed it to Frisco and later to Irving person the luncheonette. identified as the who robbed shot him. From Irving Frisco added that was the man who Grady Livingston as array, another Frisco and Tutt identified accomplice. defendant’s *5 trial, Irving he committed
At maintained that could have way the crime because he was on his to work at the Essex Jersey. County Department Orange, in New He Public Works apartment in testified that he left his Newark a few minutes a.m., roommate, before 8:00 the same time that his Dexter Davis, teaching position. left for his He contended that the time, amount of and an drive to work consumed a substantial investigator trip testified on defendant’s behalf that the re- twenty-seven quired twenty-five to minutes. Defendant’s em- work, Irving’s stamped ployer produced time-card from at 8:16 Davis, however, Lacking, a.m. of Dexter was only Irving’s support witness who could assertion that he apartment surprisingly, was at his until 8:00 a.m. Not prosecutor opportunity inquire seized on on cross-exami- nation about Davis’s and to comment on it in her absence summation. defendant, jury along Livingston,
The convicted with 2C:15-1; first-degree robbery, contrary to second- N.J.S.A. assault, 2C:12-lb(l); degree aggravated contrary to N.J.S.A. third-degree permit, possession unlawful weapon of a without contrary 2C:39-5b; unlawful second-degree N.J.S.A. possession weapon purpose, contrary of a for an unlawful conviction, robbery N.J.S.A. 2C:39-4a. On the to which the Act, 2C:43-6(c), applicable, Graves found N.J.S.A. court eighteen years sentenced defendant to a custodial term with years parole aggravated ineligibility. seven On the assault conviction, term of defendant received a consecutive custodial years years parole ineligibility. seven with three The court merged weapons possession charge the unlawful with the rob- bery aggravated remaining weap- assault convictions. charge possession concurrently ons was to served with the robbery and assault convictions. Division,
Although
Appellate
unreported opinion,
convictions,
agreed
affirmed the
it
with defendant
(1985),
den.,
keeping
Yarbough,
with State v.
II rely Rule 3:11-1 defendant who intends to on an alibi Under prosecuting on written demand of the and within shall, days attorney signed stating furnish a the thereafter, him, written bill of particulars, by the or he claims to have been at the time of at which places sрecific place alleged and the of the whom he offense names and addresses witnesses upon intends to such alibi. establish rely information, exchange by for this and on written demand defendant, prosecutor must furnish names and address- intends to establish rely es of witnesses on whom the State presence alleged of the Ibid. defendant’s at the scene offense. pursuant court party may particulars amend to a A the bill Ibid. order. surprise purpose of notice of alibi “to avoid factual cannot by the sudden of a claim
trial introduction [that] investigated recessed end.” unless the trial is to that State Garvin, (1965). non The sanction for N.J. 272-73 defaulting party may be compliance with the is that the Rule defen presenting regarding from witnesses trial precluded alleged from at the presence absence scene dant’s R. 3:11-2. offense. assistance, February in late 1984 defendant counsel’s
With containing of his original alibi the names filed an notice of signed Department. Defendant at the Public Works co-workers 9,1984, his April 3:11-1. notice in accordance with Rule On include the notice letter to counsel amended defense Davis, Dexter roommate. name of defendant’s trial, defen- prosecutor attempted to cross-examine the At original notice Defense of alibi. dant on contents of colloquy, prosecutor ex- objected. In a sidebar counsel jury to the two-fold: indicate plained purpose that her was that no support witnesses were called in of the defendant’s alibi, bring jury’s and to to the attention the fact that Dexter Davis had not original been included in the notice. Before determining questioning whether such proper, the court prosecutor asked the Irving to examine on voir dire. Conclud- ing prosecutor’s that the questions went to the issue of defen- credibility, dant’s permitted the court the cross-examination to proceed jury. before the
During that examination defendant admitted that he had not provided Davis’s name to his counsel until one month after he had offered the names of his agreed co-workers. He that Davis *7 only was the witness who had seen him before 8:00 a.m. on the day re-direct, of the robbery. On explained defendant incarceration, because of his speak he was unable to any to other signing witnesses before original However, notice. questioned he was never why about appear Davis did not at trial. Angeleri, (1968), State v. 51 382 N.J. this Court held
that a requirement notice-of-alibi did not violate a defendant’s right against self-incrimination. The rationale was that Rule did compel not say anything, defendant to but rather merely required pretrial disclosure if planned the defendant assert an alibi. Id. at 384-85. The Court added that “if an alibi accused, should tend to incriminate an it must be because of its infirmity. inherent The Constitution protect does not a defen dant from the consequences makes, of a defense he nor assure right him a so to defend deny as to the State a chance to check position.” the truth of his Id. at 385. years
Two after Angeleri, the Supreme United States Court presented Florida, 78, was with Williams v. 399 U.S. 90 S. Ct. 1893, (1970), 26 L.Ed.2d 446 in challenged which defendant Florida’s rule violating right against notice-of-alibi his self-in Williams, crimination. The defendant in being after denied a protective by order the trial court that would excuse him from complying rule, with the State’s eventually pro notice-of-alibi 81, Scotty at Mary name of a as his alibi witness. Id. vided prosecutor subpoe at 449. The at 26 L.Ed.2d 90 S.Ct. testimony Scotty deposed prior her to trial. The naed Mrs. Williams, wife, Scotty his Mrs. at trial was that the three Scotty’s at the together apartment Mrs. time were During Scotty’s robbery. Mrs. cross-examina alleged Ibid. however, testimony with tion, gave she that was inconsistent Moreover, testimony by provided deposition. rebuttal her Scotty’s challenged Mrs. location at police officer who alleged robbery. Id. at 90 S.Ct. at time of at 449-50. L.Ed.2d Supreme Supreme Florida Court’s Court affirmed the that the rule did violate defen-
determination
notice-of-alibi
providing information
right
by
self-incrimination
dant’s
convicting him.” Id. at
S.Ct. at
“useful
450.
L.Ed.2d at
The Court stated:
Nothing in such a
on an
or
rely
ruie
alibi
prevents
requires
abandoning
matters
are left
his unfettered
defense;
him from
these
that bear
That choice must be
but the
on
made,
pretrial
choice.
pressures
induce him to call alibi
decision are of
same nature as those that would
fact
both his and the
at
the trial:
the force of historical
beyond
witnesses
strength
ease built
these facts.
control and the
of the State’s
on
State’s
offering
is not
to that kind of
evidence
Response
pressure
transgressing
Fifth and Fourteenth Amend-
self-incrimination
compelled
ments.
added)
(emphasis
at 451-52
84-85,
1897-98,
L.Ed.2d
[Id.
(footnote omitted).]
*8
Thus,
‘incriminating’
de
the alibi
‘testimonial’
“[h]owever
‘compelled’
be,
within
proves to
it cannot be considered
fense
at
meaning
Amendments.” Id.
of the Fifth
Fourteenth
451;
1897,
v.
84,
at
26 L.Ed.2d at
see United States
90 S.Ct.
1814,
181, 187,
431
97
52 L.Ed.2d
Washington,
U.S.
S.Ct.
self-accusation,
(“Absent
(1977)
officially
245
some
coerced
the most
privilege
Fifth Amendment
is not violated
even
notice,
admissions.”).
to file the
damning
The decision whether
Williams,
no different from
according to the
Court
testify or
silent—a dilemma
defendant’s decision to
to remain
thought
privilege
of the
that has “never
an invasion
been
Williams, supra, compelled self-incrimination.”
1897-98,
Justice
84-85,
It has been Williams notice. context, “litigational use” is made of the where to this dissent, urges an entire- post at 453. He Handler’s See Justice amendment, the fifth one analysis under ly different on the is cross-examined hold that when a defendant would impeachment purposes, the of alibi for notice content “compelled” self-incrimi- and therefore defendant’s is concerning the see how cross-examination nating. We fail to entirely from the is so different content of a notice-of-alibi from name was derived cross-examination of a witness whose transgress the notice itself as to boundaries the content of the fourteenth amendments. of the fifth and theoretical, law- interesting, if somewhat Borrowing from an article, attempts explain Handler’s dissent review Justice as a by classifying this case alleged constitutional violation compulsion,” which occurs form of “indirect or conditional right unconditional placed a burden is on otherwise “when silent, longer right that the is no considered to remain such ” admits, however, ‘voluntary.’ 451-452. He truly Post at not rise to the level of a that the circumstances of this case do assuming accept this “pristine compulsion.” Even we were same classification analytical model—which we do not—the aside, Artificial constructs we could attached to Williams. clear that Supreme that the Court has made think United States rights every on the exercise of fifth-amendment burden California, 402 U.S. unconstitutional. See McGautha L.Ed.2d 711, (1971)(“The 1454, 1470, thresh self- compelling the election question old is whether [between impairs to an right to remain incrimination and silent] *9 involved.”) conclude We rights behind policies of the apprecia- has not case instant in the of alibi notice the use remain right to underlying defendant’s policies impaired bly self-incrimination. against right or his silent Inasmuch as the notice is not self-incriminating, the question then becomes whether the contents of the notice be used as a basis for testing a credibility defendant’s on question cross-examination. That focuses on whether the no tice sufficiently testimonial in character. Defendant con tends that it urges is not. He the Court to view the document as a pleading formal that was not intended as an affirmative argument statement. The is unconvincing because the notice highly contains relevant information amassed from statements volunteered preparation defendant in alibi de Although fense. defense counsel assisted in the act of record ing plea alibi, counsel could developed not have 'information contained Moreover, therein independently. characterization of the notice of pleading alibi a formal does not advance position the defendant’s inasmuch as factual asser tions in pleadings or in superseded pleadings may be used against parties who made the Stoelting assertions. Hauck, (1960). (We however, N.J. do suggest, that an omitted name a notice of alibi can be viewed as an admission We cite interest. Evid. R. 63. Stoelting merely point logical out the flaw in the analysis.) defendant’s is clear from the nature of the notice of alibi
The testimonial signature serves the document. This signature on defendant’s the contents of the notice of the truth of as a certification voluntarily partici- acknowledgement that the as an importance of defense. The pated preparation in the of his alibi understated, for under Rule signature cannot be defendant’s it. the notice is void without 3:11-1 allow inherently unfair to suggests that it is Defendant required he regarding a document that cross-examination *10 438 opportunity com- his defense counsel had an
to file before argument are investigation his of the case. To this there plete First, prejudice responses. any the trial court can balance two precipitant as that the defendant would suffer a result probative of the informa- plea nature of the value analysis, 4 as done in pursuant to an Rule tion Evidence Second, being capable is this case. because notice trial, may the list to accord prior to defendant alter amended True, investigation. explain have to defendant with notice, original jury is entitled any contradictions but cast, legitimate determine the truth lies. If doubt is where by asserting that a assumes an alibi that is the risk defendant defense. emphasized in the
It
that the information contained
must be
purposes
part
nor
notice was not offered for substantive
as
Williams, supra,
at
the State’s main case.
also
399 U.S.
See
17,
17,
n.
n.
at
n. 17
86
90 S.Ct.
1898
26 L.Ed.2d
452
fifth
(suggesting
protected by the
that “testimonial” disclosure
relating to
only
“includes
statements
the historical
amendment
crime,”
relating
strategy);
facts of
not statements
to trial
(limiting
772
State’s use of evidence dis
Conn.Super.Ct.R. §
rebuttal);
through
covered
defendant to cross-examination
1951, 18
cf, e.g.,
v.
388
87
California,
U.S.
S.Ct.
Gilbert
(1967)(handwriting exemplars
part
as
L.Ed.2d 1178
admitted
case). Moreover,
in the
the information
notice was
the State’s
See, e.g.,
any
unrelated to
element of the offense.
Schmerber
1826, 16
908
California, 384
86 S.Ct.
L.Ed.2d
U.S.
(1966)
sample
essential
(compulsory blood
used
establish
Miller,
against defendant).
charge
element
State v.
(1975),
this
held that a statement taken without
N.J.
Court
Arizona,
warnings,
full
see Miranda v.
384 U.S.
Miranda
1602, 16
(1966),although not admissible on
86 S.Ct.
L.Ed.2d 694
case-in-chief,
impeach
may be used to
defendant’s
the State’s
take
credibility
a witness “should
the witness
what
with
at variance
give testimony
stand
which
(citing
police.” Id.
to the
was said in the statement
York,
Harris v. New
Our of the issue does not with a original determination that the notice of alibi was a testimonial admissible, statement. To be the statement must come within exception hearsay to the rule. Evid.R. 63. Under Evidence *11 63(1) Rule previously statement is admissible if by made a “[a] person hearing, provided who is a at a witness it would have by testifying been admissible if made him while and the state (a) ment: testimony hearing is inconsistent with his at the * * inconsistency exists in this case between defen testimony, dant’s trial in which Dexter Davis is admitted to be key defense, original to the alibi and the contents of the alibi, notice of which fails to include Davis’s name. argues
Defendant that inconsistency there is no inasmuch as the notice-of-alibi form in following Essex County states: “the may may witnesses or testify.” not be called to Because notice specifically does not state that the testify, witnesses will urges, he it is not inconsistent with testimony. defendant’s trial However, unequivocally requires 3:11-1 Rule a defendant to “upon furnish a list of witnesses whom he [the defendant] rely.” intends The focus of the Rule is the defendant’s rely specified persons, they intent to on the in not whether are materially changes during fact called. If that intent prepa- alibi, inconsistency ration of the that should be revealed. holding today Our does not alter in the decision State v. Gross, den., N.J.Super. (App.Div.), certif. 108 N.J. (1987). In testify Gross the defendant did not at trial. The prosecutor nevertheless had the notice of alibi admitted into argued evidence and in summation that the reason a witness appear named in perjuring the notice did not was to avoid herself. The court held that suggest in does not at trial that a named here, as a defendant person [w]here, in notice relevant information of the support defense,
his alibi has any used to defendant had made such notice cannot imply untruthfully fairly if thus to defendant claim or that named would testify unfavorably person called. N.J.Super. 96.] [216 stated, not appended footnote to this sentence “We need
A be used do not determine whether an alibi notice any in impeachment evidence other the State substantive Gross, Irving setting.” Id. at 96 n. 1. in Unlike situation apartment in the with him on that Dexter Davis was testified approximately left for work at September and that two allowing in the same time. There was no unfairness cross-ex- import of Irv- amination on the information clear because supply could the critical link ing’s Davis thereby credibility. alibi and bolster his Garvin, supra, the Court N.J. State Although purpose that the of the notice alibi was “avoid stated trial,” not notice of surprise at it did limit the use alibi Wisconsin, pretrial discovery purposes. which statutori- Unlike ly prohibits cross-examination on the contents notice alibi, 971.23(8) (West 1985), Jersey Wis.Stat.Ann. § New has any beyond placed restraints on the use of the notice *12 standard Evidence Rule analysis. The contained information facts, notice of is no different from asserted in a in a alibi dismiss, suppress in an filed motion to or affidavit with such subject they by the and to motions: are statements testimony. if inconsistent with his trial cross-examination Contrary charge, to the dissent’s the Court’s decision deposing pretrial “the all today does not allow defendants prosecution plan to a defense in order to allow the who assert against surprises improve truth-finding to prepare to and Post at 466. Our process.” holding a narrow one: we only voluntary has determine when decision been made that alibi, file to an defense and to a notice of assert alibi subject to information contained that notice cross-ex- animation, subject, always, discretionary to the court’s con- cross-examination, see, scope e.g., trol of the of the v. State Petillo, (1972), provided a trial court has N.J. prejudicial first found that the effect of the information does outweigh probative not its value.
Ill plain We turn to the issue of whether it was error for the prosecutor trial court to allow the to comment in her summa- produce jury tion to the on defendant’s failure to Dexter Davis specifically, as an alibi witness. More we must determine produce appropriate the failure to Davis was an sub- whether comment, prosecutor ject of and whether followed inference, proper procedures drawing оf an adverse allow (1962). Clawans, Although as set forth in State N.J. prosecutor’s proce- offended the we conclude that the actions Clawans, forth in the violation did not rise dural standard set plain error. 2:10-1. to the level of R. summation, prose-
During anyone, her without notice to cutor stated: (the defendant) He told there’s who could corroborate that, you somebody just Irving Irving Dexter Davis left the house before did. left the Larry Larry I left the house at 8:00 house a few minutes after 8:00. Dexter Davis could say Irving Irving saw Dexter Davis was still there. Larry Tuesday. Larry was never
Where is Dexter who could corroborate that Davis, only person brought Ask before not? why yourselves. you, explained that the Court Clawans inference drawn from the of a witness it must to be [f]or nonproduction and that was within the person power party produce appear utilized in to the would have been already respect testimony superior fact to be proved. (citations omitted).] N.J. at 171 [38 two-part departures from this opinion pointed The out obvious if, example, the proper standard. inference was cumulative, person “whose would be witness was a already had utilized.” unimportant or inferior to what been Ibid, (citations omitted). *13 procedure to the equal importance in was
Of Clawans charge inference. requesting jury in for adverse followed provide party non-production the accused The concern was explain or to his failure opportunity either to call the witness an if do so. This concern could be met charge encompassing seeking an such inference [were to] to obtain the party jury, judge and of the at the close of advise the trial counsel out presence of his intent to so and names case, request demonstrate] his opponent’s reasons for the conclusion that of available not called classes persons knowledge of the have facts. they superior at N.J. 172.] [38 of statements made on applied to the context We Clawans Carter, in inference regarding adverse State summation (1982). Again, urged parties request we 91 N.J. presence jury to make the inference out court opponent’s only “It is close case. We stated: at the particulars disclosed that the trial court after all are urged should be properly determine whether inference 128; Driker, 214 see also State v. N.J.Su- summation.” Id. per. (App.Div.1987)(prosecutor’s reference summa- proper call to defendant’s failure to witness held where tion charge at conclusion of defen- prosecutor requested Clawans case). dant’s prosecutor’s asserts that under
Defendant
Clawans
testimony
impermissible
Davis’s
would
was
because
statement
cumulative,
merely
as well as inferior to the testimo
have been
wrong.
given by
suggestion
plainly
But the
ny
defendant.
alibi that he
Only Dexter Davis could corroborate defendant’s
it
approximately
leave
until
8:00 a.m. and that
did not
for work
impossible for him commit the crime and
therefore
say
we
Although
8:16
cannot
a.m.
at work
arrive
witness,
his
would have been a disinterested
Davis
self-serving
clearly superior tо defendant’s
would have been
regarding
departure
time.
declarations at trial
urges that because
contention defendant
As an alternative
parties
as his name was
to both
inasmuch
Davis was available
*14
alibi,
disclosed on the notice of
the inference should not have
permitted.
Clawans,
been
That conclusion is
contrary
where
possible
the Court made clear
may
that a
inference
be drawn
against
parties
both
if a
equally available,
witness is
“de
pending] on
case,
the
of
including
circumstances
whether
party
superior
one
knowledge
has
of the identity of the witness
testimony might
expected
him,
and what
from
as well
as
relationship of the
parties.”
witness to the
absence was an for the com during ment on her summation.
However, agree we with the defendant’s contention procedural that the suggested standards in in Clawans and Although prоcedure were not Carter followed. has never “requirement,” expectation been denominated was professional diverge a matter of conduct counsel would not practice from the alerting opposing the court and counsel opponent’s the close case of an intent-to draw prosecutor’s inference. The conduct is more in even offensive adversary fully this case because her adhered to Clawans requesting on non-production leave court to comment two State’s witnesses after the conclusion of the State’s prosecutor immediately objected, case. The and after remind ing Clawans, two-part the court of the she argued standard the comment should not be allowed. The trial court request refused defense counsel’s to make We the inference. request wrongly mention this not because the denied but familiarity her with Cla- prosecutor demonstrated because it in her summation. wans, to adhere to own yet failed deserving of severe Although find this conduct to be we criticism, objected never that defense counsel the fact remains must there summation. We prosecutor’s statement is, possessing a plain error rule—that “error apply fore *15 sub bring unjust an result and which capacity to about clear have right to stantially defendant’s fundamental prejudiced the the merits of his defense.” State jury fairly the evaluate omitted). (citations Thornton, (1962) 38 N.J. an failure to make that defense counsel’s We first observe the he did not find оbjection at creates an inference that trial Johnson, 31 N.J. prejudicial. State v. prosecutor’s remarks given (1960). Moreover, have the objection an would by prejudice opportunity any counteract caused trial court an to hindsight is, to As we must now resort the Ibid. it statement. have reached a different gauge jury whether the would to prosecutor’s unau solely the exclusion result based on it not. that would thorized inference. We conclude jury had been is that the Our reason for this conclusion support the could person the sole who informed that Davis was on the notice-of- Davis was listed defendant’s alibi and that information was of this Ironically, alibi form. source on Davis as The reliance himself. defendant’s defendant implied in itself an through testimony his created alibi witness prosecu- The his defense. Davis was critical to inference that prejudice did not cause on Davis’s absence tor’s comments The own created words. beyond that defendant which merely prosecutor called The exposed the lacuna. defendant to it. greater attention
IY plain for the it was error We next consider whether alleged hearsay Colicelli’s state Detective trial court to admit linking the received that he concerning the “information” ments suspect. question in occurred during following colloquy prosecutor: with the looking investigation When Q: continued into you you what does that say your
include? neighborhood, neighborhood, A: I went down canvassed put basically the word out of what and if hаd me happened information call anybody any at the robbery squad. Then Q: did prior September you receive some information? A: Yes. Based on Q: that information what Okay. did do? you
A: on I Based the information then on followed the information I up received, gallery from obtained information I received and made photo a photo array. Do recall Q: how in Okay. you photos were that many photo array you made? A: Six per person. Do recall Q: who was Okay. you photo array? including Irving
A: Each one photo array, and one yes, photo array Larry Livingston Livingston. photo included array Carl Grady Grady do Q: How determine which you photo put photo array? subject A: Usually who is the received the you’ll pick person you investigation information or has to and then choose your pointed approximately five to other six resemble that so that the witness photos closely person *16 through victim can then thumb and from one that. pick During summation, her prosecutor the commented on this testi- mony, emphasizing the value the information received: he
Detective Colicelli told had some information. took He the you picture * * * the Is it a that coincidence out the suspect. [Frisco they Tutt] picked that person, Colicelli made the about if follow what I’m suspect line-up you saying? Irving It’s no coincidence. The reason out was they picked Larry Irving because who Larry committed the person robbery. position “inescapable The defendant’s is that inferencе” from testimony prosecutor’s this and the is an summation that informer, present subject unidentified who to was not cross-examination, Irving told had Colicelli that had committed Bankston, the crime. Defendant that asserts under State v. (1973), rule, N.J. 263 this testimony hearsay violated the Evid. right R. and the defendant’s sixth-amendment to be con- by urges fronted the witnesses him. He the Court to impropriety capable of producing unjust view that as one an result. See R. 2:10-2. testimony constituted agree with defendant that
We Bankston, Appellate hearsay contrary under to Division's However, case, this we hold that the context of conclusion. plain no error. there was Bankston, acknowledged that the
In the well-settled rule we testimony police a against hearsay rule is violated when suspect explains approached he a or went to officer the reasons stating “upon by of a crime that he did so information the scene general testimony, type This received.” 63 at 268. we N.J. noted, acting the officer was not is admissible show that Conversely, it also arbitrarily. Ibid. is well established specific by some repeating more what when an officer becomes accused, concerning by the person him a crime other told Bankston, expanded the hearsay In we rule violated. Ibid. determining specific hearsay rule that a applicability required impermissible statement is not order create guilt. logical inference of We held: “When implication jury to believe from the leads the be drawn given police of the ac- non-testifying has evidence witness fault, hearsay.” testimony should be disallowed as cused’s Id. at 271. error called to
Setting aside the fact that Bankston involved error, plain we court rather than the attention of the trial closely akin testimony given in Bankston was that the observe Bankston, testimony. a detective Colicelli’s to Detective informant, he information from an receiving after testified that description who would fitting sought person the informant’s possession. found that The detective have narcotics in inescapable infer- apprehended him. The person in a bar and infor- ence, specifically repeated, was that an although never committing a officer that the defendant was mant told the had going testified that after In this Detective Colieelli crime. case leads, asking for he focused on *17 neighborhood the down to investigation placed his of his subject as the the defendant inference, al- inescapable array. Again, the picture in the stated, had told specifically that an informant though was never Colicelli that defendant committed the crime. Concededly, in Bankston, the specifically officer testified more on the informa- provided by However, tion the informant. the Court found that inference, the creation of the the specificity of the state- made, ments was the critical in determining factor whether hearsay was violated.
As
Bankston,
was the case in
there
no
for any
need
reference
any allegation
to an informer or
police
that the
acted
arbitrarily.
Instructive this v. State (App.Div.1985), plain addressed error in a similar which Douglas, attorney factual made context. a defense untimely prosecutor’s objection to the remarks in summation regarding testimony explaining why an officer’s defen- photo picture placed array. Examining dant’s had been context, plain along еrror in the State rule Bankston with *18 (1980), Thomas, 168 N.J.Su State Manning, N.J. (1979), Division found that in each case per. Appellate hearsay testimony prejudicial to the defendant because the was found, however, The court State’s case was tenuous. a fortified substantial credible evidence—for when case is example, of the defendant—the direct identification “plain under the likely prejudicial Doug is not error” rule. las, supra, N.J.Super, at 275. case, the defendant eyewitnesses
In identified both this two slips time indicated that in court out of court. Defendant’s during period only day four week he arrived late work robbery. only day he missed on work the date robbery, during period day the same this was the before accomplice, Livingston, co-defendant was seen day that parked away from Frisco’s Luncheon- on the street a distance do not find a reason- those circumstances we ette. Under hearsay jury led the to a is raised on whether the doubt able might not have reached. result it otherwise
Y concerning sufficiency of the Finally, defendant raises issues merger, errors, ineffec- evidence, the effect of trial cumulative counsel, of sentence. and excessiveness tive assistance requires has merit and none comment. points of those None Judgment affirmed.
HANDLER, J., dissenting. only justification for the agree
I with Justice O’Hern that weapon and a testimonial into notice converted of alibi has been only discovery and trial practice, these relate der our rules of case, however, the of this preparation. In the сircumstances weapon and into a testimonial has notice-of-alibi been.converted enormously strengthens the This against the defendant. used learns of only against the defendant: State State’s hand testimony for of trial but also extracts in advance defense prosecutorial my opinion, use at trial. this violates defen- dant’s constitutional and state privilege common-law self-incrimination.
The determination of whether there has a been violation against privilege the against self-incrimination involves two- pronged (1) inquiry: event, whether there awas “testimonial” (2) “compulsion.” whether there was Justice O’Hern ex- plains the testimonial character of the of notice in alibi this case, viz: Like all of the other give situations which be forced to evidence to aid in the of the the preparation prosecution’s case, notice-of-alibi justified violating can as guarantees be not
requirement the State and Federal self-incrimination to the extent that the only evidence is compelled majority non-testimonial. The this inverts it treats use of the the principle: justification notice alibi of as testimonial when its in law is only as a non-testi- monial event. (footnote omitted).] [Post at 465 majority, however, The appears importance to discount the of the aspect alibi, testimonial of the use of notice stressing the of of scrutiny the notice alibi can survive constitutional even testimonial, if long “compelled”: as as it is justification The dissent’s the [Justice assertion that for the O’Hern’s] only as a "non-testimonial event” ... is notice-of-alibi rule is ... wide of the mark. Williams, justification for the is it rule, under does not compel ' self-incriminating testimony. [Ante at 465.]
Justice O’Hern’s why dissent demonstrates the of use the addition, contrary notice is “testimonial.” In to the reason- ing majority, of impeach use the alibi notice to credibility also compulsion. constitutes unconstitutional
I.
Part
difficulty
analysis
of this issue inheres in
overlap
of the notions of
is
what
testimonial and what is
compulsory.
States,
391,
v.
Fisher United
96
S. Ct.
1569,
(1976),
Supreme
tion will not be prosecutor surprised presentation. Second, vouching he be seen as for the truth and of that alibi. Even completeness (as does) Williams we if assume alibi information of the required defendant he be made to for it. “non-testimonial,” cannot vouch [Post 466.] case, assuredly In this required has been to affirm deny the contents of the notice of alibi. There can be no genuine quarrel production that the of the notice of alibi has been converted to a testimonial use.
II.
think
I
it is also clear that in the
of
privilege
context
self-incrimination,
against
production
notice
alibi is
“compelled.”
understanding
Our
“compul
the nature of
sion”
terms of
privilege
self-incrimination is
informed
aby
different strain
authority
dealing
from that
with what is “testimonial.”
compulsion
Unconstitutional
can
“pristine”
take different
compulsion
forms:
involves direct
amendment;
sanctions
refusing
to waive the fifth
indirect
compulsion
placed
or conditional
can occur when a “burden” is
right
silent,
on the otherwise unconditional
to remain
such that
right
longer
the decision waive that
is no
truly
considered
Mosteller,
“voluntary.”
“Discovery.
See R.
Against the De
Tilting
Balance,”
fense:
Adversarial
74 Calif.L.Rev.
(1986). Examples
pristine compulsion
police
are
them,
beating
talking
York,
someone into
Harris New
*21
224,
222,
643, 645,
1,
(1971) (state
91
28
U.S.
S.Ct.
L.Ed.2d
4
police
legal
to
satisfy
ments made
that do not
standards of
admissible);
charges
contempt
trustworthiness not
threats of
of
declining
testify
grand jury
waiving
to
before a
without
the
Portash,
privilege,
450,
1292,
v.
State
440 U.S.
99 S.Ct.
(1979);
silence Griffin (1965). 1229, 14 106 L.Ed.2d the compulsion involves of unconstitutional
The second form
other constitutional
conditioning
preservation
the
of
state’s
the
a result of which
privilege
a
rights on waiver
truly voluntary. For
longer considered
is no
to waive
choice
States,
377,
88 S.
v.
390 U.S.
Ct.
United
Simmons
example, in
(1968),
protection
held that
967,
1247
the Court
19 L.Ed.2d
on waiver
rights
not
conditioned
could
amendment
fourth
given by a
determined that
fifth. The Court
the
raisе
requirements necessary to
a
standing
to meet
defendant
against
challenge would not be admissible
fourth amendment
rejected
argument
The
the
at trial.
Court
that
testi
defendant
mony
voluntarily given;
that
it found instead
the defendant
only
pro
privilege
self-incrimination
in order
waived
S.Ct. at
393-94,
390 U.S.
88
rights.
his fourth
at
tect
amendment
976,
In the under majority’s reasoning, the is similarly defеndant confronted awith constitutional Hobson’s right choice: the defendant’s to remain silent must be in waived preserve right order to an assert alibi defense. If testify defendant wishes to without concern that notice of him, against alibi be used he will then must his abandon alibi defense; if he conversely, press defense, chooses to his alibi he relinquish right testify must apprehension without that the notice of be used majori- alibi will him. Under the rule, ty’s therefore, defendant present a who wishes to an alibi by is defense confronted burden substantial on otherwise right impeach Here, himself. See id. unconditional not to the use impeach use; credibility of the notice of alibi to is a testimonial de- fifth privilege conditionally fendant’s waiver of the amendment is right compelled that his an defense is alibi conditioned on required Therefore, use of testimonial the notice. exercise right to an defense substantially alibi burdened fact that give up defendant must the fifth amendment privilege in order to assert the alibi defense. Florida,
A review Williams 399 U.S. critical (1970), L.Ed.2d question it as bears on compulsion, indirect conditional will disclose the majori misperceived ty teaching. has and misapplied its Williams case, found requirement used in that the notice-of-alibi First, compulsion. involved neither nor Williams filing found that there was no testimonial event involved (1) (399 alibi notice: no statements would be used at trial (2) 90 S.Ct. at 450); at L.Ed.2d compelled through would not be to follow with the alibi defense Id. at trial in order to avoid unfavorable inference. short, anticipa- *23 at 451. In the Court 26 L.Ed.2d at S.Ct. Moreover, made of the notice. litigational use would be ted no antedated the first overemphasized that Williams it cannot implications of the communicative/testimonial articulation expressed by Fisher and Doe. production of evidence the any “com- did not consider whether Court thus The Williams notice, such as an contents of the use of the municative” contents, permissible. of its the truth affirmation of only over Instead, majority and dissent differed the Williams prosecutor the names to the involves providing the whether amendment, made of the contents judicial if use is fifth no The present an alibi defense. decides unless the defendant the adverse effect position that majority rejected the dissent’s trial, a defendant in before providing names advance alibi, The the fifth amendment. use an violates determines to presenting in an alibi a defendant reasoned that since majority implicating the during names trial without give forced to can be trial would amendment, being give forced to names before fifth 83-84, at fifth amendment. Id. similarly implicate the not at 451. at 26 L.Ed.2d compulsion insofar as it Second, there was no held Williams privilege at the choice waive no on defendant’s found burden ulti- majority, the defendant According to the whether trial. his “unfettered still left to take the stand was mately chose to at 451. Under 26 L.Ed.2d Id. at 90 S.Ct. choice.” way filing in no understanding, the notice was majority’s the Thus, the Court did take the stand. the decision to related to of the potential filing of either the focus on the testimonial detеrmining that in of its contents possible use notice or implicated. It was not against self-incrimination privilege following observation: must read in context that we this himself and to forced to trial is testify in a criminal frequently The defendant the risk of conviction---- effort to reduce in an call other witnesses but do not generated be severe they the State’s evidence may pressures and witnesses to an alibi defense prove choice to the defendant’s present vitiate for the defendant. though ends in catastrophe defense even it, attempted it “incriminating” be, or “testimonial” the alibi defense proves However cannot be considered meaning “compelled” within of the Fifth and Four- teenth Amendments.
(cid:127)[/bid] reiterate, majority To rejected argument Williams requirement that the alibi-notice violated the fifth amendment (1) it because: found the itself notice non-testimonial because its contents would not be used trial and there was no production filing intimation the mere had notice any potential uses; (2) testimonial any absent testimonial itself, use of the it compelled notice found no waiver because voluntary preparation impact of the notice would have no on the voluntary otherwise decision to take stand. case, present
In the the majority relies on Williams to make argument the additional compulsion using that there is no *24 impeach the notice to credibility since the notice itself was voluntarily prepared: according
The decision whether to file thе Williams, to the Court in notice, no from different a defendant’s to to decision or remain silent—a testify thought against that privilege dilemma has been an “never invasion of the Williams, 399 U.S. self-incrimination.” at supra, S.Ct. at compelled 84-85, 26 L.Ed.2d 451. 1897-98, at at [Ante 434.] However, the Court or overreads misreads Williams. adding subsequent Court in this filing case is a condition to the Supreme of the notice of in alibi the Court did Williams subsequent not: the testimonial use of the notice. The defen- dant’s decision in the Williams to file notice and take the stand Indeed, separable voluntary were acts. two the Williams majority arising found no added risks of incrimination from the notice itself. 399 at U.S. 90 S.Ct. at at L.Ed.2d is in following 452. It this we context that must read the Williams, on passage “compulsion” by quoted from which is majority: the
Nothing in such a rule the to on alibi or requires rely prevents abandoning him from the matters left to defense; these are his unfettered choice. That choice be must but that bear on his made, pressures pretrial decision are the same nature as those that him alibi would induce to call witnesses at the trial: historical fact both his control beyond State’s strength facts. to that kind of the State’s case built on these Response offering is self-incrimina compelled evidence pressure by Id. at transgressing 84-85, Amendments. tion the Fifth and Fourteenth 26 L.Ed.2d at 451-52. S.Ct. at 1897-98,
[Ante 484.] at case, filing subject its later use for In our the notice to otherwise impeachment purposes combines what Williams. filing the notice and subse- separate acts constituted say that a notice taking the stand. Because we now quently trial, cannot in purposes at we may be used testimonial truly file notice is a assert that the decision to next breath act; now encumbered adverse testimonial separable it is And, deci- consequences. conversely, we cannot claim that the freely; testify can exercised it is now burdened itself sion by the antecedent notice. present it question case is whether
The critical constitutionally right to an alibi permissible to condition the earlier, As stated on a of the fifth amendment. defense waiver impeach credibility is I that use of the alibi notice believe conditioning preservation of testimonial use. I also believe to condition use is tantamount an alibi defense on a testimonial fifth as well on a amendment ing defense waiver alibi Such a privilege our self-incrimination. common-law exercising right a defense condition for a constitutional unconditional heavy on defendant’s otherwise “casts a burden Tennessee, supra, 406 right take the stand.” Brooks v. not to 363. at L.Ed.2d *25 “voluntarily” prepared the The the defendant has notion that waiver collapse into a conclusion should not alibi notice voluntary. itself privilege self-incrimination right right to remain silent are to an defense alibi rights. one separate Exercise of should constitutional two Just as Simmons v. on of the other. conditioned waiver be 377, 967, 19 States, 88 supra, 390 U.S. at S.Ct. United 1247, the fourth amendment exercise of L.Ed.2d at where fifth; v. on waiver of the cannot conditioned Lefkowitz
457
Cunningham,
supra,
801,
431
2132,
U.S. at
III. I join in opinion Justice O’Hern’s that use of the notice for purpose limited expediting discovery legitimate is a purpose already narrowly litigational served penalties. Any use, Post at 465.2 however, testimonial imper- should be fact, use, missible. testimonial only even if credibility for and not for purposes, substantive purpose transforms the the notice-of-alibirule into a device or impeach- mechanism for ing the credibility of the defendant. Fisher and Doe make clear discovery rules should not be transformed into means obtaining self-incriminating testimony.
Testimony obtained voluntary without a waiver can never be court, used purpose even for the impeaching limited credibility. Both require federal and state extremely law protective remedy for evidence obtained in violation privilege against put self-incrimination: the defendant shall be in substantially back position same as if privilege had never been States, violated. Kastigar See v. United 406 U.S. 441, 462, (1972);State 1653, 1666, 32 L.Ed.2d Strong, (1988). 110 N.J. This means no direct or derivative use can testimony. be made of the Kastigar v.
2Rule 3:11-2 states:
If such bill of is not furnished as the court particulars refuse required, to allow the in default to witnesses at party trial as to defendant’s present alleged absence from or at the scene of offense, or make such presence grant adjournment justice other order or such as the interests of requires.
458 1661, 32 States, 92 supra, 406 U.S. S.Ct.
United purposes is Indeed, credibility no use for at 221. L.Ed.2d 59 Portash, 99 Ct. supra, 440 U.S. S. v. allowed. State 501. L.Ed.2d remedy distinguishes fifth amendment highly protective
This
protec-
amendment
and Miranda-fifth
fourth amendment
from
Strong,
police misconduct.
v.
against
State
tions directed
amendment and Miranda
at 593. Fourth
supra, 110 N.J.
coercion,
by the
obtained
evidence
doctrine hold
absent
may
credibility
for
be used
police in
of Miranda
violation
purposes.
be used for substantive
purposes, even if it cannot
justify limited use of
majority
this doctrine to
cites
credibility purposes:
notice for
(1975),
held that a statement
taken
v.
67 N.J.
229
this Court
Miller,
State
Miranda v.
384 U.S.
S. Ct.
warnings,
436
Arizona,
full Miranda
see
[86
without
(1966), although not admissible on the State’s ease-in-
16 L.Ed.2d
694
1602],
“should the
as a witness
be used to
defendant’s
chief,
credibility
impeach
give
is at variance with
which
take the witness stand
testimony
(citing
Id. [67 N.J.]
at 233
in the
to the
what was said
statement
police.”
(1972)).
28 L.Ed.2d
1
We see
v. New
401 U.S.
S.Ct.
York,
Harris
[91
643],
analogy
the use of the
for
in Miller
to this
where
case,
only purpose
Irving’s
notice of alibi was to
credibility.
impeach
at 436.]
[Ante
doctrines
However,
amendment and Miranda
these fourth
remedies
amendment and Miranda
inapposite. The fourth
are
misconduct, and
police
both
toward deterrence
are directed
have decided
Supreme
and our Court
the United States
Court
sufficient
use of
prohibiting only substantive
at 593.
Strong, supra,
v.
110 N.J.
purpose.
this
State
See
itself,
against
privilege
self-incrimination
The fifth amendment
however,
any
compelled
form of
self-incrimi
is directed
only a substantive
protects against not
nation.
It therefore
any
compulsion but
pristine
on
or direct
testimonial use based
defendants to waive the
pressures
trial
on
judicial
kind of
California, supra, 380
any respect.
privilege
See Griffin
(no
inferences
adverse
L.Ed.2d
silence);
Strong, supra,
N.J.
from
State v.
may be drawn
(there
disadvantages to
prosecutorial
no
at 593-94
can be
fifth
privilege). The
failure to waive the
defendant from
*27
remedy
privilege precludes
amendment
that surrounds
any
compelled testimony;
use of
against
it directed
self-incrimina
tion;
singular
its
concern is
toward deterrence of future
why,
harm. That is
even in the context of fourth amendment
remedies,
and
“compulsion” goes
Miranda
if
to the heart of the
itself,
privilege
thereby compromises
and
of
“truthfulness”
testimony,
such
cannot be used even for credibili
purposes.
ty
e.g.,
supra,
(if
See
State v.
Hartley,
N.J.
a
right
defendant’s invocation of the
to remain silent is not
honored,”
“scrupulously
“compulsion
there is
as a matter of
law”);
Miller,
(1975) (if
State v.
67 N.J.
incriminating
by police
evidence
through “psychological” coercion,
is obtained
barred). Therefore,
it
privilege
because the
cannot be
any
impaired by
compulsion,
form of
the defendant who is thus
requires
victimized is entitled to a
remedy
strict
that
substantially
position
be restored
to the
as if
same
impairment
privilege
no waiver
of
had occurred. See
States,
Kastigar
supra,
v. United
Under majority’s on alibi defense a waiver of the fifth privilege amendment the common-law self-incrimination, waiving only if even the extent credibility purposes, notice is used for is tantamount to compulsory credibility purposes waiver. Its limited use for justified by protections cannot be reliance on fourth amendment and Miranda doctrine. presented
I by would for these reasons and those Justice judgment O’HERN reverse the of conviction.
O’HERN, J., dissenting. Trial jury society. is a central value of a free Like the self-incrimination, privilege against related “is it an ever- present importance reminder in the of our belief the individu- al, such, symbol highest aspirations. of our As it is a clear collectivism, opposition to our expression basic eloquent Griswold, E. power of the state.”
to the unlimited Fifth gradual (1955). There is a subtle but Today Amendment allowing jury trial in criminal the values depreciation of discovery of the defendant about cross-examination unqualified Alibi. in his Notice of responses contained I. against the defense with, discovery practice begin
To
need to
No one should
grain of our law.
against the
runs
dis
We allow
in an American courtroom.
innocence
establish
*28
only
prevent
in
cases
defense
criminal
covery from the
conduct
joke
system.
Such
making a
of
from
defendants
criminal law
by jury.
trial
Our
system
of
demean
would
is an
that ‘ours
by the view
“consistently been animated
has
”
v. Fen
inquisitorial system.’ Miller
not an
accusatorial and
405,
445, 450,
410
104, 110,
88 L.Ed.2d
ton,
106
474
S.Ct.
U.S.
534, 541,
Richmond,
81 S. Ct.
365 U.S.
(1985)(quoting Rogers v.
society,
760,
(1961)).
system
our
735, 739,
“Under
L.Ed.2d
766
5
against the accused
proving
charge
its
carries
burden
54,
49,
Indiana,
69
338 U.S.
mouth.”
out of his own
Watts
1801, 1806(1949). Any diminution of
1347, 1350, 93 L.Ed.
S.Ct.
compelling
most
justified only by the
system may be
ordinary course of business.
never
needs and must
become
distinguish our
are what
power
of the state
Limits on
Nurem-
returning from
Shortly after
society from all others.
guarantees are “a
that these
berg,
Jackson observed
Justice
real
present
thus
“a
the crime” and
peril to solution of
real
defendant is shielded
society” because “the
in a free
dilemma
Anglo-
except the
system of law
safeguards as no
by such
412,
Burbine, 475 U.S.
to him.” Moran v.
American concedes
410,
5,
431 n. 5
1135,
5,
1149 n.
89 L.Ed.2d
n.
106 S.Ct.
436
Indiana, su-
(1986) (Stevens, J., dissenting) (quoting
v.Watts
1358,
59,
461 Florida, 78, Williams v. 399 S.Ct. (1970) (sustaining requirement), L.Ed.2d notice-of-alibi Jus substituting tice Black of courts warned their notions of “what safeguards persons is best” for the “traditional afforded ac cused of crimes.” emerges disguise satisfying this test in as an “dis- Occasionally intellectually “analogy” designed
tinction” or
to cover
a decision based on the
of a
wisdom
up
rather
than its
with the commands of the
proposed procedure
conformity
Constitution. Such a
in
is involved in this case.
course,
view,
This decision
my
is one more
from the written Constitution and a radical
step away
departure
justice
from the
of criminal
that has
in this
system
prevailed
country. Compel-
ling
in a
a defendant
criminal case to be a witness
himself in any way,
including the use of the
system
pretrial discovery approved today,
English
proceedings
unknown in
for the unlamented
in
law,
the Star
except
proceedings
designed
Chamber courts—the
the Fifth Amendment was
type
to prevent.
(Black,
concurring
S.Ct.
L.Ed.2d
at
at
at 485
in
[Id.
J.,
part
dissenting
part).]
and
in
course,
here,
lawyers
Of
there is no
only
Star Chamber
review-
Still,
tradition,
ing papers.
history
our
Justice Black
warned,
against any procedure
“compel
counsel
that would
Id.
criminal defendant
to assist
in his own conviction.”
(Black, J., concurring
part
in a criminal case shall not be to in some to be seems, compelled testify aspects, of doubtful If the administration of criminal law is for the of utility. purpose convicting guilty those who are of then it seems natural to follow in such crime, a the methods that obtain in life. process ordinary (1905).] 15 Yale L.J. "The Administration of Criminal 8 [Taft, Law,” 1, point—the But this misses the entire in methods available ordinary simply are not in an American criminal available life
462 side,1 discovery of on the civil jury trial. Whatever the merits limited role in criminal discovery from the defense has but a jury trial. course, agree subject I that criminal defendants are to be
Of regarding they freely strict cross-examination what have to investigation. crime or its Those said in the course of a clearly part are of the real events to be tested at statements is, however, thing compel a defendant to trial. It another paper trail in order to confront him. This is no create a criminality. prisoner “The not suffer a measure of law will 2 made the deluded instrument his own conviction.” 46, (8th 1824), Hawkins, quoted c. ed. Pleas Crown § 1350, Watts, supra, at at 93 L.Ed. at S.Ct. 1806.
A.
prevent
provisions
only
have been sustained
Notice-of-alibi
becoming
poker game
players enjoy
“a
in which
trials from
played.”
right always to conceal their cards until
absolute
Florida,
at
supra,
the decision
for a
important
opens
way
profound
safeguards
defendant.
The rationale of
deci-
traditional
of a criminal
today’s
sion is in no
limited to alibi
other
or classification of
defenses,
way
any
type
goes at least so far as to
the State to
evidence. The
advanced
theory
permit
the defendant
in advance
obtain under threat of sanction
disclosure
complete
trial.
of trial of all
and tactics he
to use at that
evidence,
testimony,
plans
(Black,
concurring
463
Rule 3:11-1 serves
trial,
not as a form of examination before
simply
surprise
but
“to avoid
at
trial
the sudden introduction
of a factual claim
investigated
which cannot be
unless the trial
Garvin,
is recessed to that
268,
end.” State v.
44 N.J.
272-73
(1965)(Weintraub, C.J.), quoted
Gross,
v.
216 N.J.Su
State
92,
per.
(App.Div.),
den.,
(1987).
95
194
N.J.
certif.
Appellate
disapproved
Gross
Division
of the introduction of
support
the alibi notice to
the inference that a named witness
appear
did not
to
perjuring
avoid
herself. “Such a use of the
beyond
alibi notice takes it far
purpose
its narrow
to allow the
State meet an alibi which the
presents
at trial.”
96;
382,
at
Angeleri,
denied,
Id.
see
State
51 N.J.
384 cert.
(1968)(“Our
393 U.S.
S.Ct.
L.Ed.2d 362
rule of
designed
Court is not
compel
say anything.”).
a defendant to
In emphasizing the use of the
credibility,
alibi notice to test
majority
justification
avoiding
exceeds this limited
an “elev
Florida,
enth-hour defense.”
supra,
Williams v.
at
U.S.
464 testimony.”); supra, Angeleri, find 51 N.J. trial and to rebuttal (“There sought no the State the suggestion at 385 that surprise to pre-trial any other reason avoid disclosure [than use.”). Moreover, put Supreme it to the any at other trial] pointed gained no was in out that evidence that Court Williams other, through albeit more dis- would not have been available inconvenient, means: ruptive and the concedes that absent the notice-of-alibi rule Constitution would Petitioner granting at raise the the State a continuance trial on the no bar to court’s is called. Nor there be ground would as the alibi of soon as witness surprise during the was continuance, State problems if, self-incrimination here trial: take to do what it did to prior permitted precisely deposition utilizing a evidence. But if so witness and rebuttal continuance is find then Amendments, under the Fifth and Fourteenth same permissible surely avoiding through it was result be as here, accomplished pretrial discovery, of a trial. necessity disrupted (emphasis added) U.S. S.Ct. L.Ed.2d 1898, at 90 at 26 at 452 85-86, [399 (footnotes omitted).] Angeleri, supra, 51 385 logic employed Similar was N.J. at (“In calling upоn a defendant to reveal a claim of that kind trial, designed suprise ‘to at by before bur rule is avoid trial sudden factual claim cannot introduction a which he investi ”) (quoting end.’ gated unless the trial is recessed to that 388, Baldwin, denied, State v. cert. U.S. N.J. (1966) Garvin, (quoting 87 S.Ct. State v. L.Ed.2d 272-273)) added). contrast, supra, (emphasis By at 44 N.J. holding pretrial as majority allows use of notice of alibi defendant, deposition a form heretofore of evidence any means. unavailable
Second, any suggest the notice-of-alibirule does as, way “compel” give strikes me the defendant evidence best, Surely than a rule that forces the defen- less realistic. losing dant in to reveal alibi at the risk of advance trial right in his present his constitutional witnesses defense2 States Court has of defense 2While the United Supreme upheld preclusion violations, witness as a for defense counsel's discovery sanction (1988), Illinois, 484 108 98 L.Ed.2d Court our Taylor supra information. See compelling must seen be at 440-441. procedure might acceptable such While under the narrow and Angeleri, Williams circumstances of where no additional prosecutorial advantage gained (it merely was used to delay), unacceptable if avoid trial it is used the defen- dant trial.
B.
*32
may
Like all of the other situations in
a defendant
which
be
give
preparation
prosecu-
forced to
evidence to aid in the
of the
case,3
requirement
justified
tion’s
the notice-of-alibi
can be
as
violating
guarantees
against
the State and federal
self-in-
only
compelled
criminаtion
to the extent
that
the
evidence is
majority
principle:
non-testimonial.4 The
inverts this
it treats
yet
procedure
has not
had occasion to decide whether such a harsh
would
at-,
657,
violate our State Constitution. See id.
S.Ct. at
L.Ed.2d at
108
98
(Brennan, J.,
(“[A]t
dissenting)
817
least where a criminal defendant is not
violation,
personally responsible
discovery
for the
alternative sanctions are not
only adequate
discovery
superior
deter
correct and
violations but are far
arbitrary
disproportionate penalty imposed by
preclusion
sanc
tion.”).
263,
1951,
(1967)
California,
3Gilbert v.
U.S.
87 S.Ct.
L.Ed.2d 1178
388
18
Wade,
218,
1926,
(handwriting exemplars); United States v.
388 U.S.
87 S.Ct.
18
757,
(1967) (voice exemplars);
California,
L.Ed.2d 1149
Schmerber v.
384 U.S.
(1966) (blood samples).
86 S.Ct.
When the defendant notiсe of may performing conceptually separate he be seen as two acts. First, prosecutor providing he is information so that the will not Second, surprised by presentation. he be seen as vouching completeness for the truth and if alibi. Even (as does) we assume alibi that the information re- Williams “non-testimonial,” quired of the is he cannot be made Court, however, justifies to vouch for it. The the use of the impeach credibility by alibi notice to the fact the notice-of- alibi was testimonial nature: testimonial nature of “[t]he signature clear notice of alibi is from the on defendant’s added). (emphasis fact, document.” Ante at in order evidence, compelled to use the prosecution bears the burden using demonstrating that evidence it is is not testimoni- Doe, Braswell, supra; supra. al.
Furthermore, we are when concerned with information that is judicially compelled, opposed to information obtained through misconduct, police protection against “the self-incrimi * * * heightened.” Strong, nation State v. N.J. (1988). impeach Permitting credibility use notice itself to *33 goes beyond far purpose the narrow Rule 3:11-1 which promulgated approved. presenting The act of use of the accuracy,” the notice to “authenticate vouch for the Bras — well, supra, at-n. at 2288 n. S. Ct. therein, L.Ed.2d at 105 n. contained information Doe, Fisher, Braswell, violates the of principles and Guarino. majority’s focusing solely The logic, as it on the does truth-find ing subsuming problems, function and the self-incrimination deposing would рretrial also allow the in all defendants who plan present prosecution in defense order to allow prepare surprises improve truth-finding process. goals, Both are admirable can but neither violate the right defendant’s against self-incrimination.
II. I am sure majority agenda that the has no to weaken funda- privileges. mental privileges Instead, these [as have been weakened due to the elsewhere] courts’ enhancing truth-seeking concern privileges with and fear that these process * * * perjury a shield for
may provide defendant. The of erosion has been incremental. process Courts have examined each privileges new intrusion into the defendant’s almost independently, isolation, and have each because it had approved but a limited part impact upon range total available to the defendant. The protections cumulative effect, Through arguably has been however, a series of small profound. each steps, justified, the traditional balance between the and the defense prosecution has been altered. fundamentally Against Tilting Discovery Adversarial Bal [Mosteller, Defense: (1986) (footnote omitted).] ance, Cal.L.Rev. 1571-72 suspect I way discovery criminal is furnished is vastly different way from the that a civil anti-trust defense is prepared. Many jailed defendants are before trial with but dwindling limited access to the resources of the Public Defend- er’s ought impose greater office. We not to burdens on their ability to required defend than is to counter eleventh-hour defenses. case, particular pettiness this there was a to the use of the
discovery papers. typically-rushed defense counsel had to file the first notice investigation alibi without because a court had ordered it penalty forfeiting filed under the alibi de- fense. The speak incarcerated defendant had no chance to with his alibi witnesses. Whatever credibility relevance to an initial potential failure to list a witness have under other circum- stances, surely probabative there is little value to such an inference under the facts of this case.
Real trials should never become a test of the defendant’s paper processing. enough There paperwork now we importance need beyond rudimentary pur- not escalate its its pose avoiding Quite surprise alibis. aside from the trivializa- trial, jury play tion of the there is at here a subtle shift in our ideals. presumption We diminish the of innocence when we *34 inno- poorly details his compulsion that one who under
infer suspect. cence becomes any in the case that there evidence
If I believed process to manipulated discovery deliberately State, might I conclude advantage over the a tactical achieve case—only the suggestion of that in this I see no otherwise. cope with the attempts of a confined individual clumsy system that he little under- litigation processes procedural stands. repulsive “mildest and least
Although
perhaps
it
right
of the
to trial
accusation
depreciation
form”5 оf
routinely permit cross-examination
inquisition, I
not
would
deficiencies and inconsistencies
defendant about
of a criminal
I
afford the State
discovery materials. While would
his coerced
If
I see none here.
there were
surprise,
opportunity
counter
discovery
gain
rule to
a tactical
of a
such a “wilful violation”
prosecutor to inform
the time “for the
advantage, that would be
casting doubt on the testimo
the circumstances
jury
about
646, 663,
400,-,
Illinois,
S. Ct.
ny.” Taylor v.
J.,
(Brennan,
dissenting). A court
(1988)
98 L.Ed.2d
case
hearing
such were the
inquire in a Rule 8
whether
should
about
unqualifiedly allow cross-examination
should not
but
knowing the reasons
discovery responses without
criminal
planned
inconsistencies were
discrepancy and whether the
any
advantage over the State.
gain a tactical
States,
warning Boyd
116 U.S.
6 S.Ct.
29 L.Ed.
v. United
5The
discovery against
(1886),
proven particularly prescient
in the area of
has
defense:
repulsive
thing
and least
in its mildest
be that it is the obnoxious
It
get
footing
form;
practices
illegitimate
their first
but
and unconstitutional
legal
slight
way, namely: by
approaches and
deviations from
silent
in that
* * *
deprives
procedure.
close and literal construction
modes
security
persons
property] of half
provisions
for the
[constitutional
right,
depreciation
efficacy
gradual
as if it
and leads to
their
in sound than in substance.
consisted more
Boyd
[Mosteller,
(quoting
supra,
v. United
at 1572 n. 10
74 Cal.L.Rev.
752).]
States,
supra,
29 L.Ed.
Justice HANDLER opinion. in this For WILENTZ, Justice and Justices affirmance—Chief CLIFFORD, POLLOCK, GARIBALDI, and STEIN—5.
For reversal—Justices HANDLER and O’HERN—2.