*1 аpply 2d 570 does (1975), 43 L. Ed. -, 95 Ct. his behalf. With own testify did not here because defendant The majority opinion, I in full agreement. these am holdings exception. approval on to goes imply though, matter of state law Harris as a desirability adopting case, and I would not do so. this need not be considered in my out in dissent fully this are set issue views My Miller, today. 67 N. J. also decided J., in result. concurring Pashman, Justice For part part reversal in affirmance —Chief Sullivah, Justices Jacobs, Mountain, Hughes, Pashman Collester —7. and Judge and Clifford Opposed—None. PLAINTIFF-RESPONDENT, JERSEY,
STATE OF NEW HINES, MILLER, DEFENDANT- ELAINE ELAINE A/K/A APPELLANT. April 22, Argued 1975. November 1974 Decided *2 Defender, Public B. Arrajj, Deputy Mr. David Assistant G. Van Stanlеy for defendant-appellant (Mr. the cause argued *3 Ness, Defender, attorney). Public Kendall, Prosecutor, the argued
Mr. Bison P. Assistant Posner, Lawrence H. plaintiff-respondent cause for (Mr. Ascii, Karl Prosecutor, brief; Mr. Union Assistant the Prosecutor, County attorney). Court was delivered of the opinion
The in- on a two-count Sullivan, Defendant was convicted bills with $20 counterfeit exchanged two having dictment passed in violation intent to have the same uttered A. N. J. S. She was sentenced to two concur- 2A:109-2(a). terms in Institution rent indeterminate the Correctional Women. trial, testified that she had not entered
At her defendant days when bills were Price-Rite on the two the Market her denied that On cross-examination she passed. following Barile that she Anthony arrest had admitted to Detective she they were counterfeit. knowing had the bills not passed He Barile rebuttal. testified called Detective The State follow- defendant at police headquarters with spoke he her he of her constitu- that first advised arrest and her ing understood. Defendant then she she said rights tional 232
admitted having cashed two bills in question, but denied knowing they were counterfeit. When Barile began Detective to testify the statement defеndant, about he had taken from' defense counsel a on whether or not the requested hearing Arizona, statement met the Miranda v. requirements of S. Ct. L. Ed. The 2d (1966).1 was denied on the request ground that was statement York, admissible under v. New L. Ed. (1971),2 that compliance with of Miranda was not requirements prerequisite on rebuttal. Counsel then admissibilty requested charge limiting jury’s credibility the statement only. This was also denied, request the court ruling statement could be used not to affect credi only defendant’s but bility, also an in a admission. The held that court situation where the contains of fact statement admissions case, at issue in with wоuld be unable to jury comply an instruction that considered as may only be an admis affecting the witness and not as sion of fact. affirmed Division in an Appellate unreported opinion certifica judgment conviction. Court granted This 65 N.
tion, J. 298 v. New to consider Harris supra, in the factual context here presented. police 1Miranda bars from evidence statements obtained interrogation unless, questioning begins,
custodial
before the
the ac-
*4
fully
cused, having
rights,
been
advised of his constitutional
know-
ingly
intelligently
rights
agrees
ques-
and
waives such
to answer
a
tions or make
statement.
2Harris
in-custody
that
an
holds
while
taken from a de
giving
warnings may
fendant without first
the Miranda
not be used
by
part
chief,
the State as
of its case in
if the defendant
takes the
gives testimony
stand as a witness and
which is at variance with
statement,
statement,
what was said in if it otherwise satis
may
admissibility,
impeach
fies standards of
be used to
defendant’s
credibility
recently
as a witness. The Harris rationale was
reaffirmed
by
Supreme
-
Oregon
Hass,
the United States
Court
in
-,
(1975).
95 S. Ct.
We that the trial court’s of interpretation Harris was erroneous. An in-custody statement taken from an accused by the without police first with the complying Miranda rule is not admissible in evidence as of the part State’s mаin However, case. if it satisfies otherwise stan of dards admissibility, impeach it the de may used credibility fendant’s as a should witness take defendant the witness stand and give testimony is at variance with what was said in the statement to the police. But it limited consideration jury should be instructed as to the contents. may to the statement its give a We is recognize this difficult assignment give jury in situation where the statement contains admis- case, nevertheless, sions of fact at issue in the an stands as absolute bar to use statement as substan- tive and the must jury evidence be told it may the statement defendant’s as a only weighing Evidencе, witness. New Buies Buie Jersey 6. This See the uniform interpretation given by courts which have the matter. considered
It
been
has
suggested that because of faced
difficulty
in this
jury
situation,
type
Court,
this
it has
do, should,
law,
as a matter of state
impose
restrictions on
under
greater
police activity than required
federal constitutional
a non-Miranda
and hold that
standards
statement may not be used
the State for
any purpose.
See State v.
Santiago,
Haw. 254,
The decision of the United States Supreme Court Harris was anticipated in this State. Kimbrough, 109 N. J. Super. 57 Div. (App. 1970). Since Harris was decided, it Falco, has bеen cited State v. 60 N. J. 570, Burt, State v. (1972); N. J. 165 (1971) (Hall, Slobodian, State v. concurring); 120 N. J. Super. 73-74 Div. (App. 1972), certif. 62 N. J. denied 77 (1972). In Harris the opinion the United Court Supreme States *5 226; 646, 28 L. 91 S. Ct. at Ed. U. S. at (401
states : at 5) provided by perverted into a license Miranda cannot be The shield defense, perjury way risk confronta- from use free a prior tion utterances. with inconsistent is a valuable herein
We Harris as applied conclude that a de- on impinge mechanism which does truth-finding we Uor do state constitutional rights. fendant’s federal or 38 call for different 37 and Rules think that Evidence R. 5. Evid. result. See court trial situation, course, a Harris-type
Of ex 4 to Rulе Evidence have the under always would even for bar and its entirely clude the statement defendant’s purpose impeaching limited of the value that the witness, probative if as a it concludes its that the risk substantially outweighed undue preju danger create substantial admission would jury. misleading or of dice errone was ruling court’s that trial Our holding trial. and new a reversal necessarily require ous does not defend questioning prior Barile testified Detective of her her advised he fully bills about the counterfeit ant then ad She she said she understood. Miranda and rights without knowledge bills but had passed mitted she re noted, As heretofore defendant’s were counterfeit. they and Miranda voir dire” was refused a “full-fledged quest But this proof. admitted as substantive was the statement if, fact, and defendant not have been may prejudicial testified, Barile prerequisites Detective However, to a hearing defendant is entitled satisfied. on this issue. ruling affirm We therefore judgment conviction but re- matter to trial court mand the to hold Miranda hear- the admissibility of defendant’s statement to Detec- ing If, Barile. after hearing tive State’s defendant’s
235 the trial proofs, court finds that the of Miranda requirements met that the statement was аdmissible substan- as tive proof, the judgment conviction will stand, subject to defendant’s right of from If appeal ruling. the trial court finds that the Miranda warnings were fully given and that, therefore, understood and the state- ment was not admissible substantive proof, judgment of conviction is to be set and a new trial had. aside v. Kelly, 61 N. J. 283, Loray, 294-295 State v. (1972); 46 N. J. 179 (1965).
Defendant also her appeals sentence of two concur indeterminate rent custodial terms at In the Correctional stitution for Women. should We conclude that the sentences affirmed, a but Defendant is service of them suspended. young woman with no kind. is any record of She prior the mother aof seven-year-old child whom she lives with in a stable home has environment. She worked steadily her since graduation from high school and presently is New employed by Bell Jersey The Telephone Company. Union County Probation Department, after a full review of situation, her recommended non-custodial sentence. The circumstances of the case, our call particular opinion, for of the sentences with defendant suspension imposed probation for placed period of two The years. fore course, subject going, outcome of the remand. So ordered.
Pashman,
(dissenting). This
presents
case
the Court
with its first opportunity since the decision of
United
States
Harris v.
Supreme Court in
New
401 U. S.
222,
643,
91 S. Ct.
236 Miranda, the Supreme Court that use at recognized trial of statements from obtained the defendant the police was limited not only found in the by concepts due process fifth and constitution, fourteenth to the federal amendments see, e. g., Haynes 373 U. S. S. Washington, 10 L. Ed. Brown (1963); Mississippi, U. S. 461, 80 L. Ed. see, g., amendment, e. to counsel found in the sixth Illinois,
Escobedo v.
12 L. Ed.
States,
;
201, 84
Massiah v. United
2d 977 (1964)
*7
de
also
the
by
12 L. Ed. 2d
but
(1964),
so,
self-incrimination.
In doing
fendant’s privilege against
for ex
rationale
the earliest constitutional
it returned to
Bram United
See
obtained confessions.
cluding improperly
States,
may is made these the waiver of waive effectuation If, intelligently. however, voluntarily, knowingly indicаtes he and any stage process any wishes con- of that he and at in manner questioning, attorney speaking there can be no an with before sult Likewise, any in and indicates manner if the individual alone police may question interrogated, him. he does to be not wish may questions The mere fact some he have answered vol deprive unteered statements on his him of some own does not any inquiries answering to refrain from further until he has questioned. attorney an consulted with and thereafter consents be 1612; 444-45, [384 omitted]. U. S. at S. Ct. footnote York, Harris v. New supra, the Court created an excep- еxclusion, tion to rule of this the state to use for permitting defendant when he chooses to purposes impeaching the testify own defense from him his statements obtained Miranda.1 police violation of the requirements
The reasoning in Harris holding majority are vulnerable to technical criticism on both and policy objections The technical to the decision matter grounds. of federal constitutional are jurisprudence lucidly set out dissent, Harris v. New Justice Brennan’s need 222, 226, 91 S. Ct. 28 L. Ed. 2d here: mentioned only briefly was (1) situation specifically considered Court in the Miranda opinion itself and use for pur- poses impeachment taken by statements the police from the defendant without their first giving Arizona, rejected. was Miranda v. warnings expressly supra, 476-77, U. S. at 1602. *8 The
(2)
heavy reliance placed by the
Walder
on
majority
States,
v. United
poses
United
v.
case. Walder
the prosecutor’s
elements of
tial
States,
65,
Miranda v.
established standards
supra,
police
ac
rights
persons
conduct so as
constitutional
protect
violation of
by
cused of crime. It
to deter
standards
sought
misconduct.
the state of the fruits
depriving
police
v. New
to overrule the
purport
does
stan
supra,
Miranda;
it simply permits
established in
dards
conduct
their official
misconduct in cer
eyes
police
courts to close
so, it
doing
significantly
tain circumstances.
undermines
Miranda rule:
value of the
the deterrent
police
longer any
Yet,
Harris,
for
no
real
incentive
after
there is
always
Credibility
obey
an accused
an issue when
Miranda.
granted
the Harris
defense. The license
the stand
his own
takes
pur-
impeachment
majority
statements
to use Miranda-violative
possible
therefore,
poses,
use of tainted statements
foreshadows
every
opens
door to а calculated risk
case. This
in almost
response
warnings,
If,
police interrogators.
an ac-
to Miranda
attorney
during ques-
present
he wishes to have an
cused indicates
may
ignored
impunity.
request
tioning,
If
with
a dam-
virtual
may
certainly
forthcoming,
aging
it
almost
is thereafter
against
take
if
later elects to
the stand
the accused
he
be used
*9
inability
Moreover,
is minimal
risk
his
defense.
own
prosecution’s
will result
in a
in the
case-in-chief
use
acquittal.
charges
dismissal of the
or a directed
Unlike
verdict
exclusionary
operate
rules
to exclude
other
situations
illegally
prima
physical еvidence,
that a
facie
obtained
seldom
it
requires
lips
from the
accused.
[Riddell
case
corroboration
(Douglas,
Rhay,
supra,
J. dis
S.
Ct. at 338
S.
U.
certiorari)].
senting from denial of writ of
addition,
of and
judicial tolerance
reliance
permitting
upon
evidence,
obtained
makes the
improperly
it
courts
vehicle for government
This not
demeans
wrongdoing.
only
judicial
but
process
subtly undermines
entire founda-
tion
under law. The
government
matter was aptly put by
States,
Justice Brandéis in his
in Olmstead
dissent
v. United
438, 485,
U. S.
perilled
scrupulously.
government
if
fails
it
to observe the law
Our
potent,
omnipresent
good
ill,
is the
or for
teacher. For
it teaches
people by
example.
contagious.
govern-
the whole
its
Crime is
If the
lawbreaker,
contempt
law;
ment
becomes
breeds
it
it
invites
every
himself;
anarchy.
man
to become
law unto
it invites
documents
amply
in
widespread
of police
terrogation tactics which
on
rely
subtle forms of deception
and coercion and which take
advantage
defendant’s ig
norance of his constitutional rights to remain silent and con
sult counsel.
U.
240 fact that Harris ignores later trial. produced at cause to advance are calculated rules set Miranda out in fairness. truth well as that of right defendant’s heavily in Harris burdens The decision trial, a to remain at testify to choose to or silent California, v. amendment. fifth protected by is Griffin 2d 106 1229, 14 L. Ed. 609, (1965). S. 85 Ct. 380 U. S. his own only not exposes the defendant testify, By choosing himself to cross-exam subjects credibility to question but, of his defense on all aspects by prosecutor ination Harris, in rebuttal introduction also the door to under opens has state illegally which the statements prejudicial of highly a this as describes opinion from him. A recent оbtained Woods, Pa. v. 455 Commonwealth choice,” Hobson’s “grisly J. 1973) Ct. 1, 7, 357, Sup. (Roberts, 312 A. 360 (Pa. unfair characterization I do not consider this concurring). exaggerated. consequences of Harris mitigated are
Arguably,
use
an
obtained
limitation to
impeachment
illegally
would, however,
It
excessively ingenuous
statement.
incrim
jury
that
would or could treat
suppose
highly
the defendant
as evidence
solely
statements made
inating
for all
Riddell
them
other
ignore
purposes.
this
974,
404
92
Ct. 336. Indeed
Rhay,
v.
U. S.
S.
supra,
Boone,
J.
v.
66 N.
rejected
such
supposition
Court
38,
admission of
sought
48-49
where the State
(1974)
Bruton v. United
plea.
withdrawn
previоusly
guilty
Cf.
States,
1620,
Even were
the
ac
majority’s characterization
curate,
its conclusion would not follow.
It
is a common
phenomenon
law
the
that evidence probative as to sub
stantive
or
issues
of a
is
be
witness
excluded
the
cause its admission would conflict with other important
Thus,
policies.
circumstances,
we
appropirate
exclude
statements made
a criminal
to
defendant
his lawyer,
26,
Evid. R.
R.
spouse,
28,
to his
Evid.
or to his clergyman,
R.
Evid.
29. We exclude statements whose disclosure would
State,
Evid.
imperil
R. 34. We exclude
made
statements
under
of
previous
immunity. We
grant
exclude
offers
for a
compromise
52,
Evid. R.
bargain
plea,
previously
Boone,
withdrawn
State v.
guilty рleas.
supra.
decision
in Miranda v.
an
Arizona involved
decision
express
de
of police
terrence
misconduct and preservation of
in
of
tegrity
justice system
the criminal
policies
of suf
justify
ficient
of
weight
loss
some relevant evidence.
However
unsound
decision of the United States Su
Court in Harris v. New
preme
60 N. J. 69 (1972) (Weintraub, Bodine, con J. J. (Haneman, v. 43 N. 479 (1964) man decisions, however, power impair . do curring) Such law more rigorous of State as matter adopt of this Court v. individual, Cali Cooper rules for protection Ed. 2d 730 58, 62, L. 87 S. U. fornia, E. g., had do the past. have occasion to as we (1967), Rosenblatt, generally, see 58 N. J. 281 Rodriguez (1971), v. v. Horton, Robinson v. 34 N. J. State 518 (1961). Cf. Cahill, 62 N. J. 473 (1973). of 1947 does not
Although guar the Constitution expressly self-incrimination, against privilege antee privilege as a law very has been common since recognized N. J. 431 Fary, days independence. earliest Zdanowicz, L. 619 1903). State v. 69 N. J. & A. (1955); (E. is so of criminal fundamentally system It woven into our justice basic and as one may fairly that it treated absolute Const. Art. N. J. rights incorporated into Bank, 1. 66 N. v. South National King Jersey § Black, J. L. 446, Ransom 54 N. (1974); (Sup. *12 N. J. In addi 1892), aff’d 65 L. 688 & A. 1893). (E. tion, it is Evid. rules of part as of our evidence. adopted 25, 37, R. 38.
I would N. J. Art. 1 and construe Const. § of rules principles evidence of Miranda incorporating Arizona, L. Ed. 2d 694 (1971) and reject permitted by the exception would v. New v. South National supra. King Jersey Cf. Bank, 66 J. 161, N. 195 n. 7 J. dis- (1974) (PaShman, senting). Heither the in Harris nor the majority majority in this case has arguments demonstrated adopting this exception outweigh arguments strong policy against so set out above. doing
I find the decision of the majority on this issue particularly in that it does unsatisfying not deal with our rules of evidence. Ev id. R. 25 provides in pertinent part: person right Subject 37, every a natural has to refuse to to Rule any police or official matter in an action or officer other disclose to expose penalty him or a forfeiture him or to a that will incriminate * * * of his estate. Evid. R. 37 states in pertinent part: person right privilege A waives his or or refuse disclose prevent disclosing specified any from another if matter he other or person (a) anyone while the holder thereof has contracted with right privilege (b) or, to claim the or without coercion and with knowledge right privilege, any part his made disclosure of of of privileged any- matter such or consented to a disclosure made added], [Emphasis one. R. 38 Evid. provides: against Evidence or other disclosure is inadmissible privilege wrongfully the holder of the if the disclosure was made or
erroneously required. It .may well be that Evid. R. 37 to be construed ought to require proof giving warnings equivalent those by Miranda. required It is clear that the language the rule at least an requires affirmative demonstration that the defendant had actual of his knowledge to remain silent of the police time Evid. R. 38 interrogatiоn. provides that the absence of such a demonstration, evidence must be excluded. It makes no exceptions for use for purposes of impeachment. The even majority, if it adopts Harris, the general principle must limit it to at least this extent.
I
recognize
the vast majority of
courts
have
considered the Harris issue since the decision of that case
have chosen to
adopt
See,
exception to Miranda.
e. g.,
v. Jorgenson,
Ariz.
502 P. 2d 158 (Ariz.
Sup.
1972); People Moore,
1973). jurisdiction expressly One State v. 53 Haw. 492 P. Sаntiago, 657 (Haw. Sup. 2d 1971), Ct. and others have of expressed varying degrees See, Woods, e. g., doubt. Commonwealth v. 455 Pa. the A. I latter view (Pa. 2d Ct. find the Sup. 1973).3 one. sounder
I with concur insofar majority it holds that must be remanded for a hearing matter to determine whether Miranda were I also in its given. holding concur warnings if that defendant should receive non-custodial sentence is sustained. As to the admis- ultimately the conviction if the retrial, of testimony upon Detective sibility Barile’s were given, finds Miranda warnings trial court that no finds is trial court that admissible. If the testimony not available is testimony Miranda were given, warnings for and I therefore dissent. any purpose J. in and part (concurring dissenting part).
Clifford, narrow, fundamental, rather but I respect one do only I judgment agree from the of the Court. that depart trial determina- be sent back judge case should Miranda v. whether or not the requirements tion of Arizona, Ed. L. were, the conviction they that if met, then that process, If conviction survives stand. should sentence. in the revision I concur also conclusion if the join I cannot the Court’s that But were not warnings given determines judge trial understood, value weigh probative he should nevertheless non-Miranda statement against inconsistent of thе prior “create would substantial danger its admission risk misleading jury.” sugges- undue prejudice many worthy perhaps courts that while considered note 3It decision, Supreme very prior few issue to the Court anticipated New Harris v. See the cases collected decision. (Brennan, York, supra, n. 91 S. S. at 231 U. dissenting). *14 tion is that the statement could admitted on the limited of issue find the credibility danger trial to judge of be- undue is minimal. I dissent prejudice respectfully cause I am of case we can and should the view that in this of decide the issue defendant’s against admissibility prior statement matter of law. as statement, That while it not be direct admission may of nonetheless to the heart of the offense guilt, goes directly and comes to such an admission. It consti- perilously close an tutes that she acknowledgement by passed defendant bills, albeit their ob- without awareness of apparently would vious counterfeit character. in evidence receipt Its rec- likelihood, be at the risk with the as (and high indeed on it considering the trial ognized by judge) jury of solely of the criminal rather than charge the substance the issue of defendant’s Therein lies the “sub- credibility. undue I think it unwise to stantial of danger prejudice.” risk, run when what is stake is the priv- that particularly To me the compelled propo- ilege against self-incrim'ination.1 state- of this jury that could limit consideration any sition issue in the face of the plain ment to the of flies re- of courtroom. quite simply notion reality That public companion 1JChe defender’s brief v. case State Davis, (1975), notwithstanding, Jersey 67 N. the New Con provision stitution contains no similar Fifth Amendment setting expressly privilege against the Federal Constitution forth a involuntary although process self-incrimination. And the due clause 1, paragraph 1, constitution, Burlington in Article of the state see S. Cty. Township Laurel, (1975), N.A.A.C.P. v. Mt. 67 N. J. might liberty well warrant fundamental scheme of ordered incorporation privilege reasoning expounded of the in accord with the Malloy Hogan, 84 S. Ct. L. Ed. 2d 653 (1964), opinion I need not frame this in constitutional terms. Either public policy, as a Vince, mandate of see re 2 N. J. 448-49 part law, or as Zdanowicz, our common see (E. N. J. L. 1903), 621 — 22 & A. state law embraces the no person compelled tion no against can be to be a witness him For origins self. a discussion of privilege against the state of the self-incrimination, Jersey Evidence, see New Rules Rule com (Gann ment 1972). sec. 25.1 at 112-13 fun is the to do the So jury clearly quires impossible. damental the instant case privilege jeopardized in allowing view the respectful majority’s my position against value trial the statement’s judge weigh probative *15 to the risk of the protection undue falls short prejudice Thus, accept I would which that is privilege entitled. U. invitation of v. S. Cooper California, under (1967), L. Ed. 788, 791, 17 2d S. state aas matter exercise our power, circumstances these stan higher protective with law, privilege to surround Amendment right accorded Eifth than dards those New in Harris v. Court Supreme Hass, and Oregon Ed. 643, 28 L. 2d (1971), - Ed. 570 (1975). 43 L. -, approach Harris-Haas not, howevеr, reject
I would to jury would permit I example, its Eor entirety. in instruction a limiting with statement non-Miranda receive if only, admissibility to its on the issue as than one fact with collateral rather that statement dealt priv- On balance the or bearing directly on innocence. guilt against self-incrimination would not ilege exposed there risk. If to unwarranted the fact contained in the statement is issue collateral, nevertheless of value on the but probative being likelihood of jury then there little credibility, confused or misled.
Such is the situation in of State companion case Davis, 67 N. J. 222 where day, decidеd this in challenged statement went whether was defendant Camden, New Chicago (his alibi or witnesses’ position), Jersey (prior statement). The offense in was committed Pleasantville, New Jersey, and therefore the statement itself tended only show that defendant, had he to the testified 'same effect as did his alibi witnesses, was untruthful being whereabouts; as to his but the challenged statement prior did not tend to demonstrate that defendant in in was fact Pleasantville or the victim’s store. The Davis is, case view, on my only facts, decided its but the rightly opin discussion ion’s of the use to which the inconsistent prior testified, statemеnt could have been had defendant there put, is also in with to which my the extent keeping position we I take should follow the Harris-Hass therefore analysis. opin the Court’s joinder explain my opportunity this in Davis. ion affirm
I would remand the instant case and the convic- the trial that Miranda judge’s finding tion conditioned upon I would afforded defendant. that event warnings If Miranda were not warnings given, the sentence. modify waive her to these effectively if did not defendant conviction warnings, should be case reversed trial, for a new tes- remanded Detective Basile’s inconsistent non-Miranda prior defendant’s timony any pur- received in evidence for not be should pose. *16 Hughes, Moun- Justices Justice
For remandment —Chief Collester —4. Judge tain and Sullivan Pashman —1. Dissenting —Justice Concurring dissenting Clieeord —1. —Justice