delivered the opinion of the Court.
In this interlocutory appeal, we must determine two issues: what is the appropriate standard of appellate review of a trial court’s factual findings based solely on the court’s viewing of a video-recorded police interrogation, and did defendant invoke his right to remain silent during the interrogation.
Relying solely on a review of the video-recorded interrogation, the trial court found that defendant asserted his right to silence when he said, “that’s all I got to say. That’s it.” The trial court suppressed all statements made after that utterance because the investigators failed to honor defendant’s invocation of his right to remain silent in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
A panel of the Appellate Division engaged in a de novo review of the video-recorded interrogation and reversed. The panel made its own factual findings based on defendant’s tone of voice and the flow of the interview, concluding that defendant did not assert his right to remain silent. In applying the de novo standard of review, the panel relied on language in State v. Diaz-Bridges, 208 N.J. 544, 566,
After a careful reappraisal of Diaz-Bridges, we now hold that the non-deferential standard articulated in that case is at odds with traditional principles limiting appellate review. We have reached this conclusion for several reasons.
First, our system of justice assigns to our trial courts the primary role of factfinder. That role is especially suited to our trial judges, who have ongoing experience and expertise in making factual rulings. Trial judges routinely make factual determinations not only in assessing the credibility of witnesses but also in assessing documentary evidence, which oftentimes is susceptible to alternative inferences.
Second, the customary role of an appellate court is not to make factual findings but rather to decide whether those made by the trial court are supported by sufficient credible evidence in the record. That limited standard of review is consistent with the belief that appellate courts should not replicate the work of our trial courts or reverse their factfindings based on a mere difference of opinion.
Third, notions of judicial economy and finality call for a standard of review where appellate courts defer to a trial court’s factual findings in the absence of clear error.
Applying these principles, we find that the trial court’s factual determination, based solely on its review of the video-recorded interrogation, is supported by sufficient credible evidence in the record. Although the Appellate Division and trial court drew different inferences from the record, we conclude that the inferences drawn by the trial court were reasonable
We therefore reverse the judgment of the Appellate Division and remand to the trial court for proceedings consistent with this opinion.
I.
A.
In 2011, defendant S.S. was tried before a jury and convicted of first-degree aggravated sexual assault of his six-year-old daughter, N.J.S.A. 2C:14—2(a)(1), and second-degree endangering the welfare of his child, N.J.S.A. 2C:24-4(a). The trial court sentenced defendant to a fifteen-year prison term on the sexual-assault charge, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and to a concurrent five-year term on the endangering charge. The Appellate Division reversed those convictions for reasons unrelated to this appeal and ordered a new trial. This Court denied the State’s petition for certification, State v. S.S., 220 N.J. 573,
Before the start of the second trial, defendant moved for the first time to suppress incriminating statements he made to investigators in the Hudson County Prosecutor’s Office, claiming that investigators failed to honor his invocation of his right to silence in violation of Miranda.
The Honorable Sheila A. Venable, P.J.Cr., conducted a Miranda hearing pursuant to N.J.R.E. 104(c)
To give context to defendant’s interrogation and the factual conclusions reached by the trial court, we begin with the events that led to the interrogation.
B.
In August 2009, defendant and “Jane” had been married for five years and were the parents of two daughters, “Marilyn,” age six, and “Lois,” age four.
Later, the babysitter told Jane about her daughter’s claim. In response to an anonymous call alleging that defendant had abused Marilyn, a representative of the Division of Youth and Family Services
During her interview, Marilyn denied that her father abused her or put his penis in her mouth. She also denied making the comment that the babysitter attributed to her. In speaking with the investigators, the babysitter stood by her recollection of Marilyn uttering that one remark. The babysitter noted, however, that Marilyn never repeated the statement. Jane told the investigators that she did not believe that an act of abuse had occurred.
C.
After those interviews, Sergeant Kolich and Detective Hans interrogated defendant in the Hudson County Prosecutor’s Office.
After Sergeant Kolich entered the interview room, the questioning became increasingly accusatory. Sergeant Kolich repeatedly made the misrepresentation that Marilyn told the investigators that defendant put his penis in her mouth. At various times, Sergeant Kolich made such statements as, “your daughter finally told us the truth,” “[s]he was brave enough to tell us that her daddy did something to her,” “she kept coming up to the truth,” and “this is a big coverup between you and your wife.” Sergeant Kolich, again and again, accused defendant of lying and warned that a judge was unlikely to believe his account over his daughter’s.
A little more than one hour into the interrogation, the following exchange occurred:
SERGEANT KOLICH: [T]here’s something inside you you want to say, and you're fighting it. You’re fighting it.
[DEFENDANT]: No, that's all I got to say. That’s it.
[SERGEANT KOLICH]: You’re fighting it, man. I told you in the beginning our job is to help put families back together ....
[ (emphasis added).]
At this point, defendant had denied the accusations more than a dozen times. The interrogation proceeded, and defendant continued to suggest that he did not want to speak:
SERGEANT KOLICH: Why, with all the people in the world, would your daughter pick on you and say you did this if it wasn’t true?
[DEFENDANT]: I don’t know. That’s all I can say.
Approximately one hour and thirteen minutes into the interrogation, a forty-nine-minute break was taken. When the investigators returned, the following colloquy occurred:
DETECTIVE HANS: Is there anything that you thought about? Anything that you want to tell us?
[DEFENDANT]: No.
Almost immediately after this exchange, at defendant’s request, Detective Hans left the room. The interrogation continued, with Sergeant Kolich urging defendant to confess. Sergeant Kolich pressed when defendant indicated that something occurred “a long time ago” when he was drunk.
SERGEANT KOLICH: Start from the beginning and tell me what happened.
[DEFENDANT]: I really got to talk about it?
SERGEANT KOLICH: It's going to help.
[ (emphasis added).]
Defendant then indicated that “it happened” when, after a shower, he was drying himself and Marilyn entered the bathroom. Sergeant Kolich persisted in his questioning:
SERGEANT KOLICH: So, you’re drying yourself in the bathroom and [Marilyn] walks out of her bedroom into the bathroom, right? And then what happens?
[DEFENDANT]: I don’t want to talk about it
SERGEANT KOLICH: Listen to me. How do I know you're telling the truth unless you tell me what happened?
[ (emphasis added).]
In response to repeated questions, defendant indicated, “It happened.” Then, Sergeant Kolich asked, “I don’t want to put words in your mouth, but she put her mouth on your penis,” to which defendant replied, “Yes.” Defendant stated that he was drunk at the time and Marilyn was about four years old.
D.
In ruling on the motion to suppress, the trial court relied solely on its review of the video-recorded interrogation. It concluded that the investigators failed to scrupulously honor defendant’s right to cut off questioning, as required by Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321,
E.
The Appellate Division granted the State’s motion for leave to appeal, and in an unpublished, per curiam opinion, a two-member panel reversed the trial court’s order suppressing defendant’s admissions made during the interrogation. The panel noted that it defers to a “trial court’s findings of fact that are supported by sufficient credible evidence in the record” when the suppression hearing involves the taking of witness testimony. The panel stated, however, that such deference is not required when “the trial court’s factual findings
The panel “disagree[d] with the trial judge’s interpretation of defendant’s responses,” finding that “defendant’s words and silences” did not suggest that he wanted to stop the questioning or that the investigators had a duty to inquire whether defendant wanted to invoke his right to remain silent. For example, the panel explained that when defendant stated, “No, that’s all I got to say. That’s it,” defendant’s response “meant he had no explanation for his daughter’s conduct” and that “[h]e had said what he was going to say about the subject.” That understanding of defendant’s intention was “clear” to the panel from “defendant’s level unchanged tone.”
Other alleged invocations of the right to remain silent, in the panel’s view, were expressions that defendant was “at a loss for words to explain the reason his daughter would have accused him” or that defendant was simply “denying culpability.” The panel reached those conclusions because of “defendant’s even tone of voice” or “defendant’s tone ... in the context of the flow of the conversation.” The panel determined that, based on its “independent review of the video,” the State had proven beyond a reasonable doubt that defendant never revoked his initial waiver of his right to remain silent.
We granted defendant’s motion for leave to appeal. State v. S.S., 226 N.J. 207,
II.
A.
1.
Defendant contends that the Appellate Division’s decision upending the trial court’s suppression order should be reversed. First, defendant argues that, by any objective standard, he unambiguously invoked his right to remain silent during the interrogation by stating, “No, that’s all I got to say. That’s it.” In defendant’s view, those words are not susceptible to another reasonable interpretation, and any purported ambiguity concerning whether he wished to cut off questioning should have prompted the interrogators to seek clarification from him.
Second, defendant argues that when the plain words spoken by a defendant clearly indicate the invocation of a Miranda right during an interrogation, a deferential standard of review is not appropriate. He states, however, that if “a subjective factor such as ‘tone’ can be considered in determining the effectiveness of the invocation,” then deference to the trial court’s assessment is in order.
Defendant is critical of the Appellate Division’s focus on defendant’s “tone” because “tone” may be conditioned by one’s culture, race, mental health, gender, or be explained by the hostile setting of a police interrogation. Thus, defendant concludes that if his statements must be viewed through the prism of “a subjective interpretation process,” then the Appellate Division panel should have deferred to the trial court. Defendant asks this Court to revisit the Diaz-Bridges de novo standard of review for video-recorded statements, which he claims has caused confusion.
Amicus ACDL-NJ contends that this Court should hew to the traditional standard of appellate review, which requires deference to the factual findings of a trial court even when those findings are based solely on video or documentary evidence. The ACDL-NJ urges this Court to reject the de novo standard adopted by Diaz-Bridges and to reaffirm that a trial court’s factual findings will not be disturbed unless clearly mistaken. That approach, it posits, will advance judicial goals of “stability, consistency, and finality.” Here, the ACDL-NJ submits that the appellate panel merely substituted its own factual findings for those of the trial court. The ACDL-NJ also disapproves of the panel’s use of defendant’s “tone” to suggest that defendant’s clearly spoken words did not reveal his intent to invoke his right to silence.
3.
Amicus ACLU-NJ condemns the Appellate Division’s references to defendant’s composure and “even” and “quiet” tone of voice as a basis for its rejection of defendant’s unambiguous invocation of the right to silence. The ACLU-NJ states that when a court disregards an explicit invocation of a right based on tone of voice, equal-protection concerns are implicated because “tone,” in part, is a factor of race and culture. By way of example, the ACLU-NJ contends that young black men are often counseled to take a conciliatory approach when interacting with the police. For that reason, the ACLU-NJ submits, a suspect’s words should matter, not his tone of voice, in determining whether he invoked his rights.
B.
The State submits that “Diaz-Bridges governs the standard of review” in this case. It urges that we adhere to the policy of allowing an appellate court to “conduct a de novo review ... when the trial court’s factual findings are based solely on the video recording,” citing Diaz-Bridges, supra, 208 N.J. at 565-66,
The State also argues that independent factfinding by the appellate court was appropriate because “the trial court simply reviewed defendant’s alleged invocations alone and not in context with the actual questions asked or ... defendant’s conduct and demeanor during the entire conversation.” In this regard, the State contends that the appellate panel properly “considered the flow of the conversation” and defendant’s tone of voice, which remained “ ‘level’ and ‘unchanged’ ” throughout the interrogation, thus indicating that defendant was not truly invoking his right to remain silent. In light of the entire interview, according to the State, it is clear that defendant did not unequivocally or ambiguously invoke his right to remain silent.
III.
A.
We first address the standard of appellate review that should govern when a trial court’s factual findings are based solely on the review of a video recording or documentary evidence.
We have cautioned that a trial court’s factual findings should not be overturned merely because an appellate court disagrees with the inferences drawn and the evidence accepted by the trial court or because it would have reached a different conclusion. Ibid. An appellate court should not disturb a trial court’s factual findings unless those findings are “so clearly mistaken that the interests of justice demand intervention and correction.” Gamble, supra, 218 N.J. at 425,
In Elders, based on both a video recording and eyewitness testimony, the trial court made factual findings that troopers engaged in an unconstitutional investigative detention. Id. at 235, 248,
The issue here, however, concerns the level of deference owed to a trial court’s factual findings based solely on its review of a video recording or documentary evidence.
That issue arose in Diaz-Bridges, supra, 208 N.J. 544,
In doing so, this Court expressed its view that a reviewing court need not give deference to another court’s factual findings based solely on a video-recorded interrogation. Id. at 565-66,
Diaz-Bridges did not reference or acknowledge out-of-state authorities that rejected or supported its basic assumption—that “there is little, if anything, to be gained from deference” when the sole evidence relied on by the factfinder is a video-recorded interrogation. See id. at 566,
In State v. Hubbard, 222 N.J. 249,
We now turn to those jurisdictions that have come to a different conclusion than that of the Diaz-Bridges Court on the standard of appellate review in cases like the one before us.
B.
Federal courts, and a number of state courts, have adopted a standard of appellate review that requires deference to a trial court’s factual findings when those findings are based on viewing a video-recorded interrogation or search. The policy reasons for a deferential approach are set forth in Anderson v. City of Bessemer City, 470 U.S. 564, 574-75, 105 S.Ct. 1504, 1511-12,
The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources.
[Id. at 574-75, 105 S.Ct. at 1512, 84 L.Ed.2d at 529.]
The Anderson Court adopted a clearly erroneous standard of review, which prohibits appellate courts from substituting their judgments for those of the trial court. Id. at 573-74, 105 S.Ct. at 1511,
Federal Rule of Civil Procedure 52(a)(6) was amended the same year that the United
The principal argument advanced in favor of a more searching appellate review of findings by the district court based solely on documentary evidence is that the rationale of Rule 52(a) does not apply when the findings do not rest on the trial court’s assessment of credibility of the witnesses but on an evaluation of documentary proof and the drawing of inferences from it, thus eliminating the need for any special deference to the trial court’s findings. These considerations are outweighed by the public interest in the stability and judicial economy that would be promoted by recognizing that the trial court, not the appellate tribunal, should be the finder of the facts. To permit courts of appeals to share more actively in the fact-finding function would tend to undermine the legitimacy of the district courts in the eyes of litigants, multiply appeals by encouraging appellate retrial of some factual issues, and needlessly reallocate judicial authority.
[Fed. R. Civ. P. 52(a) advisory committee’s note to 1985 amendment.]
Thus, the Advisory Committee rejected “a more searching appellate review” in favor of a “clearly erroneous” standard for “documentary evidence,” including video evidence. See ibid. The Federal Rules of Criminal Procedure do not contain an analogous rule. However, the United States Supreme Court has indicated that “the considerations underlying [Federal Rule of Civil Procedure] 52(a) ... apply with full force in the criminal context, at least with respect to factual questions having nothing to do with guilt.” Maine v. Taylor, 477 U.S. 131, 145, 106 S.Ct. 2440, 2451,
Indeed, several United States Circuit Courts of Appeals have applied a deferential standard in reviewing a trial court’s factual findings based on video evidence.
In contrast, a number of jurisdictions favor a de novo approach. See, e.g., People v. Madrid,
C.
We now conclude—after weighing all sides of the issue— that a standard of deference to a trial court’s factfindings, even factfindings based solely on video or documentary evidence, best advances the interests of justice in a judicial system that assigns different roles to trial courts and appellate courts. We reject the de novo standard introduced in Diaz-Bridges for the following reasons.
Our system of justice assigns to the trial court the role of factfinder in matters not relegated to the jury. Trial judges in our Criminal Part routinely hear and decide suppression motions in which defendants seek to exclude evidence based on alleged violations of the Fourth and Fifth Amendments of the United States Constitution and corollary provisions of our State Constitution and common law. Our trial judges have ongoing experience and expertise in fulfilling the role of factfinder. See Anderson, supra, 470 U.S. at 574-75, 105 S.Ct. at 1512, 84 L.Ed.2d at 529-30.
By contrast, the task of appellate courts generally is limited to reviewing issues of law. Because legal issues do not implicate the fact-finding expertise of the trial courts, appellate courts construe the Constitution, statutes, and common law “de novo—“with fresh eyes’—owing no deference to the interpretive conclusions” of trial courts, “unless persuaded by their reasoning.” See State v. Morrison, 227 N.J. 295, 308,
A policy of deferring to findings of fact of a trial court based on its review of video and documentary evidence has certain
Permitting appellate courts to substitute their factual findings for equally plausible trial court findings is likely to “undermine the legitimacy of the [trial] courts in the eyes of litigants, multiply appeals by encouraging appellate retrial of some factual issues, and needlessly reallocate judicial authority.” See Fed. R. Civ. P. 52(a) advisory committee’s note to 1985 amendment. In our view, the public’s interest in “stability and judicial economy” is promoted by designating our trial courts, rather than appellate courts, as “the finder of the facts,” in the absence of clear error. See ibid.
Acknowledging that a trial court’s factual findings are entitled to deference does not mean that appellate courts must give blind deference to those findings. Appellate courts have an important role to play in taking corrective action when factual findings are so clearly mistaken—so wide of the mark—that the interests of justice demand intervention. See Elders, supra, 192 N.J. at 245,
Special justification is present for parting ways with the standard articulated in Diaz-Bridges. Although “stare decisis serves a number of salutary purposes, which includes promoting certainty and stability in our law,” it “is not a command to continue on a misguided course.” State v. Witt, 223 N.J. 409, 415,
Having determined the applicable standard of review, we next turn to the governing principles of law in this case.
IV.
A.
“The right against self-incrimination is guaranteed by the Fifth Amendment to the United States Constitution and this state’s common law, now embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503.” State v. Nyhammer, 197 N.J. 383, 399,
Under the United States Supreme Court’s interpretation of the Fifth Amendment, the police are required to stop a custodial interrogation when a suspect unambiguously asserts his right to remain silent. Berghuis v. Thompkins, 560 U.S. 370, 381-82, 130 S.Ct. 2250, 2260, 176 L.Ed.2d 1098, 1110-11 (2010). In contrast, under our state law privilege against self-incrimination, “a request, ‘however ambiguous,’ to terminate questioning ... must be diligently honored.” State v. Bey (Bey II), 112 N.J. 123, 142,
In that light, “[a]ny words or conduct that reasonably appear to be inconsistent with defendant’s willingness to discuss his case with the police are tantamount to an invocation of the privilege against self-incrimination.” Bey II, supra, 112 N.J. at 136,
B.
To invoke the right to remain silent, a suspect does not have to follow a prescribed script or utter talismanic words. Id. at 281,
Words similar to those used by defendant here have been considered sufficient to invoke the right to silence. See, e.g., ibid. (“[A] suspect who has ‘nothing else to say,’ ... has asserted the right to remain silent.” (citations omitted)); State v. Bey (Bey I), 112 N.J. 45, 64,
In Johnson, supra, the defendant, a murder suspect, while questioned by police, repeatedly responded, “I can’t talk about it.” 120 N.J. at 267, 284, 576 A.2d 834. We recognized that the defendant’s response “could be construed as an expression of either emotional reluctance to admit guilt or the desire to cut off questioning.” Id. at 284,
We have made clear that “[w]here the invocation of the right to remain silent is followed by no interruption in questioning, and where the interrogation continues as if nothing had happened, the right is not scrupulously honored.” Id. at 282,
We now apply the applicable standard of review and principles of law to the facts of the case before us.
V.
The trial court decided the motion to suppress based on the one piece of evidence before it—the video-recorded confession. In rendering its decision, the court noted, “defendant repeatedly denied the allegations, shook his head and made statements to the effect of denying the allegations” for approximately one hour until the following exchange. Sergeant Kolich stated, “[T]here’s something inside you you want to say, and you’re fighting it. You’re fighting it,” to which defendant replied, “No, that’s all I got to say. That’s it.” At this point, according to the trial court, “defendant clearly indicated his intention to end the interrogation.” The court also held that “defendant’s intention [to remain silent] w[as] made more obvious” in his responses to the sergeant’s later questioning. As noted earlier, immediately after the forty-nine minute break, Detective Hans asked defendant, “Anything that you want to tell us?” Defendant replied “No.” In response to other questions, defendant suggested he did not want to speak, stating “I really got to talk about it?” and “I don’t want to talk about it.”
The trial court concluded that, based on its review of the entire video-recorded interrogation, “defendant unambiguously invoked his right to silence” from the point he stated, “that’s all I got to say.” The court noted that even if defendant’s intentions “were merely ambiguous” in the minds of the investigators, “the onus was [on them] to clarify those intentions.” Because “defendant’s right to cut off questioning was not respected here,” the court suppressed all statements after defendant first asserted his right to silence.
Whatever the tone of a suspect’s voice, whether it is loud or soft or unchanged or shifting, or whether the suspect is calm or jittery or submissive or antagonistic, words will make a difference and oftentimes have an objective meaning to reasonable law enforcement officers. If a suspect says, “I invoke my right to silence under the Fifth Amendment,” it makes no difference whether he does so in a whisper or shouting to the rafters. Elevating the importance of tone over the import of words, as the Appellate Division did here, can lead to injecting a high degree of subjectivity
The Appellate Division cannot be faulted for applying a de novo standard of review; it followed the guidance given in Diaz-Bridges. The flaw in the de novo standard was demonstrated here. The Appellate Division substituted its interpretation of the video in place of the trial court’s reasoned analysis.
Having reviewed the video-recorded interrogation in light of the nature and history of the case, we find that the trial court’s factual conclusions are supported by sufficient credible evidence in the record and therefore are not clearly mistaken. Because the interrogating investigators failed to honor defendant’s invocation of his right to silence or, at the very least, to seek clarification if they thought that defendant’s statements were ambiguous, we affirm the trial court’s suppression order. Accordingly, defendant’s statements, after he said, “No, that’s all I got to say. That’s it,” are inadmissible.
VI.
For the reasons expressed, we reverse the judgment of the Appellate Division. An appellate court ordinarily should defer to a trial court’s factual findings, even when those findings are based solely on its review of a video recording. Deference, however, is not required when the trial court’s factual findings are clearly mistaken.
We find that sufficient credible evidence in the record supports the trial court’s factual finding that defendant invoked his right to silence during the interrogation. We therefore uphold the trial court’s order suppressing statements made by defendant to Detective Hans and Sergeant Kolich. We remand for proceedings consistent with this opinion.
Notes
The trial court denied defendant's motion to redact certain portions of his statement before his first trial. That statement was admitted into evidence at that trial.
N.J.R.E. 104(c) provides that "the judge shall hear and determine the question of [a defendant’s statement's] admissibility” in a preliminary hearing.
The background information presented here is gleaned from portions of defendant's interrogation and evidence adduced at the first trial.
We use pseudonyms to protect the privacy of the children and the mother.
Since the events in this case, the Division of Youth and Family Services was renamed the Department of Child Protection and Permanency (DCPP).
No one disputes that defendant was in custody for Miranda purposes during the interrogation.
The trial judge did not find that defendant’s headshaking or non-verbal responses were attempts to invoke his right to remain silent.
The fact that these federal courts considered other evidence in addition to video evidence had no impact on the applicable deferential standard of review.