For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Francis, J. Weintraub, C.J. (concurring). Weintraub, C.J., and Heher and Wachenfeld, JJ., concurring in result.
[28 NJ Page 107] Defendant was convicted of armed robbery in the County Court. Upon affirmance of the conviction in the Appellate Division (47 N.J. Super. 493), we granted certification.
Only one reason for reversal is now urged, namely, that the trial court erred in charging the jury with respect to the defendant's failure to testify in his own behalf, as follows:
"Now, this defendant did not take the stand in his own defense. When the State's case rested, the defense rested. The defendant had a perfect right under the constitutional law of our state to testify in his defense, but he chose not to do so. And there is a principle of law that is applicable to a situation of that kind which I will read to you. It is as follows:
'When facts concerning the acts of the accused are testified to, which prove or tend to prove his guilt, and he, by his oath can deny them, his failure to testify raises a strong presumption that he cannot truthfully deny those facts.'" (Emphasis added)
It must be noted at the outset that no objection was interposed to this instruction at the trial. Consequently no basis for appellate review exists unless the challenged language qualifies as plain error, R.R. 1:5-1(a), which is legal impropriety affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result. State v. Haines, 18 N.J. 550, 565 (1955); State v. Picciotti, 12 N.J. 205, 211 (1953).
Examination of the record reveals that ample evidence was adduced by the State to implicate Corby in the robbery and to justify his conviction. No present suggestion is made that the verdict of guilt is contrary to the weight of the evidence. It was raised in the Appellate Division and disposed of adversely. Abandonment of the ground in this court obviously represents recognition of the reality of the situation. Moreover, trial counsel heard the full text of the charge which by specific discussion of the implicatory facts and by fair comment as to the limitations upon their probative force apparently satisfied him that the jury would not be unduly influenced by the reference to the defendant's failure to take the witness stand. The withholding of objection or request for further explanation or qualification adequately points to that conclusion. And so, without detailing
the factual sum of the proofs, it is sufficient to say that we find no such manifest injustice as would warrant a declaration that the criticized charge constitutes plain error. Cf. State v. O'Leary, 25 N.J. 104 (1957).
However, since the question engendered by the trial court's charge is before us, it seems worthwhile to reappraise the principle of law applicable to the failure of a defendant in a criminal action to testify in his own behalf. In substance, the jury here was told that the failure "raises a strong presumption that he cannot truthfully deny" the inculpatory facts testified to against him. A fresh consideration of that rule may be posited on an acceptance of the premise that in the past our appellate courts, in speaking of "presumption" in this context, understood and intended it to signify "inference" and so used the words interchangeably. Then the endeavor would be to seek a mode of expression which will fit more compatibly for purposes of jury comprehension within the framework of fundamental principles controlling the trial of criminal causes. Establishment of an overall harmonious pattern of instructions, capable of easy explanation to, and understanding by, a jury of laymen, is a goal of the first order in the pursuit of justice through the mechanism of the modern trial.
There is no doubt that support can be found in the cases tracing back to Parker v. State, 61 N.J.L. 308 (Sup. Ct. 1898), affirmed 62 N.J.L. 801 (E. & A. 1899), for the form of charge given by the trial court. Almost the precise wordage was sanctioned in State v. O'Leary, supra, 25 N.J. at page 110, although questioned in the concurring opinion of the Chief Justice at page 116; in State v. Wise, 19 N.J. 59, 100 (1955), and in State v. Rogers, 19 N.J. 218, 236 (1955). In what is generally regarded as the source case, Parker v. State, supra, the Supreme Court spoke of the absence of the defendant from the witness stand in these terms:
"But when the accused is upon trial, and the evidence tends to establish facts which, if true, would be conclusive of his guilt of the charge against him, and he can disprove them by his own oath
as a witness if the facts be not true, then his silence would justify a strong inference that he could not deny the charges." (Emphasis added)
That language might well be understood to make the emergence of the inference dependent upon the existence of facts which, if undenied, were conclusive of guilt. But that observation aside, it is important to note that the word "inference," and not "presumption," was used, and that the phrase respecting the existence and character of the inference, i.e., "would justify," was permissive and not mandatory. That is, the jury would be justified in drawing the inference in the course of their deliberation on the totality of the ...