For remandment -- Chief Justice Hughes, Justices Mountain and Sullivan and Judge Collester. Dissenting -- Justice Pashman. Concurring and dissenting -- Justice Clifford. The opinion of the Court was delivered by Sullivan, J. Pashman, J. (dissenting). Clifford, J. (concurring in part and dissenting in part).
Defendant was convicted on a two-count indictment of having exchanged two counterfeit $20 bills with intent to have the same uttered or passed in violation of N.J.S.A. 2A:109-2(a). She was sentenced to two concurrent indeterminate terms in the Correctional Institution for Women.
At her trial, defendant testified that she had not entered the Price-Rite Market on the two days when the bills were passed. On cross-examination she denied that following her arrest she had admitted to Detective Anthony Barile that she had passed the bills not knowing they were counterfeit.
The State called Detective Barile in rebuttal. He testified that he spoke with defendant at police headquarters following her arrest and that first he advised her of her constitutional rights which she said she understood. Defendant then
admitted having cashed the two bills in question, but denied knowing they were counterfeit. When Detective Barile began to testify about the statement he had taken from defendant, defense counsel requested a hearing on whether or not the statement met the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).*fn1 The request was denied on the ground that the statement was admissible under Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971),*fn2 and that compliance with the requirements of Miranda was not a prerequisite to admissibility on rebuttal. Counsel then requested a charge limiting the jury's use of the statement to credibility only. This request was also denied, the court ruling that the statement could be used not only to affect defendant's credibility, but also as an admission. The court held that in a situation where the statement contains admissions of fact at issue in the case, a jury would be unable to comply with an instruction that the statement may only be considered as affecting the credibility of the witness and not as an admission of fact.
The Appellate Division in an unreported opinion affirmed the judgment of conviction. This Court granted certification, 65 N.J. 298 (1974), to consider Harris v. New York, supra, in the factual context here presented.
We conclude that the trial court's interpretation of Harris was erroneous. An in-custody statement taken from an accused by the police without first complying with the Miranda rule is not admissible in evidence as part of the State's main case. However, if it otherwise satisfies standards of admissibility, it may be used to impeach the defendant's credibility as a witness should the defendant take the witness stand and give testimony which is at variance with what was said in the statement to the police. But the jury should be instructed as to the limited consideration it may give to the statement and its contents.
We recognize that this is a difficult assignment to give a jury in a situation where the statement contains admissions of fact at issue in the case. Nevertheless, Miranda stands as an absolute bar to use of the statement as substantive evidence and the jury must be told that it may use the statement only in weighing defendant's credibility as a witness. See New Jersey Rules of Evidence, Rule 6. This is the uniform interpretation of Harris given by courts which have considered the matter.
It has been suggested that because of the difficulty faced by a jury in this type of situation, this Court, as it has the right to do, should, as a matter of state law, impose greater restrictions on police activity than required under federal constitutional standards and hold that a non- Miranda statement may not be used by the State for any purpose. See State v. Santiago, 53 Haw. 254, 492 P. 2d 657 (1971).
The decision of the United States Supreme Court in Harris was anticipated in this State. State v. Kimbrough, 109 N.J. Super. 57 (App. Div. 1970). Since Harris was decided, it has been cited in State v. Falco, 60 N.J. 570, 582 (1972); State v. Burt, 59 N.J. 156, 165 (1971) (Hall, J. concurring); State v. Slobodian, 120 N.J. Super. 68, 73-74 (App. Div. 1972), certif. denied 62 N.J. 77 (1972). In Harris the opinion of the United States Supreme Court
states (401 U.S. at 226; 91 S. Ct. at 646, 28 L. Ed. 2d at 5):
The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.
We conclude that Harris as applied herein is a valuable truth-finding mechanism which does not impinge on a defendant's federal or state constitutional rights. Nor do we think that Evidence Rules 25, 37 and 38 call for a different result. See Evid. R. 5.
Of course, in a Harris -type situation, the trial court would always have the right under Evidence Rule 4 to exclude the statement entirely and bar its use even for the limited purpose of impeaching the defendant's credibility as a witness, if it concludes that the probative value of the statement is substantially outweighed by the risk that its admission would create substantial danger of undue prejudice or of misleading the jury.
Our holding that the trial court's ruling was erroneous does not necessarily require a reversal and new trial. Detective Barile testified that prior to questioning defendant about the counterfeit bills he fully advised her of her Miranda rights and she said she understood. She then admitted she had passed the bills but without knowledge that they were counterfeit. As heretofore noted, defendant's request for a "full-fledged Miranda voir dire " was refused and the statement was admitted as substantive proof. But this may not have been prejudicial to defendant if, in fact, and as Detective Barile testified, the Miranda prerequisites were satisfied. However, defendant is entitled to a hearing and a ruling on this issue.
We therefore affirm the judgment of conviction but remand the matter to the trial court to hold a Miranda hearing on the admissibility of defendant's statement to Detective Barile. If, after hearing the State's and defendant's
proofs, the trial court finds that the requirements of Miranda were met and that the statement was admissible as substantive proof, the judgment of conviction will stand, subject to defendant's right of appeal from the Miranda ruling. If the trial court finds that the Miranda warnings were not fully given and understood and that, therefore, the statement was not admissible as substantive proof, the judgment of conviction is to be set aside and a new trial had. State v. Kelly, 61 N.J. 283, 294-295 (1972); State v. Loray, 46 N.J. 179 (1965).
Defendant also appeals her sentence of two concurrent indeterminate custodial terms at the Correctional Institution for Women. We conclude that the sentences should be affirmed, but service of them suspended. Defendant is a young woman with no prior record of any kind. She is the mother of a seven-year-old child whom she lives with in a stable home environment. She has worked steadily since her graduation from high school and is presently employed by New Jersey Bell Telephone Company. The Union County Probation Department, after a full review of her situation, recommended a non-custodial sentence. The circumstances of the particular case, in our opinion, call ...