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State v. Deatore

New Jersey Supreme Court

Decided: April 13, 1976.


For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For reversal -- None. The opinion of the Court was delivered by Hughes, C.J. Sullivan, J. (concurring in result). Justice Schreiber joins in this opinion. Clifford, J., and Conford, P.J.A.D., Temporarily Assigned, concurring. Sullivan, Clifford and Schreiber, J.J., and Conford, P.J.A.D., concurring in the result. Pashman, J., concurring in the result and dissenting. Pashman, J. (concurring in result and dissenting).


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Having been tried jointly to a jury, defendants were convicted of armed robbery (N.J.S.A. 2A:141-1, N.J.S.A. 2A:151-5) of a store proprietor and a customer present in the store at the time. The Appellate Division reversed the convictions in separate unreported decisions, and we granted certification on petitions of the State. 63 N.J. 425 and 502 (1973).*fn1

The appeals were argued in due course but we delayed decision in view of the pendency of a somewhat comparable case in which the United States Supreme Court issued its opinion on June 23, 1975. (United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99). Counsel were invited to file supplemental briefs bearing on the significance (or otherwise) of Hale, and the appeals were then reargued.

The facts here are these: at the trial Deatore defended on the basis of alibi, asserting that at the time of the crime he was in the company of a woman in a motel room in the

[70 NJ Page 104]

area. This evidence was presented through his own testimony and that of the alleged female companion. Mallon neither took the stand nor offered evidence in his defense. The proof of guilt of both defendants was overwhelming not only through identification by the victims but also by reason of much incriminating evidence, especially checks and credit and personal cards of the victims, found on a search, pursuant to a warrant, of the motel rooms occupied by defendants.

The Appellate Division reversed Deatore's conviction because the trial judge permitted the prosecution to ask him on cross-examination, over objection, a series of questions bearing on his failure to make any exculpatory statement to the police after he was arrested. Mallon's conviction was reversed because the court felt that "the nature of the error was such as to affect and prejudice Mallon as well as Deatore in the light of surrounding circumstances," although this ground had not been urged in Mallon's brief on appeal.

In its opinion in Deatore's case the Appellate Division discussed another issue. After the jury box had been filled the judge had asked the prospective jurors whether they knew counsel, the defendants or any of the State's proposed witnesses. One answered that she knew the customer-victim of the holdup "personally and business." The judge then inquired whether, in view of this acquaintanceship, she could "render a verdict that would be free of any partiality or any prejudice * * *." She replied that she could. At the conclusion of the court's voir dire examination*fn2 and before any peremptory challenges under R. 1:8-3(d) were exercised,*fn3 counsel for Deatore, at side bar, moved to dismiss the juror

[70 NJ Page 105]

for cause. When this was refused, he asked leave to examine her on the extent of her relationship with the victim, knowledge of the crime committed against him and the like, which request was also summarily denied. Counsel then exercised a peremptory challenge and excused the juror. The matter of possible bias came up again during a voir dire examination by the court after all defense peremptory challenges had been exhausted. Deatore's attorney suggested the potential partiality of a juror who mentioned two relatives by marriage employed as correction officers in a Pennsylvania state prison. He asked for an additional peremptory challenge by reason of the claimed erroneous denial of the challenge of the earlier juror for cause. This was likewise refused. Mallon's counsel joined in each of these motions.

Having in mind the basic right of every defendant to a fair and impartial trial, we have no doubt that the trial court committed fundamental error in its refusal to conduct or permit a further examination of the first juror in the circumstances, which error in itself requires reversal of the judgments of conviction of both defendants and remand for a new trial, and so affirmance of the Appellate Division in both cases (the point was not mentioned in the Mallon opinion although it was the principal ground of appeal urged). We adopt the language of the Appellate Division in Deatore spelling out the reason:

Once it was disclosed by [the juror] that she was acquainted with one of the robbery victims, it became the duty of the trial judge to himself explore or to permit counsel to explore with the juror the nature and extent of his acquaintance with the victim. Without such information, neither counsel nor the court could make an intelligent appraisal as to the likelihood of the existence of any bias, prejudice or partiality in favor of the State or in favor of the credibility of the victim. State v. Jackson, 43 N.J. 148, 157-161 (1964), cert. den., 379 U.S. 982 [85 S. Ct. 690, 13 L. Ed. 2d 572] (1965). Had such inquiry been made and revealed a close relationship, it is not enough that the juror disclaimed any partiality for, as the court observed in Jackson, sincere as the disclaimer may be "it runs counter to human nature," Id., at page 160. * * *

Jurors "must be [carefully] selected with an eye toward[s] their ability to determine the controverted issues fairly and impartially;

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. . . [and] the trial court should see to it that the jury is as nearly impartial 'as the lot of humanity will admit.'" Jackson, at pages 157-158. Likely prejudice to the right of this defendant to a fair and impartial trial inhered in the failure of the trial court to heed this elementary principle. Wright v. Bernstein, 23 N.J. 284 (1957).

The sufficiency of a stated disclaimer of any partiality in circumstances such as here involved would not only seem to run "'counter to human nature'" as above, but to fly "in the face of the plain reality of the courtroom." Cf. State v. Miller, 67 N.J. 229, 245 (1975) (Clifford, J., concurring and dissenting in part). See also Annotation, "Social or business relationship between proposed juror and nonparty witness affecting former's qualification as juror," 11 A.L.R. 3d 859 (1967).

We add that the obvious and practical way to handle the situation of a prospective juror having connections with a party or witness which might possibly affect impartiality is to excuse the juror by consent at the outset, with that course suggested by the judge if counsel do not propose it. And if that arrangement is rejected, the trial judge should proceed with the supplemental interrogation above mentioned, or permit counsel to do so in his discretion, to test the legitimacy or necessity of excusal for cause.

Although both cases could be disposed of on the basis of this error, we note the vigorous contention of the State that its cross-examination of Deatore was proper and that the Appellate Division was wrong in reversing his conviction on that ground. Since the point raised is of general importance, is subject (as we shall note later) to a remarkable variance in judicial views, and should be settled so far as New Jersey courts are concerned, we will decide it on the merits; this, even though it might be said that the evidence of guilt was so strong that any trial error in this regard was harmless beyond a reasonable doubt. We should further say that we disagree with the Appellate Division's holding that the asserted error in the questioning of Deatore necessarily "rubbed

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off" on Mallon and prejudiced him as well so as to require the reversal of his conviction on that ground. Our opposite view is based upon the overwhelming evidence of guilt on the part of Mallon, apart from and irrespective of silence or other conduct on the part of Deatore, rendering any possible effect on Mallon of the State's challenge of Deatore's silence, harmless error beyond a reasonable doubt. Compare State v. Davis, 67 N.J. 222, 228 (1975) with State v. Macon, 57 N.J. 325, 335-41 (1971). In this respect we distinguish the exposure of both defendants equally to prejudice resulting from the failure to probe the qualification of the first challenged juror to sit in impartial judgment.

As indicated, the questions involved here related to the matter of Deatore's silence and failure to voice exculpatory information to the police at or about the time of his arrest. These questions came in the course of cross-examination, after he had testified on direct that he was elsewhere at the time of the crime. He was asked whether he had made any statements to such effect to the police when he was arrested and later when he learned of the specific charge against him. His reply was that the only thing he remembered saying was that he wanted a receipt for the money taken by the police from his person. He denied that he told the police he had nothing to say, and the interrogation concluded with the prosecutor asking whether it was not so that he had refused to make any statement.*fn4 The answer was: "Nobody asked me." It may be added that while there was testimony by one of the arresting officers that "defendant was read his rights" at police headquarters (which we interpret to mean that he was given the Miranda warning; Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)), there was no evidence that he was questioned at all. No rebuttal testimony was offered by the State with respect to the line of interrogation outlined above, and no mention was

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made of it during the balance of the trial either in the State's summation or otherwise.

The State takes the position that the purpose of its trial questioning was to elicit whether Deatore had an opportunity to assert his alibi defense at or about the time of arrest and, if so, to bring to the jury's attention that he had not asserted it until his testimony at the trial, which would have the effect of impeaching that testimony. The reasoning is, of course, that an innocent man would not have withheld such an exculpatory story prior to trial, but would have asserted it to someone in authority at the earliest opportunity to avoid arrest, indictment and trial; and that, therefore, the natural inference would follow that, unless a rational explanation for the failure to make such disclosure could be presented, the later exculpatory testimony is untrue.

Here the State also suggests that its cross-examination did not go to the full length of asking Deatore whether he had ever told anyone of his alibi claim prior to trial, because it developed that since no one asked him for a statement, he had no opportunity to tell the police of his alibi and that any error was therefore harmless since the impression left with the jury was entirely innocuous. While this may well be so, we pass the question in order to deal with the merits of the State's position to its full extent. This we understand to be that if a defendant, like Deatore, testifies exculpatorily at trial and had not told that story, but remained silent, at or near the time of his arrest, his silence and failure to volunteer then, whether or not he was questioned, may properly be brought to the attention of the jury on cross-examination in order to permit the inference that the exculpatory testimony is therefore untrue. We emphasize that this position goes beyond a situation where a defendant did make a statement at or near arrest, which is inconsistent with his trial testimony, or where conduct (as distinct from silence) at the time of the crime or thereafter is inconsistent with the story told at trial.

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We are convinced that the State's position should not be adopted and that such cross-examination of a defendant is improper.

The Appellate Division reached that result on a federal constitutional basis, saying that questioning of this kind could not help but penalize a defendant for exercising his Fifth Amendment privilege against self-incrimination (by remaining silent), on the authority of Miranda v. Arizona, supra, 384 U.S. at 468, n. 37, 86 S. Ct. at 1624-25, 16 L. Ed. 2d at 720, and was as unfairly prejudicial as would be comment by the prosecutor on the failure of a defendant to testify in his own defense, forbidden by Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).

Cases in other jurisdictions, both federal and state, have reached differing conclusions on this question as approached from a federal constitutional base (and otherwise); and because the decision in United States v. Hale, supra, rested on a different and non-constitutional ground,*fn5 there has been as yet no definitive decision of the United States Supreme Court, on the constitutional issue. A catalog of all the various cases would serve no useful purpose. We mention a few cases in the federal system as illustrative of the different results reached.

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United States v. Anderson, 162 U.S. App. D.C. 305, 498 F.2d 1038 (1974), aff'd on other grounds sub nom. United States v. Hale, supra, in which many of the federal cases are collected and discussed, held that such questioning of a defendant at trial was improper by reason of the prohibition laid down in footnote 37 in Miranda v. Arizona, supra:

In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. [498 F.2d at 1041 (quoting from Miranda, supra, 384 U.S. at 468, 86 S. Ct. at 1624-25, 16 L. Ed. 2d at 720) (emphasis by the court in Anderson)]

(Under this view, it is certainly an a fortiori situation when a defendant, like Deatore, was not subject to police interrogation, but his exculpatory trial testimony is sought to be impeached by his failure to volunteer that story when arrested.) Chief Judge Bazelon went on to hold that this interdiction in Miranda had not been undercut by Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), which held proper the use of prior inconsistent utterances to impeach a defendant's trial testimony even though the utterances were made before the defendant was adequately apprised of his rights and therefore would have been inadmissible on the prosecution's chief case by reason of that Miranda violation. See also Oregon v. Hass, 420 U.S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975). He found nothing inconsistent with remaining silent at interrogation and offering exculpatory testimony at trial. 498 F.2d at 1042-44.

The Court in Hale discussed and distinguished its decision in Raffel v. United States, 271 U.S. 494, 46 S. Ct. 566, 70 L. Ed. 1054 (1926),*fn6 considering the Hale factual

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pattern more closely parallel to that of Grunewald v. United States, 353 U.S. 391, 77 S. Ct. 963, 1 L. Ed. 2d 931 (1957).*fn7

In United States v. Harp, 513 F.2d 786 (5th Cir. 1975) defendants had contended at their trial for attempted escape that one Chapman had kidnapped them and forced them to enter a railroad car in an attempt to escape from the penitentiary. The prosecutor in his closing argument commented on the inconsistency between this "kidnapping" story and the failure of any defendant to even mention this bizarre fact to any official prior to trial. The court rejected the contention that the comment infringed on their Fifth Amendment right to remain silent, stating:

The court further cautioned in Harp that "[b]ecause this prosecutorial tactic makes collateral use of a constitutionally protected right, it is subject to strict scrutiny." It premises admissibility of such evidence upon the following conditions:

Not only have the federal Circuit Courts differed among themselves in their approach to this problem, but on occasion all members of the same court have exhibited such differences. See, e.g., Agnellino v. New Jersey, 493 F.2d 714 (3d Cir. 1974).

United States v. Ramirez, 441 F.2d 950 (5th Cir.), cert. den., 404 U.S. 869, 92 S. Ct. 91, 30 L. Ed. 2d 113 (1971) is frequently cited as the leader of the line of federal cases validating the testimony on the basis that silence at the time of arrest is an act inconsistent with the testimony given at trial. The court found an "inescapable" analogy to Harris and said that once the defendant elected to testify and assert a defense, "he became subject to the 'traditional truth-testing devices of the adversary process', including the right of the prosecution to show his prior inconsistent act of remaining silent at the time of his arrest." 441 F.2d at 954.

The disarray in decisional treatment of this question, whether on a basis of constitutional right or not, is not confined to the federal jurisdiction. See, e.g., State v. Bates, 140 Conn. 326, 99 A.2d 133 (Sup. Ct. Err. 1953) (silence inadmissible); People v. Simmons, 28 Cal. 2d 699, 172 P. 2d 18 (Sup. Ct. 1946) (silence admissible). In this context, since the ultimate fate of this type of cross-examination of a defendant remains so unsettled and since it has recently been arising quite frequently in criminal trials in our state courts, we feel it should be settled now as far as the courts of this state are concerned. As has been indicated, we are of the view that such questioning is improper. We reach that conclusion as a matter of state law and policy, as to which we may impose standards more strict than required by the federal Constitution, which standards will control regardless of the final outcome of the question in the federal sphere. Oregon v. Hass, supra; Cooper v. California, 386 U.S. 58, 62, 87 S. Ct. 788, 791, 17 L. Ed. 2d 730, 734 (1967); State

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v. Johnson, 68 N.J. 349, 353 (1975); Avant v. Clifford, 67 N.J. 496, 520-21 (1975); Rodriguez v. Rosenblatt, 58 N.J. 281, 294-95 (1971).

The reasons for the stated conclusion rest in two categories. The first derives from the privilege against self-incrimination which is enshrined in the common law;*fn8 the second from basic principles of evidence law. To the extent that the stated conclusion rests on the privilege against self-incrimination, this opinion speaks for a majority of the Court. To the extent that it rests upon principles of evidence law, it represents the views only of the writer and Justice Mountain.

The right not to be compelled to incriminate one's self arises in New Jersey, not from the state Constitution (as it does in most other states) but as part of the common law, confirmed by statute enacted in 1855 (L. 1855, c. 236, § 4, p. 668) which later became N.J.S.A. 2A:81-5: "No witness shall be compelled to answer any question if the answer will expose him to a criminal prosecution or penalty or to a forfeiture of his estate." In re Pillo, 11 N.J. 8, 15-17 (1952); State v. Fary, 19 N.J. 431, 434-35 (1955). The modern statement of the privilege, not essentially different, as far as the present case is concerned, from the original

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statutory enactment, is found in Rules of Evidence 24 and 25, N.J.S.A. 2A:84A-18 and 19. The reason for the privilege was expressed by Mr. Justice Brennan, when a member of this Court, in In re Pillo, supra:

There can be no doubt that the right of an accused or a suspect to remain silent when in police custody or under interrogation has always been a fundamental aspect of the privilege in this state. In State v. Ripa, 45 N.J. 199 (1965), the Court stated: "Needless to say, a suspect is under no duty to give a statement; on the contrary he is privileged to say nothing." Id. at 204. This right, of course, underlies the decision in Escobedo v. Illinois, 378 U.S. 478, 485, 84 S. Ct. 1758, 1762, 12 L. Ed. 2d 977, 983 (1964), and is the basis of the Fifth Amendment privilege implemented in Miranda, supra, 384 U.S. at 467-68, 86 S. Ct. at 1624, 16 L. Ed. 2d at 720. It is implicit in the first paragraph of our Evid. R. 25 covering the privilege. Its significance is further demonstrated by our criminal court rules, requiring that a defendant, on his first appearance before a court, whether an upper tribunal or a municipal court, following the filing of a complaint, must be informed by the judge "of his right not to make a statement as to the charge against him * * *." R. 3:4-2, 7:2 and 7:3-1. McCormick, Evidence § 130, at 272 (2d ed. 1972), summarizes it in this fashion: "The privilege confers a significantly different right upon one who is the accused in a criminal proceeding as compared to one who is simply a witness in a criminal or other proceeding. Basically, the right of an accused is the right not only to avoid giving

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incriminating responses to inquiries put to him but also to be free from the inquiries themselves."*fn9

The practical effect of the privilege to remain silent is, as we held a decade ago, "that when a defendant expressly refused to answer, no inference can be drawn against him under the doctrine of acquiescence by silence or any other concept," State v. Ripa, supra, 45 N.J. at 204, and no comment thereon may be made to the jury, State v. Lanzo, 44 N.J. 560, 563 (1965), following Griffin v. California, supra. This being so, it should certainly follow that a defendant is under no obligation to volunteer to the authorities at the first opportunity the exculpatory story he later tells at his trial and cannot be penalized directly or indirectly if he does not. While the situation in Ripa was that of the State offering evidence of a refusal to answer as substantive proof of guilty on its own case, we think the result should be no different when it is presented by way of attempted impeachment of a defendant's exculpatory testimony through cross-examination,

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and we so hold as a matter of state law. The privilege of silence is substantially eroded and reliance upon it unjustifiably penalized in either situation. We may add that we do not interpret Harris v. New York, supra, to indicate a different result in the situation before us, but, even if it should, we choose to impose a stricter standard as a matter of state law.

That conclusion is buttressed by appropriate application of fundamental principles of the law of evidence. (It will be recalled that in this regard, as noted above, the writer is speaking only for himself and for Justice Mountain.) While "all relevant evidence is admissible" in the courts of this state, except as otherwise provided in the Rules or by other law of the state (Evid. R. 7), and "'[r]elevant evidence' means evidence having any tendency in reason to prove any material fact" (Evid. R. 1(2)), the test of relevancy still ought be the probative value of the proffered evidence with respect to the points in issue, or put another way, whether such evidence renders the desired inference more probable than it would be without the evidence. Although even this test is broad and favors admissibility, relevant evidence may still be, and should be, excluded when "its probative value is substantially outweighed by the risk that its admission will * * * (b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury." Evid. R. 4 (N.J.S.A. 2A:84A-16).

And such was the basic thrust of the Supreme Court's reasoning in Hale, supra. The ambiguity of custodial silence dilutes its probative force and contraindicates that concept of threshold and total inconsistency (with later exculpatory statements at trial) which is the very base of its evidential worth. 3A Wigmore, Evidence § 1040 (Chadbourn rev. 1970); United States v. Harp, supra. Add to this the involved factors of confusion and potential prejudice and one can see quite clearly why exclusion is the desirable and fairer rule.

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For silence by a criminal suspect in custody or under interrogation in the face of an accusation or in the form of refusal to answer queries is certainly equivocal. State v. Ripa, supra, 45 N.J. at 203. It is even more so when it amounts to failure to volunteer an exculpatory story. There are many reasons why a person in such a situation may choose to say nothing. A likely explanation is conscious reliance on his right to remain silent. Another is a general feeling that it is better not to say anything at all when surrounded by police or officials in a fearful atmosphere. Still another, in the case of an alibi, might be the simple lack of immediate recollection of the defendant as to his whereabouts at the time of the occurrence. So it would seem that evidence of such silence is not truly probative or soundly "relevant," but even if it should be thought so, it has great capacity for prejudice and misleading of the jury and ought to be excluded on that ground.*fn10

The State urges, however, that we have already taken a position in favor of the propriety of this type of impeaching cross-examination by virtue of the decision in State v. Burt, 59 N.J. 156 (1971), cert. den., 404 U.S. 1047, 92 S. Ct. 728, 30 L. Ed. 2d 735 (1972), which affirmed the Appellate Division for the reasons expressed in the latter's opinion reported in 107 N.J. Super. 390 (1969). The underlying circumstances were markedly different from those in the instant

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case and the opinion has to be read in the light thereof. We are satisfied that the result in Burt was correct.

The charge in that case was murder -- the shooting of a friend. The defense at trial was that the shooting was accidental.*fn11 The proofs up to the point of the cross-examination in question established that defendant had not sought medical or other assistance for his injured friend after the incident, had left the locale without knowing whether he was dead or alive and had not reported the occurrence to the police when he was arrested for another offense a few hours later (the police at that time did not know of the shooting), nor indeed to anyone. The purpose of the cross-examination was, in essence, to bring all this out and thus convince the jury that the trial testimony of accidental shooting could not be true. (See the full course of questioning set forth in the separate opinion, 59 N.J. at 161-62). It was in fact not a true case of silence in police custody as to an exculpatory story, but rather one of conduct, albeit non-action, after the charged crime inconsistent with defendant's story at trial. As such, questioning of a defendant thereon runs into none of the difficulties of the self-incrimination privilege or of the law of evidence and is entirely proper.*fn12 It is akin to equally appropriate

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cross-examination or rebuttal testimony with respect to prior statements inconsistent with the exculpatory story told at trial. See, e.g., State v. Kimbrough, 109 N.J. Super. 57, 65-68 (App. Div. 1970).

The rule we settle here today is not to be given retroactive application except as to cases where direct review is pending or remains available as of this date. In this regard we follow the course adopted by the United States Supreme Court in Tehan v. Shott, 382 U.S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453 (1966), concerning a like problem after the decision in Griffin v. California, supra, which had held invalid comment on the exercise of the privilege against self-incrimination.

The judgments of the Appellate Division are affirmed.

SULLIVAN, J. (concurring in result). I think the majority opinion is too restrictive of the State's right to probe a defendant's credibility as a witness. A defendant has a right to remain silent when arrested or at trial, and no adverse inference can be drawn therefrom. This right is guaranteed not only by the Fifth Amendment but also, as the majority notes, "is enshrined in the common law." A defendant's mere silence can never be substantive evidence of guilt admissible as part of the State's main case.

However, where a defendant elects to waive his right to remain silent, and testifies at trial in his own defense, he thereby puts in issue his credibility as a witness. To that end he may be tested as to the veracity of his testimony and whether or not the story he tells is fabricated or conceived after the event. Depending on the facts of the particular case, prior silence can be a relevant consideration in weighing the credibility of an exculpatory story revealed for the first time at trial.

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The person who can demonstrate that he was not involved in a criminal episode will ordinarily protest his innocence at the first opportunity. Should he choose to remain silent when arrested and then at trial present a completely exculpatory version of events, the State ought to have the right to ask him why he did not tell the police what he now says from the witness stand. If his answer is that he was relying on his right to say nothing, or that the atmosphere was hostile and he was frightened and confused, or wanted to talk to an attorney first, whatever he says, the jury can consider this in weighing the credibility of his courtroom testimony. It is not unheard of for a defendant in a criminal case to listen to all of the incriminating details proved by the State and then tailor an exculpatory story which fits neatly into what the State has proved. Silence at the time of arrest can never be substantive evidence of guilt but it can be relevant to the credibility of defendant's later version of innocence. In such circumstances, cross-examination as to the prior silence is proper and I believe within the rationale of Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), as well as being permitted by our Evidence Rule 25(d) (N.J.S.A. 2A:84A-19).

In the instant case it does not appear that defendant Deatore was questioned at all when he was arrested. For that reason his silence at that time could be said to have little or no probative weight in considering the veracity of his testimony as to alibi given at trial. United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975). But these facts were presented to the jury and presumably considered by it in considering defendant's credibility as a witness. Even if the cross-examination be considered technically improper because of the foregoing, since the proof of guilt of both defendants was overwhelming, I would find any error to be harmless under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). However, I agree we must reverse both convictions because of the juror incident referred to in the majority opinion.

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CLIFFORD, J., and CONFORD, P.J.A.D., Temporarily Assigned, concurring.

We concur in the results reached in the opinion of the Chief Justice. The present opinion is prompted only by the partial resting in that opinion of the disapproval of comment or cross-examination by the State as to a testifying defendant's silence upon arrest, upon its asserted probative insufficiency. We thoroughly agree with and join in the opinion to the extent that it forbids comment or cross-examination of the kind mentioned on the ground of the erosion or depreciation of the privilege against self-incrimination. That ground of the ruling is strong enough to sustain it. Adding the justification of insufficiency of probative weight is unwarranted on the intrinsic merits of the proposition and may have the untoward effect of weakening by analogy the vital role of the trial judge in ruling on

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matters of evidential weight and relevance in other contexts, civil and criminal.

Rules of evidence in relation to probative weight or relevance are normally wisely left to administration of the trial judge. "'Relevant evidence' means evidence having any tendency in reason to prove any material fact." Evid. R. 1(2) (emphasis added). Our rules provide for the safety-valve of discretionary exclusion by the trial judge of evidence whose probative value is substantially outweighed by the risk of undue consumption of time, undue prejudice or confusion of the jury. Evid. R. 4.

Concededly there may well be attendant circumstances reducing to a level of minimal probative weight the silence of an accused in the face of police assertions of criminal conduct. This might be said to be the case, for example, when such silence follows administration of Miranda warnings to the defendant. See State v. Griffin, 120 N.J. Super. 13, 15 (App. Div. 1972), certif. den., 62 N.J. 73 (1973). So, too, where the defendant's prior silence is in the context of an express assertion of his privilege before an investigating grand jury. Grunewold v. United States, 353 U.S. 391, 77 S. Ct. 963, 1 L. Ed. 2d 931 (1957). But none of the foregoing is to gainsay the fundamentally established principle of admissibility of proof that an accusatory statement was made in the presence and hearing of an accused and that his response or absence thereof was such as to justify the inference that he agreed with or "adopted" the accusation. McCormick on Evidence (2d ed 1972) p. 353. As there stated (ibid.):

"Underlying the rule is the assumption that human nature prompts an innocent man to deny false accusations and consequently a failure to deny a particular accusation tends to prove belief in the truth of the accusation."

See also Adamson v. California, 332 U.S. 46, 60, 67 S. Ct. 1672, 91 L. Ed. 2d 1903 (1947) (Frankfurter, J., concurring).

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True it is that, in view of Fifth Amendment and Miranda implications, the evidence principle stated has been hedged about with qualifications in the criminal context, McCormick, op. cit., 353-356, particularly by the confinement of the use of such silence upon arrest to impeachment of the credibility of the defendant as a witness. See the opinion of Justice (then Judge) Sullivan in State v. Burt, 107 N.J. Super. 390, 393, aff'd o.b. 59 N.J. 156 (1971), cert. den. 404 U.S. 1047, 92 S. Ct. 728, 30 L. Ed. 2d 735 (1972).

But insofar as probative weight, as such, is concerned, and until the spate of recent litigation on the point following the decision in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), silence as well as inconsistent statements by an accused upon arrest have long been regarded as admissible on the issue of the accused's credibility in testifying to exculpatory facts. This is so whether the matter is considered from the standpoint of trustworthiness, inconsistency, reliability or probative value of such silence. See the cogent expression to this effect in the opinion of Judge Hunter in Agnellino v. State of New Jersey, 493 F.2d 714, 722 (3d Cir. 1974).

The high value we attach to the preservation of the privilege against self-incrimination in this State by exclusion of evidence of the type here under discussion to attack a testifying defendant's credibility would be accentuated by our frank recognition that in so doing we are sacrificing to some extent a legitimate and useful fact-finding tool in the criminal trial process.

We are of course aware that a majority of the United States Supreme Court chose to arrive at the same result this court does in the present case, in United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975), by the approach of deprecating the evidential value of silence in the indicated circumstances rather than on the constitutional or policy grounds of vindicating the privilege. We can only say, with deference, that the opinion of the court does not make out a

[70 NJ Page 130]

credible case in that regard as against the tests of common human experience and logic reflected by the evidence rule expressed by the McCormick text quoted from above.

[70 NJ Page 121]


PASHMAN, J. (concurring in result and dissenting).

In this case, we decide inter alia a basic and important principle of law to which I fully adhere: that at trial the prosecution may not comment upon or pose questions to a defendant concerning his silence or his failure to disclose exculpatory information to the police at or about the time of his arrest. Such questioning will not be permitted even where the State seeks to establish defendant's reticence for the sole purpose of undermining his credibility after he has testified at trial to an exculpatory story.

The majority of this Court predicates this holding upon the fundamental privilege against self-incrimination. Ante at 113. The Chief Justice, speaking for himself and Justice Mountain, also grounds this decision upon basic principles of evidence law. Ante at 116. To the extent that the several opinions of this Court reach the result noted above, I am in accord with them.*fn1 I differ from these opinions, however, in the following important respects. [70 NJ Page 122] First, I cannot agree with the majority holding that the prejudice accruing from the impermissible questioning of Deatore does not "rub off" on Mallon. Ante at 106-107. It is well known that juries often experience difficulty in distinguishing between impeachment testimony and testimony which goes to substantive issues in the case. For example, jurors frequently confuse the impeachment of a testifying defendant with direct evidence of the defendant's guilt, rather than viewing it as evidence which discredits his alibi without any independent bearing on his guilt. In such circumstances, cautionary instructions are usually considered inadequate to clarify this distinction and cure the erroneous association. State v. Boone, 66 N.J. 38, 48 (1974); State v. Miller, 67 N.J. 229, 240 (1975) (Pashman, J., dissenting) and cases cited therein. Because Deatore and Mallon are accomplices, evidence which tends to establish Deatore's guilt will certainly incriminate Mallon. In this regard, the prejudicial effect which the impermissible cross-examination has on the defendant-witness will have an identical effect on the non-testifying defendant. If both defendants are found guilty, it would be manifestly unjust to allow the improperly impeached defendant (Deatore) to have a new trial, while affording no relief whatsoever to his equally prejudiced codefendant (Mallon). For these reasons, I would hold that where codefendants are tried together and are accomplices or where their guilt is otherwise inextricably related, the prejudice arising from illegal questioning as to the silence of one defendant will in most instances "rub off" on the other defendant.

[70 NJ Page 123]

Since the majority has on other grounds ordered a new trial for both Deatore and Mallon, ante at 104-106, I find it unnecessary to dissent with respect to the Court's disposition of this case.

Second, I wish to emphatically dissociate myself from those portions of the majority opinion which impliedly support the view adopted by the United States Supreme Court in Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971) that statements taken from a defendant in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) are admissible for the limited purpose of impeachment where the defendant chooses to testify at trial. As I discussed at length in my dissenting opinion in State v. Miller, supra, I firmly believe that Harris v. New York, supra, was wrongly decided on both technical and policy grounds and for these reasons should not have been adopted as a matter of State law. State v. Miller, supra, 67 N.J. at 237, 242 (Pashman, J., dissenting). I continue to adhere to this view.*fn2 [70 NJ Page 124] In his opinion, the Chief Justice, speaking for a majority of this Court, observes that some courts have found an "inescapable" analogy between Harris and cases similar to the instant case. Citing Harris for the proposition that when a defendant elects to testify at trial he becomes subject to all of the traditional truth-testing devices of the adversary

[70 NJ Page 125]

process,*fn3 such courts have allowed prosecutors to question a defendant as to his failure to disclose exculpatory information by remaining silent at the time of his arrest. See e.g., United States v. Ramirez, 441 F.2d 950 (5 Cir. 1971), cert. den., 404 U.S. 869, 92 S. Ct. 91, 30 L. Ed. 2d 113 (1971).

I note with approval that in rejecting this view, the Court has adopted portions of the dissent in State v. Miller, supra, and has expressly stated:

We may add that we do not interpret Harris v. New York, supra, to indicate a different result in the situation before us, but even if it should, we choose to impose a higher standard as a matter of state law. [ Ante at 116].

I have no quarrel with this statement. I strongly urged this court in State v. Miller, supra, 67 N.J. at 242 (Pashman, J., dissenting) "to adopt as a matter of State law more rigorous rules for the protection of the individual, . . . ."

However, as a result of my position in State v. Miller, supra, I must dissociate myself from that portion of the majority opinion which seeks to distinguish the situation in State v. Miller, supra, and its companion case, State v. Davis, 67 N.J. 222 (1975), from that of the instant case.

We emphasize that this position goes beyond a situation where a defendant did make a statement at or near arrest, which is inconsistent with his trial testimony, . . . . [ Ante at 108].

Apparently, the majority chooses to fully protect those defendants who remain silent at or near the time of their arrest, but fails to provide comparable protection to those defendants

[70 NJ Page 126]

in similar circumstances who make statements to the police without full knowledge of their constitutional rights and under the coercive pressures of police interrogation which were fully considered in Miranda. I find this distinction to be illogical and unpersuasive.

For similar reasons, I wish to dissociate myself from the majority's reference to State v. Kimbrough, 109 N.J. Super. 57 (App. Div. 1970) and its analogizing that case to State v. Burt, 59 N.J. 156 (1971), cert. den. 404 U.S. 1047, 92 S. Ct. 728, 30 L. Ed. 2d 735 (1972). See ante at 118-119. I distinguish these two cases on the grounds that the latter involved conduct rather than pure speech, while the former concerned statements issued by defendants without the requisite showing that Miranda warnings had been given. Consequently, the former is more analogous to State v. Miller, supra, from which I dissented, than to State v. Burt, supra.

Finally, while I agree with the Chief Justice that the principle of law which we decide today derives from the law of evidence as well as from the privilege against self-incrimination, I nonetheless disagree with the implication that, were the fact of a defendant's silence at the time of his arrest found to be "relevant" to the issue of his veracity (as, for instance, if it were found to be "totally inconsistent" with the defendant's trial testimony,) then this evidence might be admissible. Compare United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99, 104 (1975) with Raffel v. United States, 271 U.S. 494, 46 S. Ct. 566, 70 L. Ed. 1054 (1926). As already noted, I believe that any questioning which infringes upon a defendant's fundamental privilege against self-incrimination is improper, whether it is directed toward substantive issues in the case or is limited to the issue of defendant's credibility. This is equally true whether the interrogation concerns a defendant's silence or concerns inculpatory statements obtained from him in violation of Miranda.

Nevertheless, principles of evidence law do buttress our conclusion. It is a fundamental rule of evidence that even

[70 NJ Page 127]

if certain evidence is clearly relevant, it may still be excluded where its probative value is outweighed by the risk of undue prejudice. See Evid. R. 4 (N.J.S.A. 2A:84A-16). Although, as Justice Clifford and Judge Conford correctly observe, the task of weighing the probative value of proffered evidence against the risk of prejudice is " normally. . . left to administration of the trial judge" (ante at 128, emphasis supplied), where such fundamental rights as the privilege against self-incrimination are involved, this Court may and should determine, as a matter of law, that the tainted evidence is inadmissible. I would, therefore, conclude that the relevance of a defendant's silence at or near the time of his arrest, which is at best only equivocal and ambiguous (see United States v. Hale, supra, 422 U.S. at 176-178, 95 S. Ct. at 2136-2138, 45 L. Ed. 2d at 104-106), is always outweighed by the potential for prejudice where the privilege against self-incrimination is implicated. In this sense, I find that the principles of evidence law and the right to be free from self-incrimination are inextricably related and are equally relevant to the decision in this case.

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