On Appeal from the Superior Court, Law Division, Camden County.
Long, R.s. Cohen and Stern. The opinion of the court was delivered by R.s. Cohen, J.A.D.
We hold that a court may not punish as contempt the refusal of criminal defense counsel at a pretrial conference to reveal the decision of defendant whether or not he will testify at trial. Maness v. Meyers, 419 U.S. 449, 95 S. Ct. 584, 42 L. Ed. 2d 574 (1975); State v. Savage, 120 N.J. 594, 577 A.2d 455 (1990); Matter of Nackson, 114 N.J. 527, 555 A.2d 1101 (1989).
The problem arose during the May 22, 1990, pretrial conference in the case of State v. William Darby. The following exchange between court and counsel was not the first on the subject of defendant's testifying, but it was the first on the record:
THE COURT: * * * Ms. Mandel, have you discussed with your client whether or not he will testify in this case and I want one of three answers from you: One, he is not going to testify; two, he is going to testify, or three, no decision has been made as to whether or not he will testify.
MS. MANDEL: Your Honor, in answer to your question, I feel that the Rules of Evidence --
THE COURT: Ms. Mandel, you will answer the question or you will be held in contempt of Court. You will respond to one of those three responses. Now, --
MS. MANDEL: Your Honor, the court is not allowing me to respond. I am attempting to respond.
THE COURT: You have three choices, Ms. Mandel. One more word without responding, I'm going to fine you $100 for being in contempt of Court and I will fine you until you do respond.
MS. MANDEL: Your Honor, I believe that the Rules --
THE COURT: You believe wrong.
MS. MANDEL: As my Constitution of the ...