On certification to the Superior Court, Appellate Division.
The opinion of the Court was delivered by Handler, J. Justices Pollock, O'hern, Garibaldi and Coleman join in Justice HANDLER's opinion. Justice Stein filed a separate Concurring opinion. Chief Justice Wilentz did not participate. Stein, J., Concurring.
The opinion of the court was delivered by: Handler
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
State of New Jersey v. Kristina Burris, a/k/a Kristina Carolyn Burris (A-36-95)
Argued November 6, 1995 -- Decided July 24, 1996
HANDLER, J., writing for the Court.
Kristina Burris became a prime suspect in the murder of her mother. The police asked her to come police headquarters for questioning, where she was given Miranda warnings under the Fifth Amendment and the parallel State protections of the privilege against self-incrimination. The police questioned Burris, who gave three separate statements to the police. In her first statement, Burris denied any involvement in her mother's death. Burris then asked for a lawyer and refused to answer any further questions. The police, however, continued questioning Burris and elicited a second and third statement, both implicating Burris in the murder.
The second and third statements given by Burris during custodial interrogation were acquired in violation of her right to counsel invoked under the Fifth Amendment and New Jersey's privilege against self-incrimination. Although those statements were not admitted in evidence for purposes of proving Burris's guilt, the trial court determined that the statements could be used on cross-examination to impeach Burris's credibility. The court instructed the jury that the statements could only be used for the purposes of evaluating Burris's credibility, and not as substantive evidence.
The jury convicted Burris of murder, possession of a firearm for an unlawful purpose, unlawful possession of a handgun, and unlawful use of a credit card. Burris was sentenced to an aggregate term of thirty years without parole. On appeal, the Appellate Division reversed the convictions of murder and possession of a firearm, concluding that the State's use of the second and third statements were impermissible. The Supreme Court granted the State's petition for certification.
The State may use a statement obtained in violation of a defendant's right to counsel under the Fifth Amendment and the State privilege against self-incrimination for impeachment purposes so long as the statements were voluntarily made and are trustworthy.
1. Miranda provides prophylactic measures that are necessary to safeguard the essential constitutional rights against self-incrimination; these rights are ancillary to the fundamental Fifth Amendment right. A voluntary, incriminating statement elicited without the Miranda warnings violates a defendant's ancillary rights, but does not rise to the level of a constitutional violation. However, a statement of a suspect who invokes the right to counsel under Miranda may not thereafter be subjected to further interrogation outside the presence of counsel without violating the constitutional privilege itself, unless the suspect personally and specifically initiates the conversation. New Jersey law governing the privilege against self-incrimination parallels federal constitutional law. (pp. 6-9)
2. Under federal and State exclusionary rules, the State cannot use incriminating evidence obtained in violation of a defendant's constitutional rights. Under federal law, the impeachment exception to the exclusionary rule applies not to just violations of Miranda's prophylactic rules, but also to constitutional violations. New Jersey has also adopted and employed the impeachment exception and has recognized and accepted the Supreme Court's use of the impeachment exception in cases involving constitutional violations as well as Miranda violations of the privilege against self-incrimination. (pp. 10-16)
3. The impeachment exception is strictly limited to situations in which the suppressed statement is trustworthy and reliable in that it is given freely and voluntarily without compelling influences. The determination of whether a statement is voluntary requires a factual inquiry into whether the defendant's will was overborne. If so, the confession is not voluntary because it is not the product of a rational intellect and a free will in violation of the Due Process Clause of the Fourteenth Amendment. The presumption of involuntariness assigned to any statement obtained in violation of a defendant's constitutional privilege against self-incrimination does not extend to a statement that was freely and voluntarily given. (pp. 16-22)
4. Under the impeachment exception, a statement given freely and voluntarily without any compelling influences, after a violation of a suspect's Fifth Amendment rights and of his State privilege against self-incrimination, is admissible for impeachment purposes. Concerns about increased police misconduct that might follow from an impeachment exception to the exclusionary rule is highly generalized and speculative. Moreover, the impeachment exception does not infringe on a defendant's right to testify; that right comes with the reciprocal obligation to tell the truth. Furthermore, a defendant is not deprived of the opportunity to explain inconsistencies in the prior statement. In addition, the exception will not improperly interfere with the attorney-client relationship or impair an attorney's ability to develop a defense. Under New Jersey's strict ethic standards, the attorney should not devise a strategy based on false testimony. (pp. 22-25)
5. The valid concern that jurors will not use the incriminating evidence only for impeachment purposes does not override the values that are preserved through the impeachment exception. It is presumed that juries will understand and abide by the court's instructions as to the correct use of the evidence. In any event, the trial court retains the authority to deny the admission of the incriminating evidence if its probative value is substantially outweighed by the resultant prejudice. The exception also comports with the goals and purposes behind New Jersey's Rules of Evidence. (pp. 25-28)
6. The rule adopted today (permitting the impeachment of a testifying defendant through the use of a prior suppressed confession) is subject to several limitations. The previously suppressed statement must, as a fundamental prerequisite, be trustworthy. Trustworthiness entails an examination of the voluntariness of the statement. Voluntariness, in turn, depends on whether the suspect's will was overborne and whether the confession was the product of a rational intellect and a free will. The State bears the burden of proving voluntariness beyond a reasonable doubt, in light of all surrounding circumstances. Even if a statement is voluntary, it may be excluded for impeachment purposes because it is prejudicial, cumulative or misleading. Trial courts may also limit the scope of the testimony. If the statement is admissible for purposes of impeachment only, the defendant should be informed prior to taking the stand whether the State will seek to admit the suppressed statement for impeachment purposes. A hearing may be required to establish the voluntariness of the confession for admission under the impeachment exception. Furthermore, the jury must be instructed that the prior statement is admitted for the limited purpose of impeaching the defendant's credibility and that it cannot be used as evidence of defendant's guilt. (pp. 28-31)
7. The record demonstrates that Burris's will was not overborne. Under the standards for determining whether a statement was voluntary as being the product of abuse, compulsion, or duress, Burris's statements were in fact voluntary. Moreover, Burris was fully and repeatedly informed of her Miranda rights. As such, her statements were voluntary and trustworthy and could properly be used for impeachment purposes. (pp. 32-35)
Judgment of the Appellate Division is REVERSED and the action is REMANDED to the Appellate Division for reconsideration of Burris's other contentions.
JUSTICE STEIN, Concurring, writes separately to express his disagreement with the Court's Conclusion that Burris's second and third statements were voluntary and, therefore, properly used for impeachment purposes. In Justice Stein's view, Burris's second and third statements were not sufficiently voluntary to permit their use at trial for any purpose. However, because the use of Burris's statements for impeachment purposes constituted harmless error in view of the substantial evidence of her guilt, Justice Stein joins in the judgment of the Court reversing the judgment below.
JUSTICES POLLOCK, O'HERN, GARIBALDI and COLEMAN join in JUSTICE HANDLER's opinion. JUSTICE STEIN filed a separate Concurring opinion. CHIEF JUSTICE WILENTZ did not participate.
The opinion of the Court was delivered by
This appeal involves the impeachment of a criminal defendant by using the defendant's incriminating statement taken in violation of her constitutional right to counsel under the Fifth Amendment and the State privilege against self-incrimination.
Defendant became a prime suspect in the murder of her mother. The police asked her to come to police headquarters for questioning, where she was given Miranda warnings under the Fifth Amendment and the parallel state protections of the privilege against self-incrimination. The police then interrogated her. Defendant gave three statements to the police. In her first statement, she denied any involvement in her mother's death. Defendant then asked for a lawyer and refused to answer any further questions. The police, however, continued questioning defendant and elicited a second and third statement, both implicating defendant in the homicide.
The second and third statements given by defendant during custodial interrogation were acquired in violation of defendant's asserted right to counsel under the Fifth Amendment and New Jersey's privilege against self-incrimination. Although those statements were not admitted in evidence for purposes of proving defendant's guilt, the trial court determined that the statements could be used on cross-examination to impeach defendant's credibility.
This case raises the issue of whether the State may use a statement obtained in violation of a defendant's right to counsel under the Fifth Amendment and the State privilege against self-incrimination for impeachment purposes.
On April 19, 1990, the defendant, Kristina Burris, broke into the home of her mother, Carol Burris, and shot her; Carol Burris was killed instantly. Defendant then took her mother's car and credit cards. She called up a friend and went on a shopping spree. Later that evening, Burris paid for an evening at a motel with her boyfriend, Chris Leadbeater. Burris drove the victim's car around town for several days. Not having heard from her daughter, the victim's mother, defendant's grandmother, contacted the police. On April 23, 1990, the police entered the home of the victim and found her prone body with a plastic bag over her head. Neighbors reported seeing defendant driving the victim's car the same day the police found the victim's car and defendant at Leadbeater's home.
The officers asked defendant and Leadbeater to come to police headquarters for questioning. Defendant gave three statements to the police. In the first statement, taken after defendant was read her Miranda rights, defendant insisted that the car she had been driving belonged to a friend, despite the officers showing defendant evidence to the contrary. Burris claimed that she had her mother's credit cards for "a while," and that she had not seen her mother since January 1990. Defendant then asked for a lawyer, and refused to answer any further questions. Nevertheless, in response to continued interrogation, defendant gave two more statements.
Defendant gave her second statement after the police confronted her with evidence of factual inaccuracies in her first statement. In her second statement, defendant denied breaking a window at her mother's house, but admitted to knocking on the door, and entering when her mother answered. She claimed an argument ensued, and then her mother fell on the floor. The defendant recalled "yelling and getting real hot, just mad." Her mother said, "Tina," and then fell over near a grandfather clock. Defendant stated that she dragged the victim's body to a bedroom. She also admitted taking her mother's credit cards, but denied using them. She later admitted going shopping and paying for a hotel room at the Inn of the Dove with her mother's American Express card. The second statement terminated at 1:22 a.m.
Three hours later, after police told defendant that her mother had died of gunshot wounds, defendant made her third and final statement to the police. Defendant stated her mother died five days earlier, on April 19th. Burris claimed that a friend, Jay Rodriguez, picked her up from her father's house on Thursday afternoon in Delaware. While waiting for defendant to get ready, Rodriquez stole her father's handgun. She then told the police officers that when she and Rodriquez arrived at her mother's house, she entered through the front door, but Rodriguez broke in through the back window and shot her mother. Defendant stated that Rodriguez then gave her the gun and told her to return it to her father's house. Burris told police that she returned the gun on April 23rd. The third statement ended at 4:48 a.m.
The second and third statements were taken in violation of defendant's Miranda rights. They were, for that reason, not admitted at trial as direct evidence on the State's case-in-chief. Those statements were, however, used to impeach defendant's credibility on cross-examination.
At trial, defendant testified to another version of the story. She asserted that on April 19, 1990, Rodriguez picked her up in Delaware at her father's house and drove her to her mother's house. She testified that Rodriguez had stolen a gun from her father's home while he was there waiting for her. She stated that she took the gun away from Rodriguez and put it in her jeans. Defendant also contended that although she was delighted to see her mother, an argument ensued. Burris said that in order to change the subject of the argument, she pulled out the gun to show her mother. Defendant then testified that "somehow it went off and it hit my mom and she fell on the ground. I didn't know what happened . . . [as I tried] to figure out how it went off . . . it went off again and hit the wall and I dropped [the gun]." Defendant did not recall telephoning the Inn of the Dove, and denied kicking in the window at her mother's house. Nor did she remember moving her mother's body or putting bags over the body. Defendant had little recall of the weekend, but remembered being at the police station late at night with three officers yelling at her.
The State sought to use the second and third custodial statements to impeach defendant's credibility. The trial court determined that those statements were voluntary and could be used for impeachment purposes although taken in violation of defendant's constitutional rights. The court instructed the jury that the statements were not to be used as substantive evidence, but only for purposes of evaluating defendant's credibility.
The jury convicted defendant of murder, possession of a firearm for an unlawful purpose, unlawful possession of a handgun, and unlawful use of a credit card. The court sentenced defendant to an aggregate term of thirty years without parole. The Appellate Division, concluding that the State's use of the second and third statements was impermissible, reversed the convictions for murder and possession of a firearm. We granted the State's petition for certification. 140 N.J. 326 (1995).
The Fifth Amendment of the United States Constitution states that "no person . . . shall be compelled in any criminal case to be a witness against himself . . . ." The privilege against self incrimination is binding on the states under the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). Although there is no direct counterpart within the New Jersey Constitution, the privilege against self-incrimination "is firmly established as part of the common law of New Jersey and has been incorporated into our Rules of Evidence." In re Martin, 90 N.J. 295, 331, 447 A.2d 1290 (1982) (citations omitted).
The United States Supreme Court has prescribed procedures that must be followed to assure the protection of an individual's privilege against self-incrimination under the Fifth Amendment. In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Supreme Court determined that as a constitutional prerequisite to the admissibility of a statement by a suspect, he must be warned of the right to remain silent, told that any statement made may be used as evidence against him, and informed that he has a right to the presence of an attorney, either retained or appointed.
The requirements imposed under Miranda have been characterized as prophylactic measures that are necessary to safeguard the essential constitutional right against self-incrimination; the rights encompassed by these protective measures are ancillary to the fundamental right that is at the core of the Fifth Amendment. Oregon v. Elstad, 470 U.S. 298, 304, 105 S. Ct. 1285, 1290, 84 L. Ed. 2d 222, 229 (1985). "'The prophylactic Miranda warnings . . . are "not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected."'" Id. at 305, 105 S. Ct. at 1291, 84 L. Ed. 2d at 229-30 (quoting New York v. Quarles, 467 U.S. 649, 654, 104 S. Ct. 2626, 2630, 81 L. Ed. 2d 550, 556 (1984) (footnote omitted) (quoting Michigan v. Tucker, 417 U.S. 433, 444, 94 S. Ct. 2357, 2364, 41 L. Ed. 2d 182, 193 (1974))).
Because the Miranda warnings are prophylactic measures designed to ensure that a suspect's decision to speak to the police is knowing and voluntary, a Miranda violation itself is not determinative of a Fifth Amendment violation of the privilege against self-incrimination. Tucker, (supra) , 417 U.S. at 444-45, 94 S. Ct. at 2364, 41 L. Ed. at 193. A voluntary, incriminating statement elicited without the Miranda warnings violates a defendant's ancillary rights, but does not rise to the level of a constitutional violation. Id. at 446, 94 S. Ct. at 2365, 41 L. Ed. 2d at 194. A statement that is elicited after a Miranda right has been invoked, however, becomes a violation of constitutional dimension -- a violation of the constitutional right itself. Wainwright v. Greenfield, 474 U.S. 284, 293, 106 S. Ct. 634, 639, 88 L. Ed. 2d 623, 631 (1986).
The right to counsel is one of the prophylactic rights included among the Miranda protections. Unlike the right to counsel guaranteed under the Sixth Amendment, which is a constitutional right itself, Fifth Amendment rights enumerated by Miranda, including the right to counsel, must be affirmatively asserted by the suspect to attach and to acquire constitutional status. The United States Supreme Court, in Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), held that a suspect who invokes his right to counsel under Miranda may not thereafter be subjected to further interrogation outside the presence of counsel without violating the constitutional privilege itself, unless the suspect personally and specifically initiates the conversation. Id. at 484, 101 S. Ct. at 1884, 68 L. Ed. 2d at 386.
New Jersey law governing the privilege against self-incrimination parallels the federal constitutional law. New Jersey law also distinguishes between the failure to issue the prophylactic safeguards of Miranda and the violation of the privilege against self-incrimination once those protective rights are asserted. E.g., State v. McCloskey, 90 N.J. 18, 27, 446 A.2d 1201 (1982) (holding that a failure to warn is merely a violation of Miranda 's prophylactic-procedural safeguards; however, a failure to honor the invoked right to remain silent is of constitutional dimension). New Jersey also recognizes that the right to counsel is one of the protective rights that surround the privilege against self-incrimination and must be included among the Miranda warnings. State v. Kennedy, 97 N.J. 278, 284, 478 A.2d 723 (1984); see also State v. Reed, 133 N.J. 237, 627 A.2d 630 (1993) (finding that under State privilege against self-incrimination, defendant had additional ancillary right to be informed of present availability of counsel based on presumed coercion inherent in custodial interrogation). Like the right to remain silent, once the right to counsel is invoked it assumes a constitutional status, and interrogation must cease; disregard of that claimed right violates the privilege itself. Kennedy, (supra) , 97 N.J. at 285.
The principle remedy for violations of constitutional rights governing the state's acquisition of incriminating evidence is the exclusionary rule. Under the federal exclusionary rule, as originally enunciated by the United States Supreme Court, the state could not use evidence obtained in violation of a defendant's Fourth and Fifth Amendment constitutional rights for any purpose. Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914). New Jersey also recognizes the exclusionary rule as essential to the safeguarding of a citizen's constitutional and fundamental rights regulating the government's acquisition of incriminating evidence. E.g., State v. Novembrino, 105 N.J. 95, 145-59, 519 A.2d 820 (1987) (applying exclusionary rule as a remedy required by State Constitution to evidence seized in violation of constitutional right against unreasonable search and seizure); State v. Hartley, 103 N.J. 252, 511 A.2d 80 (1986) (applying exclusionary rule to statements in violation of privilege against self-incrimination); State v. Macri, 39 N.J. 250, 265, 188 A.2d 389 (1963) (rejecting good faith exception to exclusionary rule: "Eyes may not be closed to the infringement of a constitutional right because the officer was well-meaning and the transgression is deemed slight").
The United States Supreme Court's exclusionary rule as originally propounded was comprehensive. It would not admit unconstitutionally acquired evidence for any reason or for any purpose or use. See Schwartz v. Texas, 344 U.S. 199, 73 S. Ct. 232, 97 L. Ed. 231 (1952); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920); Weeks, (supra) , 232 U.S. at 398, 34 S. Ct. at 346, 58 L. Ed. at 658; Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886). Following Miranda, even statements violating the prophylactic rules were excluded regardless of whether there was in fact a constitutional violation. See Oregon v. Elstad, (supra) , 470 U.S. at 307, 105 S. Ct. at 1292, 84 L. Ed. 2d at 231 ("Unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda. Thus, in the individual case, Miranda's preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm.").
Over time, the United States Supreme Court came to recognize an exception to the exclusionary rule relating to impeachment purposes. In Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954), the Supreme Court held that the state may impeach a defendant's credibility with regard to statements on collateral matters made during direct examination by using physical evidence that had been suppressed. The Court determined that although a defendant could still deny all of the elements of the case against him, the state's inability under the exclusionary rule to use the suppressed evidence should not entitle the defendant to make perjurious statements. The Court stated:
It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. ...