On certification to the Superior Court, Appellate Division.
Chief Justice Poritz and Justices Long, LaVECCHIA, Zazzali, Albin, and
Wallace join in Justice VERNIERO's opinion.
This appeal poses two questions. The first is whether prosecutors or their representatives, including the police, properly may interrogate a suspect without the consent of defense counsel before an indictment has been obtained but after the State has filed or issued a criminal complaint or arrest warrant against that suspect. If the answer to that question is yes, the second question is whether the suspect's waiver of his right against self-incrimination is valid when the police fail to inform him that a criminal complaint or arrest warrant has been filed or issued against him.
On October 8, 1993, A.G.D. was baby-sitting his children and another minor child, K.R., the daughter of a family friend. According to K.R., who had spent the night in defendant's home as she sometimes did, during the course of the evening she awoke to find A.G.D. engaging in oral sex with her. She later informed her mother who in turn contacted the police. A detective from the county prosecutor's office conducted a videotaped interview of K.R. Using language of a minor child, the alleged victim essentially described how A.G.D. had conducted cunnilingus on her. Based on that interview, the detective obtained a warrant for A.G.D.'s arrest.
A few days later, the detective and a fellow law enforcement officer went to A.G.D.'s home to question him. One of the detectives explained to A.G.D. that they sought to interview him about allegations of sexual abuse that had been asserted against him, but the detective did not specify the charges. The detective neither executed the arrest warrant nor informed A.G.D. that such a warrant had been issued. The detective's stated reason for the omission was that he "wanted to hear what [A.G.D.] had to say."
A.G.D. accompanied the detectives to the prosecutor's office. According to the detectives, A.G.D. was escorted into an interview room and advised of his Miranda rights. A.G.D. purportedly waived those rights and signed a standard Miranda waiver form.
After being informed of the alleged crimes and identity of the victim, A.G.D. initially denied all charges. Once the detectives advised A.G.D. of K.R.'s videotaped statement, A.G.D. began to make admissions. A.G.D. gave a written statement in which he admitted touching K.R.'s vagina with his hand. In response to a question, A.G.D. stated he "might have" performed cunnilingus on K.R., although he later claimed he did not understand the meaning of cunnilingus.
A.G.D. disputes the voluntariness of his statements by claiming that he fabricated the story about sexually assaulting K.R. to satisfy the police. According to A.G.D.'s version, the detectives questioned him for one-and-onehalf hours before presenting him with the Miranda waiver form. In addition, A.G.D. asked several times whether his wife or his attorney had arrived at the prosecutor's office. A.G.D. claims that, in response, the detectives repeatedly informed him that he did not need a lawyer. He also claims that, after he did sign the Miranda waiver form, his interrogators began to curse and they threatened to put him in jail and to take away his children if he did not tell them what they wanted to hear.
A grand jury subsequently charged A.G.D. with first-degree aggravated sexual assault, second-degree sexual assault, and second-degree endangering the welfare of a child. The trial court denied A.G.D.'s motion to suppress his statements. After a weeklong trial, A.G.D. was convicted on all counts. The trial court sentenced him to an aggregate term of fifteen years in prison. Among other things, A.G.D. argued on appeal that formal adversarial proceedings had begun when the State issued an arrest warrant prior to taking him into custody, triggering his right to counsel under both the federal and State constitutions. He also claimed that the detectives violated his rights by failing to inform him about the outstanding arrest warrant.
The Appellate Division rejected A.G.D.'s claims. It noted that no case in this jurisdiction has held that the right to counsel is triggered by police questioning prior to indictment, even when the questioning is subsequent to an arrest. The Appellate Division declined to rule on A.G.D.'s claim that his statements were coerced, noting that the transcripts of the suppression hearing did not reveal the trial court's rationale for denying the motion to suppress. It also noted that the trial court had passed away and had not issued a written or oral opinion. The Appellate Division remanded for a new Miranda hearing, holding, however, that the conviction would stand unless the new Miranda hearing were decided in his favor.
On remand, the trial court conducted a new Miranda hearing, again denying the motion to suppress.
Specifically, the trial court disbelieved A.G.D.'s assertion that the detectives had used coercion and threatened to take away his children. The court also found that A.G.D. had not asked to consult with an attorney or to call his wife so that she might hire an attorney. The Supreme Court granted A.G.D.'s petition for certification, limited to whether the State had violated A.G.D.'s rights in the period after the issue of the arrest warrant but before the return of the indictment.
Prosecutors and their representatives may interrogate a suspect without defense counsel's consent before an indictment has been obtained but after the government has filed or issued a criminal complaint or arrest warrant against that suspect. The government's failure to inform a suspect prior to questioning that a criminal complaint or arrest warrant has been filed or issued against him makes that suspect's waiver of his right against self-incrimination invalid.
1. Although the first issue implicates the critically important right to counsel, its resolution is straightforward given this Court's case law. This Court has held that after an indictment and before arraignment, prosecutors should not initiate a conversation with defendants without the consent of defense counsel. State v. Sanchez, 129 N.J. 261 (1992). Under that rule, courts will suppress a defendant's incriminating statements elicited during a post-indictment interrogation without counsel's consent, notwithstanding a defendant's purported waiver of rights. Such a waiver is insufficient as a matter of law. The question here is whether the rule of Sanchez that prohibits a waiver of rights without consent of counsel in a post-indictment setting should be applied to the pre-indictment period in which the State has filed or issued a criminal complaint or arrest warrant against a suspect. The Court finds no compelling basis for extending Sanchez to the period at issue here. (pp. 8-13)
2. The remaining issue is whether A.G.D.'s waiver of his right to remain silent was valid in view of the fact that the detectives did not inform him that an arrest warrant had been issued against him. Under New Jersey Law, prosecutors must prove beyond a reasonable doubt that the suspect's waiver was knowing, intelligent, and voluntary in light of all the circumstances. The government's failure to inform a suspect that a criminal complaint or arrest warrant has been filed or issued deprives that person of information indispensable to a knowing and intelligent waiver of rights. A criminal complaint and arrest warrant signify that a veil of suspicion is about to be draped on the person, heightening his risk of criminal liability. Without advising the suspect of his true status when he does not otherwise know it, the State cannot sustain its burden to the Court's satisfaction that the suspect has exercised an informed waiver of rights. The Court's approach is analogous to the approach taken in respect of the so-called "target doctrine." Under that doctrine, an individual being questioned before a grand ...