On certification to the Superior Court, Appellate Division.
(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).
The issues in this appeal are whether the trial court's questioning of defendant was improper, and whether the prosecutor violated defendant's right to remain silent by asking him about statements he did not make to his attorney.
Defendant and his sister, Susan Taffaro, were involved in a dispute about their parents' estate. In January 2004, a restraining order was entered against defendant barring him from any direct or indirect communication with his sister, other than through their professional representatives. Around midnight on March 29, 2004, a stranger called Ms. Taffaro's home. He asked for the "lady of the house" and whether she lived in a particular town where Ms. Taffaro, in fact, resided. The next morning, she contacted the police and reported that she was listed on an ad on the Internet. The police confirmed that an obscene posting had been placed on Craigslist, an Internet bulletin board. The ad invited people to call the "lady of the house," at Ms. Taffaro's unlisted telephone number, for sexual favors. The investigation tracked the Craigslist posting to a computer linked to defendant. As a result, a grand jury charged defendant with contempt for disobeying the restraining order by posting the ad.
At trial, defendant claimed that two acquaintances, Daniel Ng and Redner Portela, typed and posted the illicit message while fixing his computer. He claimed that they had access to his sister's information because it was beside the computer. When defendant heard them laughing, he entered the computer room where they were working, and they read him the ad. Defendant testified that he ordered Ng and Portela to immediately remove the message, and that he believed them when they said they had done so. He claimed he did not know the ad was posted until his arrest on April 6, 2004.
Ng and Portela denied typing or posting the offensive ad. They testified that while they were at defendant's apartment, he complained about his sister stealing his inheritance and said he wanted to get back at her. Ng suggested an Internet posting and showed defendant how to use Craigslist. Ng and Portela testified that afterward, defendant spent twenty minutes alone in the computer room.
During cross-examination, the prosecutor attempted to establish that defendant was motivated by a bad relationship with his sister and that posting an ad on Craigslist would violate the restraining order. Defendant denied composing the ad and maintained that, as far as he knew, Ng and Portela deleted it. The prosecutor repeatedly pressed defendant as to whether he checked to see if the message had been posted. He responded that he would have done so if he had known the message was posted, and that he did not even know which website to check. The prosecutor also asked whether defendant told his lawyer about the Craigslist posting, before or after his arrest, in order to warn his sister. Defendant again testified that he did not know the message had been posted until his arrest.
After the cross-examination, the trial judge asked defendant more than thirty questions. Defense counsel did not object. The exchange established that defendant did not have a close relationship with Ng and Portela, and that it was important to him that the message not be posted. The judge asked, in various ways, why defendant trusted that Ng and Portela had deleted the message. The judge also asked whether defendant checked to be sure the message was not posted. Defendant's responses were consistent with his answers on cross-examination. In its instructions to the jury, the trial court explained that the fact that the court asked a witness questions must not influence them and that it did not indicate that the court held any opinion about a witness's testimony.
The jury found defendant guilty of contempt. Defendant was sentenced to one year of probation. The Appellate Division affirmed, finding no plain error in the trial court's neutral and non-demeaning questions. The panel concluded that the exchange was probing but not adversarial. The panel also found that the prosecutor's questions about defendant's pre-arrest silence, by failing to speak to his attorney about the ad, did not violate defendant's constitutional rights. Finally, the Appellate Division found that the prosecutor's questioning about defendant's post-arrest silence was harmless error.
The Supreme Court granted defendant's petition for certification limited to two issues: (1) whether the trial court's questioning of defendant was improper; and (2) whether the prosecutor violated defendant's right to remain silent by asking about statements he did not make to his lawyer. 191 N.J. 318 (2007).
HELD: The trial judge's questioning of defendant suggested disbelief of his testimony and could have had a critical impact on the verdict, warranting reversal of his conviction. Also, although the prosecutor's questions about defendant's pre-arrest silence were permissible, on retrial the State may not use defendant's post-arrest silence against him.
1. A trial court may question a witness to address a party's improper tactics or to expedite trial, clarify testimony or help elicit facts from a distressed witness. In bench trials, judges serve as fact finders and have some latitude in questioning witnesses. During jury trials, though, courts should use great restraint to avoid influencing the jury. If a judge's questions suggest disbelief, such as by pressing a defendant when his responses are plain, the impact on the jurors may be critical, especially when the outcome of a case rests on whether the jury believes the defendant. (pp. 9-11)
2. The outcome of this trial depended largely on whether the jury believed defendant's account -- that Ng and Portela posted the Craigslist ad against defendant's instructions -- or Ng and Portela's version that they did not prepare or post the ad. The prosecutor's cross-examination attempted to undermine defendant's credibility. Defendant provided plain answers to her questions, emphasizing that he did not know the ad was posted and would not know where to check. The trial court's questions did not help clarify defendant's understandable testimony. They underscored the weaknesses in his defense. The court elicited that Ng and Portela were not defendant's good friends, and that it was important to him that the message be deleted. The court's questions then focused on why defendant had trusted that Ng and Portela removed the message, without checking to see if they actually did. Although neutral in tone, the questions suggested that the court doubted defendant's account. (pp. 11-14)
3. Because defense counsel did not object, the court's questioning of defendant is reviewed under the plain error standard. In light of the importance of defendant's credibility at trial and the judge's esteemed position in the courtroom, suggesting disbelief of defendant's testimony could well have had a critical impact on the verdict. The Court is not persuaded that the jury instruction cured the harm. The trial court's questions warrant reversal. (p. 15)
4. A defendant's pre-arrest silence can be used for impeachment purposes if that silence significantly preceded his arrest and did not arise in a custodial setting, and if a jury could infer that a reasonable person in defendant's position would have come forward and spoken. The prosecutor's questions about whether defendant asked his lawyer to get word to his sister the night the message was posted did not violate defendant's right to remain silent. That questioning focused on defendant's actions a week before his arrest, and a jury could infer that a reasonable person in defendant's situation would have tried to warn the victim. On retrial, however, the State may not use defendant's post-arrest silence against him. (pp. 16-18)
The judgment of the Appellate Division is REVERSED, defendant's conviction and sentence are VACATED, and the matter is REMANDED for a new trial.
JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in CHIEF JUSTICE RABNER's opinion.
The opinion of the court was delivered by: Chief Justice Rabner
This case tests the limits of a judge's authority to question witnesses at trial. Trial courts have an obligation to insure that trials proceed fairly, and judges may question witnesses to clarify testimony, expedite a case, and otherwise protect the proceedings. But in exercising their discretionary power, judges must take care not to influence the jury by signaling doubt about a witness's credibility. To do otherwise might place the court's impartiality in question and affect the trial's outcome.
In this case, the trial judge's questioning of a criminal defendant ran counter to the above principles. Accordingly, we reverse defendant's conviction and sentence and remand for a new trial.
Defendant Michael Taffaro and his sister Susan Taffaro were enmeshed in a dispute about their parents' estate. While the particulars of the dispute are not relevant, defendant's behavior resulted in the entry of a restraining order against him in January 2004. The order barred him from "any direct physical contact" with his sister (or a third sibling) and also directed defendant "not to communicate with [his siblings], either personally, or by telephone, in writing, or in any other manner directly or indirectly." Because of pending litigation about their parents' estate, the order allowed for only one exception: defendant's "professional representatives" could contact his siblings' "professional representatives," if necessary.
On March 29, 2004, around midnight or 1:00 a.m., Ms. Taffaro received a phone call at her home. A strange voice identified himself only as Wesley and asked to speak to the "lady of the house." He also asked whether she lived in a particular town in northern New Jersey where she, in fact, resided. Ms. Taffaro learned from the caller some details about how he came to contact her, and reported to the police the next morning that she was listed on an ad on the Internet. The police confirmed that a salacious posting had been placed on Craigslist inviting people to call the "lady of the house," at Ms. Taffaro's unlisted telephone number, for sexual favors.
Craigslist has the features of an old-fashioned bulletin board that is accessible through the Internet. People can post a variety of advertisements on Craigslist, including personal ads, using a computer connected to the Internet. The police investigation in this case tracked the posting to a computer linked to the defendant. As a result, on July 27, 2004, a Bergen County grand jury charged defendant with one fourth-degree count of ...