# State v. Hartley

> Supreme Court of New Jersey · July 3, 1986 · 103 N.J. 252

URL: https://www.frixlaw.com/law-library/cases/9646554

## Case

- **Full name:** State of New Jersey, Plaintiff-Respondent, v. Terrence B. Hartley, Defendant-Appellant
- **Court:** Supreme Court of New Jersey
- **Decided:** July 3, 1986
- **Citations:** 103 N.J. 252; 511 A.2d 80; 1986 N.J. LEXIS 1265
- **Precedential status:** Published
- **Opinion:** Concurring in part by Handler
- **Judges:** Clifford, Handler, Stein
- **Cited by:** 152 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9646554

## How later opinions describe it (automated extraction)

- finding that a second statement was given "on the heels of—if not in tandem with" an initial statement and also recognizing Leyra v. Denno, 347 U.S. 556 (1954), for the proposition that "the confessions were inadmissible because the relation of the confessions was so close tha…
- holding that police must furnish a suspect who has asserted his right to silence with a fresh Miranda warning before resuming custodial interrogation of the suspect or any resulting confession is inadmissible as a matter of law
- concluding that failure by police to re-administer Miranda warnings before interrogating an accused who has previously invoked the right to remain silent constitutes a failure to scrupulously honor the assertion
- explaining that the police’s failure to reissue Miranda warnings after invocation of right to silence should not automatically preclude the issue of whether defendant waived his right

## Opinion text

HANDLER, J.,
concurring in part and dissenting in part.
In this case the defendant incriminated himself by twice confessing. Both confessions were used as evidence to support his criminal conviction. The first confession was elicited after defendant was subjected to renewed custodial interrogation, notwithstanding the fact that he had previously claimed his right to remain silent in response to earlier Miranda warnings. The second confession quickly followed the first, when he was again interrogated by a different group of law enforcement officers, who had readministered Miranda warnings.
The resumption of custodial interrogation, which led to the initial confession, unquestionably amounted to a failure by law enforcement authorities to “scrupulously honor” defendant’s claimed right to remain silent. The fundamental issue posed by these events concerns the nature and extent of remedial relief that is necessary to rectify a violation of the “scrupulously honored” requirement. This entails determining not only the propriety of excluding or limiting the evidentiary use of the first confession but also whether the second confession must be similarly restricted as evidence solely because of the derivative effects of the unlawfully obtained initial confession.
I.
As recounted in the Court’s opinion, defendant Hartley was arrested, and, while in custody, he was given Miranda warnings. Acting upon these warnings, he unequivocally exercised his right to remain silent. Thereafter, without readministering Miranda warnings, FBI Agent Frieberg initiated a conversa *289 tion with Hartley, which uncontrovertibly amounted to a resumption of interrogation. As a result of this renewed interrogation, defendant confessed.
In focusing initially upon this series of events, — those related to defendant’s first confession — the majority posits the “scrupulously honored” standard as the operative measure of the defendant’s constitutional interest. It observes that Miranda v. Arizona, 384 US. 436, 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), “appears to contain a clear requirement that ‘the interrogation must cease’ when the suspect asserts his right to remain silent.” Ante at 263. The majority then engages in an analysis consistent with Michigan v. Mosley, 423 U.S. 96 , 96 S.Ct. 321 , 46 L.Ed.2d 313 (1975), conditioning “the admissibility of statements obtained after the person in custody has decided to remain silent ... on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” Id. at 104 , 96 S. Ct. 321 , 46 L.Ed. 2d at 321 . Ante at 263-267.
The majority correctly notes that the legal analysis occasioned by the facts of this case is complicated by the omission from Mosley of any guidelines to be applied in order to assure that an accused’s claimed right to remain silent is “scrupulously honored.” See discussion ante at 265-267. Notwithstanding this absence of clarity, I am confident that the majority’s review of the fact-sensitive approach taken by the Supreme Court in the context of its “scrupulously honored” test justifies the standard that it adopts. That standard mandates that fresh Miranda warnings be administered prior to the resumption of any interrogation following an accused’s exercise of his right to remain silent. I also endorse the primary remedial consequence posited by the majority for the failure to meet this standard: “Unless the police follow this ‘bright-line,’ inflexible, minimum requirement, a defendant’s statement made in the above-stated circumstances cannot be admitted into evidence as part of the prosecutor’s case in-chief.” Ante at 267.
*290 In light of my concurrence with the Court on these points, I join the majority in differing from Justice Stein’s dissenting view that a simple reminder or reacknowledgement of an accused’s right to remain silent is sufficient to preserve the “scrupulously honored” requirement. A “bright-line” rule that calls for the readministration of Miranda warnings will not only more efficaciously secure the right to remain silent, it will serve to avoid the “confusion and conflict in future cases,” ante at 268, inherent in attempting to characterize a statement by law enforcement authorities subsequent to an invocation of the right to remain silent.
Nevertheless, I have an important difference with the Court. It relates to the majority’s characterization of the failure to readminister Miranda warnings, constituting a failure to “scrupulously honor,” as a constitutional violation, and its conclusion that any resultant statement is, necessarily, “unconstitutionally compelled as a matter of law.” Ante at 256. In my opinion, the failure to “scrupulously honor” in these circumstances does not violate the constitutional or fundamental common-law privilege itself. Rather it simply entails a violation of the incidental or ancillary, prophylactic rules designed to preserve the basic privilege against self-incrimination. Consequently, in my view, a statement obtained in violation of that requirement is not “unconstitutionally compelled as a matter of law,” and may therefore constitute probative evidence for purposes other than direct proof of criminal guilt.
II.
As already noted, according to the majority, the failure to readminister Miranda warnings renders the first, or “federal,” statement “unconstitutionally and illegally obtained as a matter of law.” Ante at 271 (emphasis added). I perceive this violation of the “bright-line,” “scrupulously-honor” rule to constitute a failure to observe only the prophylactic rules of Miranda . The corollary to this view is that such a violation *291 would give rise only to a presumption that the statement was compelled, not, as the majority perceives it, unconstitutional compulsion as a matter of law.
Nevertheless, an infraction of the rules that are ancillary to constitutional rights is not to be taken lightly. The claimed right to remain silent itself is singularly important, its breach serious and the need to clearly deter its violations evident. These concerns justify treating the presumption of compulsion as irrebutable as to any direct or affirmative use of a statement obtained in violation of the right to remain silent. Such a statement therefore should be excluded as probative evidence of criminal guilt on the prosecutor’s case-in-chief.
This approach is consistent with Oregon v. Elstad, 470 U.S. 298 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985). There the Supreme Court said:
Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, 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 to the defendant who has suffered no identifiable constitutional harm. [Id. at-, 105 S.Ct. at 1292 , 84 L.Ed. 2d at 231 (citations omitted) (emphasis added).]
Elstad’s recognition of a “presumption of compulsion” was derived from a distinction, previously drawn in Michigan v. Tucker, 417 U.S. 433 , 94 S.Ct. 2357 , 41 L.Ed.2d 182 (1974), “between on the one hand police conduct that directly infringes on the accused’s right against compulsory self-incrimination, and on the other a violation only of the ‘prophylactic rules developed to protect that right.’ ” Id. at 439 , 94 S. Ct. at 2361 , 41 L.Ed.2d at 190 ; ante at 271-272. The Supreme Court employed this distinction as a basis for finding that the failure to impart Miranda warnings, under circumstances demanding their administration, amounted merely to a violation of the “prophylactic rules” of Miranda. Oregon v. Elstad, supra, 470 U.S. at-, 105 S.Ct. at 1293 , 84 L.Ed.2d at 232 .
Thus, the basic rationale, which I believe should be extrapolated from Elstad , is that a violation of only the protective rules *292 that are incidental or ancillary to constitutional rights is not itself a constitutional violation. Accordingly, a presumption of invalidity affixed to such a violation is all that is necessary to sufficiently redress such a violation. The strength of the presumption of invalidity, and its remedial effects, parallels generally the gravity of the specific violation and the particular prosecutorial advantage that is sought to be obtained from the violation. 1
The majority, by its words, professes to recognize the distinction between constitutional violations and non-constitutional violations. However, in opting to impose the “bright-line” requirement that Miranda warnings be readministered as the only method for effectuating the “scrupulously honored” mandate, the majority classifies the failure to adhere to this standard as a constitutional violation. 2 It, in effect, treats the rule, *293 as well as the interest it protects, as constitutional in character. In doing so, the majority, in my judgment, obfuscates the distinction and overstates the consequences that federal courts are likely to attach to a violation of the “scrupulously honored” requirement arising solely from the absence of renewed Miranda warnings. Michigan v. Mosley, supra, 423 US. at 102, 96 S.Ct. at 325 , 46 L.Ed.2d at 320 . As noted in Martin v. Wainwright, 770 F.2d 918, 928 (11th Cir.1985), although there is a distinction between a failure to honor the suspect’s request to “ ‘cut off’ questioning” and “a failure to give Miranda warnings,” the reasoning of Elstad is properly applied in either context because both of these misdeeds by the police violate “the technical requirements of Miranda , but [do] not violate the Fifth Amendment itself.” Moreover, the result sanctioned by the majority, in a case such as this, appears contrary to the Mosley Court’s perception of the “scrupulously honored” requirement, which was invoked only to determine whether the Miranda guidelines had been observed, not whether there had been a violation of the constitutional privilege against compulsory self-incrimination. Michigan v. Mosley, supra, 423 U.S. at 100 , 96 S.Ct. at 324 , 46 L.Ed.2d at 319 .
This failure to properly apply the distinction between violations of “prophylactic rules” and constitutional rights has led the Court to a seemingly anomalous position: an initial failure to give any Miranda warnings at all is merely violative of “prophylactic” standards, while the failure to repeat identical warnings after they have already been administered and claimed, is a constitutional violation. 3 On this point, I join in *294 Justice Stein’s dissenting contention that the majority rule is irreconcilable with Elstad. Post at 324. It seems likely under Elstad that a violation of the “scrupulously honored” requirement would not be per se of constitutional dimension; additional factors, beyond the absence of requisite Miranda warnings, are necessary to elevate such an infraction to a constitutional violation.
The majority has blurred the distinctive lines between constitutional and non-constitutional violations drawn in Michigan v. Tucker, supra, 417 U.S. 433 , 94 S.Ct. 2357 , 41 L.Ed.2d 182 . At the very least, this inconsistency renders the majority’s analysis of the federal constitutional right highly dubious. Consequently, I have no confidence that the rule espoused by the majority accurately presages federal constitutional law.
In this case, my differences with the majority carry potentially significant remedial repercussions relative to the admissibility of the “state” confession obtained subsequent to the initial confession secured in violation of “scrupulously honored” standards. The majority concludes that the “failure scrupulously to honor a previously-invoked right of silence ... smacks so inherently of compulsion that any statement following that failure is involuntary by definition.” Ante at 278. This compulsion-by-attribution analysis brings the Court to extreme and unrealistic results. The Court should, I suggest, concentrate simply on what remedial relief is necessary to assure the scrupulously-honored requirement, such as a flexible or limited exclusionary rule that could address the need to deter improper in-custody interrogation and to encourage proper police conduct. See United States v. Leon, 468 U.S. 897 , 104 S. Ct. 3405 , *295 82 L.Ed.2d 677 (1984) (good-faith violation of Fourth Amendment does not require application of exclusionary rule). Instead, it dwells on the “inherent” — that is the presumed, not actual — involuntary character of a particular statement, and adopts, as a consequence, an absolute, rigid and total exclusionary rule.
I think it should suffice to recognize, as does the majority, that an “unwarned confession must be suppressed under the force of Miranda’s irrebutable presumption” despite the fact that the “unwarned in-custody interrogation may be voluntary.” Ante at 272. Conversely, I disagree with its conclusion that a failure to impart Miranda warnings subsequent to an accused’s exercise of his right to remain silent per se constitutes a violation of “constitutional magnitude,” ante at 273, notwithstanding the voluntariness of this confession. If, in the first instance, a failure to give Miranda warnings is deemed merely to constitute a prophylactic violation when an accused gives a confession voluntarily, there is no reason to foreclose the possibility that an accused might voluntarily confess subsequent to invoking his right to remain silent. Such a circumstance is no different from the prophylactic violation of Miranda that exists initially when an accused voluntarily confesses prior to receiving Miranda warnings. Hence, by its categorical conclusion that the first or federal statement in this case is “involuntary by definition” and that its elicitation is a violation “of constitutional magnitude,” the Court has taken an unwarranted step that serves to predetermine the admissibility of the second confession.
The Court has, I believe, also misconceived and misapplied the “fruit of the poisonous tree” doctrine. See Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed. 2d 441 (1963). The Elstad Court declined to apply the “fruit of the poisonous tree” doctrine as a basis for excluding a second inculpatory statement given subsequent to Miranda warnings. It noted that “errors ... made by law enforcement authorities *296 in administering prophylactic Miranda procedures ... should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself.” Elstad, supra, 470 U.S. at-, 105 S.Ct. at 1293 , 84 L.Ed.2d at 232 . Similarly in Tucker the Supreme Court concluded that what was involved was merely a departure from Miranda “prophylactic standards.” Hence, application of the “fruit of the poisonous tree” doctrine, reserved exclusively for exclusion of evidence obtained as a result of constitutional violations, was deemed inapposite.
In my judgment, the more appropriate analysis commences with the recognition that the application of the “fruit of the poisonous tree” doctrine is bottomed on clear constitutional violations and is extremely fact-sensitive. It is fairly implicit in Elstad itself that the extension of the “fruit of the poisonous tree doctrine” is expressly contingent upon the actual voluntariness of the unwarned statement. The Supreme Court, upon finding that “[njeither the environment nor the manner of [the pre-Miranda or unwarned] ‘interrogation[s]’ was coercive,” determined that although “Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” Id. at-, 105 S.Ct. at 1293 , 84 L.Ed.2d at 232 (emphasis added). This rationale suggests that if the unwarned statement in this case was in fact involuntary, thereby giving rise to a constitutional violation, the “fruit of the poisonous tree” doctrine would properly apply in ascertaining the admissibility of the second confession. Id. at-, 105 S.Ct. at 1291 , 84 L.Ed.2d at 230 . Conversely, if the unwarned statement was in fact voluntary, it would obviate consideration of the doctrine.
Accordingly, in the case of a failure to “scrupulously honor” a suspect’s exercise of his right to remain silent, arising solely from the absence of required Miranda warnings, different remedial consequences flow from a determination of the factual voluntariness of the initial confession. Although a presumption
*297 of involuntariness attaches because of the importance of the protectable interest in uncompelled statements, the strength of the presumption can vary depending on the specific use designated for the resulting confession. While, as previously noted, the presumption is irrebuttable in terms of using the unwarned statement itself as direct evidence of criminal guilt on the prosecutor’s case-in-chief, the presumption may be rebutted when the statement is not to be considered for this purpose. See Harris v. New York, 401 U.S. 222 , 91 S.Ct. 643 , 28 L.Ed.2d 1 (1971) (a confession obtained without warning the defendant of his right to appointed counsel, although inadmissible on the prosecutor’s case-in-chief, was voluntarily given and therefore admissible for impeachment purposes on cross-examination); State v. Miller, 67 N.J. 229 (1975) (adopting Harris v. New York as a matter of state law); see also Terpstra v. Niagara Fire Ins. Co., 26 N.Y.2d 70 , 308 N.Y.S.2d 378 , 256 N.E.2d 536 (1970) (voluntary written and oral statements by an insured that he set the fire that destroyed his insured building, despite the fact that the insured had been denied his request to consult counsel, are admissible in a civil action on the insurance policy). The majority, however, appears to foreclose any derivative use of an unwarned confession following a prior invocation of the right to remain silent. It does so by embracing the conclusion “that any statement following that failure is involuntary by definition,” ante at 278, thereby elevating the violation to “constitutional magnitude.” Under this analysis, it would appear that otherwise reliable and voluntary statements could not be used for impeachment purposes or for any other legitimate derivative use that might arise in the course of a criminal trial.
In my opinion, an immutable, irrebutable presumption of involuntariness should not be ascribed to the initial confession for purposes of determining the admissibility of the second confession. As noted in Elstad , “the Miranda presumption, though irrebutable for purposes of the prosecution’s case in chief, does not require that the statements and their fruits be discarded as inherently tainted.” Id. at-, 105 S.Ct. at 1292 ,
*298 84 L.Ed.2d at 231 . Rather, if the first, pre-Miranda statement is found, as a matter of fact, to be voluntary, then a subsequent, post-Miranda confession is properly evaluated solely under a traditional “waiver” analysis. North Carolina v. Butler, 441 US. 369, 99 S.Ct. 1755 , 60 L.Ed.2d 286 (1979). Conversely, if the initial, unwarned statement is itself factually involuntary, then the “fruit of the poisonous tree” doctrine must be summoned to determine the admissibility of the subsequent statement. See Bryant v. Vose, 785 F.2d 364 (1st Cir.1986) (if the defendant’s oral confession was voluntary though inadmissible due to a Miranda violation, the later written confession would be admissible if fully warned and devoid of compulsion); United States v. Wauneka, 770 F. 2d 1434, 1440 (9th Cir.1985) (to determine the admissibility of a confession given subsequent to Miranda warnings, the court must preliminarily decide whether a prior statement obtained in technical violation of Miranda was voluntary).
I believe that engaging in such a voluntariness analysis premised upon a rebuttable presumption of compulsion for purposes of determining the use or admissibility of the first statement outside the prosecutor’s case-in-chief, suitably protects both the constitutional privilege against self-incrimination and the ancillary rules devised to preserve that privilege; it also avoids the remedial overkill fostered by the majority rule. I reach this conclusion in terms of what I perceive to be” the analysis most likely to be followed under these circumstances as a matter of federal law.
III.
State common law provides an alternative basis in support of a variable presumption of compulsion and a factual voluntariness inquiry regarding a statement obtained in violation of the claimed right to remain silent. It is appropriate in this case to address state grounds independently, particularly in “the absence of a definitive Supreme Court determination on this *299 question.” State v. Williams, 93 N.J. 39, 57 (1983); State v. Schmid, 84 N.J. 535 (1980). I believe, as a matter of common law, that this proffered voluntariness analysis, based on presumptive compulsion, represents a sounder and more realistic solution to the dilemma posed between protecting a suspect’s privilege against self-incrimination and his exercise of Miranda rights and society’s interest in reasonable and effective law enforcement. Moreover, this analysis is consistent with our particular concerns and traditional approaches in the administration of our criminal laws. State v. Hunt, 91 N.J. 338, 360 (1982) (concurring opinion).
We have recognized the importance of the right to remain silent and particularly the importance of honoring that right once it has been claimed by a suspect. See State v. Kennedy, 97 N.J. 278, 288 (1984) (trial court authorized to determine whether an accused has been “effectively apprised of his [Miranda ] rights and [whether] the exercise of those rights [has been] fully honored.”); State v. Wright, 97 N.J. 113 (1984). Hence, a sharp, “bright-line” requirement that Miranda warnings be readministered prior to resumption of interrogation is essential, as a matter of state law, to preserve the substantive right to remain silent. Ante at 267. See State v. McCloskey, 90 N.J. 18 , 30 n. 3 (1982) (when the right to remain silent is invoked, absent new Miranda warnings, interrogation may not be resumed); see also State v. Magee, 52 N.J. 352, 374-75 (1968) , cert. den., 393 U.S. 1097 , 89 S.Ct. 891 , 21 L.Ed.2d 789 (1969) (recognizing that under certain circumstances it may be necessary, as a matter of law, to repeat Miranda warnings despite their prior administration).
We have also recognized as a matter of state law that a statement taken in violation of Miranda may not be directly used as affirmative evidence of criminal guilt by the prosecution. See State v. Gosser, 50 N.J. 438, 445-46 (1967), cert. denied, 390 U.S. 1035 , 88 S.Ct. 1434 , 20 L.Ed.2d 295 (1968) (exclusionary rule of Miranda bars from evidence statements made by a defendant during in-custody interrogation unless he *300 has been advised of his Miranda rights and knowingly and intelligently waived such rights); State v. Vigliano, 50 N.J. 51, 64 (1967) (evidence obtained in the absence of prescribed Miranda warnings is inadmissible); State v. Lutz, 165 N.J.Super 278, 283-84 (App.Div.1979) (in the absence of Miranda warnings statements made by the defendant, whether exculpatory or inculpatory, may not be used by the prosecution).
In addition, we have acknowledged the distinction between constitutional and nonconstitutional violations and the remedial consequences that flow from each. See State v. Kennedy, supra, 97 N.J. at 285-86; State v. Miller, supra, 67 N.J. 229 . To rise to the level of a constitutional violation, it is necessary that the egregious conduct of law enforcement authorities contravene, not simply the prophylactic rules protecting the privilege against compelled self-incrimination, but an independent, non-ancillary constitutional right. Cf. State v. Sugar (II), 100 N.J. 214 (1985); State v. Sugar (I), 84 N.J. 1, 25 (1980) (“Because the violation of the right to effective assistance of counsel was so serious, and because the guarantee of a fair trial has been so threatened by the insolence of local law enforcement officers, the fruits of their lawlessness must not be allowed to aid a prosecution in any manner.”); State v. Belucci, 81 N.J. 531 (1980) (violation of right to effective assistance of counsel arising out of conflict of interests mandates a per se reversal of a conviction).
Furthermore, our common law has striven to avoid artificial barriers to the search for truth and the quest for justice in the administration of the criminal laws. Thus, when such a statement has been obtained in violation of ancillary Miranda rights, but is not deemed to be of constitutional dimension, the statement may be used for legitimate prosecutorial purposes aside from direct evidence of criminal guilt. State v. Miller, supra, 67 N.J. at 233 ; State v. Ross, 80 N.J. 239, 248 (1979).
Our common law has also focused upon and stressed the reliability of confessions as the predicate for their use as direct *301 incriminating evidence in criminal causes. We have sedulously devised measures to assure the admissibility in evidence of those statements that, realistically, could be considered voluntary and reliable. See State v. Hampton, 61 N.J. 250, 267-72 (1972); State v. Yough, 49 N.J 587, 599-600 (1967); State v. Smith, 32 N.J. 501, 557-60 (1960) (Weintraub, C.J. concurring), cert. den., 364 U.S. 936 , 81 S.Ct. 383 , 5 L.Ed.2d 367 (1961) (mandating the use of a preliminary hearing to assess the voluntariness of a confession as a prerequisite to admitting an inculpatory statement). We have also actively embraced the opportunity to move beyond the guidelines of federal directives in pursuit of an unyielding commitment to assure the proper admissibility of confessions. See State v. Yough, supra, 49 N.J. at 601 (avoiding the uncertainty of future federal law developments by adopting beyond-a-reasonable-doubt test with respect to preliminary voluntariness findings). Throughout our common-law history, we have mandated exacting scrutiny of the circumstances surrounding the elicitation of an inculpatory statement commensurate with the primary objectives of reliability and voluntariness. See State v. Miller, 76 N.J. 392 (1978) (trial court must perform an exhaustive, fact-based voluntariness review as a prerequisite to admitting a confession into evidence). Once a statement has surmounted the hurdles of admissibility, it then devolves upon the jury, as the ultimate fact-finder, to determine its probative worth. See State v. Hampton, supra, 61 N.J. at 272 .
The standard I commend in this case entails a voluntariness inquiry based upon a rebuttable presumption of compulsion attached to the first confession in order to determine the admissibility of the subsequently obtained confession. This standard is fully consistent with our previously announced state common-law practices. It represents a cautious, yet flexible approach directed toward validation of Miranda’s goal of protecting a defendant from the admission into evidence of his improperly obtained confession without unduly restricting the *302 derivative or indirect use of such confessions when surrounding facts genuinely demonstrate their reliability.
I am also of the view that this approach, as a matter of state common law, would not unnecessarily extend the “fruit of the poisonous tree doctrine.” Cf State v. Barry, 86 N.J. 80, 89-90 , cert. denied, 454 U.S. 1017 , 102 S.Ct. 553 , 70 L.Ed.2d 415 (1981) (under close factual analysis, intervening independent circumstances were sufficient to purge the taint of defendant’s illegal arrest thereby satisfying the state’s burden of establishing that a subsequent confession was the product of defendants’ free will rather than the result of the exploitation of an illegal arrest); State v. Starling, 188 N.J.Super. 127 (Law Div.1983), aff'd, 207 N.J.Super. 79 (App.Div.1985). Rather, it recognizes that although a confession is excluded on the prosecutor’s case-in-chief by virtue of an irrebuttable presumption of compulsion, its voluntary character may justify shedding the stigma of presumed inadmissibility when deciding questions of its use or admissibility for other purposes. See State v. Miller, supra, 67 N.J. 229 .
IV.
In this instance, the trial judge unduly depreciated the importance of Hartley’s exercise of his right to remain silent in considering the admissibility of the “federal” statement. In finding the initial confession admissible as affirmative evidence of criminal guilt, the trial court failed to recognize or apply the “scrupulously honored” mandate, which would engender an irrebutable presumption of compulsion, or, according to the majority, a conclusive determination of unconstitutional compulsion as a matter of law. Instead, the court embarked directly upon a factual voluntariness inquiry and determined that the initial confession was in fact voluntary; the statement was admitted in evidence solely on this basis. I disapprove of the trial court’s failure to apply the “bright-line” “scrupulously honored” test and its determination that this initial confession *303 is admissible on the prosecution’s case-in-chief to establish criminal guilt. As previously noted, I would affix an irrebutable presumption of compulsion to the initial statement, thereby disqualifying it from consideration as direct, affirmative evidence.
Despite this disagreement with the trial court’s decision to admit the first confession as direct evidence of criminal guilt, I can accept its factual finding of voluntariness, at least for purposes of determining the effect of the first confession on the admissibility of the second confession. With respect to this factual analysis, as set forth in Justice Stein’s dissent, although Agent Frieberg’s remarks and the circumstances surrounding the interrogation may be perceived as demonstrating an attempt to exert pressure on Hartley, “[t]he trial court ... found as a fact that Hartley’s waiver was knowing, intelligent and voluntary.” Post at 314. The trial court’s factual determination, resulting from its totality of the circumstances voluntariness review, U.S. v. Sierra, 585 F.Supp. 1236 (D.N.J.), aff'd, 755 F.2d 925 (3d Cir.1984); State v. Miller, 76 N.J. 392 (1978), indicating that Hartley’s will was not overborne, is clearly sustainable in the record. See State v. Pickles, 46 N.J. 542 (1966); State v. Johnson, 42 N.J. 146 (1964).
I am satisfied that the presumption of compulsion, which for these purposes is appropriately regarded as rebuttable, was overcome. Hartley’s decision to confess to the “federal” authorities was not the product of any coercion, threats, force or improper conduct on the part of law enforcement officials. Henee, I feel compelled to dissent from the majority’s application of “the fruit of the poisonous tree” doctrine, consistent with my view that “[i]f the first, pre-Miranda statement is ultimately found to be voluntary, than a subsequent, post- Miranda confession should be evaluated solely under a traditional ‘waiver’ analysis.” See supra at 298. And, in accordance with the uncontroverted facts relating to the post- Miranda, “state” confession, I see no reason to disturb the *304 trial court’s finding that the second confession was voluntarily rendered.
V.
I write separately to confirm my agreement with the majority’s recognition of the importance of the “scrupulously honored” requirement in support of the claimed right to remain silent and its imposition of a “bright-line” rule to effectuate that right. At the same time, I express my disagreement with its explanation and application of these principles to this case. For these reasons, and in view of the improper admission into evidence of the initial confession, I would join in the Court’s judgment to reverse and remand.
With respect to the exercise of the right to counsel arising in a Fifth Amendment context, for example, the Supreme Court noted that "additional safeguards are necessary when an accused asks for counsel.” The safeguard provided was a "bright-line" rule that prohibits all questioning, once an accused has invoked the right to counsel, "unless the accused himself initiates further communication, exchanges or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 , 101 S.Ct. 1880 , 68 L.Ed.2d 378, 386 , reh’g denied, 452 U.S. 973 , 101 S.Ct. 3128 , 69 L.Ed.2d 984 (1981). The Court observed "that it is inconsistent with [the prophylactic rules of] Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel." Edwards v. Arizona, supra, 451 U.S. at 485 , 101 S.Ct. at 1885 , 68 L.Ed.2d at 387 . See Solem v. Stumes, 465 U.S. 638, 641 , 104 S.Ct. 1338, 1340 , 79 L.Ed.2d 579 (1984). It is arguable that the Court would consider the failure to respect a suspect’s invocation of the right to counsel under the Sixth Amendment as one that does not rise to the level of a constitutional violation but simply violates an ancillary safeguard under Miranda. E.g., Michigan v. Jackson, 475 U.S.-, 106 S.Ct. 1404 , 89 L.Ed.2d 631 (1986).
As support for its perception that a failure to give Miranda warnings after a suspect has availed himself of the right to remain silent constitutes a violation of “constitutional magnitude," the majority turns to Miranda v. Arizona, supra, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 , itself, which it proclaims “could scarcely .be clearer in that regard." Ante at 273. However, the Miranda language cited merely provides support for the proposition that an invocation *293 of the right to remain silent requires that questioning immediately cease. This gave rise to the Mosley decision, now at issue, which addressed the problem of when interrogation might properly resume. At no time did the Miranda court forecast the consequences of a failure to "scrupulously honor” the claimed right to remain silent, a standard not adopted until nine years later in Mosley .
The majority rule may be interpreted to encourage law enforcement authorities to delay imparting Miranda warnings in anticipation of eliciting a volun *294 .tary confession, subject to an Elstad type analysis, rather than the per se involuntariness that follows any confession subsequent to a Miranda warning that is not "scrupulously honored" by renewed warnings. Police officers, however, should recognize that any bad faith underlying the failure to give required Miranda warnings, directed as a subterfuge to the majority's "bright-line” rule, will be strictly scrutinized under a "voluntariness” test.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9646554. Public record. Not legal advice.