# State v. Irving

> Supreme Court of New Jersey · March 30, 1989 · 114 N.J. 427

URL: https://www.frixlaw.com/law-library/cases/9651670

## Case

- **Full name:** State of New Jersey, Plaintiff-Respondent, v. Larry Irving, Defendant-Appellant
- **Court:** Supreme Court of New Jersey
- **Decided:** March 30, 1989
- **Citations:** 114 N.J. 427; 555 A.2d 575; 1989 N.J. LEXIS 37
- **Precedential status:** Published
- **Opinion:** Dissent by Handler
- **Judges:** Clifford, Handler, O'Hern
- **Cited by:** 96 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/9651670

## How later opinions describe it (automated extraction)

- finding improper a police officer's testimony that after he canvassed the neighborhood looking for leads, "he focused on the defendant as the subject of his investigation and placed his picture in the [photo] array"
- noting that notice envisioned by Court in Clawans is intended “to provide the party accused of non-production an opportunity either to call the witness or to explain his failure to do so”
- recognizing importance of court’s express consideration of all pertinent circumstances when reviewing prosecutor’s request to mention inference in summation
- finding no need for a detective to justify why he placed a defendant's photograph in an array since there was no alleged arbitrary police action

## Opinion text

HANDLER, J.,
dissenting.
I agree with Justice O’Hern that the only justification for the notice of alibi has been converted into a testimonial weapon and der our rules of practice, these relate only to discovery and trial preparation. In the circumstances of this case, however, the notice-of-alibi has been.converted into a testimonial weapon and used against the defendant. This enormously strengthens the State’s hand against the defendant: the State not only learns of a defense in advance of trial but also extracts testimony for *449 prosecutorial use at trial. In my opinion, this violates defendant’s constitutional and state common-law privilege against self-incrimination.
The determination of whether there has been a violation against the privilege against self-incrimination involves a two-pronged inquiry: (1) whether there was a “testimonial” event, and (2) whether there was “compulsion.” Justice O’Hern explains the testimonial character of the notice of alibi in this case, viz:
Like all of the other situations in which a defendant may be forced to give evidence to aid in the preparation of the prosecution’s case, the notice-of-alibi requirement can be justified as not violating the State and Federal guarantees against self-incrimination only to the extent that the compelled evidence is non-testimonial. The majority inverts this principle: it treats the use of the notice of alibi as testimonial when its only justification in law is as a non-testimonial event.
[Post at 465 (footnote omitted).]
The majority, however, appears to discount the importance of the testimonial aspect of the use of the notice of alibi, stressing that the notice of alibi can survive constitutional scrutiny even if testimonial, as long as it is not “compelled”:
The dissent’s [Justice O’Hern’s] assertion that the only justification for the notice-of-alibi rule is as a "non-testimonial event” ... is ... wide of the mark. The justification for the rule, under Williams, is that it does not compel self-incriminating testimony. '
[Ante at 465.]
Justice O’Hern’s dissent demonstrates why the use of the notice is “testimonial.” In addition, and contrary to the reasoning of the majority, use of the alibi notice to impeach credibility also constitutes unconstitutional compulsion.
I.
Part of the difficulty in the analysis of this issue inheres in the overlap of the notions of what is testimonial and what is compulsory. In Fisher v. United States, 425 U.S. 391 , 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976), the Supreme Court found that not all compulsion is forbidden under the fifth amendment, only that which eventuates in “testimony” or denotes communicative *450 content. Id. at 410-11 , 96 S.Ct. at 1580-81 , 48 L.Ed.2d at 55-56 . The Court had previously held that the production of handwriting, voice, and blood samples can be compelled because they are not “testimonial” or “communicative.” 1 Fisher , however, was the first time that the Court explained how what might otherwise be considered only an act of production could also be regarded as a “testimonial” or “communicative” act; Fisher held that under some circumstances, an act of production can be testimonial, wholly aside from the contents of the papers produced. Id. at 410 , 96 S.Ct. at 1581 , 48 L.Ed.2d at 56 . This position was clarified in United States v. Doe, 465 U.S. 605 , 104 S.Ct. 1237 , 79 L.Ed.2d 552 (1984), in which the Court held that delivery of documents by the owner of a sole proprietorship was a testimonial act insofar as the act might be used to affirm the truth of the documents’ contents or authenticate them as his own. Id. at 613 , 104 S.Ct. at 1242 , 79 L.Ed.2d at 560-61 ; see also Braswell v. United States, — U.S.-,-, 108 S.Ct. 2284, 2296 , 101 L.Ed.2d 98, 115 (1988) (although act of production by corporation’s representative is unprotected action of the “corporation,” government may make no evidentiary use of the “individual act” of production against the individual). This Court has similarly recognized this analytic framework for determining when acts of production are testimonial in character. Matter of Grand Jury Proceedings of Guarino, 104 N.J. 218, 226-29 (1986).
We agree that the Supreme Court made clear in United States v. Doe that such testimonial use of compelled discovery for the purpose of showing the defendant has affirmed the truth of its contents violates the “testimony” prong of the fifth *451 amendment. 465 US. at 613, 104 S.Ct. at 1242 , 79 L.Ed.2d at 560-61 . As Justice O’Hern analyzes the consequences of the present holding,
[w]hen the defendant prepares and provides the notice of alibi he may be seen as performing two conceptually separate acts. First, he is providing information so that the prosecutor will not be surprised by the presentation. Second, he may be seen as vouching for the truth and completeness of that alibi. Even if we assume (as Williams does) that the alibi information required of the defendant is “non-testimonial,” he cannot be made to vouch for it.
[Post at 466.]
In this case, defendant assuredly has been required to affirm or deny the contents of the notice of alibi. There can be no genuine quarrel that the production of the notice of alibi has been converted to a testimonial use.
II.
I think it is also clear that in the context of the privilege against self-incrimination, the production of the notice of alibi is “compelled.” Our understanding of the nature of “compulsion” in terms of the privilege against self-incrimination is informed by a different strain of authority from that dealing with what is “testimonial.” Unconstitutional compulsion can take different forms: “pristine” compulsion involves direct sanctions for refusing to waive the fifth amendment; indirect or conditional compulsion can occur when a “burden” is placed on the otherwise unconditional right to remain silent, such that the decision to waive that right is no longer considered truly “voluntary.” See R. Mosteller, “Discovery. Against the Defense: Tilting the Adversarial Balance,” 74 Calif.L.Rev. 1567, 1593 (1986). Examples of pristine compulsion are the police beating someone into talking to them, Harris v. New York, 401 U.S. 222, 224 , 91 S.Ct. 643, 645 , 28 L.Ed.2d 1, 4 (1971) (statements made to police that do not satisfy legal standards of trustworthiness not admissible); threats of charges of contempt for declining to testify before a grand jury without waiving the privilege, State v. Portash, 440 U.S. 450 , 99 S.Ct. 1292 , 59 L.Ed. 2d 501 (1979); and adverse inferences drawn from *452 silence at trial, Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965).
The second form of unconstitutional compulsion involves the state’s conditioning the preservation of other constitutional rights on a waiver of the privilege as a result of which the choice to waive is no longer considered truly voluntary. For example, in Simmons v. United States, 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968), the Court held that protection of fourth amendment rights could not be conditioned on waiver of the fifth. The Court determined that testimony given by a defendant to meet standing requirements necessary to raise a fourth amendment challenge would not be admissible against defendant at trial. The Court rejected the argument that the testimony was voluntarily given; it found instead that the defendant waived the privilege against self-incrimination only in order to protect his fourth amendment rights. 390 U.S. at 393-94 , 88 S.Ct. at 976 , 19 L.Ed.2d at 1258-59 . “[W]e find it intolerable that one constitutional right should have to be surrendered in order to assert another.” Id. at 394 , 88 S.Ct. at 976 , 19 L.Ed.2d at 1259 . In Lefkowitz v. Cunningham, 431 U.S. 801 , 97 S.Ct. 2132 , 53 L.Ed.2d 1 (1977), the Court again found that compelled choices between constitutional rights are impermissible. In that case, the Court struck down a New York statute that permitted deprivation of political office for persons who refuse to waive the fifth amendment for grand jury hearings. The Court found that the exercise of first amendment freedoms of political association could not be conditioned on waiver of the fifth amendment privilege. In Brooks v. Tennessee, 406 U.S. 605 , 92 S.Ct. 1891 , 32 L.Ed.2d 358 (1972), the Court struck down a Tennessee statute that required a defendant who wished to waive the privilege against self-incrimination to do so before the prosecutor presented the State’s case or lose the right to do so later. Brooks found the defendant has a constitutional right to present his or her defense after the State bears its burden of proof. This right, which fixes the burden of proof on the State, *453 could not be waived in order to preserve the fifth amendment right to waive the privilege. The Court struck down this rule for impermissibly “castpng] a heavy burden on a defendant’s otherwise unconditional right not to take the stand.” Id. at 610 , 92 S.Ct. at 1894 , 32 L.Ed.2d at 363 .
In the present case, under the majority’s reasoning, the defendant is similarly confronted with a constitutional Hobson’s choice: the defendant’s right to remain silent must be waived in order to preserve the right to assert an alibi defense. If defendant wishes to testify without concern that the notice of alibi will be used against him, then he must abandon his alibi defense; conversely, if he chooses to press his alibi defense, he must relinquish the right to testify without apprehension that the notice of alibi will be used against him. Under the majority’s rule, therefore, a defendant who wishes to present an alibi defense is confronted by a substantial burden on his otherwise unconditional right not to impeach himself. See id. Here, the use of the notice of alibi to impeach credibility is a testimonial use; defendant’s waiver of the fifth amendment privilege is conditionally compelled in that his right to an alibi defense is conditioned on a required testimonial use of the notice. Therefore, exercise of the right to an alibi defense is substantially burdened by the fact that the defendant must give up the fifth amendment privilege in order to assert the alibi defense.
A critical review of Williams v. Florida, 399 U.S. 78 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970), as it bears on the question of indirect or conditional compulsion, will disclose that the majority has misperceived and misapplied its teaching. Williams found that as used in that case, the notice-of-alibi requirement involved neither testimony nor compulsion. First, Williams found that there was no testimonial event involved in filing the alibi notice: (1) no statements would be used at trial ( 399 U.S. at 82 , 90 S.Ct. at 1896 , 26 L.Ed.2d at 450 ); and (2) defendant would not be compelled to follow through with the alibi defense at trial in order to avoid an unfavorable inference. Id. at 84 , 90 *454 S.Ct. at 1897 , 26 L.Ed.2d at 451 . In short, the Court anticipated no litigational use would be made of the notice. Moreover, it cannot be overemphasized that Williams antedated the first articulation of the communicative/testimonial implications of the production of evidence as expressed by Fisher and Doe . The Williams Court thus did not consider whether any “communicative” use of the contents of the notice, such as an affirmation of the truth of its contents, was permissible.
Instead, the Williams majority and dissent differed only over whether the providing of names to the prosecutor involves the fifth amendment, if no judicial use is made of the contents unless the defendant decides to present an alibi defense. The majority rejected the dissent’s position that the adverse effect of providing names in advance of trial, before a defendant determines to use an alibi, violates the fifth amendment. The majority reasoned that since a defendant in presenting an alibi can be forced to give names during trial without implicating the fifth amendment, being forced to give names before trial would similarly not implicate the fifth amendment. Id. at 83-84 , 90 S.Ct. at 1897 , 26 L.Ed.2d at 451 .
Second, Williams held there was no compulsion insofar as it found no burden on defendant’s choice to waive the privilege at trial. According to the majority, whether the defendant ultimately chose to take the stand was still left to his “unfettered choice.” Id. at 84 , 90 S.Ct. at 1897 , 26 L.Ed.2d at 451 . Under the majority’s understanding, filing the notice was in no way related to the decision to take the stand. Thus, the Court did not focus on the testimonial potential of either the filing of the notice or the possible use of its contents in determining that the privilege against self-incrimination was not implicated. It is in this context that we must read the following observation:
The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses in an effort to reduce the risk of conviction---- The pressures generated by the State’s evidence may be severe but they do not vitiate the defendant’s choice to present an alibi defense and witnesses to prove it, even though the attempted defense ends in catastrophe for the defendant. However “testimonial” or “incriminating” the alibi defense proves to be, it *455 cannot be considered “compelled” within the meaning of the Fifth and Fourteenth Amendments.
•[/bid]
To reiterate, the majority in Williams rejected the argument that the alibi-notice requirement violated the fifth amendment because: (1) it found the notice itself non-testimonial because its contents would not be used at trial and there was no intimation that the mere filing or production of the notice had any potential testimonial uses; and (2) absent any testimonial use of the notice itself, it found no compelled waiver because the voluntary preparation of the notice would have no impact on the otherwise voluntary decision to take the stand.
In the present case, the majority relies on Williams to make the additional argument that there is no compulsion in using the notice to impeach credibility since the notice was itself voluntarily prepared:
The decision whether to file the notice, according to the Court in Williams , was no different from a defendant’s decision to testify or to remain silent—a dilemma that has “never been thought an invasion of the privilege against compelled self-incrimination.” Williams, supra, 399 U.S. at 84-85 , 90 S.Ct. at 1897-98 , 26 L.Ed.2d at 451 .
[Ante at 434.]
However, the Court overreads or misreads Williams . The Court in this case is adding a condition subsequent to the filing of the notice of alibi that the Supreme Court in Williams did not: the subsequent testimonial use of the notice. The defendant’s decision in Williams to file the notice and take the stand were two separable voluntary acts. Indeed, the Williams majority found no added risks of incrimination arising from the notice itself. 399 U.S. at 85 , 90 S.Ct. at 1898 , 26 L.Ed.2d at 452 . It is in this context that we must read the following passage on “compulsion” from Williams , which is quoted by the majority:
Nothing in such a rule requires the defendant to rely on an alibi or prevents him from abandoning the defense; these matters are left to his unfettered choice. That choice must be made, but the pressures that bear on his pretrial decision are of the same nature as those that would induce him to call alibi witnesses at the trial: the historical fact beyond both his and the State’s control *456 and the strength of the State’s case built on these facts. Response to that kind of pressure by offering evidence or testimony is not compelled self-incrimination transgressing the Fifth and Fourteenth Amendments. Id. at 84-85 , 90 S.Ct. at 1897-98 , 26 L.Ed.2d at 451-52 .
[Ante at 484.]
In our case, filing the notice subject to its later use for impeachment purposes combines what in Williams. otherwise constituted the separate acts of filing the notice and subsequently taking the stand. Because we now say that a notice may be used for testimonial purposes at trial, we cannot in the next breath assert that the decision to file the notice is truly a separable act; it is now encumbered by adverse testimonial consequences. And, conversely, we cannot claim that the decision to testify itself can be exercised freely; it is now burdened by the antecedent notice.
The critical question in the present case is whether it is constitutionally permissible to condition the right to an alibi defense on a waiver of the fifth amendment. As stated earlier, I believe that use of the alibi notice to impeach credibility is a testimonial use. I also believe that conditioning preservation of an alibi defense on a testimonial use is tantamount to conditioning the alibi defense on a waiver of the fifth amendment as well as our common-law privilege against self-incrimination. Such a condition for exercising a constitutional right to a defense “casts a heavy burden on a defendant’s otherwise unconditional right not to take the stand.” Brooks v. Tennessee, supra, 406 U.S. at 610 , 92 S.Ct. at 1894 , 32 L.Ed.2d at 363 .
The notion that the defendant has “voluntarily” prepared the alibi notice should not collapse into a conclusion that the waiver of the privilege against self-incrimination is itself voluntary. The right to an alibi defense and the right to remain silent are two separate constitutional rights. Exercise of one should not be conditioned on waiver of the other. Just as in Simmons v. United States, supra, 390 U.S. at 377 , 88 S.Ct. at 967 , 19 L.Ed.2d at 1247 , where exercise of the fourth amendment cannot be conditioned on waiver of the fifth; Lefkowitz v. *457 Cunningham, supra, 431 U.S. at 801 , 97 S.Ct. at 2132 , 53 L.Ed. 2d at 1 , where the first amendment right to hold political office cannot be conditioned on waiver of the fifth; and Brooks v. Tennessee, supra, 406 U.S. at 605 , 92 S.Ct. at 1891 , 32 L.Ed.2d at 358 , where waiver of the privilege cannot be conditioned on giving up the right to have the prosecutor bear the burden of proof first, we should not allow such a choice between constitutional rights.
III.
I join in Justice O’Hern’s opinion that use of the notice for the limited purpose of expediting discovery is a legitimate purpose already narrowly served by the litigational penalties. Post at 465. 2 Any testimonial use, however, should be impermissible. In fact, testimonial use, even if only for credibility and not for substantive purposes, transforms the purpose of the notice-of-alibi rule into a device or mechanism for impeaching the credibility of the defendant. Fisher and Doe make clear that discovery rules should not be transformed into means for obtaining self-incriminating testimony.
Testimony obtained without a voluntary waiver can never be used in court, even for the limited purpose of impeaching credibility. Both federal and state law require an extremely protective remedy for evidence obtained in violation of the privilege against self-incrimination: the defendant shall be put back in substantially the same position as if the privilege had never been violated. See Kastigar v. United States, 406 U.S. 441, 462 , 92 S.Ct. 1653, 1666 , 32 L.Ed.2d 212, 227 (1972); State v. Strong, 110 N.J. 583, 595 (1988). This means no direct or derivative use can be made of the testimony. Kastigar v. *458 United States, supra, 406 U.S. at 453, 92 S.Ct. at 1661 , 32 L.Ed.2d at 221 . Indeed, no use for credibility purposes is allowed. State v. Portash, supra, 440 U.S. 450 , 99 S.Ct. 1292 , 59 L.Ed.2d 501 .
This highly protective remedy distinguishes fifth amendment from fourth amendment and Miranda-fifth amendment protections directed against police misconduct. State v. Strong, supra, 110 N.J. at 593 . Fourth amendment and Miranda doctrine hold that absent coercion, evidence obtained by the police in violation of Miranda may be used for credibility purposes, even if it cannot be used for substantive purposes. The majority cites this doctrine to justify limited use of the notice for credibility purposes:
In State v. Miller, 67 N.J. 229 (1975), this Court held that a statement taken without full Miranda warnings, see Miranda v. Arizona, 384 U.S. 436 [ 86 S.Ct. 1602 ], 16 L.Ed.2d 694 (1966), although not admissible on the State’s ease-in-chief, may be used to impeach defendant’s credibility as a witness “should the defendant take the witness stand and give testimony which is at variance with what was said in the statement to the police.” Id. [67 N.J.] at 233 (citing Harris v. New York, 401 U.S. 222 [ 91 S.Ct. 643 ], 28 L.Ed.2d 1 (1972)). We see in Miller an analogy to this case, where the only purpose for the use of the notice of alibi was to impeach Irving’s credibility.
[Ante at 436.]
However, these fourth amendment and Miranda doctrines are inapposite. The fourth amendment and Miranda remedies are directed toward deterrence of police misconduct, and both the United States Supreme Court and our Court have decided that prohibiting only substantive use of testimony is sufficient for this purpose. See State v. Strong, supra, 110 N.J. at 593 . The fifth amendment privilege against self-incrimination itself, however, is directed against any form of compelled self-incrimination. It therefore protects against not only a substantive testimonial use based on pristine or direct compulsion but any kind of judicial or trial pressures on defendants to waive the privilege in any respect. See Griffin v. California, supra, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (no adverse inferences may be drawn from silence); State v. Strong, supra, 110 N.J. at 593-94 (there can be no prosecutorial disadvantages to defendant from failure to waive the privilege). The fifth *459 amendment remedy that surrounds the privilege precludes any use of compelled testimony; it is directed against self-incrimination; its singular concern is not toward deterrence of future harm. That is why, even in the context of fourth amendment and Miranda remedies, if “compulsion” goes to the heart of the privilege itself, and thereby compromises the “truthfulness” of the testimony, such testimony cannot be used even for credibility purposes. See e.g., State v. Hartley, supra, 103 N.J. 252 (if a defendant’s invocation of the right to remain silent is not “scrupulously honored,” there is “compulsion as a matter of law”); State v. Miller, 67 N.J. 229 (1975) (if incriminating evidence is obtained by police through “psychological” coercion, it may be barred). Therefore, because the privilege cannot be impaired by any form of compulsion, the defendant who is thus victimized is entitled to a strict remedy that requires that the defendant be restored substantially to the same position as if no waiver or impairment of the privilege had occurred. See Kastigar v. United States, supra, 406 U.S. at 462, 92 S.Ct. at 1666 , 32 L.Ed.2d at 227 ; State v. Strong, supra, 110 N.J. at 595 .
Under the majority’s rule, conditioning an alibi defense on a waiver of the fifth amendment and the common-law privilege against self-incrimination, even if waiving only to the extent that the notice is used for credibility purposes, is tantamount to a compulsory waiver. Its limited use for credibility purposes cannot be justified by reliance on fourth amendment protections and Miranda doctrine.
I would for these reasons and those presented by Justice O’HERN reverse the judgment of conviction.
See Gilbert v. California, 388 U.S. 263, 265-67 , 87 S.Ct. 1951, 1952-54 , 18 L.Ed.2d 1178, 1181-83 (1967) (fifth amendment does not apply to handwriting exemplars); United States v. Wade, 388 U.S. 218, 222-23 , 87 S.Ct. 1926, 1929-30 , 18 L.Ed.2d 1149, 1154-55 (1967) (fifth amendment does not apply to voice samples); Schmerber v. California, 384 U.S. 757, 763-64 , 86 S.Ct. 1826, 1831-32 , 16 L.Ed.2d 908, 915-16 (1966) (no privilege to refuse to give blood samples).
Rule 3:11-2 states:
If such bill of particulars is not furnished as required, the court may refuse to allow the party in default to present witnesses at trial as to defendant’s absence from or presence at the scene of the alleged offense, or make such other order or grant such adjournment as the interests of justice requires.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9651670. Public record. Not legal advice.