State v. Miller

Pashman, J.

(dissenting). This case presents the Court with its first opportunity since the decision of the United States Supreme Court in Harris v. New York, 401 U. S. 222, 91 S. Ct. 643 , 28 L. Ed. 2d 1 (1971) to consider the use for purposes of impeachment of statements obtained by the police from a defendant without compliance with the requirements set out in Miranda v. Arizona, 384 U. S. 436 , 86 S. Ct. 1602 , 16 L. Ed. 2d 694 (1966). The majority has chosen to follow Harris . I would not do so.

*236 In Miranda , the Supreme Court recognized that use at trial of statements obtained from the defendant by the police was limited not only by concepts of due process found in the fifth and fourteenth amendments to the federal constitution, see, e. g., Haynes v. Washington, 373 U. S. 503 , 83 S. Ct. 1336 , 10 L. Ed. 2d 513 (1963); Brown v. Mississippi, 297 U. S. 278 , 56 S. Ct. 461 , 80 L. Ed. 682 (1936), and by the right to counsel found in the sixth amendment, see, e. g., Escobedo v. Illinois, 378 U. S. 478 , 84 S. Ct. 1758 , 12 L. Ed. 2d 977 (1964) ; Massiah v. United States, 377 U. S. 201 , 84 S. Ct. 1199 , 12 L. Ed. 2d 246 (1964), but also by the defendant’s privilege against self-incrimination. In doing so, it returned to the earliest constitutional rationale for excluding improperly obtained confessions. See Bram v. United States, 168 U. S. 532, 542 , 18 S. Ct. 183 , 42 L. Ed. 568 (1897). Emphasizing the special place in the Anglo-American legal tradition of the privilege against self-incrimination and the great potential for unfairness in conventional police interrogation practices, the Court in Miranda , established a prophylactic rule to prevent encroachment on the rights of persons accused of crimes:

[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning, Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. *237 The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. [ 384 U. S. at 444-45 , 86 S. Ct. at 1612 ; footnote omitted].

In Harris v. New York, supra, the Court created an exception to this rule of exclusion, permitting the state to use for purposes of impeaching the defendant when he chooses to testify in his own defense statements obtained from him by the police in violation of the requirements of Miranda . 1

The reasoning and holding of the majority in Harris are vulnerable to criticism on both technical and policy grounds. The technical objections to the decision as a matter of federal constitutional jurisprudence are lucidly set out in Justice Brennan’s dissent, Harris v. New York, 401 U. S. 222, 226 , 91 S. Ct. 643 , 28 L. Ed. 2d 1 (1971), and need be mentioned only briefly here:

(1) The Harris situation was specifically considered by the Court in the Miranda opinion itself and use for purposes of impeachment of statements taken by the police from the defendant without their first giving Miranda warnings was expressly rejected. Miranda v. Arizona, supra, 384 U. S. at 476-77 , 86 S. Ct. 1602 .

(2) The heavy reliance placed by the majority on Walder v. United States, 347 U. S. 62 , 74 S. Ct. 354 , 98 L. Ed. 503 (1954) was unfounded. Walder allowed the prosecutor to impeach the defendant by use of evidence seized in violation of the fourth amendment when such evidence contradicted testimony by the defendant on collateral matters. It did not permit use of such evidence, even for pur *238 poses of impeachment, where the evidence bears on essential elements of the prosecutor’s case. Walder v. United States, supra at 65, 74 S. Ct. 354 .

(3) The majority ignored a well-established line of cases holding that the fifth amendment prohibits any attempt to burden the defendant’s choice as to whether to testify or remain silent. See, e. g., Griffin v. California, 380 U. S. 609 , 85 S. Ct. 1229 , 14 L. Ed. 2d 106 (1965).

While these technical defects are pertinent to the amount of deference to be paid the decision in Harris , the policy objections to this decision are of much greater consequence. See generally Harris v. New York, supra, 401 U. S. at 226 , 91 S. Ct. 643 (Brennan, J. dissenting); Riddell v. Rhay, 404 U. S. 974 , 92 S. Ct. 336 , 30 L. Ed. 2d 291 (1971) (Douglas, J. dissenting from denial of writ of certiorari); State v. Santiago, 53 Haw. 254 , 492 P. 2d 657 (Haw. Sup. Ct. 1971); cf. Oregon v. Hass, - U. S. -, 95 S. Ct. 1215 , 43 L. Ed. 2d 570 (1975).

Miranda v. Arizona, supra, established standards for police conduct so as to protect constitutional rights of persons accused of crime. It sought to deter violation of standards by depriving the state of the fruits of police misconduct. Harris v. New York, supra, does not purport to overrule the standards of conduct established in Miranda ; it simply permits courts to close their official eyes to police misconduct in certain circumstances. In doing so, it significantly undermines the deterrent value of the Miranda rule:

Yet, after Harris, there is no longer any real incentive for police to obey Miranda. Credibility is always an issue when an accused takes the stand in his own defense. The license granted by the Harris majority to use Miranda-violative statements for impeachment purposes, therefore, foreshadows the possible use of tainted statements in almost every case. This opens the door to a calculated risk by police interrogators. If, in response to Miranda warnings, an accused indicates he wishes to have an attorney present during questioning, the request may be ignored with virtual impunity. If a damaging statement is thereafter forthcoming, it may almost certainly be used against the accused if he later elects to take the stand in his own defense. Moreover, the risk is minimal that the inability to *239 use the statement in the prosecution’s case-in-chief will result in a dismissal of the charges or a directed verdict of acquittal. Unlike other situations in which exclusionary rules operate to exclude illegally obtained physical evidence, it is seldom that a prima facie case requires corroboration from the lips of the accused. [Riddell v. Rhay, supra, 404 U. S. at 974 , 92 S. Ct. at 338 (Douglas, J. dissenting from denial of writ of certiorari)].

In addition, by permitting judicial tolerance of and reliance upon improperly obtained evidence, it makes the courts a vehicle for government wrongdoing. This not only demeans the judicial process but subtly undermines the entire foundation of government under law. The matter was aptly put by Justice Brandéis in his dissent in Olmstead v. United States, 277 U. S. 438, 485 , 48 S. Ct. 564, 575 , 72 L. Ed. 944 (1927), 2 an early wiretapping case;

In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

Miranda amply documents the widespread use of police interrogation tactics which rely on subtle forms of deception and coercion and which take advantage of defendant’s ignorance of his constitutional rights to remain silent and consult counsel. 384 U. S. 445—58, 86 S. Ct. 1602 . These tactics are not merely unfair, they cast doubt on the reliability of statements obtained from defendants through their use. The effect of the subtly coercive atmosphere of the custodial police interrogation, though not rendering the statements coerced for purposes of the due process clause, may induce the defendant to misstate or exaggerate facts in ways which, though understandable in the circumstances in which they were made, appear as devastating inconsistencies when *240 later produced at trial. Harris ignores the fact that the rules set out in Miranda are calculated to advance the cause of truth as well as that of fairness.

The decision in Harris heavily burdens defendant’s right to choose to testify or to remain silent at trial, a right which is protected by the fifth amendment. Griffin v. California, 380 U. S. 609 , 85 S. Ct. 1229 , 14 L. Ed. 2d 106 (1965). By choosing to testify, the defendant not only exposes his own credibility to question and subjects himself to cross-examination by the prosecutor on all aspects of his defense but, under Harris , also opens the door to introduction in rebuttal of highly prejudicial statements which the state has illegally obtained from him. A recent opinion describes this as a “grisly Hobson’s choice,” Commonwealth v. Woods, 455 Pa. 1, 7 , 312 A. 2d 357, 360 (Pa. Sup. Ct. 1973) (Roberts, J. concurring). I do not consider this characterization unfair or exaggerated.

Arguably, the consequences of Harris are mitigated by the limitation to impeachment of the use of an illegally obtained statement. It would, however, be excessively ingenuous to suppose that the jury would or could treat highly incriminating statements made by the defendant solely as evidence of credibility and ignore them for all other purposes. Riddell v. Rhay, supra, 404 U. S. at 974 , 92 S. Ct. 336 . Indeed this Court rejected such a supposition in State v. Boone, 66 N. J. 38, 48-49 (1974) where the State sought admission of a previously withdrawn guilty plea. Cf. Bruton v. United States, 391 U. S. 123 , 88 S. Ct. 1620 , 20 L. Ed. 2d 476 (1968); Jackson v. Denno, 378 U. S. 368 , 84 S. Ct. 1774 , 12 L. Ed. 2d 908 (1964); Krulewitch v. United States, 336 U. S. 440, 453 , 69 S. Ct. 716 , 93 L. Ed. 790 (1949) (Jackson, J. concurring).

The majority in Harris seeks to justify the exception to the Miranda rule on the grounds that to adopt any other rule would permit Miranda to be “perverted into a license to use perjury by way of defense.” Harris v. New York, supra, 401 U. S. at 226 , 91 S. Ct. at 646 . It should first be noted *241 that the Harris majority has characterized the issue in language more dramatic than accurate. The fact that the defendant at trial makes statements inconsistent with prior statements made to the police does not demonstrate that his testimony is perjured. Prior inconsistent statements may often be harmonized or explained. If the statements are irreconcilable it may indicate that the prior statement was false rather than the latter, a realistic possibility where the prior statement was made under the subtly coercive circumstances of the station house interrogation. Nor does Miranda bar the prosecutor from exploring the defendant’s credibility. It leaves him all the traditional tools for unmasking falsehood, requiring only that he use fair and legal methods rather than ones which are rooted in official misconduct.

Even were the Harris majority’s characterization accurate, its conclusion would not follow. It is a common phenomenon in the law that evidence probative as to substantive issues or the credibility of a witness is excluded because its admission would conflict with other important policies. Thus, in appropirate circumstances, we exclude statements made by a criminal defendant to his lawyer, Evid. R. 26, to his spouse, Evid. R. 28, or to his clergyman, Evid. R. 29. We exclude statements whose disclosure would imperil the State, Evid. R. 34. We exclude statements made under previous grant of immunity. We exclude offers to compromise or bargain for a plea, Evid. R. 52, and previously withdrawn guilty pleas. State v. Boone, supra. The decision in Miranda v. Arizona involved an express decision that deterrence of police misconduct and preservation of the integrity of the criminal justice system were policies of sufficient weight to justify the loss of some relevant evidence.

However unsound the decision of the United States Supreme Court in Harris v. New York, 401 U. S. 222 , 91 S. Ct. 643 , 28 L. Ed. 2d 1 (1971) as a matter of federal constitutional law, its holding is nevertheless the definitive construction of the federal constitution. While we may criticize the decision, we cannot decline to obey it. State v. Funicello, *242 60 N. J. 60, 69 (1972) (Weintraub, C. J. concurring); Jackman v. Bodine, 43 N. J. 453, 479 (1964) (Haneman, J. concurring) . Such decisions, however, do not impair the power of this Court to adopt as a matter of State law more rigorous rules for the protection of the individual, Cooper v. California, 386 U. S. 58, 62 , 87 S. Ct. 788 , 17 L. Ed. 2d 730 (1967), as we have had occasion to do in the past. E. g., Rodriguez v. Rosenblatt, 58 N. J. 281 (1971), see generally, State v. Horton, 34 N. J. 518 (1961). Cf. Robinson v. Cahill, 62 N. J. 473 (1973).

Although the Constitution of 1947 does not expressly guarantee the privilege against self-incrimination, that privilege has been recognized as a common law right since the very earliest days of independence. State v. Fary, 19 N. J. 431 (1955); State v. Zdanowicz, 69 N. J. L. 619 (E. & A. 1903). It is so fundamentally woven into our system of criminal justice that it may fairly be treated as one of the basic and absolute rights incorporated into N. J. Const. (1947), Art. 1, § 1. King v. South Jersey National Bank, 66 N. J. 161, 178 (1974); Ransom v. Black, 54 N. J. L. 446, 448 (Sup. Ct. 1892), aff’d 65 N. J. L. 688 (E. & A. 1893). In addition, it is adopted as part of our rules of evidence. Evid. R. 25, 37, 38.

I would construe N. J. Const. (1947), Art. 1, § 1 and the rules of evidence as incorporating the principles of Miranda v. Arizona, 384 U. S. 436 , 86 S. Ct. 1602 , 16 L. Ed. 2d 694 (1971) and would reject the exception permitted by Harris v. New York, supra. Cf. King v. South Jersey National Bank, 66 N. J. 161, 195 n. 7 (1974) (PaShman, J. dissenting). Heither the majority in Harris nor the majority in this case has demonstrated that arguments for adopting this exception outweigh the strong policy arguments against doing so set out above.

I find the decision of the majority on this issue particularly unsatisfying in that it does not deal with our rules of evidence. Ev id. R. 25 provides in pertinent part:

*243 Subject to Rule 37, every natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate. * * *

Evid. R. 37 states in pertinent part:

A person waives his right or privilege to refuse to disclose or to prevent another from disclosing a specified matter if he or any other person while the holder thereof has (a) contracted with anyone not to claim the right or privilege or, (b) without coercion and with knowledge of his right or privilege, made disclosure of any part of the privileged matter or consented to such a disclosure made by anyone. [Emphasis added],

Evid. R. 38 provides:

Evidence of a statement or other disclosure is inadmissible against the holder of the privilege if the disclosure was wrongfully made or erroneously required.

It .may well be that Evid. R. 37 ought to be construed to require proof of the giving of warnings equivalent to those required by Miranda . It is clear that the language of the rule requires at least an affirmative demonstration that the defendant had actual knowledge of his right to remain silent at the time of the police interrogation. Evid. R. 38 provides that in the absence of such a demonstration, the evidence must be excluded. It makes no exceptions for use for purposes of impeachment. The majority, even if it adopts the general principle of Harris , must limit it to at least this extent.

I recognize that the vast majority of courts which have considered the Harris issue since the decision of that case have chosen to adopt the exception to Miranda. See, e. g., State v. Jorgenson, 108 Ariz. 476 , 502 P. 2d 158 (Ariz. Sup. Ct. 1972); People v. Moore, 54 Ill. 2d 33 , 294 N. E. 2d 297 (Ill. Sup. Ct. 1973), cert. denied 412 U. S. 943 , 93 S. Ct. 2787 , 37 L. Ed. 2d 404 (1973); Commonwealth v. Harris, Mass., 303 N. E. 2d 115 (Mass. Sup. Jud. Ct. *244 1973). One jurisdiction has expressly refused to do so. State v. Santiago, 53 Haw. 254 , 492 P. 2d 657 (Haw. Sup. Ct. 1971), and others have expressed varying degrees of doubt. See, e. g., Commonwealth v. Woods, 455 Pa. 1 , 312 A. 2d 357 (Pa. Sup. Ct. 1973). 3 I find the latter view the sounder one.

I concur with the majority insofar as it holds that the matter must be remanded for a hearing to determine whether Miranda warnings were given. I also concur in its holding that defendant should receive a non-custodial sentence if the conviction is ultimately sustained. As to the admissibility of Detective Barile’s testimony upon retrial, if the trial court finds that Miranda warnings were given, the testimony is admissible. If the trial court finds that no Miranda warnings were given, the testimony is not available for any purpose and I therefore dissent.

The recently decided case of Oregon v. Hass, - U. S. -, 95 S. Ct. 1215 , 43 L. Ed. 2d 570 (1975), cited by the majority, is not in point. That case, although relying upon Harris v. New York, supra, as precedental authority, did not concern failure by the police to give Miranda warnings, but, rather, misconduct by the police after the warnings had bfeen properly given.

Olmstead was overruled aud Brandeis’s view vindicated in Katz v. United States, 389 U. S. 347 , 88 S. Ct. 507 , 19 L. Ed. 2d 576 (1967).

It is perhaps worthy of note that while many courts considered the Harris issue prior to the Supreme Court decision, very few anticipated that decision. See the cases collected in Harris v. New York, supra, 401 U. S. at 231 n. 4, 91 S. Ct. 643 (Brennan, J. dissenting).