State v. Miller

Clifford, J.

(concurring in part and dissenting in part). In only one rather narrow, but fundamental, respect do I depart from the judgment of the Court. I agree that the case should be sent back to the trial judge for a determination of whether or not the requirements of Miranda v. Arizona, 384 U. S. 436 , 86 S. Ct. 1602 , 16 L. Ed. 2d 694 (1966), were met, and that if they were, the conviction should stand. If the conviction survives that process, then I also concur in the revision of sentence.

But I cannot join in the Court’s conclusion that if the trial judge determines Miranda warnings were not given and understood, he should nevertheless weigh the probative value of the prior inconsistent non-Miranda statement against the risk that its admission would “create substantial danger of undue prejudice or of misleading the jury.” The sugges *245 tion is that the statement could be admitted on the limited issue of credibility were the trial judge to find the danger of undue prejudice is minimal. I respectfully dissent because I am of the view that in this case we can and should decide the issue against the admissibility of defendant’s prior statement as a matter of law.

That statement, while it may not be a direct admission of guilt, nonetheless goes directly to the heart of the offense and comes perilously close to such an admission. It constitutes an acknowledgement by defendant that she passed the bills, albeit without awareness of their apparently obvious counterfeit character. Its receipt in evidence would be at the risk (and indeed with the high likelihood, as recognized by the trial judge) of the jury considering it on the substance of the criminal charge rather than solely on the issue of defendant’s credibility. Therein lies the “substantial danger of undue prejudice.” I think it unwise to run that risk, particularly when what is at stake is the privilege against compelled self-incrim'ination. 1 To me the proposition that any jury could limit consideration of this statement to the issue of credibility flies in the face of the plain reality of the courtroom. That notion quite simply re *246 quires the jury to do the impossible. So clearly is the fundamental privilege jeopardized in the instant case that in my respectful view the majority’s position of allowing the trial judge to weigh the statement’s probative value against the risk of undue prejudice falls short of the protection to which that privilege is entitled. Thus, I would accept the invitation of Cooper v. California, 386 U. S. 58, 62 , 87 S. Ct. 788, 791 , 17 L. Ed. 2d 730, 734 (1967), and under these circumstances exercise our power, as a matter of state law, to surround the privilege with higher protective standards than those accorded the Eifth Amendment right by the Supreme Court in Harris v. New York, 401 U. S. 222 , 91 S. Ct. 643 , 28 L. Ed. 2d 1 (1971), and Oregon v. Hass, - U. S. -, 95 S. Ct. 1215 , 43 L. Ed. 2d 570 (1975).

I would not, however, reject the Harris-Haas approach in its entirety. Eor example, I would permit the jury to receive a non-Miranda statement with a limiting instruction as to its admissibility on the issue of credibility only, if that statement dealt with a collateral fact rather than one bearing directly on guilt or innocence. On balance the privilege against self-incrimination would not there be exposed to unwarranted risk. If the fact contained in the statement is collateral, but nevertheless of probative value on the issue of credibility, then there is little likelihood of the jury being confused or misled.

Such is the situation in the companion case of State v. Davis, 67 N. J. 222 (1975), decided this day, where the challenged statement went to whether defendant was in Chicago (his alibi witnesses’ position), or Camden, New Jersey (prior statement). The offense was committed in Pleasantville, New Jersey, and therefore the statement itself tended only to show that defendant, had he testified to the 'same effect as did his alibi witnesses, was being untruthful as to his whereabouts; but the challenged prior statement did not tend to demonstrate that defendant was in fact in Pleasantville or in the victim’s store. The Davis case is, in *247 my view, not only decided rightly on its facts, but the opinion’s discussion of the use to which the prior inconsistent statement could have been put, had defendant there testified, is also in keeping with my position on the extent to which we should follow the Harris-Hass analysis. I therefore take this opportunity to explain my joinder in the Court’s opinion in Davis.

I would remand the instant case and affirm the conviction conditioned upon the trial judge’s finding that Miranda warnings were afforded defendant. In that event I would modify the sentence. If Miranda warnings were not given, or if defendant did not effectively waive her right to these warnings, the conviction should be reversed and the case remanded for a new trial, at which Detective Basile’s testimony as to defendant’s prior inconsistent non-Miranda statement should not be received in evidence for any purpose.

For remandment — Chief Justice Hughes, Justices Mountain and Sullivan and Judge Collester — 4.

Dissenting — Justice Pashman — 1.

Concurring and dissenting — Justice Clieeord — 1.

JChe public defender’s brief in the companion case of State v. Davis, 67 N. J. 222 (1975), notwithstanding, the New Jersey Constitution contains no provision similar to the Fifth Amendment to the Federal Constitution expressly setting forth a privilege against involuntary self-incrimination. And although the due process clause in Article 1, paragraph 1, of the state constitution, see S. Burlington Cty. N.A.A.C.P. v. Township of Mt. Laurel, 67 N. J. 151, 175 (1975), might well warrant as fundamental to a scheme of ordered liberty incorporation of the privilege in accord with the reasoning expounded in Malloy v. Hogan, 378 U. S. 1 , 84 S. Ct. 1489 , 12 L. Ed. 2d 653 (1964), I need not frame this opinion in constitutional terms. Either as a mandate of public policy, see In re Vince, 2 N. J. 443, 448-49 (1949), or as part of our common law, see State v. Zdanowicz, 69 N. J. L. 619, 621—22 (E. & A. 1903), state law embraces the notion that no person can be compelled to be a witness against himself. For a discussion of the state origins of the privilege against self-incrimination, see New Jersey Rules of Evidence, Rule 25, comment sec. 25.1 at 112-13 (Gann 1972).