Kenneth
Vercammen's Law office represents individuals charged with criminal and serious
traffic violations throughout New Jersey.
The
Fifth Amendment to the United States Constitution prohibits the use of
involuntary statements and confessions at trial. The State bears the burden of
proof in a motion to suppress a statement allegedly obtained in violation of
the Miranda doctrine. New Jersey requires the higher standard of beyond a
reasonable doubt when the court determines if Miranda has not been fully
complies with. State v Yough, 49 NJ 587, 600-601 (1967), State v Whittington
142 NJ Super. 45, 49-50 (App. Div. 1976), State v Flower 224 NJ Super. 208, 213
(Law Div 1987) affd per curiam 224 NJ Super. 90 (App. Div. 1988).
WHAT
IS INTERROGATION?
As
set forth in NJ Practice , Vol. 32 Criminal Practice and Procedure (West 1998)
Section 755, (L. Arnold) in Rhode Island V Innis, 446 U.S. 291, 100 S.Ct. 1682,
64 L.Ed.2d 297 (1980) the United States Supreme Court held that the term
"interrogation" under Miranda refers not only to express questioning
but also to any words or actions on the part of the police that the police
should know are reasonably likely to elicit, an incriminating response from the
suspect. It is "an established principle of our federalist system"
that states may afford "individual liberties more expansive than those
afforded by the federal constitution." State v Novembrino 105 NJ 95, 144-145
(1987).
Generally,
a statement given by a defendant is not admissible in a criminal case unless
the court is satisfied beyond a reasonable doubt that the defendant was
informed of his Miranda rights before giving the statement and "in light
of all the circumstances attending the confession it was given
voluntarily." State v Hampton, 61 NJ 250, 272 (1972). What is at stake is
ensuring the use of effective procedural safeguards to secure the right of the
Fifth Amendment to the United States Constitution that " no person shall be....
compelled in any criminal case to be a witness against himself," which is
now made applicable to state action by the Due Process Clause of the Fourteenth
Amendment. However, once informed of his rights " a defendant may waive
effectuation of these rights provided the waiver is made voluntarily, knowingly
and intelligently." State v Flower 224 NJ Super. 208, 213 (Law Div 1987)
affd per curiam 224 NJ Super. 90 (App. Div. 1988). citing Miranda v Arizona 384
US 436, 444, 86 S. Ct 1602, 1612, 16 L. Ed 2d 694 (1966); emphasis in Flowers.
In State v Flower 224 NJ Super. 208, 213 (Law Div 1987) affd per curiam 224 NJ
Super. 90 (App. Div. 1988), the defendant had a low IQ and limited vocabulary.
He gave confessions to police and a confession to DYFS. The court excluded the
confession to the police, even though Miranda warnings were given and there was
lack of coercion and an admitted waiver of rights by the defendant. The court
concluded that since the Defendant could not understand his Miranda rights, he
could not waive them. One cannot knowingly and intelligently waive a right that
he cannot understand or appreciate. 224 NJ Super. at 216. The court also
excluded confessions to a DYFS investigator on the same grounds since she was
acting in a law enforcement capacity and failed to inform Defendant of his
Miranda rights. Id at 220. Where it is charged that a confession was given
under the influence of narcotics or during a withdrawal period, central
question of voluntariness remains the same, and the trial court must scrutinize
all the pertinent facts attending the confession with particular focus on
Defendants demeanor, coherence, articulateness, capacity to full use of his
faculties, his memory and his overall intelligence. State v Arcediano 371 F.
Supp. 457 (D. NJ 1974); See also Wade v Yeager 245 F. Supp 62 (D. NJ 1964).
The
State must prove beyond a reasonable doubt that the waiver was made knowingly
and intelligently. If the suspect is intoxicated or under the influence of
drugs to the point that he cannot understand his constitutional rights, then
any waiver is void. If the suspect is suffering from a mental disability which
renders him incapable of understanding his constitutional rights, then any
waiver is void. The level of mental disability which would render a suspect
incapable of understanding his constitutional rights is probably close to the
point at which the suspect could be said to be incapable of managing his own
affairs.
Where
circumstances cast doubt on knowing and intelligent quality of alleged waiver
of right to counsel, there can be no waiver. State vs. Dickens 192 NJ Super.
290 (App. Div. 1983). Intoxication is grounds to suppress statements. See e.g.
Common vs. Brithsher 563 A.2d 502, App granted 575 A.2d 107. (If Defendants
intoxication combined to render him incapable of understanding Miranda warning
waiver of Miranda rights would be invalid); Common vs. Andel 477 A.2d 13 56
(1984); (Defendants waiver of his Miranda rights was vitiated by his
intoxication, his eyes glaring and had a strong odor of alcohol. Statements
made by defendant while in custody should suppressed.)
The
court has always set high standards of proof for the waiver of constitutional
rights Johnson vs. Zerbst 304 US 458 58 S. Court 1019, 82 Ed 146 (1938). In
Common vs. Hosey 334 NE 2d 44 ( Mass 75 ) the court reversed and remanded a
matter where tried judge allowed admission of defendants statement to police
where defendant was extremely high, extremely emotional and detected from
reality. Due process requires not only that a conviction not be based on an
involuntary confession but also that a trial court hold what has become known
as a Jackson Denno hearing when a defendant contests the voluntariness of his
statement. Miller vs. Dugger 838 F. 2d 1530 ( 11 Cir. 1988) cert. den 486 US
1061. 1085.S. Ct. 2832 100 L. Ed 2d 933 (1988).
At
the Jackson- Denno hearing and at oral argument, we will explain through
cross-examination and witnesses the involuntary nature of any statements the
state intends to produce.
Custodial
interrogation of a suspect must cease if he or she "indicates in any
manner, at any time prior to or during questioning, that he wishes to remain
silent." Miranda v Arizona, 384 U.S. at 473-474. The suspect need not
assert his or her privilege to remain silent with the "utmost of legal
precision." State v Johnson 120 N.J. 263, 281 (1990) (quoting State v Bey
(I) 112 N.J. 45, 65 (1988)). Silence itself can be deemed to be an invocation
of the privilege against self-incrimination. State v Johnson 120 N.J. at 281. A
suspects request to terminate questioning must be honored, regardless of how
ambiguously or equivocally the request is worded. State v Harvey 121 N.J. 407,
417, 419 (1990) (the defendants statement that he would tell the police about
the murder, but first wanted to speak with his father, was held to be an
invocation of the privilege), cert. denied, 499 U.S. 931 (1991); State v Bey
(I) 112 N.J. 45, 64-65 (1988) (defendants statement that he "did not want
to talk about it" deemed to be an invocation of the privilege); State v
Bohuk, 269 N.J. Super. 581, 593 (App. Div.) (refusal to respond to even
preliminary questions concerning a drunk driving charge must be regarded as an
assertion by the defendant of the Fifth Amendment privilege), certif. denied,
136 N.J. 29, cert. denied, 513 U.S. 865, 115 S. Ct. 183, 130 L. Ed. 2d 117
(1994).
Once
the right to remain silent has been asserted, it must be "scrupulously
honored." Michigan v Mosley 423 U.S. 96, 102-103 (1975); State v Adams 127
N.J. 438, 445 (1992); State v Fuller 118 N.J. 75, 81 (1990). Under New Jersey
law, once a suspect has invoked his or her right to remain silent, the police
must issue a new set of Miranda warnings before questioning may resume. State v
Hartley 103 N.J. 252, 267 (1986). Any statement obtained without administering
fresh warnings is unconstitutionally compelled and inadmissible. State v
Hartley 103 N.J. at 256. Moreover, where the police have not "scrupulously
honored" a previous invoked right to silence, readministration of Miranda
rights may not necessarily cure the violation, when the second questioning
follows so closely on the first as to be part and parcel of a continuos
interrogation. State v Heartily 103 NJ. at 280-281; State v Malign 288 NJ.
Super. 139, 147 (App. Div. 1996). See also West over v United States 384 U.S.
436, 496-497 (1966). If there is any uncertainty or ambiguity about whether or
not a suspect has asserted the right to remain silent, the police must cease
asking questions about the crime, State v Dixin 125 N.J. 223, 240-41 (1991),
but may question the suspect to clarify if the suspect intends to assert his or
her right to remain silent. State v. Harvey 151 N.J. 117, 221 (1997); State v
Johnson 120 N.J. at 283. See also State v Harvey 121 N.J. at 418-19. "Only
if the suspect [then] makes clear that he is not invoking his Miranda rights
should substantive questioning be resumed." State v Wright 97 N.J. 113,
120 n. 4 (1984) (quoting U.S. v Riggs 537 F. 2d 1219 (4th Cir. 1976)); See also
State v Bohuk 269 N.J. Super. at 593.
Waiver
of the right to remain silent must be knowing, intelligent and voluntary.
Miranda v Arizona 384 U.S. at 463-466; State v Hartley 103 N.J. at 260. The
question of waiver is to be determined on a case by case basis, taking into
account, among other circumstances, the background, experience, and conduct of
the accused. North Carolina v Butler 441 U.S. 369, 374-375 (1979); State v
Kennedy 97 N.J. 278, 286 (1984). The State bears the heavy burden of proof to
show beyond a reasonable doubt that a defendant has waived his or her right
against self-incrimination, State v Reed 133 N.J. at 251; State v Bey (II) 112
N.J. 123, 135 (1988), in contrast to the federal preponderance of the evidence
standard. Colorado v Connelly 479 U.S. 157, 165 (1986). State v Hartley 103
N.J. at 260. The issue of waiver arises only if the police have scrupulously
honored the suspects right to silence once invoked, or if the suspect never
invoked his or her Miranda rights. State v Adams 127 N.J. 438, 445-446 (1992);
State v Hartley 103 N.J. at 261. Misrepresentations by police officers during
the course of questioning a suspect, by themselves, are not generally
sufficient to justify a finding of involuntariness or lack of knowledge.
However, misrepresentations by police officers are relevant in analyzing the
totality of the circumstances. If the misrepresentations by the police officer
actually induced the confession or waiver, the defendants statements will be
deemed to be involuntary. State v Cooper 151 N.J. 326, 355 (1997); State v Chew
150 N.J. 30, 66 (1997).
Under
New Jersey State law, "[t]he State must prove the voluntariness of a
confession beyond a reasonable doubt." State v. Galloway 133 N.J. at 654;
State v Kelly 61 N.J. 283, 294 (1972). In contrast, the federal burden of proof
for voluntariness of a confession is by a preponderance of the evidence. Lego v
Twomey 404 U.S. 477, 489 (1972). Further, unlike federal law, New Jersey law
requires that the voluntariness issue be demonstrated by admissible evidence.
Compare N.J.R.E. 104(c) with Fed. R. Evid. 1101(d)(1); See State v Cavallo 88
N.J. 508, 526, 529 (1986).
It
should be noted that even if the State establishes the admissibility of a
defendants confession, it must still adduce independent proof of facts and
circumstances to corroborate the confession, plus independent proof of the
crime. State v Maben 132 N.J. 487, 491, 502 (1993); State v Johnson 31 N.J.
489, 502-503 (1960).
Consequences
of a Criminal Guilty Plea
1.
You will have to appear in open court and tell the judge what you did that
makes you guilty of the particular offense(s)
2.
Do you understand that if you plead guilty:
a.
You will have a criminal record
b.
You may go to Jail or Prison.
c.
You will have to pay Fines and Court Costs.
3.
If you are on Probation, you will have to submit to random drug and urine
testing. If you violate Probation, you often go to jail.
4.
In indictable matters, you will be required to provide a DNA sample, which
could be used by law enforcement for the investigation of criminal activity,
and pay for the cost of testing.
5.
You must pay restitution if the court finds there is a victim who has suffered
a loss and if the court finds that you are able or will be able in the future
to pay restitution.
6.
If you are a public office holder or employee, you can be required to forfeit
your office or job by virtue of your plea of guilty.
7.
If you are not a United States citizen or national, you may be deported by
virtue of your plea of guilty.
8.
You must wait 5-10 years to expunge a first offense. 2C:52-3
9.
You could be put on Probation.
10.
In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your drivers
license for 6 months - 2years. You must pay a Law Enforcement Officers Training
and Equipment Fund penalty of $30.
11.
You may be required to do Community Service.
12.
You must pay a minimum Violent Crimes Compensation Board assessment of $50
($100 minimum if you are convicted of a crime of violence) for each count to
which you plead guilty.
13.
You must pay a $75 Safe Neighborhood Services Fund assessment for each
conviction.
14.
If you are being sentenced to probation, you must pay a fee of up to $25 per
month for the term of probation.
15.
You lose the presumption against incarceration in future cases. 2C:44-1
16.
You may lose your right to vote.
The
defense of a person charged with a criminal offense is not impossible. There
are a number of viable defenses and arguments which can be pursued to achieve a
successful result. Advocacy, commitment, and persistence are essential to
defending a client accused of a criminal offense.
Jail
for Crimes and Disorderly Conduct:
If
someone pleads Guilty or is found Guilty of a criminal offense, the following
is the statutory Prison/Jail terms.
NJSA
2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of
years which shall be fixed by the court and shall be between 10 years and 20
years;
(2)
In the case of a crime of the second degree, for a specific term of years which
shall be fixed by the court and shall be between five years and 10 years;
(3)
In the case of a crime of the third degree, for a specific term of years which
shall be fixed by the court and shall be between three years and five years;
(4)
In the case of a crime of the fourth degree, for a specific term which shall be
fixed by the court and shall not exceed 18 months.
2C:43-3
Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person
who has been convicted of an offense may be sentenced to pay a fine, to make
restitution, or both, such fine not to exceed:
a.
(1) $200,000.00 when the conviction is of a crime of the first degree;
(2)
$150,000.00 when the conviction is of a crime of the second degree;
b.
(1) $15,000.00 when the conviction is of a crime of the third degree;
(2)
$10,000.00 when the conviction is of a crime of the fourth degree;
c.
$1,000.00, when the conviction is of a disorderly persons offense;
d.
$500.00, when the conviction is of a petty disorderly persons offense;
If
facing any criminal charge, retain an experienced attorney immediately to
determine you rights and obligations to the court. Current criminal charge
researched by Kenneth Vercammen, Esq. 732-572-0500
