Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500,

www.njlaws.com

Thursday, September 25, 2014

Miranda Warning, Right to Remain Silent


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