Last week’s New Jersey Supreme Court decision in State v. O’Neill establishes new procedures for New Jersey detectives who conduct two-step interrogations of criminal suspects. The two-step interrogation technique is commonly referred to in the case law as “Question First – Warn Later.” Under this procedure, the detectives will interview a criminal suspect who is in custody for Miranda purposes without providing the required warnings about the right to remain silent. Then, only after the suspect has incriminated himself, do the detectives Mirandize the defendant and take additional statements that buttress, corroborate and repeat the earlier admissions. Typically, the State will discard the pre-Miranda statements at trial and utilize only those that were made after the warnings were given.
In the O’Neill case, writing for the Court, Justice Albin found that current federal law on the propriety of this interrogation technique by the police is unclear. Accordingly, the O’Neill case will be decided under state constitutional law. Rather than completely eliminating the two-step interrogation process, the Court provided a set of guidelines for motion judges to consider when ruling upon the admissibility of a confession obtained in a two-step interrogation case. Motion judges are instructed to apply a totality of the circumstances test and look at the following factors:
(1) the extent of questioning and the nature of any admissions made by defendant before being informed of his Miranda rights;
(2) the proximity in time and place between the pre- and post-warning questioning;
(3) whether the same law enforcement officers conducted both the unwarned and warned interrogations;
(4) whether the officers informed defendant that his pre-warning statements could not be used against him; and
(5) the degree to which the post-warning questioning is a continuation of the pre-warning questioning.
Of particular importance for motion judges will be whether the defendant was informed by the police that his “unwarned statements” cannot and will not be used against him. Providing such information would constitute powerful evidence that the defendant’s subsequent waiver of his right to remain silent was knowing, voluntary and intelligent. Other factors such as brief pre-warning questioning which does not elicit an admission or a substantial break in the time between the pre-warning and post-warning interrogation will militate in favor of a finding by the judge that there had been a voluntary waiver.
Download a copy of State v. O’Neill.
In Friday’s Appellate Division decision in State v. Colley, the Court ruled that a New York resident who had been suspended in New York for drunk driving was subject to the enhanced penalties under N.J.S.A. 39:3-40 when he drove a motor vehicle in Fort Lee. Under previous published decisions dealing with N.J.S.A. 39:3-40 enhancements, the Court had held that a New Jersey licensee who has been convicted of drunk driving in another state will be subject to the enhanced penalties for driving on the revoked list in our state. Friday’s opinion in Colley, expands this rule of law to include anyone who has been subject to a license suspension as a result of a DWI conviction in any state who subsequently drives in New Jersey while under suspension for the DWI.
Download a copy of State v. Colley.
Today’s UNPUBLISHED Appellate Division decision holding in State v. Mize provides an excellent review on all of the motor vehicle operation law in New Jersey as it has developed over the decades. In this particular case, the Appellate Division ruled that a person who was passed out drunk behind the wheel of a parked vehicle was not operating his motor vehicle for purposes of the drunk driving statute.
Download a copy of State v. Mize.
In this morning’s Appellate Division decision in State v. J.J., the Court held that the failure of the court to fully explain the penal consequences of a guilty plea to a defendant provided an adequate basis for the defendant to revoke his guilty plea. The panel ruled that without a full, detailed and complete explanation by the sentencing court to the defendant of the direct and penal consequences of a plea, the defendant can be misled into pleading guilty. Such a misunderstanding following sentencing can justify vacating the plea to correct a manifest injustice.
Download a copy of State v. J.J.
The offense of bail jumping (NJSA 2C:29-7) can be either a disorderly persons offense or a crime, depending upon the original offense with which the defendant was charged. Bail jumping occurs when a person who has been charged with an offense under the Code of Criminal Justice or any other offense (including traffic violations) where a jail term is authorized knowingly fails to appear for a court date without lawful excuse. Because the law as written appears to place a burden upon the defendant to prove that his failure to appear in court was not done knowingly, the Appellate Division in the case of State v. Emmons was asked to rule on the statute’s constitutionality. In order to save the statute, the Court performed a measure of “judicial surgery” and eliminated the need for a defendant to prove the affirmative defense as set forth in the law and ruled that the bail jumping law is not void for vagueness.
The defense and prosecution of future bail jumping cases in both municipal and Superior Courts will have to conform the re-defined elements of the offense as expressed by the Appellate Division in this case.
Download a copy of State v. Emmons.