Crawford & Miranda Errors Require Reversal of Child Sexual Assault Conviction – State v. Nyhammer

Two critical trial level errors have resulted in the reversal of a child sexual assault conviction in State v. Nyhammer. The Appellate Division ruled that a videotaped statement of the child victim should not have been admitted in evidence under the so-called “fresh complaint” exception to the hearsay rule, NJRE 803(c)(27). The Court found that the statement was testimonial within the meaning of Crawford v. Washington. The child had not been subject to previous cross exampination and refused to provide either direct evidence or be subject to cross examination at trial.

The Defenant’s confession should also have been suppressed on Miranda grounds according to the Appellate Division. In order to understand the Court’s ruling, some background is necessary.

Whenever a suspect in a criminal case is subject to a custodial interrogation by the police, he must be advised of his so-called Miranda rights.[1] Conversely, no such warning is required when the police questioning takes place in a non-custodial setting.[2] The critical issue as to when a suspect is in custody for Miranda purposes is generally decided on a case-by-case basis based upon the totality of the circumstances.[3] A formal arrest is not the critical factor. Rather, the test for “custody” is whether “the surrounding circumstances, fairly construed, would reasonably lead a detainee to believe he could not leave freely.”[4]

Often, over time, the focus of a police interview with a person may transmogrify from a non-threatening, investigative transaction to one involving police accusations of serious criminal conduct by the suspect. As a result of this change in focus in the topic and tone of the interrogation by the police, a non-custodial interrogation may ultimately become custodial in the Miranda sense. This is especially likely if the suspect initially believed that he was not the target of a criminal investigation and is later accused of criminal conduct during the interview. When the nature of the questioning would reasonably believe the suspect that he is not free to leave, he is in custody for Miranda purposes. At this point, the suspect should be advised of his Miranda rights in order to ensure the admissibility of any admissions the defendant may make.

A more difficult question related to suspect interview procedures concerns Miranda warnings that are administered to the suspect prior to the time the interview becomes custodial in the Miranda sense. Do the initial Miranda warnings carry over to effectively advise the suspect of his constitutional rights once the interrogation becomes custodial in nature? That precise issue was discussed in the Nyhammer case.

In Nyhammer, the defendant was summoned by the police to headquarters in order to provide information that he might have as a witness to the sexual assault of a child committed by a person the defendant knew. The police did not reveal to the defendant that in addition to the information he might possess as a witness, he was also suspected by the police of having perpetrated a series of sexual assaults as well.

The defendant voluntarily reported to headquarters for the purpose of making a witness statement. He was initially given his Miranda warnings[1] by the police, waived his right to remain silent and was questioned about what he knew about the sexual assaults committed by another person.

During the course of the interrogation, the police shifted the focus of the interview and confronted that the defendant with evidence that he himself had been subject to sexual abuse and had sexually abused the same child victim. These allegations by the police had a devastating impact on the defendant, causing him to become extremely distraught and brought to tears. The police continued to confront the defendant with this evidence. As a result, the defendant confessed to having sexually assaulted the child victim as alleged by the police. His confession was electronically recorded.

At trial, the judge admitted the defendant’s confession, finding that his initial waiver of the right to remain silent after being advised of his Miranda rights at the start of the interview rendered his subsequent confession knowing and voluntary. The Appellate Division reversed, holding that when the defendant was initially advised of his rights by the police, he believed he was being interviewed merely as a witness. This false perception was encouraged by the police. Accordingly, at the point where the focus of the interview changed from merely investigatory to accusatory, the police should have re-administered the defendant’s Miranda warnings. The failure of the police to do this rendered the confession involuntary.

Download a copy of State v. Nyhammer.

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[1] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).
[1] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).
[2] For example, see Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) holding that roadside questioning during a routine motor vehicle stop does not constitute custody for Miranda purposes.
[3] State v. Stott, 171 N.J. 343, 794 A.2d 120 (2002).
[4] State v. Choinacki, 324 N.J.Super. 19, 44, 734 A.2d 324 (App. Div. 1999).

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