obtained.” Nonetheless, in North Carolina v. Butler, 441
U.S. 369 (1979), the United States Supreme Court held
that “an explicit statement of waiver is not invariably
necessary to support a finding that the defendant waived
the right to remain silent or the right to counsel guaranteed
by the Miranda case.” The Court emphasized that
although the burden of proof is on the prosecution to prove
that the suspect validly waived his Miranda rights, “in at
least some cases waiver can be clearly inferred from the
actions and words of the person interrogated.”
The courts of this State are in accord with Butler. In
State v. Kremens, 52 N.J. 303 (1968), for example, the
Supreme Court of Jersey held that any unambiguous
manifestation of a desire to waive based on a consideration
of all of the relevant surrounding facts and circumstances is
adequate to establish a waiver of Miranda; accord State v.
Adams, 127 N.J. 438 (1992) (rejecting as unfounded
defendant’s assertion that his unwillingness to make a
written statement unequivocally invoked the right to
silence for all purposes where he was clearly willing to make
an oral statement); State v. Graham, 59 N.J. 366 (1971)
(holding that “[a]ny clear manifestation of a desire to waive
is sufficient”); State v. Freeman, 223 N.J. Super. 92 (App.
Div. 1988), certif. denied, 114 N.J. 525 (1989).
As noted previously, a waiver must be voluntary, i.e.,
the product of a free, deliberate, and unfettered choice. In
ascertaining voluntariness, the United States Supreme
Court correctly recognized that there is no discernable
reason to require more in the way of a voluntariness inquiry
in the Miranda waiver context than in the Fourteenth
Amendment confession context. Colorado v. Connelly, 479
U.S. 157 (1986).
In short, the two inquiries are coextensive, and have
been consistently treated as such by both federal and New
Jersey courts. As with rights located in the Due Process
Clause, a waiver of Miranda rights is not involuntary if the
“moral and psychological pressures to confess emanat[e]
from sources other than official coercion.” Colorado v.
Connelly. Thus, a mentally ill suspect’s waiver of his rights
was deemed voluntary by the United States Supreme Court
notwithstanding evidence that the suspect believed at the
time he was following the “voice of God.” Colorado v.
Connelly; see also State v. Smith, 307 N.J. Super. 1 (1997)
(holding that defendant’s will was not overborne and his
confession was neither the product of police coercion nor
the result of mental illness), certif. denied, 153 N.J. 216
(1998).
Cases addressing the voluntariness of a particular
statement are innumerable. It is sufficient to note that the
factors relied upon by courts to traditionally assess
voluntariness have remained largely unchanged: they
include the suspect’s age, education and intelligence, advise
as to constitutional rights, the length of detention, whether
the questioning was repeated and prolonged in nature,
whether physical punishment or mental exhaustion was
involved, and the suspect’s previous encounters with the
law. State v. Presha, 163 N.J.304 (2000); State v.
Timmendequas, 161 N.J. 515 (1999); State v. Chew (I), 150
N.J. 30 (1997), cert. denied, 528 U.S.1052 (1999); State v.
Galloway, 133 N.J. 631 (1993); State v. Miller, 76 N.J. 392
(1978).Moreover, because the questioning of a suspect almost
necessarily entails, at some level, the use of psychological
influences, cases holding that police conduct had
overborne the will of the defendant have typically required
a showing of “very substantial psychological pressure”
directed against the accused by his or her interrogators. See
State v. Galloway; State v. Miller. Similarly, given the
natural reticence of a suspect to divulge his or her guilt,
interrogating officers are afforded a degree of leeway in
their efforts to dispel that reluctance and persuade them to
talk. See State v. Miller; State v. Smith, 32 N.J. 501 (1960),
cert. denied, 364 U.S. 936 (1961); State v. Johnson, 309 N.J.
Super. 237 (App. Div.), certif. denied, 156 N.J. 387 (1998).
In this regard police deception does not automatically
vitiate an otherwise valid waiver; rather, such conduct is
one of but many relevant factors considered in evaluating
the totality of circumstances. Frazier v. Cupp, 393 U.S. 731
(1961); State v. Cooper (I), 151 N.J. 326 (1997), cert.
denied. 528 U.S. 1084 (2000); State v. Chew (I); State v.
Roach, 146 N.J. 208 (1996), cert. denied, 519 U.S. 1021
(1996); State v. DiFrisco (I), 118 N.J. 253 (1990).In State v. Sheika. __ N.J. Super. __, __ (App. Div.
2001), the Appellate Division rejected defendant’s
invitation to adopt a per se rule that trial courts must
suppress a suspect’s confession unless the State has
presented as witnesses every police officer and everyone
present at defendant’s interrogation whenever the accused
officers testimony that his confession was induced by
violence, threats or coercion. Nonetheless, the Court
strongly intimidated that preferable practice is to call all
material witnesses who were connected with the
controverted incriminatory statement or give an adequate
explanation for their absence. This is particularly so, the
Court emphasized, given the State’s burden to establish the
voluntariness of a confession beyond a reasonable doubt.In addition to the requirement of voluntariness, a
waiver must be knowing and intelligent. In State v. Reed,
133 N.J. 237 (1993), the Supreme Court of New Jersey