tained a waiver thereof before commencing the second
interview.
Based on the aforementioned circumstances, the
Supreme Court of New Jersey concluded that the criteria
for initiation established by the United States Supreme
Court in Oregon v. Bradshaw, 462 U.S. 1039 (1983), was
satisfied. Specifically, defendant’s inquiry evinced a
willingness and a desire for discussion about the
investigation. Stated differently, it was clear that defendant
was inviting discussion of the crimes for which he was
being held, thereby entitling the officers to question him.
See also State v. Fuller, 118 N.J. 75 (1990). Had defendant’s
inquiry been merely incidental to the custodial
relationship, such as a request to use the bathroom, further
questioning would have been prohibited.
Once proper initiation has been established, the State
is obligated to demonstrate beyond a reasonable doubt that
the accused made a knowing, intelligent, and voluntary
waiver beyond a reasonable doubt. State v. Chew (I).
Although it is prudent for the police to readminister fresh
Miranda warnings following a valid initiation and before
the resumption of questioning, such warnings are not
constitutionally required. State v. Chew (I); State v. Fuller.
I. Miranda Violations and Taint
The particular analysis undertaken to assess whether
one illegally obtained statement has tainted a subsequent
statement turns on the nature of the initial violation. In
New Jersey, our Supreme Court has drawn a clear
distinction between the ancillary rights of Miranda, and
violations of the constitutional rights those measure
protect. State v. Burris, 145 N.J. 509 (1996). Under this
formulation, failure to administer Miranda warnings does
not give rise to a constitutional violation, whereas the
elicitation of a statement following the invocation of a
Miranda right -- be it the right to remain silent or the right
to counsel -- is a violation of constitutional dimension.
State v. Chew (I), 150 N.J. 30 (1997), cert. denied, 528 U.S.
1052 (1999); State v. Burris; State v. Hartley, 103 N.J. 252
(1986).
Likewise, in Oregon v. Elstad, 470 U.S. 298 (1985), the
United States Supreme Court, observing “that [the]
Miranda exclusionary rule... serves the Fifth Amendment
and sweeps more broadly than the Fifth Amendment
itself,” noted that the failure of police officers to administer
Miranda warnings to a suspect was not a violation of
constitutional dimension but rather only a violation of
Miranda’s prophylactic, procedural requirements. The
Court in Elstad further pointed out that the Miranda
presumption of compulsion, although irrebuttable for
purposes of the prosecution’s case-in-chief, did not require
that the statements and their fruits be discarded as
inherently tainted. From the foregoing observations, the
Elstad Court concluded that where a defendant makes a
statement after providing an unwarned though voluntary
statement, the second statement is nonetheless admissible if
preceded by a knowing and intelligent waiver of Miranda
warnings. Accord State v. Brown, 282 N.J. Super. 538 (App.
Div.), certif. denied, 143 N.J. 322 (1995); see also Michigan
v. Tucker, 417 U.S. 433 (1974); but see Massachusetts v.
White, 439 U.S. 280 (1978).Conversely, questioning undertaken in disregard of an
asserted right results in a direct constitutional violation.
Thus, any subsequent statements or, for that matter,
tangible evidence apparently derived from the initial
statement will be scrutinized in accordance with the more
demanding “fruit of the poisonous tree” doctrine to
determine whether it was the product of the initial
violation or sufficiently attenuated from any taint. See State
v. Chew (I); State v. Harvey (I), State v. Hartley; State v.
Johnson, 118 N.J. 639 (199O); State v. Pante, 325 N.J.
Super. 336 (App. Div. 1999), certif. denied, 163 N.J. 76
(2000). Three factors are considered in making this
determination: 1) the flagrancy and purpose of the police
misconduct, 2) the presence of intervening circumstances,
and 3) the temporal proximity between the illegal conduct
and the challenged evidence. Brown v. Illinois, 422 U.S.
590 (1975); State v. Chippero, 164 N.J. 342 (2000); State v.
Chew (I); State v. Hartley; State v. Pante. Note that in
circumstances where one statement follows closely “on the
heals” of a compelled statement, the two statements are
sufficiently intertwined such that the second statement will
be considered the product of the first and thus clearly
tainted by the preceding constitutional violation. See State
v. Johnson, 120 N.J. 263 (1990); State v. Bey (I), 112 N.J. 45
(1988); State v. Hartley.J. Suppressed Statements Used for Impeachment PurposesAdhering to settled federal jurisprudence, the Supreme
Court of New Jersey in State v. Burris, 145 N.J. 509 (1996),
explicitly sanctioned the use of a voluntarily though
improperly obtained statement to impeach the credibility
of a defendant. Where the prosecution seeks to use the
statement for impeachment purposes a pretrial hearing
must be convened outside the presence of the jury at which
time the voluntariness of the statement must be established
beyond a reasonable doubt. Even if the voluntariness of the
statement has been established, it nevertheless may be
excluded for impeachment purposes because it is
prejudicial, cumulative, or misleading. Furthermore,