cdTOCtest

holding of Rolle is inapplicable, and the police will be
entitled to commence questioning the detainee. State v.
Johnson, 309 N.J. Super, 237 (App. Div.), certif. denied, 156
N.J. 387 (1998).

M. Miranda and the Death Penalty

In one very limited circumstance, a court-ordered
psychiatric examination to ascertain a capital defendant’s
competency may trigger the necessity of Miranda warnings
if, and only if, the results of that examination will be
introduced at a penalty phase to justify the imposition of
the death penalty. In Estelle v. Smith, 451 U.S. 454 (1981),
the trial court in a capital prosecution ordered that
defendant undergo a psychiatric examination to determine
his competence to stand trial. Defendant had made no
request for the examination, and although counsel had
been appointed for him, counsel was not advised that the
examination would occur. At the penalty phase of
defendant’s trial, the court-appointed psychiatrist testified
that defendant was a continually dangerous person, who
had no remorse for what he had done.

The United States Supreme Court ruled that the
prosecution was not entitled to introduce the psychiatrist’s
testimony in the penalty phase because defendant possessed
the right to remain silent during the examination and that
anything he said could be used against him. It did
acknowledge that defendant would not have been entitled
to the warnings (at least with respect to Fifth, rather than
Sixth Amendment rights) had the results of examination
been used only on the competency issue.

N. Procedural Issues Relating to Confessions

R. 3:5-7(d), which automatically preserves for
appellate review challenges to the denial of a suppression
motion notwithstanding the entry of guilty plea, does not
encompass attacks upon the admissibility of a confession.
Therefore, the entry of an unconditional plea of guilty will
constitute a waiver of any claim that a defendant’s
statement was obtained in violation of Miranda. State v.
Smith, 307 N.J. Super. 1 (App. Div. 1997), certif. denied,
153 N.J. 216 (1998); State v. Robinson, 224 N.J. Super. 495
(App. Div. 1988); State v. Morales, 182 N.J. Super. 502
(App. Div.), certif. denied, 89 N.J. 421 (1982). Pursuant
to R. 3:9-1(d), hearings convened to determine the
admissibility of a statement by criminal defendants are to
be conducted prior to trial unless otherwise ordered by the
court.

Whenever a defendant’s oral or written statement,
admission, or confession is introduced at trial, the jury

must be instructed, whether requested or not, in

accordance with the holding of State v. Hampton, 61 N.J.

250 (1972), directing the jury to determine the credibility

of the statement without any knowledge that the court has

already determined the issue of voluntariness. Similarly, a

cautionary charge pursuant to State v. Kociolek, 23 N.J.

400 (1957), is required whenever defendant’s oral

statement is introduced. The failure to submit either

instruction, however, is not per se reversible error. State v.

Jordan, 147 N.J. 409 (1997); see also N.J.R.E. 104(c).

A Hampton charge is unnecessary when the statement

sought to be introduced was made to a non-police witness

without being subjected to any form of physical or

psychological pressure. State v. Baldwin, 296 N.J. Super.

391 (App. Div. 1997), certif. denied, 149 N.J. 143 (1999).

Nor is it appropriate for the jury to be charged that the State

must prove defendant’s statement credible beyond a

reasonable doubt. State v. Chew (I), 150 N.J. 30 (1997),

cert. denied, 528 U.S. 1052 (1999).

II. THE PRIVILEGE AGAINST SELF-INCRIMI-

NATION

A. General Principles

The definition of incrimination is codified in N.J.R.E.

502 and expressly provides that a matter is incriminating if

it directly or inferentially provides a clue to the discovery of

matter that will establish an element of the offense for a

crime against New Jersey, any other state, or the United

States, unless the witness has no reasonable cause to believe

that he or she is subject to criminal prosecution. See State v.

McGraw, 129 N.J. 68 (1992); In Re Ippolito, 75 N.J. 435

(1978).

The common-law privilege against self-incrimination

is codified by N.J.R.E. 503. By its express terms, the

privilege against self-incrimination is a personal privilege

and may not, therefore, be asserted by or on behalf of a

corporation, by or on behalf of other groups or

organizations, or by a defendant on behalf of a witness.

Matter of Grand Jury Proceedings of Guarino, 104 N.J. 218

(1986); see also State v. Curry, 109 N.J.. 1 (1987). Thus,

while it does not protect corporate records, an individual’s

personal financial records, such as personal checking

account statement and lists of personal assets, are entirely

protected by the privilege. In Re Addonizio, 53 N.J. 107

(1968).

Furthermore, a witness seeking to avail himself of the

privilege must do so in good faith and set forth some basis

for the claim. Hirsch v. N.J. State Bd. of Med. Exam., 252

N.J. Super. 596 (App. Div. 1991), aff’d o.b., 128 N.J. 160