the prosecutor’s attempt to disparage defendant’s insanity
defense by referring to the invocation of his right to silence
and to an attorney transgressed the holding of Greenfield. A
similar violation was addressed more recently by the
Appellate Division in State v. Hyde, 292 N.J. Super. 150
(App. Div. 1996). In the narrow circumstance where the
defense engages in a calculated and deliberate effort to
“open the door” to the protected area of post-arrest silence,
a prosecutor may be justified in commenting on
defendant’s post-arrest silence. State v. Jenkins.
The issues arising from the admission of evidence
related to a defendant’s pre-arrest silence in a criminal
proceeding can be divided into two categories: 1) the use of
a pre-arrest silence to impeach a defendant’s credibility
once he takes the witness stand, and 2) the use of that
silence as substantive evidence of guilt, whether or not a
defendant testifies. When addressing the use of pre-arrest
silence to impeach a defendant who testifies at trial in
Jenkins v. Anderson, 447 U.S. 231 (1980), the United States
Supreme Court ruled that the use of pre-arrest silence to
impeach his credibility once he testified at trial does not
violate either the Fifth Amendment prohibition against
self-incrimination or the Fourteenth Amendment guaran-
tee of due process. Likewise, the Supreme Court of New
Jersey has explicitly permitted the use of pre-arrest silence
for impeachment purposes when no government
compulsion is involved. State v. Brown, 118 N.J. 595
(1990).
To date neither the Supreme Court of Jersey nor the
United States Supreme Court has determined whether the
State may use a defendant’s pre-arrest silence as substantive
evidence of guilt when a defendant chooses not to testify.
See Jenkins v. Anderson (the Jenkins Court expressly noted
that it did not consider whether or under what
circumstances defendant’s pre-arrest silence may be
protected by the Fifth Amendment). There presently exists
a conspicuous split in the Appellate Division regarding the
use of pre-arrest silence as substantive evidence of guilt. See
State v. Dreher (II), 302 N.J. Super. 408 (App. Div.)
(allowing the use of pre-arrest silence), certif. denied, 152
N.J. 10 (1997); State v. Marshall, 260 N.J. Super. 591 (App.
Div. 1992) (disallowing the use of pre-arrest silence).
D. Self-Incrimination And Trial Witnesses
The privilege against self-incrimination “protects a
mere witness as fully as does one who is also a party
defendant.” McCarthy v. Arndstein, 266 U.S. 34 (1924).
Where defendant subpoenas a witness with a Fifth
Amendment privilege, however, two constitutional rights
come into conflict. The accused, of course, has the
constitutional right to present a defense and to compel
witnesses to testify on his behalf. Washington v. Texas, 388
U.S. 14 (1967). The witnesses have the constitutional right
not to incriminate themselves. In these circumstances, the
trial court has a duty to protect both the defendant’s Sixth
Amendment right to compulsory process and the
prospective witness’ privilege against self-incrimination.
Thus, where a witness suspected of criminal conduct
appears involuntarily, it is generally within the trial court’s
discretion to advise him of his privilege. State v. Vinegra, 73
N.J. 484 (1977); State v. Jamison, 64 N.J. 363 (1974); State
In the Interest of B.G., 289 N.J. Super. 361 (App. Div.),
certif. denied, 145 N.J. 374 (1996); State v. Johnson, 223
N.J. Super. 122 (App. Div. 1988), certif. denied, 115 N.J.
75 (1989). When, however, the trial witness appears
voluntarily, thereby signaling his intention to testify freely,
and the hazard of incrimination is remote, “sound public
policy considerations, if not the defendant’s Sixth
Amendment right to compulsory process, militate against”
advising the witness of his right to remain silent. State v.
Johnson; see also State v. Vassos, 237 N.J. Super. 585 (App.
Div. 1990). Note as well that a prosecutor lacks standing
to object to a witness’s testimony on the basis of that
person’s privilege against self-incrimination. State v.
Marchese, 14 N.J. 16 (1953); State v. Johnson. Moreover,
warnings should never be given where the trial court
believes that the witness’s purpose is to testify falsely and
perjury is the only crime for which he can be prosecuted.
State v. Williams, 59 U.S. 493 (1971); State v. Vassos.E. Self-Incrimination And DefensesIn Williams v. Florida, 399 U.S. 78 (1970), the United
States Supreme Court scrutinized Florida’s alibi notice
provision, which imposed an obligation on defendants
who intended at trial to pursue an alibi defense to give
pretrial notice of: 1) their intention to claim such alibi; 2)
specific information as to the place at which the defendant
claims to have been, and 3) the names and addresses of
witnesses by whom they propose to establish such an alibi.
Although the Court construed the provision as clearly
requiring testimonial communication by the accused, it
nonetheless rejected the assertion that such information
was in any sense compelled. It specifically reasoned that the
alibi-notice provision imposed no greater compulsion than
would be present at trial when the accused was required to
decide whether or not to raise the alibi defense. The notice
requirement, it concluded, did no more than “accelerate
the timing of his disclosure, forcing him to divulge at an
earlier date information which... [he] planned to divulge
at trial.”