Our courts are in accord with the holding and rationale
of Williams, and thus have upheld from constitutional
attack R. 3:12-2, which requires a criminal defendant who
intends to rely on an alibi defense to furnish the
prosecution with a notice setting forth his whereabouts at
the time of the alleged offense and the names and addresses
of the witnesses whom he intends to call at trial in support
of the defense. State v. Irving, 114 N.J. 427 (1989); State v.
Lumumba, 253 N.J. Super. 375 (App. Div. 1992). In
addition, a prosecutor is entitled to cross examine the
accused as to why his first bill of particulars omitted the
name of the person he testified at trial was with him at the
time of the crime.
State v. Irving.
As cogently observed by the Appellate Division, that
the accused faces a dilemma “demanding a choice between
complete silence and presenting a defense has never been
thought an invasion of the privilege against self-
incrimination.” State v. Burris, 298 N.J. Super. 505 (App.
Div. 505 (App. Div.), certif. denied, 152 N.J. Super. 187
(1997). Nonetheless, when the accused interposes a
psychiatric defense involving expert testimony which
encompasses his hearsay statements, a trial court cannot
condition the admission of that testimony on defendant’s
waiver of his right not to testify. State v. Burris. To do
otherwise results in an unconstitutional and “powerful
form of compulsion.” State v. Burris. Rather, the
appropriate course is to charge the jury in accordance with
State v. Maik, 60 N.J. 203 (1972), and State v. Lucas, 30
N.J. 37 (1959), that such testimony should not be
considered as substantive evidence relating to the question
of guilt or innocense of the accused, but only as evidence
tending to support the ultimate expert conclusion of the
psychiatrist.
F. The Griffin Prohibition Against Adverse Inferences
It is by now axiomatic that neither courts nor
prosecutors are entitled to comment regarding the
accused’s failure to take the stand. In Griffin v. California,
380 U.S. 609 (1965), the United States Supreme Court
concluded that such comment on defendant’s silence
constitute a “penalty imposed... for exercising a
constitutional privilege” in that it “cuts down on the
privilege by makings it assertion costly.” In so holding, the
Court rebuffed the state’s assertion that “inference of guilt
for failure to testify as to the facts peculiarly within the
accused’s knowledge is in any event natural and
irresistible,” noting that this is not invariably true, as where
the accused declines to testify to avoid impeachment
through the admission of prior convictions. Reversal is
mandatory where the prosecutor has “unambiguously”
called attention to defendant’s failure to testify. State v.
Williams, 113 N.J. 393 (1988).The holding of Griffin is no less applicable in
circumstances where the prosecutor has made a thinly-
veiled or indirect comment on silence, although not every
impropriety will constitute reversible error. See e.g., State v.
Johnson, 120 N.J. 263 (1990); State v. Gosser, 50 N.J. 438
(1967), cert. denied, 390 U.S. 1035 (1968); State v. Pickles,
46 N.J. 542 (1966); State v. Ortisi, 308 N.J. Super. 573
(App. Div.), certif. denied, 156 N.J. 383 (1998); State v.
Engel, 259 N.J. Super. 336 (App. Div. 1991), certif. denied,
130 N.J. 393 (1992). Where the accused elects not to
testify, remarks alluding to his failure to call witnesses listed
in his alibi notice are likewise inappropriate because such
argument implies the contents of the alibi notice are not
credible and thus inferentially affects his right not to testify.
State v. Lumumba, 253 N.J. Super. 375 (App. Div. 1992);
see also State v. Collins, 262 N.J. Super. 230 (App. Div.
1993).Note, however, that in United States v. Robinson, 485
U.S. 25 (1988), the United States Supreme Court upheld
the government’s right to comment upon the accused’s
silence at trial in its rebuttal argument. There, the Court
found the government’s comments appropriate only to
rebut defense counsel’ statement during closing argument
that the government had not allowed the defendant to
explain his side of the story to the jury. Accord State v.
Williams; State v. Schultz, 46 N.J. 254 (1966), cert. denied,
384 U.S. 918 (1967).Finally, the accused is constitutionally entitled to have
the trial court instruct the jury that it may not consider his
refusal to testify during its deliberations. Carter v.
Kentucky, 450 U.S. 288 (1981); State v. Oliver, 133 N.J.
141 (1993); State v. Haley, 295 N.J. Super. 471 (App. Div.
1996). The Appellate Division has concluded that the
failure to give the cautionary charge when requested is per
se reversible error. State v. Haley. Although the
instructions should only be given at the request of counsel,
it is not constitutional error to submit the charge over
defendant’s objection. Lakeside v. Oregon, 435 U.S. 333
(1978); State v. Lynch, 177 N.J. Super. 107 (App. Div.),
certif. denied, 87 N.J. 347 (1981).