judicially conferred use immunity with respect to the
compelled testimony. State v. Jamison, 64 N.J. at 377; see
State v. DeCola, 33 N.J. 335, 352-353 (1960).
In State v. Burris, 145 N.J. 509 (1996), the New
Jersey Supreme Court held that a defendant’s statement,
given freely and voluntarily without any compelling
influences after a violation of a suspect’s state and federal
constitutional rights against self-incrimination, is
admissible for impeachment purposes. The statement
must be voluntary, and the circumstances of the
interrogation are among the factors to be weighed in the
voluntariness determination. The Court suggested that
voluntariness should be determined before trial at the
Miranda hearing itself. Even a voluntary statement may
be excluded for impeachment purposes if it is overly
prejudicial or otherwise excludable under N.J.R.E. 403.
If the court finds the statement voluntary, it should
advise the defendant that the State may use the
suppressed statement for impeachment so that defendant
can take that fact into account in deciding whether to
testify. Also, the trial judge must instruct the jury that
the statement is admitted for the limited purpose of
impeachment, that it is not substantive evidence of guilt,
and that the jurors may, but need not, consider whether
the statement affects the defendant’s credibility.
In State v. Dreher, 302 N.J. Super. 408, the Appellate
Division rejected defendant’s assertion that his pre-arrest
silence was improperly used against him both
substantively and for impeachment. The Appellate
Court found defendant’s silence was not compelled and
was properly admitted as relevant and its probative value
outweighed the prejudicial effect.
In State v. Feaster, 156 N.J. 1 (1998), the Supreme
Court of New Jersey set forth the circumstances under
which a law enforcement witness may testify that he or
she terminated an interview with an accused because the
accused invoked his or her constitutional rights. At trial,
an investigating officer who had interviewed defendant
testified about defendant’s statements concerning his
employment. He also testified, over defense counsel’s
objection, that the interview ended when defendant
asked for an attorney. The Court determined that when
the purpose of the testimony is to relate defendant’s
statement about the underlying crime, the trial court
may in its discretion permit testimony explaining why
the interview terminated in those instances where that
testimony is essential to the complete presentation of the
witness’s testimony and its omission would be likely to
mislead or confuse the jury. When the testimony about
the statement is unrelated to the crime itself, however,
the witness should not offer an explanation of how or why
the interview ended, since under those circumstances it
is not likely that the jury would speculate about what
later transpired if it is not provided with an explanation
of why the interview ended. In those cases where the
witness testifies that the interview terminated when the
accused invoked his or her constitutional rights, the trial
court must give a cautionary instruction that people
decline to speak with the police for many reasons,
emphasizing that a defendant’s invocation of his or her
right to counsel or right to remain silent may not in any
way be used to infer guilt.V. REFUSAL TO ANSWER
The Supreme Court of New Jersey established in In
re Boiardo, 34 N.J. 599 (1961) that, except where the
question itself contains the threat, as for example, a
question whether the witness bribed an official, a refusal
to answer must be supplemented by a statement of the
area or the nature of the criminal exposure which is feared.
Quite obviously a court cannot be asked to scan the
myriad offenses under the laws of all the States and the
United States in search of a possible connection between
the question and one of them. The area must be
pinpointed to the extent to which it is possible to do so
without eliciting a hurtful answer.The trial judge is not to accept the witness’s mere
statement that the answer will tend to incriminate them.
In re Pillo, 11 N.J. 9, 19 (1952). Rather, the court must
evaluate the hazard. Here again, an obstacle ensues from
the basic approach that the ordinary witness need not
speak and it will be his own undoing if he does. Although
the rule might have been that upon a claim of privilege,
the witness must reveal the details, the accepted thesis
forecloses a demand for such disclosure even for the
purpose of the judge’s decision. Rather, the witness must
somehow show enough to indicate a basis for fear while
withholding facts which would prove it. The witness
must demonstrate a factual basis to justify the privilege
claim. E.g., State v. McGraw, 129 N.J. 68, 77 (1992). As
was stated in Pillo, there must appear reasonable ground
to apprehend the peril. 11 N.J. at 119. Moreover, where
the context of the questioning in conjunction with the
nature of the questions reveals that a claim of self-
incrimination is well founded, the privilege has been
validly asserted and no further demonstration of possible
incrimination is necessary. In re Ippolito, 75 N.J. 435
(1978). Thus, a witness properly asserted his privilege
against self-incrimination when, during an SCI
investigation into organized crime, he declined to answer