witness. Oregon v. Hass, 420 U.S. 714, 722-724 (1975);
Harris v. New York, 401 U.S. 222, 223, 225 (1971); State
v. Burris, 145 N.J. 509 (1996); State v. Miller, 67 N.J.
229, 233, 234 (1975). Burris observed that the
impeachment exception is “strictly limited to situations
in which the suppressed statement is trustworthy and
reliable in that it was given freely and voluntarily without
compelling influences.” Id. at 525. Even if the statement
is voluntary, it may be excluded if prejudicial,
cumulative, or misleading. Id. at 534; See N.J.R.E. 403.
A defendant should be informed prior to testifying if the
State intends to utilize his statement taken in violation of
Miranda for impeachment. State v. Burris, 145 N.J. at
- The jury should be instructed that the evidence is
admitted solely to affect the defendant’s credibility and
not as substantive evidence of guilt. Id. The jury also
must be instructed that it may, but need not, consider
the statement as affecting the defendant’s credibility. Id.
The use of Miranda violative statements is highly
circumscribed and is limited to impeaching the
defendant’s own testimony. In State v. Davis, 67 N.J.
222, 228 (1975), cert. denied, 425 U.S. 943 (1975), the
Supreme Court held that such statements could not be
used to impeach the credibility of defense alibi witnesses
where the defendant did not testify. Id. at 228.
The Appellate Division recently held that a custodial
statement without Miranda warnings due to prosecutorial,
and not police, misconduct could not be used even for
impeachment of the defendant, regardless of voluntariness.
State v. Sosinski, 331 N.J. Super. 11 (App. Div. 2000). A
petition for certification by the State is pending.
XIII. INFERENCES AND PRESUMPTIONS (See
also, PRESUMPTIONS, this Digest)
A presumption is an evidentiary device that enables
the trier of fact to determine the existence of an elemental
fact from the existence of an evidentiary or basic fact. State
v. Thomas, 132 N.J. 247, 254-55 (1993); State v.
Ingram, 98 N.J. 489, 495 (1985). To be constitutional,
in a criminal case, the elemental fact must bear a rational
connection, in terms of logical probability, to the
evidentiary fact, and must be permissive. State v. Thomas,
132 N.J. at 255; State v. Ingram, 98 N.J. at 497-98; State
v. DiRienzo, 53 N.J. 360, 370-77 (1969); see also,
Sandstrom v. Montana, 442 U.S. 510, 516-18 (1979).
In Sandstrom, the Court held that since the jury was
instructed that the law presumes a person intends the
ordinary consequences of his voluntary acts, they may
have interpreted the presumption as conclusive or as
shifting the burden of persuasion, and either
interpretation would have violated the 14th Amendment’s
requirement that the state prove every element of a
criminal offense beyond a reasonable doubt, thereby
rendering the jury instruction unconstitutional.In demonstrating whether a presumption is
permissive or mandatory, the jury instructions will
generally be controlling, although their interpretation
may require recourse to the statute involved and the cases
decided under it. County of Ulster County v. Allen, 442
U.S. 140 (1979). Thus, a key concern is the specific
instructions given to the jury. State v. Thomas, 132 N.J.
at 255; State v. Ingram, 98 N.J. at 499.In State v. Stasio, 78 N.J. 467 (1979), the Supreme
Court held that a jury should be instructed in terms of
inferences which may or may not be drawn from a fact. In
Stasio, where defendant was charged with intent to rob
and with assault while armed with a dangerous knife, the
trial court erred in charging the jury that possession of the
knife was prima facie evidence of intent to commit the
crime. With respect to negating an inference, the jury
should not be instructed with regard to an “explanation,”
because this might be place an impermissible burden on
a defendant’s right to remain silent. However, it is proper
to charge a jury in impersonal terms that indicate the
viability of the inference unless the proven fact “is
satisfactorily accounted for.” This makes it clear to the
jury that the inference may be negated by the evidence as
a whole, and not only by the defendant’s testimony.
State. v. DiRienzo, 53 N.J. at 381-82.N.J.R.E. 303 governs presumptions against the
accused in criminal cases, and embodies the foregoing
principles of constitutional law. The Criminal Code
contains a number of presumptions which must be
construed under this rule. See also Biunno, Current N.J.
Rules of Evidence (2000), Comment 3 to N.J.R.E. 301.
Among these are: N.J.S.A. 2C:20-7b (receiving stolen
property); N.J.S.A. 2C:20-7.1e (fencing); N.J.S.A.
2C:20-8a, c, d, and e (theft of various services); N.J.S.A.
2C:20-11d (shoplifting); N.J.S.A. 2C:21-5 (bad
checks); N.J.S.A. 2C:21-6c (credit card theft); N.J.S.A.
2C:35-11a (imitation CDS); and N.J.S.A. 2C:39-2a and
b (firearms and absence of permit).In State v. DiRienzo, 53 N.J. at 379-80, the Supreme
Court upheld the constitutionality of the inference in
N.J.S.A. 2A:139-1 (presently 2C:20-7) regarding the
possession of stolen property within one year after its
theft.