cdTOCtest

regardless of whether defendant takes the stand. This
position is contrary to that taken by another Appellate
Division panel in State v. Marshall, 260 N.J. Super. 591
(App. Div. 1992). That court held that a defendant’s
prearrest silence is inadmissible as substantive evidence of
guilt if defendant does not testify, and the prosecutor’s
assertion during summation that defendant’s failure to
report a robbery he allegedly witnessed was evidence of
his guilt constituted reversible error.

Greer v. Miller, 483 U.S. 756 (1987), held a
prosecutor’s single question to defendant at trial
regarding defendant’s silence at the time of his arrest did
not constitute a violation of defendant’s due process
rights where the trial court immediately sustained
defendant’s objection to the question and no further
questioning or argument on the matter was permitted. In
addition, in light of the curative instruction and the
particular facts in this case, the prosecutor’s unsuccessful
attempt to use defendant’s silence did not in itself so
unfairly infect the trial as to constitute a violation of due
process for prosecutorial misconduct.

In Wainwright v. Greenfield, 474 U.S. 284 (1986),
the prosecutor’s use of defendant’s post-Miranda
warnings silence as evidence of sanity violated the Due
Process Clause.

Darden v. Wainwright, 477 U.S. 168 (1986), reh.
denied, 478 U.S. 1036 (1986), held offensive comments
by the prosecutor on summation, while clearly
undesirable, did not so infuse the proceedings with
unfairness as to constitute a denial of due process. Since
the comments neither manipulated nor misstated the
evidence and were, for the most part, made in response to
defendant’s summation with the defense having an
opportunity to rebut, defendant was not deprived of a fair
trial. See also State v. Timmendequas, 161 N.J. 515
(1999).

Smith v. Phillips, 455 U.S. 209 (1982). The failure
of the State to disclose to the defense that one juror had
sought employment with the prosecutor’s office did not
constitute prosecutorial misconduct. To warrant
reversal, defendant has the burden of demonstrating that
the fairness of the trial was affected by the alleged
prosecutorial misconduct. A post-trial hearing in this
case failed to establish any bias on the juror’s part so as to
infringe upon defendant’s due process right.

H. Sentencing and Parole

In a series of decisions, the United States Supreme

Court has addressed the distinction between aspects of a

crime which are elements and those which can be

considered sentencing factors. Due process requires that

an element be determined by a jury beyond a reasonable

doubt. A sentencing factor can be found by the

sentencing court based on a mere preponderance of the

evidence. A statute attempting to denominate an

element as a sentencing factor is unconstitutional since it

violates a defendant’s due process right to have the jury

find each element of the offense beyond a reasonable

doubt.

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348

(2000). Apprendi was charged with a second degree

offense which carried a prison term of 5 to 10 years. The

statute provided for an enhanced sentence, however, if

the sentencing judge found, by a preponderance of the

evidence, that defendant committed the crime with a

purpose to intimidate a person because of race. Here, the

sentencing court invoked that provision and sentenced

defendant to a 12 year term. The Court found the New

Jersey statute to be unconstitutional. The Fifth and

Fourteenth Amendments’ Due Process Clauses and the

Sixth Amendment’s notice and jury trial guarantees

require that any fact, other than prior conviction, that

increases the maximum penalty for a crime must be

charged in an indictment, submitted to a jury, and

proved beyond a reasonable doubt.

Jones v. United States, 526 U.S. 227 (1999),

concluded provisions of the federal carjacking statute that

established higher penalties to be imposed when offense

resulted in serious bodily injury or death set forth

additional elements of offense, not mere sentencing

considerations. See also United States v. Gaudin, 515 U.S.

506 (1995) (issue of materiality in perjury indictment

must be determined by jury, not judge, since it is an

element of the crime).

Almendarez-Torres v. United States, 523 U.S. 224

(1998), held Congress’ decision to treat recidivism, and

in particular the fact that an alien is deported following

his conviction of aggravated felony, merely as a

sentencing factor upon alien’s subsequent conviction of

illegal reentry offense, rather than as an element of that

offense, did not exceed due process or other

constitutional limits on Congress’ power to define

elements of the crime.