Appellate Deference & Video Evidence: Part 1

On June 21, 2017, in the case of State v. S.S., Justice Albin wrote for a unanimous New Jersey Supreme Court. In this interlocutory appeal, the Court determines two issues: what is the appropriate standard of appellate review of a trial court’s factual findings based solely on the court’s viewing of a video-recorded police interrogation, and did defendant invoke his right to remain silent during the interrogation.

In 2011, defendant was tried before a jury and convicted of first-degree aggravated sexual assault of his six-year-old daughter and second-degree endangering the welfare of his child. The Appellate Division reversed those convictions for reasons unrelated to this appeal and ordered a new trial.

Before the start of the second trial, defendant moved for the first time to suppress incriminating video-recorded statements he made to investigators in the Hudson County Prosecutor’s Office, claiming that investigators failed to honor his invocation of his right to silence in violation of Miranda.  Sergeant Kolich and Detective Hans interrogated defendant in the Hudson County Prosecutor’s Office. For approximately forty-seven minutes, Detective Hans conducted the interrogation alone. In response to Detective Hans’s questions, defendant repeatedly denied that he had abused his daughter. After Sergeant Kolich entered the interview room, the questioning became increasingly accusatory. Sergeant Kolich repeatedly made the misrepresentation that defendant’s daughter told the investigators that defendant put his penis in her mouth. Sergeant Kolich, again and again, accused defendant of lying. A little more than one hour into the interrogation, Sergeant Kolich said “There’s something inside you you want to say, and you’re fighting it. You’re fighting it.” Defendant replied, “No, that’s all I got to say. That’s it.”

Under these circumstances it is amazing that the defendant’s attorney at the first trial did not contest a Miranda hearing. Even in cases where there is a low probability of having the statement suppressed, the hearing is a valuable opportunity to question the state’s witnesses and develop impeachment evidence to use at the subsequent trial.