In the case of State v. James Kucinski, decided on January 30, 2017, Justice Solomon wrote for a unanimous New Jersey Supreme Court. In this appeal, the Court considered whether cross-examination regarding facts to which defendant testified at trial, but omitted in his statement to police, was proper.
Defendant was arrested and taken to police headquarters for questioning about the bludgeoning death of his brother, John. Defendant was advised of his Miranda rights and he requested an attorney. The officers stopped the interrogation and met with their supervisor. After approximately eighty minutes they returned to the interview room and advised defendant that he was going to be charged with murder. Defendant then asked if he could speak with the officers, stating “I’m gonna tell you the truth.” He was re-read his Miranda rights, which he waived.
Defendant explained that a few weeks earlier a fight had occurred between him and his brother. When the officers attempted to redirect the discussion to “how it started today” — the day of John’s death — defendant responded, “Ah, well let’s not talk about that part.” He then shifted the dialogue to other topics. In response to inquiries about how John injured defendant, he stated, “Like I said, we’ll forget about that part.” Defendant responded to a series of questions about events leading up to the fight and the injuries he sustained. As the interrogation went on, defendant continued to turn to other topics and to evade answering questions directly. Several times throughout the interrogation defendant answered questions with “I don’t know.” When asked how defendant felt about John’s death, he said he would “rather just see a lawyer,” and the interrogation ended.
Before trial, defendant moved to suppress his statement to police and argued that the officers did not honor his invocation of the right to counsel. The court denied defendant’s suppression motion, and the case proceeded to trial. At trial, the prosecutor asked one of the officers if defendant spoke in detail about the events on the day John died and if defendant was given an opportunity to “explain what happened that day.” When defense counsel objected, the trial judge sustained the objection but held that if defendant testified, the prosecutor would be permitted to cross-examine him on inconsistencies between his trial testimony and statements to police.
Defendant elected to testify at trial and claimed to have acted in self-defense. On cross-examination, over defense counsel’s objection, the prosecutor was permitted to question defendant about details defendant had testified to in his direct examination that contradicted what he said in his post-arrest statement to police. The prosecutor focused on details that defendant testified to but failed to mention to police during his interrogation. After further questioning by the prosecutor, defense counsel moved for a mistrial. The trial court denied the motion but instructed the jury that defendant’s right to remain silent should be limited to assessing defendant’s credibility and may not be used to make the determination of guilt. Defense counsel did not object.
There is an obvious basis for the objection. Defendant’s exercising his right to remain silent should not be considered at all, as opposed to being considered for credibility purposes. Such a consideration invites a juror to undermine the constitutional right to not have one’s silence used against them.