When the trial resumed, defense counsel informed the court that the limiting instruction advised the jury that defendant’s silence could be used for impeachment purposes. Counsel requested a clarifying instruction to fix this error, which the trial court issued. This instruction was repeated, without objection, during the final jury charge. The jury found defendant guilty of passion/provocation manslaughter, as well as third-degree possession of a weapon for an unlawful purpose.
How the instruction could have been repeated without objection seems unbelievable unless you have conducted an exhausting jury trial. The final charge that the judge reads from 20 or more pages of instructions takes over a half hour to read. It is particularly mind-numbing at the end of a long trial and very few people are capable of processing everything that the judge says.
The Appellate Division reversed defendant’s conviction and remanded for a new trial, determining that the prosecutor’s questions on cross-examination were improper. The panel found that defendant invoked his right to remain silent by telling the police that he did not want to talk about certain subjects and answer certain questions. The panel reasoned that, accordingly, the statements could not be used for any purpose, including impeachment. Further, the Appellate Division found the trial court’s instructions to the jury were fatally flawed.
The New Jersey Supreme Court reversed the Appellate Division decision. The Court held that Defendant waived his right to remain silent and therefore the State permissibly questioned defendant on cross-examination about the inconsistencies between his post-arrest statement to police and his statement on direct-examination at trial.
The United States Supreme Court first considered whether a defendant’s pretrial silence could be used to impeach his credibility on cross-examination at trial in 1975 in U.S. v. Hale. A year later, the New Jersey Supreme Court considered a similar question in State v. Deatore, and held that a defendant who remains silent “at or near the time of his arrest” cannot be cross-examined about that silence if he subsequently testifies to an exculpatory version of events at trial. In 1977 in State v. Lyle, the New Jersey Supreme Court again incorporated U.S. Supreme Court authority and concluded that “the State’s use of a defendant’s post-arrest silence for purposes of impeaching his exculpatory defense violates due process” and is “improper irrespective of whether Miranda warnings are given.” The Court applied the general principles of Lyle and Deatore in State v. Muhammad, where the Court explained that “by speaking with the police, a suspect does not waive his right to invoke the privilege and remain silent at some later point.”
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