(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
State of New Jersey v. Kristina Burris, a/k/a Kristina Carolyn Burris (A-36-95)
Argued November 6, 1995 -- Decided July 24, 1996
HANDLER, J., writing for the Court.
Kristina Burris became a prime suspect in the murder of her mother. The police asked her to come
police headquarters for questioning, where she was given Miranda warnings under the Fifth Amendment and
the parallel State protections of the privilege against self-incrimination. The police questioned Burris, who
gave three separate statements to the police. In her first statement, Burris denied any involvement in her
mother's death. Burris then asked for a lawyer and refused to answer any further questions. The police,
however, continued questioning Burris and elicited a second and third statement, both implicating Burris in
the murder.
The second and third statements given by Burris during custodial interrogation were acquired in
violation of her right to counsel invoked under the Fifth Amendment and New Jersey's privilege against self-incrimination. Although those statements were not admitted in evidence for purposes of proving Burris's
guilt, the trial court determined that the statements could be used on cross-examination to impeach Burris's
credibility. The court instructed the jury that the statements could only be used for the purposes of
evaluating Burris's credibility, and not as substantive evidence.
The jury convicted Burris of murder, possession of a firearm for an unlawful purpose, unlawful
possession of a handgun, and unlawful use of a credit card. Burris was sentenced to an aggregate term of
thirty years without parole. On appeal, the Appellate Division reversed the convictions of murder and
possession of a firearm, concluding that the State's use of the second and third statements were
impermissible. The Supreme Court granted the State's petition for certification.
HELD: The State may use a statement obtained in violation of a defendant's right to counsel under the Fifth
Amendment and the State privilege against self-incrimination for impeachment purposes so long as
the statements were voluntarily made and are trustworthy.
1. Miranda provides prophylactic measures that are necessary to safeguard the essential constitutional rights
against self-incrimination; these rights are ancillary to the fundamental Fifth Amendment right. A voluntary,
incriminating statement elicited without the Miranda warnings violates a defendant's ancillary rights, but does
not rise to the level of a constitutional violation. However, a statement of a suspect who invokes the right to
counsel under Miranda may not thereafter be subjected to further interrogation outside the presence of
counsel without violating the constitutional privilege itself, unless the suspect personally and specifically
initiates the conversation. New Jersey law governing the privilege against self-incrimination parallels federal
constitutional law. (pp. 6-9)
2. Under federal and State exclusionary rules, the State cannot use incriminating evidence obtained in
violation of a defendant's constitutional rights. Under federal law, the impeachment exception to the
exclusionary rule applies not to just violations of Miranda's prophylactic rules, but also to constitutional
violations. New Jersey has also adopted and employed the impeachment exception and has recognized and
accepted the Supreme Court's use of the impeachment exception in cases involving constitutional violations
as well as Miranda violations of the privilege against self-incrimination. (pp. 10-16)
3. The impeachment exception is strictly limited to situations in which the suppressed statement is trustworthy and reliable in that it is given freely and voluntarily without compelling influences. The determination of whether a statement is voluntary requires a factual inquiry into whether the defendant's will was overborne. If so, the confession is not voluntary because it is not the product of a rational intellect and
a free will in violation of the Due Process Clause of the Fourteenth Amendment. The presumption of
involuntariness assigned to any statement obtained in violation of a defendant's constitutional privilege
against self-incrimination does not extend to a statement that was freely and voluntarily given. (pp. 16-22)
4. Under the impeachment exception, a statement given freely and voluntarily without any compelling
influences, after a violation of a suspect's Fifth Amendment rights and of his State privilege against self-incrimination, is admissible for impeachment purposes. Concerns about increased police misconduct that
might follow from an impeachment exception to the exclusionary rule is highly generalized and speculative.
Moreover, the impeachment exception does not infringe on a defendant's right to testify; that right comes
with the reciprocal obligation to tell the truth. Furthermore, a defendant is not deprived of the opportunity
to explain inconsistencies in the prior statement. In addition, the exception will not improperly interfere with
the attorney-client relationship or impair an attorney's ability to develop a defense. Under New Jersey's
strict ethic standards, the attorney should not devise a strategy based on false testimony. (pp. 22-25)
5. The valid concern that jurors will not use the incriminating evidence only for impeachment purposes does
not override the values that are preserved through the impeachment exception. It is presumed that juries
will understand and abide by the court's instructions as to the correct use of the evidence. In any event, the
trial court retains the authority to deny the admission of the incriminating evidence if its probative value is
substantially outweighed by the resultant prejudice. The exception also comports with the goals and purposes
behind New Jersey's Rules of Evidence. (pp. 25-28)
6. The rule adopted today (permitting the impeachment of a testifying defendant through the use of a prior
suppressed confession) is subject to several limitations. The previously suppressed statement must, as a
fundamental prerequisite, be trustworthy. Trustworthiness entails an examination of the voluntariness of the
statement. Voluntariness, in turn, depends on whether the suspect's will was overborne and whether the
confession was the product of a rational intellect and a free will. The State bears the burden of proving
voluntariness beyond a reasonable doubt, in light of all surrounding circumstances. Even if a statement is
voluntary, it may be excluded for impeachment purposes because it is prejudicial, cumulative or misleading.
Trial courts may also limit the scope of the testimony. If the statement is admissible for purposes of
impeachment only, the defendant should be informed prior to taking the stand whether the State will seek to
admit the suppressed statement for impeachment purposes. A hearing may be required to establish the
voluntariness of the confession for admission under the impeachment exception. Furthermore, the jury must
be instructed that the prior statement is admitted for the limited purpose of impeaching the defendant's
credibility and that it cannot be used as evidence of defendant's guilt. (pp. 28-31)
7. The record demonstrates that Burris's will was not overborne. Under the standards for determining
whether a statement was voluntary as being the product of abuse, compulsion, or duress, Burris's statements
were in fact voluntary. Moreover, Burris was fully and repeatedly informed of her Miranda rights. As such,
her statements were voluntary and trustworthy and could properly be used for impeachment purposes. (pp.
32-35)
Judgment of the Appellate Division is REVERSED and the action is REMANDED to the Appellate
Division for reconsideration of Burris's other contentions.
JUSTICE STEIN, concurring, writes separately to express his disagreement with the Court's
conclusion that Burris's second and third statements were voluntary and, therefore, properly used for
impeachment purposes. In Justice Stein's view, Burris's second and third statements were not sufficiently
voluntary to permit their use at trial for any purpose. However, because the use of Burris's statements for
impeachment purposes constituted harmless error in view of the substantial evidence of her guilt, Justice
Stein joins in the judgment of the Court reversing the judgment below.
JUSTICES POLLOCK, O'HERN, GARIBALDI and COLEMAN join in JUSTICE HANDLER's
opinion. JUSTICE STEIN filed a separate concurring opinion. CHIEF JUSTICE WILENTZ did not
participate.
SUPREME COURT OF NEW JERSEY
A-
36 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KRISTINA BURRIS, a/k/a
KRISTINA CAROLYN BURRIS,
Defendant-Respondent.
Argued November 6, 1995 -- Decided July 24, 1996
On certification to the Superior Court,
Appellate Division.
Deborah C. Bartolomey, Deputy Attorney
General, argued the cause for appellant
(Deborah T. Poritz, Attorney General of New
Jersey, attorney).
Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for respondent
(Susan L. Reisner, Public Defender,
attorney).
The opinion of the Court was delivered by
HANDLER, J.
This appeal involves the impeachment of a criminal defendant
by using the defendant's incriminating statement taken in
violation of her constitutional right to counsel under the Fifth
Amendment and the State privilege against self-incrimination.
Defendant became a prime suspect in the murder of her
mother. The police asked her to come to police headquarters for
questioning, where she was given Miranda warnings under the Fifth
Amendment and the parallel state protections of the privilege
against self-incrimination. The police then interrogated her.
Defendant gave three statements to the police. In her first
statement, she denied any involvement in her mother's death.
Defendant then asked for a lawyer and refused to answer any
further questions. The police, however, continued questioning
defendant and elicited a second and third statement, both
implicating defendant in the homicide.
The second and third statements given by defendant during
custodial interrogation were acquired in violation of defendant's
asserted right to counsel under the Fifth Amendment and New
Jersey's privilege against self-incrimination. Although those
statements were not admitted in evidence for purposes of proving
defendant's guilt, the trial court determined that the statements
could be used on cross-examination to impeach defendant's
credibility.
This case raises the issue of whether the State may use a
statement obtained in violation of a defendant's right to counsel
under the Fifth Amendment and the State privilege against self-incrimination for impeachment purposes.
On April 19, 1990, the defendant, Kristina Burris, broke into the home of her mother, Carol Burris, and shot her; Carol Burris was killed instantly. Defendant then took her mother's car and credit cards. She called up a friend and went on a shopping spree. Later that evening, Burris paid for an evening at a motel with her boyfriend, Chris Leadbeater. Burris drove the victim's car around town for several days. Not having heard from her daughter, the victim's mother, defendant's grandmother, contacted the police. On April 23, 1990, the police entered the home of the victim and found her prone body with a plastic bag over her head. Neighbors reported seeing defendant driving the victim's car the same day the police found the victim's car and defendant at Leadbeater's home.
The officers asked defendant and Leadbeater to come to police headquarters for questioning. Defendant gave three statements to the police. In the first statement, taken after defendant was read her Miranda rights, defendant insisted that the car she had been driving belonged to a friend, despite the officers showing defendant evidence to the contrary. Burris claimed that she had her mother's credit cards for "a while," and that she had not seen her mother since January 1990. Defendant then asked for a lawyer, and refused to answer any further questions. Nevertheless, in response to continued interrogation, defendant gave two more statements.
Defendant gave her second statement after the police
confronted her with evidence of factual inaccuracies in her first
statement. In her second statement, defendant denied breaking a
window at her mother's house, but admitted to knocking on the
door, and entering when her mother answered. She claimed an
argument ensued, and then her mother fell on the floor. The
defendant recalled "yelling and getting real hot, just mad." Her
mother said, "Tina," and then fell over near a grandfather clock.
Defendant stated that she dragged the victim's body to a bedroom.
She also admitted taking her mother's credit cards, but denied
using them. She later admitted going shopping and paying for a
hotel room at the Inn of the Dove with her mother's American
Express card. The second statement terminated at 1:22 a.m.
Three hours later, after police told defendant that her
mother had died of gunshot wounds, defendant made her third and
final statement to the police. Defendant stated her mother died
five days earlier, on April 19th. Burris claimed that a friend,
Jay Rodriguez, picked her up from her father's house on Thursday
afternoon in Delaware. While waiting for defendant to get ready,
Rodriquez stole her father's handgun. She then told the police
officers that when she and Rodriquez arrived at her mother's
house, she entered through the front door, but Rodriguez broke in
through the back window and shot her mother. Defendant stated
that Rodriguez then gave her the gun and told her to return it to
her father's house. Burris told police that she returned the gun
on April 23rd. The third statement ended at 4:48 a.m.
The second and third statements were taken in violation of
defendant's Miranda rights. They were, for that reason, not
admitted at trial as direct evidence on the State's case-in-chief. Those statements were, however, used to impeach
defendant's credibility on cross-examination.
At trial, defendant testified to another version of the
story. She asserted that on April 19, 1990, Rodriguez picked her
up in Delaware at her father's house and drove her to her
mother's house. She testified that Rodriguez had stolen a gun
from her father's home while he was there waiting for her. She
stated that she took the gun away from Rodriguez and put it in
her jeans. Defendant also contended that although she was
delighted to see her mother, an argument ensued. Burris said
that in order to change the subject of the argument, she pulled
out the gun to show her mother. Defendant then testified that
"somehow it went off and it hit my mom and she fell on the
ground. I didn't know what happened . . . [as I tried] to figure
out how it went off . . . it went off again and hit the wall and
I dropped [the gun]." Defendant did not recall telephoning the
Inn of the Dove, and denied kicking in the window at her mother's
house. Nor did she remember moving her mother's body or putting
bags over the body. Defendant had little recall of the weekend,
but remembered being at the police station late at night with
three officers yelling at her.
The State sought to use the second and third custodial
statements to impeach defendant's credibility. The trial court
determined that those statements were voluntary and could be used
for impeachment purposes although taken in violation of
defendant's constitutional rights. The court instructed the jury
that the statements were not to be used as substantive evidence,
but only for purposes of evaluating defendant's credibility.
The jury convicted defendant of murder, possession of a
firearm for an unlawful purpose, unlawful possession of a
handgun, and unlawful use of a credit card. The court sentenced
defendant to an aggregate term of thirty years without parole.
The Appellate Division, concluding that the State's use of the
second and third statements was impermissible, reversed the
convictions for murder and possession of a firearm. We granted
the State's petition for certification.
140 N.J. 326 (1995).
The Fifth Amendment of the United States Constitution states that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . ." The privilege against self incrimination is binding on the states under the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed.2d 653 (1964). Although there is no direct counterpart within the New Jersey Constitution, the privilege against self-incrimination "is firmly established as part of the common law of New Jersey and has been incorporated into our Rules of Evidence." In re Martin, 90 N.J. 295, 331 (1982) (citations omitted).
The United States Supreme Court has prescribed procedures
that must be followed to assure the protection of an individual's
privilege against self-incrimination under the Fifth Amendment.
In Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed.2d 694 (1966), the Supreme Court determined that as a constitutional
prerequisite to the admissibility of a statement by a suspect, he
must be warned of the right to remain silent, told that any
statement made may be used as evidence against him, and informed
that he has a right to the presence of an attorney, either
retained or appointed.
The requirements imposed under Miranda have been
characterized as prophylactic measures that are necessary to
safeguard the essential constitutional right against self-incrimination; the rights encompassed by these protective
measures are ancillary to the fundamental right that is at the
core of the Fifth Amendment. Oregon v. Elstad,
470 U.S. 298,
304,
105 S. Ct. 1285, 1290,
84 L. Ed.2d 222, 229 (1985). "'The
prophylactic Miranda warnings . . . are "not themselves rights
protected by the Constitution but [are] instead measures to
insure that the right against compulsory self-incrimination [is]
protected."'" Id. at 305, 105 S. Ct. at 1291, 84 L. Ed.
2d at
229-30 (quoting New York v. Quarles,
467 U.S. 649, 654,
104 S.
Ct. 2626, 2630,
81 L. Ed.2d 550, 556 (1984) (footnote omitted)
(quoting Michigan v. Tucker,
417 U.S. 433, 444,
94 S. Ct. 2357,
2364,
41 L. Ed.2d 182, 193 (1974))).
Because the Miranda warnings are prophylactic measures
designed to ensure that a suspect's decision to speak to the
police is knowing and voluntary, a Miranda violation itself is
not determinative of a Fifth Amendment violation of the privilege
against self-incrimination. Tucker, supra, 417 U.S. at 444-45,
94 S. Ct. at 2364, 41 L. Ed. at 193. A voluntary, incriminating
statement elicited without the Miranda warnings violates a
defendant's ancillary rights, but does not rise to the level of a
constitutional violation. Id. at 446, 94 S. Ct. at 2365, 41 L.
Ed.
2d at 194. A statement that is elicited after a Miranda
right has been invoked, however, becomes a violation of
constitutional dimension -- a violation of the constitutional
right itself. Wainwright v. Greenfield,
474 U.S. 284, 293,
106 S. Ct. 634, 639,
88 L. Ed.2d 623, 631 (1986).
The right to counsel is one of the prophylactic rights
included among the Miranda protections. Unlike the right to
counsel guaranteed under the Sixth Amendment, which is a
constitutional right itself, Fifth Amendment rights enumerated by
Miranda, including the right to counsel, must be affirmatively
asserted by the suspect to attach and to acquire constitutional
status. The United States Supreme Court, in Edwards v. Arizona,
451 U.S. 477,
101 S. Ct. 1880,
68 L. Ed.2d 378 (1981), held that
a suspect who invokes his right to counsel under Miranda may not
thereafter be subjected to further interrogation outside the
presence of counsel without violating the constitutional
privilege itself, unless the suspect personally and specifically
initiates the conversation. Id. at 484, 101 S. Ct. at 1884, 68
L. Ed.
2d at 386.
New Jersey law governing the privilege against self-incrimination parallels the federal constitutional law. New
Jersey law also distinguishes between the failure to issue the
prophylactic safeguards of Miranda and the violation of the
privilege against self-incrimination once those protective rights
are asserted. E.g., State v. McCloskey,
90 N.J. 18, 27 (1982)
(holding that a failure to warn is merely a violation of
Miranda's prophylactic-procedural safeguards; however, a failure
to honor the invoked right to remain silent is of constitutional
dimension). New Jersey also recognizes that the right to counsel
is one of the protective rights that surround the privilege
against self-incrimination and must be included among the Miranda
warnings. State v. Kennedy,
97 N.J. 278, 284 (1984); see also
State v. Reed,
133 N.J. 237 (1993) (finding that under State
privilege against self-incrimination, defendant had additional
ancillary right to be informed of present availability of counsel
based on presumed coercion inherent in custodial interrogation).
Like the right to remain silent, once the right to counsel is
invoked it assumes a constitutional status, and interrogation
must cease; disregard of that claimed right violates the
privilege itself. Kennedy, supra, 97 N.J. at 285.
The principle remedy for violations of constitutional rights governing the state's acquisition of incriminating evidence is the exclusionary rule. Under the federal exclusionary rule, as originally enunciated by the United States Supreme Court, the state could not use evidence obtained in violation of a defendant's Fourth and Fifth Amendment constitutional rights for any purpose. Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914). New Jersey also recognizes the exclusionary rule as essential to the safeguarding of a citizen's constitutional and fundamental rights regulating the government's acquisition of incriminating evidence. E.g., State v. Novembrino, 105 N.J. 95, 145-59 (1987) (applying exclusionary rule as a remedy required by State Constitution to evidence seized in violation of constitutional right against unreasonable search and seizure); State v. Hartley, 103 N.J. 252 (1986) (applying exclusionary rule to statements in violation of privilege against self-incrimination); State v. Macri, 39 N.J. 250, 265 (1963) (rejecting good faith exception to exclusionary rule: "Eyes may not be closed to the infringement of a constitutional right because the officer was well-meaning and the transgression is deemed slight").
The United States Supreme Court's exclusionary rule as originally propounded was comprehensive. It would not admit unconstitutionally acquired evidence for any reason or for any purpose or use. See Schwartz v. Texas, 344 U.S. 199, 73 S. Ct.
232,
97 L. Ed. 231 (1952); Silverthorne Lumber Co. v. United
States,
251 U.S. 385,
40 S. Ct. 182,
64 L. Ed. 319 (1920); Weeks,
supra, 232 U.S. at 398, 34 S. Ct. at 346, 58 L. Ed. at 658; Boyd
v. United States,
116 U.S. 616,
6 S. Ct. 524,
29 L. Ed. 746
(1886). Following Miranda, even statements violating the
prophylactic rules were excluded regardless of whether there was
in fact a constitutional violation. See Oregon v. Elstad, supra,
470 U.S. at 307, 105 S. Ct. at 1292, 84 L. Ed.
2d at 231
("[U]nwarned statements that are otherwise voluntary within the
meaning of the Fifth Amendment must nevertheless be excluded from
evidence under Miranda. Thus, in the individual case, Miranda's
preventive medicine provides a remedy even to the defendant who
has suffered no identifiable constitutional harm.").
Over time, the United States Supreme Court came to recognize
an exception to the exclusionary rule relating to impeachment
purposes. In Walder v. United States,
347 U.S. 62,
74 S. Ct. 354,
98 L. Ed. 503 (1954), the Supreme Court held that the state
may impeach a defendant's credibility with regard to statements
on collateral matters made during direct examination by using
physical evidence that had been suppressed. The Court determined
that although a defendant could still deny all of the elements of
the case against him, the state's inability under the
exclusionary rule to use the suppressed evidence should not
entitle the defendant to make perjurious statements. The Court
stated:
It is one thing to say that the Government
cannot make an affirmative use of evidence
unlawfully obtained. It is quite another to
say that the defendant can turn the illegal
method by which evidence in the Government's
possession was obtained to his own advantage,
and provide himself with a shield against
contradiction of his untruths. Such an
extension of the Weeks doctrine would be a
perversion of the Fourth Amendment.
[Id. at 65, 74 S. Ct. at
356, 98 L. Ed. at 507.]
The Court employed a balancing test weighing the goal of the
exclusionary rule -- deterrence of unlawful police conduct -
against the importance of arriving at the truth in criminal
trials. Ibid.; see United States v. Calandra,
414 U.S. 338, 347,
94 S. Ct. 613, 619-20,
38 L. Ed.2d 561, 571 (1974) (finding
"[t]he purpose of the exclusionary rule is not to redress the
injury to the [defendant] . . . . Instead, the rule's prime
purpose is to deter future unlawful police conduct and thereby
effectuate [the defendant's constitutional right]"). The Court
concluded that the benefit to the truth-seeking function
outweighs the deterrence value that would otherwise block the
admission of trustworthy evidence. Walder, supra, 347 U.S. at
65, 74 S. Ct. at 356, 98 L. Ed. at 507.
The Supreme Court solidified the impeachment exception in
Harris v. New York,
401 U.S. 222,
91 S. Ct. 643,
28 L. Ed.2d 1
(1971). The statement made by the defendant after his arrest was
suppressed at trial because it was obtained without warning the
defendant of his right to counsel and, therefore, in violation of
Miranda's prophylactic rule. The Supreme Court, however, upheld
the prosecution's use of the statement for impeachment purposes.
The Court reasoned "[t]he shield provided by Miranda cannot be
perverted into a license to use perjury by way of a defense, free
from the risk of confrontation with prior inconsistent
utterances." Id. at 226, 91 S. Ct. at 646, 28 L. Ed.
2d at 5.
Moreover, even though the testimony bore "more directly on the
crimes charged," the Supreme Court determined that its use for
impeachment purposes was consistent with the principles set forth
in Walder, because the illegally-obtained statement directly
contradicted the testimony offered at trial. It noted:
The impeachment process here undoubtedly
provided valuable aid to the jury in
assessing petitioner's credibility, and the
benefits of this process should not be lost,
in our view, because of the speculative
possibility that impermissible police conduct
will be encouraged thereby. . . . Every
criminal defendant is privileged to testify
in his own defense or to refuse to do so.
But that privilege cannot be construed to
include the right to commit perjury. . . .
Having voluntarily taken the stand,
petitioner was under an obligation to speak
truthfully . . . and the prosecution here did
no more than utilize the traditional truth-testing devices of the adversary process.
[Id. at 225, 91 S. Ct. at 645-46,
28 L. Ed.
2d at 4.]
According to the Court, exclusion of such evidence from the case-in-chief provided sufficient deterrence of police misconduct.
Id. at 225, 91 S. Ct. at 645, 28 L. Ed.
2d at 4.
The Supreme Court significantly extended the impeachment
exception in Oregon v. Hass,
420 U.S. 714, 723,
95 S. Ct. 1215,
1223,
43 L. Ed.2d 570, 578 (1975). There, the defendant made an
inculpatory statement while en route to the police station after
indicating that he wanted to phone his lawyer and being told he
could do so upon arrival at the station. The Supreme Court
adopted the reasoning of Harris. Although Harris involved only
the failure to administer Miranda warnings, the Hass Court
concluded that the exclusionary rule should not bar the use of a
statement for impeachment purposes on rebuttal, even if the
statement was taken in violation of the constitutional privilege
against self-incrimination.
The deterrence of the exclusionary rule, of
course, lies in the necessity to give the
warnings. That these warnings, in a given
case, may prove to be incomplete, and
therefore defective, as in Harris, does not
mean that they have not served as a deterrent
to the officer who is not then aware of their
defect; and to the officer who is aware of
the defect the full deterrence remains. The
effect of inadmissibility in the Harris case
and in this case is the same: inadmissibility
would pervert the constitutional right into a
right to falsify free from the embarrassment
of impeachment evidence from the defendant's
own mouth.
[Hass, supra, 420 U.S. at 723, 95
S. Ct. at 1223, 43 L. Ed.
2d at
578.]
The Supreme Court further underscored in Hass the ultimate
truthseeking function of the criminal trial and the use of
evidence that is trustworthy and not "involuntary or coerced."
Id. at 722, 95 S. Ct. at 1221, 43 L. Ed.
2d at 578. Thus, under
federal law, the impeachment exception applies not just to
violations of Miranda's prophylactic rules, but also to
constitutional violations.
New Jersey has also adopted and employed the impeachment
exception set forth in Harris. E.g., State v. Irving,
114 N.J. 427 (1989); State v. Miller,
67 N.J. 229 (1975); State v. Davis,
67 N.J. 222 (1975). It has, moreover, recognized and accepted
the Supreme Court's use of the impeachment exception in cases
involving constitutional violations, as well as Miranda
violations of the privilege against self-incrimination. State v.
Slobodian,
120 N.J. Super. 68 (App. Div.), certif. denied,
62 N.J. 77 (1972).
In Slobodian, the defendant shot and killed his wife. The
police obtained from the defendant several statements in
violation of his Fifth Amendment right to counsel. The trial
court determined that the defendant had voluntarily given the
statements to the police. It ruled, therefore, the statements
were admissible for the limited purpose of impeaching the
defendant's credibility. The unconstitutionally compelled
statements were introduced on cross-examination of the defendant.
The Appellate Division ruled that the admissibility of the
unconstitutionality obtained evidence for impeachment purposes on
cross-examination was squarely resolved in Harris. Slobodian,
supra, 120 N.J. Super. at 74.
We note further that the impeachment exception is accepted
in nearly every state in America and has been found to extend to
violations of constitutional rights as well as violations of
Miranda's prophylactic rules. E.g., People v. Winsett,
606 N.E.2d 1186 (Ill. 1992) (allowing impeachment use of voluntary
statement despite failure to observe invoked Fifth Amendment
right to counsel; basing decision on Hass and Tucker), cert.
denied, __ U.S. __,
114 S. Ct. 102,
126 L. Ed.2d 68 (1993); Ex
parte Comer,
591 So.2d 13 (Ala. 1991) (allowing impeachment use
of voluntary statement despite failure of police to observe the
defendant's invoked right to silence); Martinez v. United States,
566 A.2d 1049 (D.C. 1989) (allowing impeachment use of voluntary
statement despite failure to observe invoked right to counsel),
cert. denied,
498 U.S. 1030,
111 S. Ct 685,
112 L. Ed.2d 677
(1991); State v. Swallow,
405 N.W.2d 29 (S.D. 1987) (allowing
impeachment use of voluntary statement despite failure to observe
invoked Sixth Amendment right to counsel); Garrett v. Texas,
682 S.W.2d 301 (Tex. Crim. App. 1984) (allowing impeachment use of
voluntary statement despite failure to observe invoked right to
counsel; basing decision on Hass and Harris), cert. denied,
471 U.S. 1009,
105 S. Ct. 1876,
85 L. Ed.2d 168 (1985); State v.
Routhier,
669 P.2d 68 (Ariz. 1983) (following Hass by allowing
impeachment use of voluntary statement despite failure to observe
invoked Fifth Amendment right to counsel), cert. denied,
464 U.S. 1073,
104 S. Ct. 985,
79 L. Ed.2d 221 (1984). But cf. State v.
Santiago,
492 P.2d 657 (Haw. 1971) (rejecting the impeachment
exception on independent state grounds).
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. Mincey v. Arizona,
437 U.S. 385, 397-98,
98 S. Ct. 2408, 2415,
57 L. Ed.2d 290, 303 (1978) (holding "[s]tatements
made by a defendant in circumstances violating the strictures of
Miranda v. Arizona, supra, are admissible for impeachment if
their 'trustworthiness . . . satisfies legal standards.'")
(quoting Harris, supra, 401 U.S. at 224, 91 S. Ct. at 645, 28 L.
Ed.
2d at 4); Hass, supra, 420 U.S. at 722, 95 S. Ct. at 1221, 43
L. Ed.
2d at 578; Slobodian, supra, 120 N.J. Super. at 73. The
critical issue that must be addressed in this case centers on the
meaning of voluntariness as an element of trustworthiness.
The United States Supreme Court observed that a
determination of whether a statement is voluntary entails a
factual inquiry. It requires careful evaluation of all the
circumstances of the interrogation, and, ultimately, the question
is whether the defendant's will was overborne. Mincey, supra,
437 U.S. at 397-98, 98 S. Ct. at 2415-16, 57 L. Ed. at 303. The
Supreme Court has recognized that if the defendant's will was
overborne, the confession is not the "product of a rational
intellect and a free will." Blackburn v. Alabama,
361 U.S. 199,
208,
80 S. Ct. 274, 280,
4 L. Ed.2d 242, 249 (1960). A
confession that is not the product of such "rational intellect"
and "free will" is involuntary and is violative of the Due
Process Clause of the Fourteenth Amendment. Townsend v. Sain,
372 U.S. 293,
83 S. Ct. 745,
9 L. Ed.2d 770 (1963); Reck v.
Pate,
367 U.S. 433, 435,
81 S. Ct. 1541, 1543,
6 L. Ed.2d 948,
950 (1961); Brown v. Mississippi,
297 U.S. 278,
56 S. Ct. 461,
80 L. Ed. 682 (1936).
This Court has characterized statements that are obtained in
violation of constitutional rights as compelled as a matter of
law. Hartley, supra, 103 N.J. at 261. In Hartley, the Court
examined whether a statement made by a defendant after the police
failed to scrupulously honor the defendant's invocation of his
Miranda rights could be admitted into evidence during the State's
case-in-chief. The Court held that the statements could not be
used, reasoning that the "failure scrupulously to honor a
previously invoked right to silence renders unconstitutionally
compelled any resultant incriminating statement made in response
to custodial interrogation." Ibid. (emphasis added).See footnote 1 We must,
therefore, consider whether the impeachment exception may be
applied to an inculpatory statement that is deemed to have been
"unconstitutionally compelled" because it was elicited after a
Miranda right was invoked.
New Jersey employs the due process voluntariness analysis in
determining whether an unconstitutionally compelled statement may
be used for impeachment purposes. In State v. Miller, 76 N.J.
392 (1978) (Miller II), the Court considered the requirement for
voluntariness that underlies the privilege against self-incrimination. It held that the inquiry into whether a suspect's
will is overborne, rendering his statement involuntary, is
essentially factual:
[A] court should assess the totality of all
the surrounding circumstances. It should
consider the characteristics of the suspect
and the details of the interrogation. Some
of the relevant factors include the suspect's
age, education and intelligence, advice as to
constitutional rights, length of detention,
whether the questioning was repeated and
prolonged in nature and whether physical
punishment or mental exhaustion was involved.
[Id. at 402 (citing Schneckloth v.
Bustamonte,
412 U.S. 218, 226,
93 S. Ct. 2041, 2047,
36 L. Ed.2d 854, 862 (1973)).]
In expanding the constitutional and fundamental privilege against self-incrimination, courts have recognized as critical the distinction between statements that are involuntary as a matter of law and those that are involuntary as a matter of fact. Miranda recognized that determination and differentiated between involuntariness as a matter of law and involuntariness as a matter of fact. The United States Supreme Court in Miranda stated that "any statement taken after the person invokes his Fifth Amendment privilege cannot be other than the product of compulsion, subtle or otherwise." Miranda, supra, 384 U.S. at 474, 86 S. Ct. at 1628, 16 L. Ed. 2d at 723. Nevertheless, although it noted many of the covert and subtle ways in which a defendant is coerced once in custody, the Court concluded that
"[a]ny statement given freely and voluntarily without any
compelling influences is, of course, admissible in evidence."
Id. at 478, 86 S. Ct. at 1630, 16 L. Ed.
2d at 726; cf. New
Jersey v. Portash,
440 U.S. 450,
99 S. Ct. 1292,
59 L. Ed.2d 501
(1979) (implying that in a given case involuntariness as a matter
of law and as a matter fact can overlap; and barring impeachment
use of defendant's grand jury testimony that was in fact
compelled because elicited after grant of legislative immunity).
Hartley, as noted, described all unconstitutionally
compelled statements as involuntary as a matter of law. Hartley,
supra, 103 N.J. at 278. The Court explained that "the failure to
honor a previously invoked [Fifth Amendment right] smacks so
inherently of compulsion that any statement following that
failure is involuntary by definition." Ibid. (emphasis added).
However, in characterizing such statement as "involuntary," the
Court did not intend to reject the distinction between statements
that are involuntary as a matter of law and those that are in
fact involuntary. Nor did the Court in Hartley intend to do away
with the impeachment exception in New Jersey that is applicable
to statements that are not involuntary as a matter of fact. The
Court considered its ruling, including its description of
unconstitutionally obtained statements as involuntary as a matter
of law, to be consistent with the Miranda decision and the
Miranda doctrine. See id. at 271-84. The Court relied primarily
on federal constitutional law for its reasoning and holding.
The Court in Hartley perceived its understanding of the nature of the constitutional violation itself to be compatible with federal constitutional principles. It emphasized: "As for the federal law, we believe that were the questions before us squarely presented to the Supreme Court, its decision would be the same as ours. All the signposts point in that direction, and we have sought to follow them faithfully, not to write new law." Id. at 284. Federal law at the time clearly recognized the impeachment exception. See Oregon v. Elstad, supra, 470 U.S. at 307, 105 S. Ct. at 1292, 84 L. Ed. 2d at 231; Quarles, supra, 467 U.S. at 663, 104 S. Ct. at 2635, 81 L. Ed. 2d at 562; Mincey, supra, 437 U.S. at 397, 98 S. Ct. at 2416, 57 L. Ed. 2d at 330; Hass, supra, 420 U.S. at 714, 95 S. Ct. at 1215, 43 L. Ed. 2d at 570; Harris, supra, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed.2d 1; see also United States v. Havens, 446 U.S. 620, 100 S. Ct. 1912, 64 L. Ed.2d 559 (1980) (permitting fruits of unlawful search and seizure to be used in impeachment of a defendant on cross-examination). Significantly, the Court did not limit or distinguish Hass. In Hass, as noted, the United States Supreme Court addressed the impeachment exception and concluded that statements obtained in violation of the defendant's Fifth Amendment right to counsel were admissible for impeachment purposes on cross-examination where there was no evidence or suggestion that the statements were involuntary or coerced. Hass, supra, 420 U.S. at 714, 95 S. Ct. at 1215, 43 L. Ed. 2d at 570. Hass indicates that a statement can still be voluntary even
in the face of a constitutional violation of the defendant's
right to remain silent or his right to counsel and supports the
distinction between coercion as a matter of law and coercion as a
matter of fact. Hartley is not inconsistent with that principle.
We conclude that the presumption of involuntariness assigned
by Hartley to any statement obtained in violation of a
defendant's constitutional privilege against self-incrimination
does not extend to a statement that was in fact freely and
voluntarily given.
That understanding of the Hartley decision supports the conclusion that a statement given freely and voluntarily without any compelling influences after a violation of a suspect's Fifth Amendment rights and of his State rights surrounding the privilege against self-incrimination is admissible for impeachment purposes. Nevertheless, it is argued that several policy considerations militate strongly against the application of the impeachment exception to the exclusionary rule. Further, in considering whether the impeachment exception to the exclusionary rule is to be continued in light of those contentions, the standards that should govern its application are also germane.
We acknowledge that the Court cannot ignore police misconduct in obtaining evidence. See Harris, supra, 401 U.S. at 231-32, 91 S. Ct. at 649, 28 L. Ed. at 8-9 (Brennan, J.,
dissenting); Miller, supra, 67 N.J. at 238-39 (Pashman, J.,
dissenting). However, the concern about increased police
misconduct that may follow from an impeachment exception to the
exclusionary rule is highly generalized and speculative. See
Harris, supra, 401 U.S. at 225, 91 S. Ct. at 643, 28 L. Ed. at 4
(permitting the impeachment exception creates, at most, a
"speculative possibility that impermissible police conduct will
be encouraged thereby"). Judge Baime, in his Appellate Division
concurrence in this case, observed that "[o]nly a clairvoyant
officer would be able to predict that the defendant will elect to
take the stand and that his testimony will deviate in some way
from the custodial statement so obtained." Because the
statement, if used at all, could only be brought in on cross-examination for impeachment purposes, the added deterrence of
police misconduct from barring that use is minimal. See Hass,
supra, 420 U.S. at 721, 95 S. Ct. at 1220, 43 L. Ed.
2d at 577
(finding that "there is sufficient deterrence when the evidence
in question is made unavailable to the prosecution in its case in
chief").
Another argument against the impeachment exception is that
it inhibits a defendant from testifying on his own behalf. See
Miller, supra, 67 N.J. at 238 (Pashman, J., dissenting). The
impeachment exception does not infringe on a defendant's right to
testify. The right to testify comes with a reciprocal obligation
to tell the truth. A defendant who testifies swears or avers to
tell the truth like all other witnesses. The defendant always
retains the right to testify; however, he simply is not permitted
to lie without fear of contradiction. See Nix v. Whiteside,
475 U.S. 157, 173,
106 S. Ct. 988, 997,
89 L. Ed.2d 123, 138 (1986)
("Whatever the scope of a constitutional right to testify, it is
elementary that such a right does not extend to testifying
falsely.").
[T]he exception leaves defendants free to
testify truthfully on their own behalf; they
can offer probative and exculpatory evidence
to the jury without opening the door to
impeachment by carefully avoiding any
statements that directly contradict the
suppressed evidence. The exception thus
generally discourages perjured testimony
without discouraging truthful testimony.
[James v. Illinois,
493 U.S. 307,
314,
110 S. Ct. 648, 652-53,
107 L. Ed.2d 676, 684 (1990).]
Limiting the use of the type of evidence in question to
impeachment of credibility on cross-examination ensures that such
evidence will be used only should the defendant give testimony at
variance with the earlier statement. Realistically, a court
cannot prevent false testimony by a defendant. However, if a
defendant should falsely testify about a matter to which the
State has contrary evidence, then the State need not sit idly by.
Moreover, the exception will not improperly interfere with the
attorney-client relation or impair an attorney's ability to
develop a defense. Under New Jersey's strict ethics standards,
an attorney should not devise a strategy based on false
testimony. R.P.C. 1.2(d).
Critics point out that "[i]f the statements are
irreconcilable it may indicate that the prior statement was false
rather than the latter, a realistic possibility where the prior
statement was made under the subtly coercive circumstances of the
station house interrogation." Miller, supra, 67 N.J. at 241
(Pashman, J., dissenting). Concerns about reliability arising
from involuntariness are not present here because a statement
that is coerced in fact is not subject to the impeachment
exception as recognized today. Moreover, a defendant is not
deprived of the opportunity to explain inconsistencies in the
prior statement.
Another concern is that jurors will not use the
incriminating evidence only for impeachment purposes. Thus, it
has been noted that once a jury hears incriminating evidence
regarding a defendant, it is extremely difficult, if not
impossible, to use such evidence for impeachment purposes only.
Miller, supra, 67 N.J. at 240 (Pashman, J., dissenting).
Although that is a valid concern, it does not override the values
that are preserved through the impeachment exception. Moreover,
the Court presumes that juries will understand and abide by the
court's instruction as to the correct use of evidence. State v.
Manley,
54 N.J. 259, 270 (1969). In addition, the trial court
always retains the authority to deny the admission of the
incriminating evidence if its probative value is substantially
outweighed by the resultant prejudice. N.J.R.E. 403.
Critics also state that one of the most harmful effects of
recognizing the impeachment exception is the impact of the
exception on the public perception of the court system and
judicial integrity. See Harris, supra, 401 U.S. at 232, 91 S.
Ct. at 649, 28 L. Ed.
2d at 8 (Brennan, J., dissenting). We
cannot conclude that the public perception of the courts will be
jaundiced by the limited admission of unconstitutionally-acquired
statements that are otherwise trustworthy and voluntary, and not
obtained through abuse, coercion, or duress, for purposes of
testing credibility and ensuring truth in the justice system. On
the other hand, permitting a defendant to commit perjury while
banning the use of reliable contradictory evidence would itself
detract from the judiciary's stature.
It is also contended that the State already has a mechanism
for discouraging defendants from taking the stand and falsely
testifying. That mechanism is a perjury prosecution.
Significant limitations to the perjury prosecution have been
recognized. For example, the pressure to escape a present threat
of prosecution is often much greater than the fear of a
potential, future prosecution for perjury. That is especially
true because the calculated risk of falsely testifying and being
successfully prosecuted for perjury is extremely low. On the
other hand, "allowing the prosecution to expose . . . perjury
through impeachment using illegally obtained evidence. . . .
discourage[s defendants] in the first instance from
'affirmatively resort[ing] to perjurious testimony.'" James v.
Illinois, supra, 493 U.S. at 314, 110 S. Ct. at 652, 107 L. Ed.
2d at 684 (quoting Walder, supra, 347 U.S. at 65, 74 S. Ct. at
354, 98 L. Ed. at 503).
Finally, we consider whether the use of defendant's
statements for impeachment purposes violates our rules of
evidence. In Miller, supra, 67 N.J. at 234, this Court concluded
that "Harris . . . is a valuable truth-finding mechanism which
does not impinge on a defendant's federal or state constitutional
rights. Nor do we think that Evidence Rules 25, 37 and 38
[currently New Jersey Rules of Evidence 503, 530, and 531] call
for a different result."See footnote 2
The Court has acknowledged the broad scope of New Jersey
Rule of Evidence 102 (formerly Evid. R. 5). Miller, supra, 67
N.J. at 234. That rule, in pertinent part, states "[t]hese rules
shall be construed to secure fairness in administration and
elimination of unjustified expense and delay. The adoption of
these rules shall not bar the growth and development of the law
of evidence to the end that the truth may be ascertained and
proceedings justly determined." N.J.R.E. 102 (emphasis added).
Therefore, because the impeachment exception seeks to enhance the
ascertainment of the truth in the proceedings while not unduly
burdening defendant's constitutional rights, it comports with the
goals and purposes behind New Jersey's Rules of Evidence.
Although the reasons for adopting the impeachment exception
to the exclusionary rule outweigh those that countermand its use,
we acknowledge the genuine concerns that its use will engender.
That consideration counsels a use of the rule that is carefully
circumscribed to assure that it will not be abused.
Like the rule permitting the introduction of a criminal
defendant's prior convictions if the defendant takes the stand,
N.J.R.E. 609, and the rule governing the introduction of prior
inconsistent statements, N.J.R.E. 613, the rule we adopt today in
permitting the impeachment of a testifying defendant through the
use of a prior suppressed confession is subject to limitations.
The previously suppressed statement must, as a fundamental
prerequisite, be trustworthy. Trustworthiness entails an
examination of the voluntariness of the statement.
Voluntariness, in turn, depends on whether the suspect's will was
overborne and whether the confession was the product of a
rational intellect and a free will. See Mincey, supra, 437 U.S.
at 397-98, 98 S. Ct. at 2415-16, 57 L. Ed.
2d at 303; Blackburn,
supra, 361 U.S. at 208, 80 S. Ct. at 280, 4 L. Ed.
2d at 249.
The State shoulders the burden of proving voluntariness beyond a
reasonable doubt in light of all surrounding circumstances. See
State v. Gerald,
113 N.J. 40, 118 (1988); Miller II, supra, 76
N.J. at 404-05.
Several factors can weigh into the factual determination of
voluntariness. Among them are the circumstances of the
interrogation, including the conduct of the police, the responses
of the defendant, and the knowledge and condition of the
defendant. See Mincey, supra, 437 U.S. at 397-98, 98 S. Ct. at
2415-16, 57 L. Ed.
2d at 303. The memorialization of the
statement may be a factor contributing to its reliability. See
State v. A. Gross,
121 N.J. 1, 15 (1990) (listing 15 factors a
court should consider in evaluating and examining reliability of
prior inconsistent statements); cf. Oregon v. Bradshaw,
462 U.S. 1039,
103 S. Ct. 2830,
77 L. Ed.2d 405 (1983) (recognizing that
waiver of rights protecting privilege against self-incrimination
must be made knowingly, intelligently, and voluntarily); North
Carolina v. Butler,
441 U.S. 369, 374-75,
99 S. Ct. 1755, 1757-59,
60 L. Ed.2d 286, 292-93 (1979) (determining that waiver need
not be explicit, but may be determined based upon facts and
circumstances of each case, including the background, experience,
and behavior of suspect).
Even if the statement is voluntary, the statement may be
excluded for impeachment purposes because it is prejudicial,
cumulative, or misleading. N.J.R.E. 403. Evidence introduced
under the impeachment exception often poses a significant danger
because the information directly relates to the offense but the
jury can consider it only for the purpose of evaluating the
defendant's credibility. Trial courts should be especially
cautious when considering whether to permit such evidence. Cf.
State v. Brunson,
132 N.J. 377, 383-93 (1993) (holding that
because prejudice is unlikely to be cured by limiting
instruction, evidence of prior convictions involving similar
offenses intended to be used for impeachment purposes is
admissible only if sanitized and if details are limited to the
degree of the crime and the date of the offense).
Trial courts may also limit the scope of the testimony.
Because the testimony can be considered solely in relation to the
defendant's credibility, the only relevant previous statements
would be those that contradict or call into question the
defendant's version of events as recounted at trial. Moreover,
at some point, a defendant's credibility might become so
impeached that further evidence of a prior inconsistent statement
will be cumulative.
If the statement is admissible for purposes of impeachment
only, the defendant should be informed prior to taking the stand
whether the State will seek to admit the suppressed statement for
impeachment purposes. A hearing may well be required to
establish the voluntariness of the confession for admission under
the impeachment exception. Cf. United States v. Wade,
388 U.S. 218,
87 S. Ct. 1926,
18 L. Ed.2d 1149 (1967) (requiring a
hearing to determine whether the identification of the defendant
was reliable). That hearing should ordinarily occur prior to
trial, R. 3:9-1d, and should be undertaken as part of the Miranda
hearing that is conducted to determine whether the statement
otherwise must be suppressed.
Furthermore, the jury must be instructed that the prior
statement is admitted for the limited purpose of impeaching the
defendant's credibility and that it cannot be used as evidence of
the defendant's guilt. See Manley, supra,
54 N.J. 259. The
jurors should be instructed that they may, although they need
not, consider the previously suppressed statement as affecting
the defendant's credibility. See State v. Knight,
63 N.J. 187
(1973); cf. State v. Hampton,
61 N.J. 250, 272 (1972) (holding
that even after trial court admits statement, jury must be
instructed that if it does not find the statement trustworthy,
the jury must disregard the statement for purposes of determining
guilt or innocence).
The final issue in this case is whether defendant's
statements were voluntary and sufficiently trustworthy to be used
for impeachment purposes under the exclusionary rule exception.
The record demonstrates that the defendant's will was not
overborne. The entire interview with the detectives was tape
recorded, and in no portion of the tape or transcript does it
appear that the officers deceived, coerced, or in any way
overcame defendant's will.
As already noted, Kristina Burris gave three statements to
the police while in custody on the night of April 23 to 24, 1990.
The State introduced the first statement in its case-in-chief and
also used the first statement to impeach Burris. The second and
third statements were introduced by the State on cross-examination of Burris, to impeach her testimony.
The summary of the circumstances surrounding those
statements may be recapitulated. Burris was at her boyfriend's
home on the evening of April 23. Her mother's car was parked
outside. At about 10:00 p.m., Detectives Price and Kelly came to
the house and requested that Burris and her boyfriend come to the
station for questioning. They agreed. Burris's first statement
commenced at 11:43 p.m. Detective Wright advised Burris of her
Miranda rights. Burris indicated that she understood and waived
her rights. Detective Wright and Detective Kelly proceeded to
question Burris about the events of the prior weekend. During
this interrogation, Burris claimed that she had been driving her
girlfriend's car, not her mother's car. She also claimed that
she had received her mother's credit cards, which were in
defendant's possession, in January of 1990. Burris stated that
she had not used the credit cards. After about twenty minutes of
questioning, Detective Wright told Burris that he believed she
was lying. He also suggested that Burris may have killed her
mother. Burris then indicated she wanted a lawyer and the
interrogation was stopped. The tape was turned off and the
detectives left the interrogation room. Detective Wright then
noticed that one of the credit cards had an issue date of March
1990, making it impossible for Burris to have received the card
in January 1990.
Detective Wright went back into the interrogation room and
confronted Burris with this information. Detective Wright did
not turn the tape recorder on. Detective Wright testified that
Burris started to cry and said that she didn't want to hurt her
mother, that it was an accident, and that she wanted to tell the
truth and resume her statement on tape, without an attorney
present. Then, the tape was turned on. The second statement
commenced at 12:25 a.m. Prior to eliciting the second statement,
Detective Wright established that Burris understood her rights.
Burris indicated that she wanted to go ahead and get the
statement off her chest. Burris claimed that she and her mother
had argued and that her mother had fallen. Burris did not
mention a gun. Nor did she confess to killing her mother.
Burris did, however, admit taking her mother's car and credit
cards and using the car and credit cards over the weekend.
Burris also renewed her request for counsel. Statement two was
then terminated and the tape recorder was turned off.
After statement two ended, Burris was again left alone in
the interrogation room. At some point thereafter, detectives
learned from the Medical Examiner that Burris's mother had died
of a gunshot wound. At approximately 2:10 a.m. (after the
termination of the second taped statement and before the
commencement of the third taped statement), Detectives McGough
and Price entered the interrogation room and questioned Burris
about her mother's death. Detective McGough testified that he
assumed Burris had been given Miranda warnings and had waived her
right to have an attorney present. Detective McGough confronted
Burris with the fact that her mother had been shot. Burris
indicated a willingness to make another statement. The
detectives turned the tape recorder back on. The transcript
indicates that although full Miranda warnings were not reissued,
Detective Wright did establish that Burris understood what a
waiver of rights was and did know her rights. Burris said that
she witnessed the shooting of her mother, and that the person who
shot her mother was Jay Rodriguez. Burris claimed that she was
surprised that Rodriguez shot her mother, that she had no prior
knowledge the shooting would occur. Burris further stated that
she had moved her mother's body after the crime. The statement
concluded at 4:48 a.m. on April 24.
The trial court concluded that the statements were voluntary
and ruled that they could be used to impeach Burris if she
testified. We are satisfied that under the standards for determining whether