State v. Deatore , 70 N.J. 100 ( 1976 )

The opinion of the Court was delivered by

Hughes, C. J.

Having been tried jointly to a jury, defendants were convicted of armed robbery (N. J. S. A. 2A.141-1, N. J. S. A. 2A.151-5) of a store proprietor and a customer present in the store at the time. The Appellate Division reversed the convictions in separate unreported decisions, and we granted certification on petitions of the State. 63 N. J. 425 and 502 (1973).¹

The appeals were argued in due course but we delayed decision in view of the pendency of a somewhat comparable case in which the United States Supreme Court issued its opinion on June 23, 1975. (United States v. Hale, 422 U. S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99). Counsel were invited to file supplemental briefs bearing on the significance (or otherwise) of Hale, and the appeals were then reargued.

The facts here are these: at the trial Deatore defended on the basis of alibi, asserting that at the time of the crime he was in the company of a woman in a motel room in the area. This evidence was presented through his own testimony and that of the alleged female companion. Mallon neither took the stand nor offered evidence in his defense. The proof of guilt of both defendants was overwhelming not only through identification by the victims but also by reason of much incriminating evidence, especially checks and credit and personal cards of the victims, found on a search, pursuant to a warrant, of the motel rooms occupied by defendants.

The Appellate Division reversed Deatore’s conviction because the trial judge permitted the prosecution to ask him on cross-examination, over objection, a series of questions bearing on his failure to make any exculpatory statement to the police after he was arrested. Mallon’s conviction was reversed because the court felt that “the nature of the error was such as to affect and prejudice Mallon as well as Deatore in the light of surrounding circumstances,” although this ground had not been urged in Mallon’s brief on appeal.

In its opinion in Deatore’s case the Appellate Division discussed another issue. After the jury box had been filled the judge had asked the prospective jurors whether they knew counsel, the defendants or any of the State’s proposed witnesses. One answered that she knew the customer-victim of the holdup “personally and business.” The judge then inquired whether, in view of this acquaintanceship, she could “render a verdict that would be free of any partiality or any prejudice * * She replied that she could. At the conclusion of the court’s voir dire examination² and before any peremptory challenges under B. 1:8-3 (d) were exercised,³ counsel for Deatore, at side bar, moved to dismiss the juror for cause. When this was refused, he asked leave to examine her on the extent of her relationship with the victim, knowledge of the crime committed against him and the like, which request was also summarily denied. Counsel then exercised a peremptory challenge and excused the juror. The matter of possible bias came up again during a voir dire examination by the court after all defense peremptory challenges had been exhausted. Deatore’s attorney suggested the potential partiality of a juror who mentioned two relatives by marriage employed as correction officers in a Pennsylvania state prison. He asked for an additional peremptory challenge by reason of the claimed erroneous denial of the challenge of the earlier juror for cause. This was likewise refused. Mallon’s counsel joined in each of these motions.

Having in mind the basic right of every defendant to a fair and impartial trial, we have no doubt that the trial court committed fundamental error in its refusal to conduct or permit a further examination of the first juror in the circumstances, which error in itself requires reversal of the judgments of conviction of both defendants and remand for a new trial, and so affirmance of the Appellate Division in both cases (the point was not mentioned in the Motion opinion although it was the principal ground of appeal urged). We adopt the language of the Appellate Division in Deatore spelling out the reason:

Once it was disclosed by [the juror] that she was acquainted with one of the robbery victims, it became the duty of the trial judge to himself explore or to permit counsel to explore with the juror the nature and extent of his acquaintance with the victim. Without such information, neither counsel nor the court could make an intelligent appraisal as to the likelihood of the existence of any bias, prejudice or partiality in favor of the State or in favor of the credibility of the victim. State v. Jackson, 43 N. J. 148, 157-161 (1964) , cert. den., 379 U. S. 982 [85 S. Ct. 690, 13 L. Ed. 2d 572] (1965) . Had such inquiry been made and revealed a close relationship, it is not enough that the juror disclaimed any partiality for, as the court observed in Jackson, sincere as the disclaimer may be “it runs counter to human nature,” Id., at page 160. * * *

Jurors “must be [carefully] selected with an eye toward[s] their ability to determine the controverted issues fairly and impartially; . . . [and] the trial court should see to it that the jury is as nearly impartial ‘as the lot of humanity will admit.’ ” Jachson, at pages 157-158. Likely prejudice to the right of this defendant to a fair and impartial trial inhered in the failure of the trial court to heed this elementary principle. Wright v. Bernstein, 23 N. J. 284 (1957).

The sufficiency of a stated disclaimer of any partiality in circumstances such as here involved would not only seem to run “ ‘counter to human nature’ ” as above, but to fly “in the face of the plain reality of the courtroom.” Cf. State v. Miller, 67 N. J. 229, 245 (1975) (Clifford, J., concurring and dissenting in part). See also Annotation, “Social or business relationship between proposed juror and non-party witness affecting former’s qualification as juror,” 11 A. L. R. 3d 859 (1967).

We add that the obvious and practical way to handle the situation of a prospective juror having connections with a party or witness which might possibly affect impartiality is to excuse the juror by consent at the outset, with that course suggested by the judge if counsel do not propose it. And if that arrangement is rejected, the trial judge should proceed with the supplemental interrogation above mentioned, or permit counsel to do so in his discretion, to test the legitimacy or necessity of excusal for cause.

Although both cases could be disposed of on the basis of this error, we note the vigorous contention of the State that its cross-examination of Deatore was proper and that the Appellate Division was wrong in reversing his conviction on that ground. Since the point raised is of general importance, is subject (as we shall note later) to a remarkable variance in judicial views, and should be settled so far as New Jersey courts are concerned, we will decide it on the merits; this, even though it might be said that the evidence of guilt was so strong that any trial error in this regard was harmless beyond a reasonable doubt. We should further say that we disagree with the Appellate Division’s holding that the asserted error in the questioning of Deatore necessarily “rubbed off” on Mallon and prejudiced him as well so as to require the reversal of his conviction on that ground. Our opposite view is based upon the overwhelming evidence of guilt on the part of Mallon, apart from and irrespective of silence or other conduct on the part of Deatore, rendering any possible effect on Mallon of the State’s challenge of Deatore’s silence, harmless error beyond a reasonable doubt. Compare State v. Davis, 67 N. J. 222, 228 (1975) with State v. Macon, 57 N. J. 325, 335-41 (1971). In this respect we distinguish the exposure of both defendants equally to prejudice resulting from the failure to probe the qualification of the first challenged juror to sit in impartial judgment.

As indicated, the questions involved here related to the matter of Deatore’s silence and failure to voice exculpatory information to the police at or about the time of his arrest. These questions came in the course of cross-examination, after he had testified on direct that he was elsewhere at the time of the crime. He was asked whether he had made any statements to such effect to the police when he was arrested and later when he learned of the specific charge against him. His reply was that the only thing he remembered saying was that he wanted a receipt for the money taken by the police from his person. He denied that he told the police he had nothing to say, and the interrogation concluded with the prosecutor asking whether it was not so that he had refused to make any statement.⁴ The answer was: “Nobody asked me.” It may be added that while there was testimony by one of the arresting officers that “defendant was read his rights” at police headquarters (which we interpret to mean that he was given the Miranda warning; Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)), there was no evidence that he was questioned at all. No rebuttal testimony was offered by the State with respect to the line of interrogation outlined above, and no mention was made of it during the balance of the trial either in the State’s summation or otherwise.

The State takes the position that the purpose of its trial questioning was to elicit, whether Deatore had an opportunity to assert his alibi defense at or about the time of arrest and, if so, to bring to the jury’s attention that he had not asserted it until his testimony at the trial, which would have the effect of impeaching that testimony. The reasoning is, of course, that an innocent man would not have withheld such an exculpatory story prior to trial, but would have asserted it to someone in- authority at the earliest opportunity to avoid arrest, indictment and trial; and that, therefore, the natural inference would follow that, unless a rational explanation for the failure to make such disclosure could be presented, the later exculpatory testimony is untrue.

Here the State also suggests that its cross-examination did not go to the full length of asking Deatore whether he had ever told anyone of his alibi claim prior to trial, because it developed that since no one asked him for a statement, he had no opportunity to tell the police of his alibi and that any error was therefore harmless since the impression left with the jury was entirely innocuous. While this may well be so, we pass the question in order to deal with the merits of the State’s position to its full extent. This we understand to be that if a defendant, like Deatore, testifies exculpatorily at trial and had not told that story, but remained silent, at or near the time of his arrest, his silence and failure to volunteer then, whether or not he was questioned, may properly be brought to the attention of the jury on cross-examination in order to permit the inference that the exculpatory testimony is therefore untrue. We emphasize that this position goes beyond a situation where a defendant did make a state-. ment at or near arrest, which is inconsistent with his trial testimony, or where conduct (as distinct from silence) at the time of the crime or thereafter is inconsistent with the story told at trial.

We are convinced that the State’s position should not be adopted and that such cross-examination of a defendant is improper.

The Appellate Division reached that result on a federal constitutional basis, saying that questioning of this kind could not help but penalize a defendant for exercising his Plfth Amendment privilege against self-incrimination (by remaining silent), on the authority of Miranda v. Arizona supra, 384 U. S. at 468, n. 37, 86 S. Ct. at 1624-25, 16 L. Ed. 2d at 720, and was as unfairly prejudicial as would be comment by the prosecutor on the failure of a defendant to testify in his own defense, forbidden by Griffin v. California, 380 U. S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).

Cases in other jurisdictions, both federal and state, have reached differing conclusions on this question as approached from- a federal constitutional base (and otherwise); and because the decision in United States v. Hale, supra, rested on a different and non-constitutional ground,⁵ there has been as yet no definitive decision of the United States Supreme Court, on the constitutional issue. A catalog of all the various cases would serve no useful purpose. We mention a few cases in the federal system as illustrative of the different results reached.

United States v. Anderson, 162 U. S. App. D. C. 305, 498 F. 2d 1038 (1974), aff’d on other grounds sub nom. United States v. Hale, supra, in which many of the federal cases are collected and discussed, held that such questioning of a defendant at trial was improper by reason of the prohibition laid down in footnote 37 in Miranda v. Arizona, supra:

In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. [498 F. 2d at 1041 (quoting from Miranda, supra, 384 U. S. at 468, 86 S. Ct. at 1624-25, 16 L. Md. 2d at 720) (emphasis by the court in Anderson)]

(Under this view, it is certainly an a fortiori situation when a defendant, like Deatore, was not subject to police interrogation, but his exculpatory trial testimony is sought to be impeached by his failure to volunteer that story when arrested.) Chief Judge Bazelon went on to hold that this interdiction in Miranda had not been undercut by Harris v. New York, 401 U. S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), which held proper the use of prior inconsistent utterances to impeach a defendant’s trial testimony even though the utterances were made before the defendant was adequately apprised of his rights and therefore would have been inadmissible on the prosecution’s chief case by reason of that Miranda violation. See also Oregon v. Hass, 420 U. S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975). He found nothing inconsistent with remaining silent at interrogation and offering exculpatory testimony at trial. 498 F. 2d at 1042-44.

The Court in Hale discussed and distinguished its decision in Raffel v. United States, 271 U. S. 494, 46 S. Ct. 566, 70 L. Ed. 1054 (1926),⁶ considering the Hale factual pattern more closely parallel to that of Grunewald v. United States, 363 U. S. 391, 77 S. Ct. 963, 1 L. Ed. 2d 931 (1957).⁷

In United States v. Harp, 513 F. 2d 786 (5th Cir. 1975) defendants had contended at their trial for attempted escape that one Chapman had kidnapped them and forced them to enter a railroad car in an attempt to escape from the penitentiary. The prosecutor in his closing argument commented on the inconsistency between this “kidnapping” story and the failure of any defendant to even mention this bizarre fact to any official prior to trial. The court rejected the contention that the comment infringed on their Fifth Amendment right to remain silent, stating:

* * * when a defendant sponsors a defense at trial to the accusation laid against him, which common sense and good reason assert is totally inconsistent with pretrial silence of the testifying defendant or his witness, the pursuit of truth may allow penetration of what is otherwise shielded, to test the credibility of the defense he offers. [Id. at 790 (footnote omitted)]

The court further cautioned in Harp that “[b]ecause this prosecutorial tactic makes collateral use of a constitutionally protected right, it is subject to strict scrutiny.” It premises admissibility of such evidence upon the following conditions:

* * * it is the rare and exceptional case where comment on silence is permissible. Total inconsistency is the criterion. If any rational explanation for the defendant’s invocation of his Fifth Amendment privilege exists, the prosecution’s impeachment use of a failure to speak would be error. This safeguard assures that collateral use is for the purpose of impeaching matter the defendant has put in dispute, and not for subtly encouraging a jury to infer guilt from silence. [Id. at 790]

Not only have the federal 'Circuit Courts differed among themselves in their approach to this problem, but on occasion all members of the same court have exhibited such differences. See, e. g., Agnellino v. New Jersey, 493 F. 2d 714 (3d Cir. 1974).

United States v. Ramirez, 441 F. 2d 950 (5th Cir.), cert. den., 404 U. S. 869, 92 S. Ct. 91, 30 L. Ed. 2d 113 (1971) is frequently cited as the leader of the line of federal cases validating the testimony on the basis that silence at the time of arrest is an act inconsistent with the testimony given at trial. The court found an “inescapable” analogy to Harris and said that once the defendant elected to testify and assert a defense, “he became subject to the Traditional truth-testing devices of the adversary process’, including the right of the prosecution to show his prior inconsistent act of remaining silent at the time of his arrest.” 441 F. 2d at 954.

The disarray in decisional treatment of this question, whether on a basis of constitutional right or not, is not confined to the federal jurisdiction. See, e. g., State v. Bates, 140 Conn. 326, 99 A. 2d 133 (Sup. Ct. Err. 1953) (silence inadmissible) ; People v. Simmons, 28 Cal. 2d 699, 172 P. 2d 18 (Sup. Ct. 1946) (silence admissible). In this context, since the ultimate fate of this type of cross-examination of a defendant remains so unsettled and since it has recently been arising quite frequently in criminal trials in our state courts, we feel it should be settled now as far as the courts of this state are concerned. As has been indicated, we are of the view that such questioning is improper. We reach that conclusion as a matter of state law and policy, as to which we may impose standards more strict than required by the federal Constitution, which standards will control regardless of the final outcome of the question in the federal sphere. Oregon v. Hass, supra; Cooper v. California, 386 U. S. 58, 62, 87 S. Ct. 788, 791, 17 L. Ed. 2d 730, 734 (1967) ; State v. Johnson, 68 N. J. 349, 353 (1975); Avant v. Clifford, 67 N. J. 496, 520-21 (1975); Rodriguez v. Rosenblatt, 58 N. J. 281, 294-95 (1971).

The reasons for the stated conclusion rest in two categories. The first derives from the privilege against self-incrimination which is enshrined in the common law;⁸ the second from basic principles of evidence law. To the extent that the stated conclusion rests on the privilege against self-incrimination, this opinion speaks for a majority of the Court. To the extent that it rests upon principles of evidence law, it represents the views only of the writer and Justice Mountain.

The right not to be compelled to incriminate one’s self arises in New Jersey, not from the state Constitution (as it does in most other states) but as part of the common law, confirmed by statute enacted in 1855 (L. 1855, c. 236, § 4, p. 668) which later became N. J. S. A. 2A:81-5: “No witness shall be compelled to answer any question if the answer will expose him to a criminal prosecution or penalty or to a forfeiture of his estate.” In re Pillo, 11 N. J. 8, 15 — 17 (1952); State v. Fary, 19 N. J. 431, 434-35 (1955). The modern statement of the privilege, not essentially different, as far as the present case is concerned, from the original statutory enactment, is found in Rules of Evidence 24 and 25, N. J. S. A. 2A:84A-18 and 19. The reason for the privilege was expressed by Mr. Justice Brennan, when a member of this Court, in In re Pillo, supra:

* * * In modern concept its wide acceptance and broad interpretation rest on the view that compelling a person to convict himself of crime is “contrary to the principles of a free government” and “abhorrent to the instincts of an American,” that while such a eoercive practice “may suit the purposes of despotic power, * * * it cannot abide the pure atmosphere of political liberty and personal freedom.” Boyd v. United States, 116 U. S. 616, 632, 6 S. Ct. 524, 29 L. Ed. 746, 751 (1886). [11 N. J. at 15-16]

There can be no doubt that the right of an accused or a suspect to remain silent when in police custody or under interrogation has always been a fundamental aspect of the privilege in this state. In State v. Ripa, 45 N. J. 199 (1965), the Court'stated: “Feedless to say, a suspect is under no duty to give a statement) on the contrary he is privileged to say nothing.” Id. at 204. This right, of course, underlies the decision in Escobedo v. Illinois, 378 U. S. 478, 485, 84 S. Ct. 1758, 1762, 12 L. Ed. 2d 977, 983 (1964), and is the basis of the Fifth Amendment privilege implemented in Miranda, supra, 384 U. S. at 467-68, 86 S. Ct. at 1624, 16 L. Ed. 2d at 720. It is implicit in the first paragraph of our Evid. R. 25 covering the privilege. Its significance is further demonstrated by our criminal court rules, requiring that a defendant, on his first appearance before a court, whether an upper tribunal or a municipal court, following the filing of a complaint, must be informed by the judge “of his right not to make a statement as to the charge against him * * R. 3:4-2, 7:2 and 7:3-l. McCormick, Evidence § 130, at 272 (2d ed. 1972), summarizes it in this fashion: “The privilege confers a significantly different right upon one who is the accused in a criminal proceeding as compared to one who is simply a witness in a criminal or other proceeding. Basically, the right of an accused is the right not only to avoid giving incriminating responses to inquiries put to him but also to be free from the inquiries themselves.”-⁹

The practical effect of the privilege to remain silent is, as we held a decade ago, “that when a defendant expressly refused to answer, no inference can be drawn against him under the doctrine of acquiescence by silence or any other concept,” State v. Ripa, supra, 45 N. J. at 204, and no comment thereon may be made to the jury, State v. Lanzo, 44 N. J. 560, 563 (1965), following Griffin v. California, supra. This being so, it should certainly follow that a defendant is under no obligation to volunteer to the authorities at the first opportunity the exculpatory story he later tells at his trial and cannot be penalized directly or indirectly if he does not. While the situation in Ripa was that of the State offering evidence of a refusal to answer as substantive proof of guilty on its own case, we think the result should he no different when it is presented by way of attempted impeachment of a defendant’s exculpatory testimony through cross-examination, and we so hold as a matter of state law. The privilege of silence is substantially eroded and reliance upon it unjustifiably penalized in either situation. We may add that we do not interpret Harris v. New York, supra, to indicate a different result in the situation before us, but, even if it should, we choose to impose a stricter standard as a matter of state law.

That conclusion is buttressed by appropriate application of fundamental principles of the law of evidence. (It will be recalled that in this regard, as noted above, the writer is speaking only for himself and for Justice Mountain.) While “all relevant evidence is admissible” in the courts of this state, except as otherwise provided in the Eules or by other law of the state (Evid. R. 7), and “‘[rjelevant evidence5 means evidence having any tendency in reason to prove any material fact” (Evid. R. 1(2)), the test of relevancy still ought be the probative value of the proffered evidence with respect to the points in issue, or put another way, whether such evidence renders the desired inference more probable than it would be without the evidence. Although even this test is broad and favors admissibility, relevant evidence may still be, and should be, excluded when “its probative value is substantially outweighed by the risk that its admission will * * * (b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury." Evid. R. 4 (N. J. S. A. 2A:84A-16).

And such was the basic thrust of the Supreme Court’s reasoning in Hale, supra. The ambiguity of custodial silence dilutes its probative force and contraindicates that concept of threshold and total inconsistency (with later exculpatory statements at trial) which is the very base of its evidential worth. 3A Wigmore, Evidence § 1040 (Chadbourn rev. 1970); United States v. Harp, supra. Add to this the involved factors of confusion and potential prejudice and one can see quite clearly why exclusion is the desirable and fairer rule.

Por silence by a criminal suspect in custody or under interrogation in the face of an accusation or in the form of refusal to answer queries is certainly equivocal. State v. Bipa, supra, 45 N. J. at 203. It is even more so when it amounts to failure to volunteer an exculpatory story. There are many reasons why a person in such a situation may choose to say nothing. A likely explanation is conscious reliance on his right to remain silent. Another is a general feeling that it is better not to say anything at all when surrounded by police or officials in a fearful atmosphere. Still another, in the case of an alibi, might be the simple lack of immediate recollection of the defendant as to his whereabouts at the time of the occurrence. So it would seem that evidence of such silence is not truly probative or soundly “relevant,” but even if it should be thought so, it has great capacity for prejudice and misleading of the jury and ought to be excluded on that ground.¹⁰

The State urges, however, that we have already taken a position in favor of the propriety of this type of impeaching cross-examination by virtue of the decision in State v. Burt, 59 N. J. 156 (1971), cert. den., 404 U. S. 1047, 92 S. Ct. 728, 30 L. Ed. 2d 735 (1972), which affirmed the Appellate Division for the reasons expressed in the latter’s opinion reported in 107 N. J. Super. 390 (1969). The underlying circumstances were markedly different from those in the instant ease and the opinion has to be read in the light thereof. We are satisfied that the result in Burt was correct.

The charge in that case was murder — the shooting of a friend. The defense at trial was that the shooting was accidental.¹¹ The proofs up to the point of the cross-examination in question established that defendant had not sought medical or other assistance for his injured friend after the incident, had left the locale without knowing whether he was dead or alive and had not reported the occurrence to the police when he was arrested for another offense a few hours later (the police at that time did not know of the shooting), nor indeed to anyone. The purpose of the cross-examination was, in essence, to bring all this out and thus convince the jury that the trial testimony of accidental shooting could not be true. (See the full course of questioning set forth in the separate opinion, 59 N. J. at 161-62). It was in fact not a true case of silence in police custody as to an exculpatory story, but rather one of conduct, albeit non-action, after the charged crime inconsistent with defendant’s story at trial. As such, questioning of a defendant thereon runs into none of the difficulties of the self-incrimination privilege or of the law of evidence and is entirely proper.¹² It is akin to equally appropriate cross-examination or rebuttal testimony with respect to prior statements inconsistent with the exculpatory story told at trial. See, e. g., State v. Kimbrough,, 109 N. J. Super. 57, 65-68 (App. Div. 1970).

The rule we settle here today is not to be given retroactive application except as to eases where direct review is pending or remains available as of this date. In this regard we follow the course adopted by the United States Supreme Court in Tehan v. Shott, 383 U. S. 406, 86 S. Ct. 459, 15 L. Ed. 3d 453 (1966), concerning a like problem after the decision in Griffin v. California, supra, which had held invalid comment on the exercise of the privilege against self-incrimination.

The judgments of the Appellate Division are affirmed.

1 Since such reversals defendants have remained imprisoned under sentences imposed on other unrelated convictions, the maxima of which will be reached in 1980, less commutation credits to be earned under statute (N. J. S. A. 30:4-92, N. J. S. A. 30:4 — 140).

2 An obligation primarily east upon the trial judge by reason of the amendment of R. 1:8-3 (a) ; see State v. Manley, 54 N. J. 259 (1969).

3 R. 1:8-3(d) : “* * * the defendant shall be entitled to 20 peremptory challenges if tried alone and to 10 such challenges when tried jointly; * * *”

4 There is an obvious stenographic mistake in the trial transcript at this point. We have treated it as if corrected.

5 In Sale, the Supreme Court held that respondent Hale’s silence during police interrogation and failure then to offer an exculpatory-statement, such as that later testified to at trial, lack a significant probative value, at least when weighed against the “intolerably prejudicial impact” which might result were a jury to attach more weight than warranted to such invited silence. The Court thought such silence to be particularly ambivalent and non-probative in view of possible reliance on the right to remain silent after hearing the Miranda warning, but mentioned also that a “variety of reasons” might “influence that decision” and that there might be “many alternative explanations for his pretrial silence.” 422 U. S. at 176-80, 95 S. Ct. at 2136-38, 45 L. Ed. 2d at 104-07.

We are aware that the federal constitutional question is now pending before the United States Supreme Court in Doyle v. Ohio, No. 75 — 5014, and Wood v. Ohio, No. 75 — 5015, argued on February 23, 1976. See 18 Crim. L. Rep. 4184-86 (1976).

6 In Raffel the .Supreme Court held that a defendant’s testimony at a retrial could be impeached by cross-examination which disclosed that defendant, in the face of similar prosecution testimony, had chosen not to testify at his first trial, saying that “[h]is waiver is not partial; having once cast aside the cloak of immunity he may not resume it at will.” 271 U. S. at 497, 46 S. Ct. at 568, 70 L. Ed. at 1058.

7 In Grunewald the Supreme Court held that it was error to permit cross-examination of a defendant testifying at his trial as to his previous refusal to testify to such effect, or at all, before the grand jury which indicted him. It perceived the problem as a question of the probative value of such evidence, as was the basis of its later decision in Hale. 358 U. S. at 419-23, 77 S. Ct. 981-83, 1 L. Ed. 2d at 951-54.

8 The common law privilege against self-incrimination began to emerge in response to the abuses of the Star Chamber in Stuart England, and eventually it became well-entrenched in the criminal law of England. See 1 Stephen, History of the Criminal Lato of England 440 (18S3). Compare Trial of John Lilburn and John Wharton, 3 How. St. Tr. 1315, 1326-27 (1637) with Trial of John Lilburne, 4 How. St. Tr. 1270, 1292-93 (1649) and Trial of William Penn and William Mead, 6 How. St. Tr. 951, 957-58 (1670). The English tradition was carried over to the American colonies where the privilege was exalted to constitutional stature. See generally Morgan, “The Privilege Against Self-Incrimination”, 34 Minn. L. Rev. 1 (1949) ; Pittman, “The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America”, 21 U. Va. L. Rev. 763 (1935). In New Jersey, although the privilege was not included in a constitutional provision, “the common law doctrine, unaltered by legislation or by lax practice,” continued to have its full force. State v. Zdanowicz, 69 N. J. L. 619, 622 (E. & A. 1903).

9 Despite the age and strength of the privilege, there existed for a century or more in this state and elsewhere a countervailing doctrine of assenting silence, or the tacit or adoptive admission, arising when an accusation was made in circumstances in which silence by the accused in the face of it could be said to bespeak an agreement with the truth of the charge. See, e. g., Donnelly v. State, 26 N. J. L. 601, 613-14 (E. & A. 1857) ; State v. D’Adame, 84 N. J. L. 386, 391-92 (E. & A. 1913) ; State v. Kobylarz, 44 N. J. Super. 250, 256-59 (App. Div.), certif. den., 24 N. J. 548 (1957). See also Annotation, “Admissibility of inculpatory statements made in presence of accused and not denied or contradicted by him,” 80 A. L. R. 1235 (1932), supplemented, 115 A. L. R. 1510 (1938). In recent years, we seriously questioned the soundness of the doctrine. See, e. g., State v. Butler, 32 N. J. 166, 181-84 (1960), cert. den., 362 U. S. 984, 80 S. Ct. 1074, 4 L. Ed. 2d 1019 (1960) ; State v. Ripa, supra, at 203-04. Although the adoptive admission continues to be recognized by our evidence rules (Evid. R. 63(8) (b)), we consider that the doctrine is no longer viable, as far as silence of a criminal defendant is concerned, and that the first paragraph of Evid. R. 25 is to be so read. S.ee also Report of the New Jersey Supreme Court Comm, on Evidence 164 (1963), mentioning the abuses of the assenting silence doctrine.

10 We think the rule of impropriety of cross-examination of a defendant with respect to silence in police custody which developed in this case should not depend on whether or not the defendant received his Miranda warnings. State v. Griffin, 120 N. J. Super. 13 (App. Div. 1972), certif. den., 62 N. J. 73 (1972), held that such questioning was improper when the warnings had been given, but apparently that court would have found no error if the warnings had not been given. See also State v. Morales, 127 N. J. Super. 1 (App. Div. 1974). We see no meaningful basis for a distinction. The right to remain silent existed long before Miranda; that decision, for present purposes, required only that a defendant be reminded of it so that he could make an appropriate choice before any interrogation.

11 The Appellate Division had previously stated the facts of the case, but a fuller narration of the events and trial testimony is contained in Justice Hall’s separate opinion, 59 N. J. at 158-63.

12 Burt later sought habeas corpus in the federal courts. The District Court awarded the writ on the basis that his right to remain silent had been violated by the cross-examination. United States ex rel. Burt v. Yeager, 342 F. Supp. 188 (D. N. J. 1972). The Circuit Court of Appeals reversed, with two opinions, 475 F. 2d 234 (3d Cir. 1973), and certiorari was denied by the United States Supreme Court, three Justices dissenting. 414 U. S. 938, 94 S. Ct. 243, 38 L. Ed. 2d 165 (1973). Both Circuit Court opinions can be read to express the view we take here, i. e., that this was a case of prior inconsistent conduct, which may properly be probed by the State on cross-examination, rather than a situation of mere silence in police custody. See 475 F. 2d at 236, id. at 238. Where the non-verbal conduct is intended to be communicative rather than being a mere non-assertive act, however, the privilege may apply. Cf. State v. Williams, 97 N. J. Super. 573, 599-600 (Cty. Ct. 1967).