The police never told me what I was being charged with before or after I gave a statement, is this allowed?

I did not know what I was being charged with when the police read me my Miranda rights. The police never told me what I was being charged with before or after I gave a statement, is this allowed?

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

One of the bedrock constitutional rights we have in this country and in New Jersey is the absolutely right against self-incrimination. This is the 5th Amendment right in the Bill of Rights and apply to the states through the 14th Amendment of the U.S. Constitution. What this means is that in order to give a statement against our own interest and incriminate ourselves we must be first told our rights under the Constitution pursuant to Arizona v. Miranda, the 1966 US Supreme Court decision. Implicit in the decision is your, or any defendant’s, right to waive those constitutional rights and implicate yourself and provide a statement against yourself. However, prior to doing so there must be a determination that you give a knowing and voluntary waiver of those rights. The New Jersey Supreme Court in the attached decision has once again ruled that part of a knowing voluntary waiver includes a defendant’s awareness of what the charges are against him or her.

In other words the police must tell you specifically what you are being charged with. Any question regarding what you’re being charged with must be answered and the specific charges must be identified. This is not an extension or the creation of new law but a continuing affirmation by this court that you cannot waive your right against self-incrimination unless you know what you’re being charged with. This is a fundamental right that the police cannot abuse as a matter of criminal procedure.

The waiver language is from the decision by the New Jersey supreme court. In this case the defend it is alleged to have committed a murder. He questioned the police with what he was actually charged with as opposed to what they were telling him. The police continued to tell this defendant  that the judge had approved certain charges however the police never showed the defendant the actual criminal charges nor told him what the actual criminal charges were.

The decision states:

We have provided that protection because the right against self- incrimination is “an integral thread in the fabric of [the] common law,” State v. Hartley, 103 N.J. 252, 286 (1986), and “one of the most important protections of the criminal law,” State v. Presha, 163 N.J. 304, 312 (2000). Accordingly, we maintain “an unyielding commitment to ensure the proper admissibility of confessions.” State v. Reed, 133 N.J. 237, 252 (1993) (quoting Hartley, 103 N.J. at 301 (Handler, J., concurring in part and dissenting in part)).

Individuals, as holders of the right, may waive the right against self- incrimination. Presha, 163 N.J. at 313. Law enforcement officers must first advise a suspect of the right against self-incrimination before attempting to obtain a waiver of the right. State v. Hreha, 217 N.J. 368, 382 (2014) (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)). A waiver of the right against self-incrimination must be knowing, intelligent, and voluntary. Reed, 133 N.J. at 250-51. The State carries the burden of proving “beyond a reasonable doubt that the suspect’s waiver was knowing, intelligent, and voluntary in light of all the circumstances.” Presha, 163 N.J. at 313.

In A.G.D., detectives questioned the defendant at his home about allegations of sexual abuse. 178 N.J. at 59. The detectives did not tell the defendant that a warrant for his arrest had been issued. Ibid. The defendant agreed to accompany the detectives to the prosecutor’s office for further questioning. Ibid. The defendant confessed to the alleged sexual abuse and was subsequently convicted of related offenses. Id. at 60-61.

Before trial, the defendant moved to suppress his confession, and the trial court denied the motion. Id. at 61. On appeal, the Appellate Division found that the defendant’s right to counsel was not triggered because an indictment had not been issued. Ibid. The panel remanded for a new Miranda hearing because, on the record presented, the Appellate Division could not address the defendant’s claim that his confession was coerced. Id. at 61-62. On remand, the trial court again denied the defendant’s suppression motion, and this Court granted his petition for certification. Id. at 62.

This Court held that the defendant’s confession should have been suppressed, id. at 69, because the “government’s failure to inform a suspect that a criminal complaint or arrest warrant has been filed or issued deprives that person of information indispensable to a knowing and intelligent waiver of rights,” id. at 68. If suspects are not informed that a criminal complaint or arrest warrant has been filed against them, they necessarily lack “critically important information” and thus “the State cannot sustain its burden” of proving a suspect has knowingly and intelligently waived the right against self-incrimination. Ibid. Because the detectives failed to inform the defendant that an arrest warrant had been issued, the defendant in A.G.D. was simply unable to execute a knowing and intelligent waiver of his right against self- incrimination. Ibid.

A.G.D. thus calls for law enforcement officials to make a simple declaratory statement at the outset of an interrogation that informs a defendant of the essence of the charges filed against him. That information should not be woven into accusatory questions posed during the interview. The State may choose to notify defendants immediately before or after administering Miranda warnings, so long as defendants are aware of the charges pending against them before they are asked to waive the right to self-incrimination.

Vincenty’s interrogation is precisely what A.G.D. prohibits, and it substantiates A.G.D.’s holding. That is to say, Vincenty’s interrogation illustrates that suspects cannot knowingly and intelligently determine whether to waive their right against self-incrimination if, when making that determination, they have not been informed of the charges filed against them.

Unaware that charges had been filed against him, Vincenty appeared willing and ready to waive his right against self-incrimination. He signed a form acknowledging that he understood his rights, spoke with the detectives, and did not request to speak with a lawyer. However, when Vincenty was informed of the criminal charges filed against him, everything changed. He appeared shocked and surprised. He seemed to understand for the first time the heightened magnitude of the interrogation. He instructed the detectives that he wanted to speak with a lawyer. His willingness to speak with the detectives dissipated. He was no longer willing to waive his right against self- incrimination.

As that chain of events demonstrates, Vincenty’s ability to knowingly and intelligently decide whether to waive his right against self-incrimination was fundamentally altered when he was informed of the criminal charges filed against him. Rather than inform Vincenty fully of the charges at the outset, the detectives told him at various points during the interrogation that some type of charges were filed against him. It was not until late in the interrogation — well after the detectives read Vincenty his rights and asked him to waive his right against self-incrimination — that the detectives detailed the actual charges Vincenty was facing.

The police must tell a defendant what s/he is being charged with as a result. Every case has a specific set of facts and must be evaluated in detail. If you have any questions regarding any statements you made to police if and when you are at the police department. Call Hark & Hark if you have any questions about any statement you have provided to the police.