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On June 9, the court held that a defendant who pleads the Fifth Amendment at his retrial, and thereby exercises his right to remain silent, cannot offer into evidence his testimony given during his first trial. State v. McInerney, __ N.J. Super.__ (App. Div. 2017).

Defendant, a former high-school baseball coach was convicted of several counts of second degree endangering the welfare of his minor students, N.J.S.A. 2A:24-4. However, based upon errors in the jury charge, his conviction was reversed and remanded for a retrial.

Prior to the start of the retrial, because defendant had decided to exercise his constitutional right to remain silent and not testify in his second trial, defense counsel moved to introduce into evidence defendant’s testimony from his first trial. Overruling the prosecutor’s objection, the trial court ruled that “defendant’s election not to testify made him an unavailable witness within the meaning of N.J.R.E. 804(a)(1), an exception to the hearsay rule,” thus allowing defendant to sit peacefully at counsel table instead of sitting on the witness stand and being subjected to the rigors of live cross examination. 

On appeal, in reversing and remanding, the court held that in order for prior testimony to be admissible as an exception to the hearsay rule, the declarant must be “unavailable,” and one who voluntarily asserts his Fifth Amendment privilege is not “unavailable.” N.J.R.E. 804(a).

In so ruling, the court properly noted that N.J.R.E. 801(c) provides that hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The court interpreted “the trial” to mean the retrial.

In order to invoke the prior testimony exception to the hearsay rule, the court pointed out that any unavailability must be “at least through no fault of the testimony’s proponent.” That is, the proponent of the prior testimony cannot “create the condition of unavailability and then benefit therefrom.”

Because this issue was a case of first impression in New Jersey, the court relied upon federal and out of state cases for the proposition that “although a defendant who has invoked (the Fifth Amendment) privilege is unavailable to any other party, he is not unavailable to himself.” This reasoning is consistent with N.J.R.E. 804(a) which provides that the unavailability exception does not apply when the unavailability “has been procured or wrongfully caused by the proponent of declarant’s statement for the purpose of preventing declarant from attending or testifying.”

When considering the Fifth Amendment in conjunction with the hearsay rule, the court ruled that “the obligation to protect a defendant’s invocation of his Fifth Amendment rights cannot overwhelm the basic rule of our adversary system that a defendant who seeks to testify and offer exculpatory statements must face cross-examination.”

Now, some veteran trial lawyers and law school evidence professors might disagree and contend, as argued by defendant on appeal, that defendant’s prior testimony should be admissible because it is not hearsay at all; that it is “not an out-of-court statement, but rather, previous in-court trial testimony that was made under oath and subject to full cross-examination.”

However, the court, in dismissing this argument of defendant, pointed out that to accept this contention “would mean that any trial testimony, subjected to cross-examination, is not hearsay. That is not the law. Such an interpretation would render meaningless the exception to the hearsay rule found in N.J.R.E. 804(b)(1)(a)” (prior trial testimony).

In this author’s opinion, the court’s interpretation of “the trial” to mean the trial at which a defendant stands accused has a valid and logical basis.

Prior to retiring from the bench, it became clear that a trier of fact relies not only on what a witness says but also, and sometimes more importantly, on how it is said. Credibility of a witness, which is an issue in every case, is often determined by the witness’ demeanor and body language while testifying before the fact finder. In my experience sitting as the fact finder in the family division, observing a live witness, especially when subjected to cross-examination, has always been the key to determining the true facts of the case.

To deny a jury the right to observe a witness being cross-examined in the case in which the jury must weigh the credible evidence would be unfair to the jury and to our system of justice.

The court properly pointed out that although a defendant has every right to invoke his Fifth Amendment privilege to shield himself from cross-examination before a jury chosen to decide his fate, he is not entitled, at the same time, to “employ that right as a sword” to admit into evidence testimony offered without this jury observing the manner in which such testimony was given., i.e., he can’t have it both ways.•