dissenting.
Occasional disagreement on an appellate tribunal is inevitable. As regrettable as disagreement may be, the exposition of different views may serve the public interest. My perception of the facts and law lead me to a conclusion opposite from that of the majority. Consequently, I respectfully dissent.
From my perspective, the only issue on this appeal is whether the State may admit in a criminal prosecution defendant’s uncounselled oral statement made to a Division of Youth and Family Services (DYFS) investigator after invoking his right to counsel. Critical to this determination are the facts that both the DYFS caseworker and the Prosecutor knew that defendant’s wife had incriminated him and that defendant was represented by counsel. The Appellate Division affirmed the Law Division’s holding that admission of the statement would be unfair. 285 N.J.Super. 219, 228, 666 A.2d 1000 (1995). I would affirm.
Under the facts of this case, I believe it would be fundamentally unfair to allow the Prosecutor to introduce defendant’s uneounseled inculpatory statement to the DYFS caseworker. The State would remain free to prosecute defendant on other evidence. It should not, however, be permitted to introduce the words that it induced him to utter in an ostensible attempt to determine whether it would return custody of his child to him and his wife.
Having identified the specific issue presented by the appeal, it might help to identify other issues that the appeal does not present. Identification of those irrelevant issues reveals flaws in *122the majority opinion. For example, not at issue is whether defendant was in custody when questioned by the DYFS caseworker, Cheryl Kobran, at defendant’s home. Ante at 103-104, 703 A.2d at 910. Contrary to the majority opinion, the fact that defendant’s interrogation was non-custodial, however, does not moot “the question whether Kobran was acting as a law enforcement officer.” Ante at 103, 703 A.2d at 910. Also not at issue is whether an admission of abuse may aid in the rehabilitation of abusive parents or whether termination of custody is automatic if a parent invokes his or her privilege against self-incrimination. Ante at 107-108, 703 A.2d at 912. Rehabilitation of abusive parents may be of vital concern in a custody ease; it should have no bearing on the determination of the admissibility of a defendant’s statement in a criminal prosecution. Similarly not involved is the question whether “the Title Nine right to counsel adequately protects parents’ fundamental interest in the care and custody of their children.” Ante at 117, 703 A.2d at 917. As adequate as that protection may be, it is irrelevant to determining the admissibility of defendant’s statement in his criminal prosecution. Also beside the point is the absence from the record of any “reference to regular interaction between the civil and criminal authorities, let alone ‘manipulation’ by DYFS to obtain information specifically to help the criminal authorities.” Ante at 120, 703 A.2d at 918. The rarity, if such is the case, of an untoward arrangement between the prosecution and DYFS does not justify the arrangement when it occurs.
I.
An act of suspected child abuse affects two State interests. First, acting through DYFS, the State is primarily interested in protecting the child. DYFS pursues that interest through an action under N.J.S.A. 9:6-1 to -8.73 (“Title 9” action). Second, law enforcement officials have an interest in prosecuting the abuser for offenses such as endangering the welfare of the child and child abuse.
*123The statutory scheme contemplates cooperation between DYFS and prosecutors. Statutes and administrative regulations govern the relationship between DYFS caseworkers and State law enforcement officials. The purpose of the regulations is to establish a framework for “liaison and improved communication and cooperation between the Division’s District Offices and the several Prosecutor’s Offices in order to further the mutual goals of protecting the child and proper law enforcement.” N.J.A.C. 10:129-1.1(a)(4).
Under its regulations DYFS must:
[R]efer to county prosecutors all cases that involve suspected criminal activity on the part of a child’s parent, caretaker or any other person____ [I]t is anticipated that in most of the eases referred extensive police involvement will not be warranted and indeed that in many cases no police involvement will be required.
[N.J.AC. 10:129-1.1(a).]
DYFS must maintain the confidentiality of all records or reports of child abuse, and they make disclosure only in specifically enumerated circumstances. See N.J.A.C. 10:129-2.1. For example, DYFS may release records and reports to “[a] police or other law enforcement agency investigating a report of child abuse or neglect.” N.J.A.C. 10:129-2.1(b)(2).
Before filing a Title 9 action, DYFS may conduct an investigation and a preliminary conference with a suspected abuser. Reflecting sensitivity to potential conflicts arising from a Title 9 action and a criminal prosecution, the Legislature has specifically barred any statement that DYFS may obtain in a preliminary conference from admission into evidence in a resulting criminal prosecution. N.J.S.A. 9:6-8.36.
Consistent with the legislative mandate, Section 409.4 of the DYFS caseworker’s field manual, II Field Operations Casework Policy and Procedures Manual, advises caseworkers “[i]n cases where the police are already involved,” the Prosecutor may request that the caseworker “not attempt to interview an alleged perpetrator.” The Manual explains, “Generally the reason for such requests is the necessity for law enforcement to proceed according to prescribed legal procedures for conducting a criminal *124investigation which includes ... advising the alleged perpetrator of his rights.” Section 409.5 entitled, “Interviewing the Perpetrator in a Custodial Setting” states that the reason for communicating with the County Prosecutor’s Office “is to ensure that the interview will not interfere with a criminal investigation and/or violate the person’s Fifth Amendment rights against self-incrimination____” Finally, Section 507.1 entitled “Advising Perpetrator of Case Findings” instructs DYFS caseworkers that “whenever a case has been referred to the county prosecutor’s office, the Case Manager must check with the county prosecutor or his designee prior to advising the perpetrator of the case findings.” The Manual explains:
The reason for this is similar to the reasons for delaying an interview with a perpetrator (IIC 409.4). That is, notification of the findings may impede the criminal investigation, may lead to destruction or suppression of evidence, and may prevent the county prosecutor’s office from being able to prove a criminal charge.
Thus, both the Legislature and DYFS recognize the delicate balance among DYFS’s protection of a child’s best interests, the Prosecutor’s interest in enforcing criminal laws prohibiting child abuse, and a parent’s privilege against self-incrimination. This Court should be no less sensitive in recognizing that certain statements admissible in a Title 9 proceeding may not be admitted in a criminal prosecution.
Society’s paramount concern for the safety of children vests DYFS with considerable latitude when investigating suspected acts of child abuse. A criminal prosecution, by comparison, implicates countervailing considerations, such as the right of a defendant to counsel and the exclusion from evidence of a coerced statement.
Properly pursued, cooperation between DYFS and law enforcement officers can further the best interests of children and assist in the enforcement of criminal law. As this case illustrates, however, cooperation can also lead to coercion. Under the majority opinion, DYFS investigators may obtain statements from parents ostensibly to decide whether to return their children to them, but actually to convict the parents of child abuse. Prosecuting *125parents on the basis of such statements may freeze the flow of information that DYFS needs to protect the best interests of children.
II.
The majority holds that defendant’s uncounselled statement is admissible in his criminal prosecution. Critical to the majority’s reasoning is its conclusion that “[t]he circumstances surrounding defendant’s April 5 interview fail to demonstrate the coercive atmosphere and restraint of freedom that comprises a custodial interrogation.” Ante at 103, 703 A.2d at 910. In reaching that conclusion, the majority admits that if defendant was in custody at the time of the interview, the invocation of his right to counsel would preclude admission of his statement. Because it finds that defendant was not in custody, the majority concludes that he was not coerced. For me, that conclusion views the facts of this case too antiseptically.
The essential facts are that in the fall of 1993, defendant’s four- or five-month old daughter, C.Z., was hospitalized with injuries consistent with “Shaken Baby Syndrome.” Acting on behalf of DYFS, the Attorney General instituted a Title 9 action. Public defenders represented defendant and his wife. N.J.S.A. 9:6-8.43(a). On DYFS’s motion, the Family Part entered an order granting DYFS legal custody of the couple’s two minor children, C.Z. and M.Z. C.Z. remained in the hospital. The court awarded defendant’s father physical custody of M.Z. and prohibited defendant and his wife from unsupervised contact with her. The court also ordered defendant to undergo drug and psychological testing. Finally, the court directed defendant and his wife to participate in counseling and parent training.
Initially, both parents denied any responsibility for C.Z.’s injuries. Then, defendant’s wife told Cheryl Kobran, a DYFS caseworker, that defendant had admitted to her that he was responsible for the injuries. Faced with the imminence of C.Z.’s release from the hospital, DYFS called a conference attended by Kobran, *126her supervisor, the District Office Manager, a Case office Worker, a Litigation Specialist (a liaison between DYFS and the Attorney. General), and a Deputy Attorney General. At that conference, Kobran was directed to interview defendant to ascertain if defendant would confirm his wife’s version of the facts.
Kobran’s supervisor and the Deputy Attorney General, instructed Kobran “to call the Prosecutor’s Office, to advise them of [Kobran’s] intent to interview [defendant], in an effort not to impede any investigation that they may have had going on.” Consequently, Kobran spoke with Investigator Lazarro of the Prosecutor’s Office. According to Kobran, Lazarro told her that “[b]ecause [defendant] has a lawyer, [the Prosecutors] cannot interview him, but said that there is no obstacle to [DYFS] interviewing him, and asked that I call [the Prosecutor’s Office] with my findings.”
Without communicating with defendant’s attorney, Kobran and another caseworker made an unannounced visit to defendant’s home. After defendant’s father admitted them to the home, Kobran asked him to leave the room and then, with the other investigator, confronted defendant alone.
Defendant thought that the purpose of the meeting was to discuss whether he and his wife would regain custody of their children. Still, he told Kobran that his counsel had advised him not to speak to her. If the State intended to introduce evidence of any statement made by defendant, Kobran should have stopped the interview until after defendant had spoken with his counsel.
Pursuant to the Prosecutor’s authorization, however, Kobran “encouraged him to speak with me, because I said that we were there to finish the Division’s investigation regarding the matter of [C.Z.’s] injuries. And also, we really needed to deal with the crisis at hand, which was where [C.Z.] was going to be going, because she was ready for discharge from the hospital. And also, [M.Z.]. As a result of this information, we had concerns about [M.Z.’s] protection.”
*127Defendant knew of DYFS’s preliminary plan to put C.Z. in a foster home on her release from the hospital. Finally, Kobran told defendant that if he cooperated with DYFS, he might be able to resolve the “crisis.” Significantly, Kobran did not inform defendant that any statement he made could be used against him in a criminal prosecution or that one reason for her visit was to induce him to confirm his wife’s version of the facts.
After remaining quiet for some time, defendant began to talk. He was upset and remorseful. As Kobran testified, defendant said that C.Z. had cried, that he could not console her, and that he shook her two or three times out of frustration. In suppressing defendant’s statement, the trial court accepted defendant’s testimony that he had made the statement because it meant “my kids were going to come home, or so I thought anyway.”
As the trial court found, defendant had “no reason to think, at least at this point, that he’s going to be charged with anything, but we know that the Prosecutor has been involved, at that point, a good long period of time. They are looking at this case. And certainly, there’s a possibility here that he’s a target.” Later, the trial court explained, “No Criminal Complaint’s really filed, but [the Prosecutor is] there.”
The issue before the Court is not whether DYFS may use defendant’s statement to resolve the issue of custody of C.Z., but whether the Prosecutor may introduce the statement in its prosecution for child abuse. In resolving this issue, I accept the majority’s characterization that defendant was not in “custody” in the constitutional sense. Ante at 104, 703 A.2d at 910. That characterization, however, does not predetermine that Kobran’s interrogation was free from coercion or that admissibility of defendant’s statement would not be fundamentally unfair.
The announced purpose of Kobran’s visit was to determine whether the State would return custody of C.Z. to defendant and his wife. For most parents, the fear of losing custody of a child would produce a coercive effect. According to Kobran, that is precisely the effect it produced on defendant.
*128When Kobran confronted defendant, moreover, she knew that defendant’s wife had told DYFS that defendant had caused C.Z.’s injuries. The admissibility of the wife’s statement is not before us, but the record indicates that the State could subpoena the wife to testify at defendant’s prosecution. The Rules of Evidence specifically provide that “[T]he spouse of the accused in a criminal action shall not testify in such action except to prove the fact of marriage unless ... (b) the accused is charged with an offense against the spouse, a child of the accused or of the spouse, or a child to whom the accused or the spouse stands in the place of a parent.” N.J.S.A. 2A:84A-17(2)(b); N.J.R.E. 501(2)(b).
Although the State contends that the purpose of the DYFS interview was to discover the cause of C.Z.’s injuries, the record supports the conclusion that another purpose was to elicit an incriminating statement from defendant. At least that is how the Prosecutor's Office perceived the purpose of the interview.
Unknown to defendant at the time he spoke with Kobran, she was acting both for DYFS and for the County Prosecutor. Even assuming, as the majority contends, that the DYFS caseworker was acting primarily to protect the best interest of C.Z., it remains that the caseworker also was acting on behalf of the County Prosecutor. In sum, Kobran was a dual agent. For the purpose of resolving whether defendant’s statement is admissible in the criminal prosecution of defendant, Kobran’s more relevant role is as the agent of the Prosecutor. Only after Kobran elicited the challenged statement from defendant did she reveal her hidden agenda.
The prior conference between Lazarro and Kobran, in which Lazarro requested Kobran to report any statement made by defendant, is sufficient to constitute Kobran as the Prosecutor’s agent for the purpose of deciding whether to suppress the defendant’s statement in his criminal prosecution. Under the circumstances, the Court should scrutinize Kobran’s conduct as tantamount to that of a law enforcement officer. See State v. Helewa, 223 N.J.Super. 40, 50, 537 A.2d 1328 (App.Div.1988).
*129The majority takes a different view of the facts. It asserts that “there is no indication that Kobran interviewed defendant with the purpose of aiding in his criminal prosecution____” Ante at 120, 703 A.2d at 918. The majority stresses that the “Division’s objective is to protect children from abuse and neglect and not to promote law enforcement” and that “Kobran’s discussion with the Prosecutor’s Office prior to her visit to P.Z. was intended solely to find out whether the visit would impede any investigation by that office, and not to further the prosecutor’s investigation.” Ante at 116, 703 A.2d at 916. Yet, the majority refuses to suppress defendant’s statement because of its perception that suppression would force DYFS caseworkers “to choose between providing Miranda warnings and foreclosing the use in criminal proceedings of information obtained in the course of an ... investigation____” Ante at 112-113, 703 A.2d at 914. If, as the majority contends, a DYFS caseworker should be unconcerned with promoting prosecutions, the caseworker should be equally unconcerned with the admissibility of a parent’s statement in a criminal prosecution. By emphasizing that Kobran was concerned not only with the child’s best interests but with the admissibility of defendant’s statement in the criminal prosecution, the majority implicitly confirms Kobran’s status as a dual agent.
The proof of the pudding is in the eating. Here, the proof is that the Prosecutor, having authorized Kobran to take a statement from defendant, now wants to introduce that statement in the prosecution of defendant.
To justify admission of defendant’s statement, the majority relies on a decision of the Minnesota Supreme Court involving application in a custody case of a parent’s Fifth Amendment privilege against self-incrimination. In In re J.W., 415 N.W.2d 879 (Minn.1987), the Minnesota Supreme Court held that the Fifth Amendment protected parents from a court order compelling them to incriminate themselves as a condition precedent to obtaining custody of their children. Id. at 883. The Court found that “[assertion of a constitutional right does not make a person a less *130fit parent, any more than it makes a person a less good citizen.” Ibid. Recognizing, however, that the parents’ failure to admit their fault may hinder the usefulness of therapy, the Court concluded that the failure could “hurt the parents’ chances of regaining their children.” Ibid. Under the Fifth Amendment, the State may well be able to consider a parent’s failure to explain their child’s injuries when considering custody. J.W.’s conclusion, however, is irrelevant to determining whether it is fundamentally unfair to permit the Prosecutor to introduce in evidence a statement, which would be inadmissible if obtained by the Prosecutor.
Demonstrating concern for the delicate balance between protecting the best interests of children and prosecuting culpable parents, the Minnesota Court observed further:
If the state believes talking to the psychologist about the nephew’s death would help [the parents] become good parents, the state could abandon its pursuit of criminal prosecutions and apply to the court for a grant of immunity for the parents. The parents could then, without fear of prosecution or prison, participate in meaningful therapy.
[Id, at 884.]
Thus, the Minnesota Court recognized that the State might better serve the public interest by forsaking admission of parental statements in a criminal proceeding for frank disclosure in a custody action. To this extent, J.W. supports the exclusion, rather than the admission of defendant’s statement.
In the present case, if defendant had made his statement at a preliminary conference or while he was in custody, his statement would be inadmissable at his criminal trial. Because defendant did not make his statement in a preliminary conference, the prohibition of N.J.S.A. 9:6-8.36 does not apply. Moreover, in the sense that Kobran’s interrogation took place in defendant’s home, and not the Prosecutor’s office or DYFS’s office, defendant was not in “custody” as the DYFS manual defines that term. Strictly speaking, therefore, Section 409.5 of the DYFS manual does not apply. The purpose of both the statute and the manual, however, is to prevent the State’s exploitation of the parent-child relation*131ship by coercing a parent to make a statement not to determine the child’s best interests, but to convict the parent of child abuse.
III.
In an analogous case, this Court declared inadmissible in the prosecution of a woman for fornication written statements she had made when seeking welfare for her illegitimate children. State v. Clark, 58 N.J. 72, 275 A.2d 137 (1971). When she applied for welfare, the local welfare department instructed her to file a bastardy complaint against the children’s father. Id. at 77, 275 A.2d 137. In the complaint, the woman made incriminating statements admitting that she and the father had engaged in sexual relations. Id. at 79, 275 A.2d 137. Like defendant in this case, the woman was not in custody when she made the statements. Similarly, the governmental agency failed to advise the woman of her privilege against self-incrimination. Id. at 79-80, 275 A.2d 137. The State, however, introduced her testimony in evidence when prosecuting her and the father for fornication. Id. at 82, 275 A.2d 137. This Court reversed the conviction, finding the uncounseled statements inadmissible because of “Fifth Amendment implications involved, in association with strong considerations of public policy.” Id. at 83, 275 A.2d 137. Notwithstanding the Court’s reference to the “Fifth Amendment,” the opinion is best understood as a finding that admission of the defendant’s uneounseled statements was fundamentally unfair.
The doctrine of fundamental fairness protects against unjust or oppressive governmental action. Doe v. Poritz, 142 N.J. 1, 107-08, 662 A.2d 367 (1995). It “serves, depending on the context, as an augmentation of existing constitutional protections or as an independent source of protection against state action.” State v. Ramseur, 106 N.J. 123, 377, 524 A.2d 188 (1987) (Handler, J., dissenting). The doctrine applies “where not to do so will subject the defendant to oppression, harassment, or egregious deprivation.” State v. Yoskowitz, 116 N.J. 679, 712, 563 A.2d 1 (1989) (Garibaldi, J., concurring and dissenting). Essentially, the doc*132trine of fundamental fairness operates throughout the criminal justice process to assure procedural fairness in the absence of constitutional or statutory protection. Poritz, supra, 142 N.J. at 108-09, 662 A.2d 367. When a civil action and a criminal prosecution interrelate, courts must be particularly “sensitive to the potential for the State’s deliberately manipulating a civil procedure in order to obtain evidence against a criminal defendant.” State v. Kobrin Securities, Inc., 111 N.J. 307, 317, 544 A.2d 833 (1988). I respectfully submit that it is fundamentally unfair for the State to admit into evidence in this criminal prosecution defendant’s uncounseled oral statement to the DYFS caseworker who represented that she was trying to determine whether DYFS would return custody of defendant’s child to him and his wife. Consequently, I dissent.
Justice COLEMAN joins in this opinion.