State v. P.Z.

COLEMAN, J.,

dissenting.

I concur in Justice Pollock’s dissenting opinion. I write separately because I believe defendant’s confession should be inadmissible in the criminal proceedings for an additional reason.

This case involves the admissibility of a confession that resulted from a noncustodial interrogation during an ostensible Title Nine civil investigation. The trial court excluded the confession under a Sixth Amendment analysis based on defendant invoking the right to counsel. The Appellate Division excluded the confession based on the twin principles of fundamental fairness and the public policy of furthering the Title Nine “objective of child protection by promoting disclosures and admissions of abuse at the earliest possible time.” State v. P.Z., supra, 285 N.J.Super. at 229, 666 A.2d 1000. It also used a Fifth Amendment waiver analysis and a Sixth Amendment right to counsel approach in concluding that “statements to DYFS during the pendency of the Title Nine investigation may not be used against a party in a criminal action” unless Miranda has been followed. Ibid. I believe that defendant’s confession should be suppressed for want of voluntariness *133in the Fourteenth Amendment confession context rather than simply in a Fifth Amendment Miranda waiver context.

The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. That amendment “secures against state invasion ... the right of a person to remain silent unless he [or she] chooses to speak in the unfettered exercise of his [or her] own will.” Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653, 659 (1964).

Under the Due Process Clause, “certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned.” Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 449, 88 L.Ed.2d 405, 410 (1985). An interrogation technique becomes offensively intolerable when “self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession.” Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037, 1058 (1961). Consequently, the test for involuntariness in the Due Process Clause context focuses on both police or governmental overreaching and the suspect’s free will. Under our accusatorial system of justice, in contrast to an inquisitorial system, a coerced confession is inadmissible because its involuntariness makes it unreliable. Jackson v. Denno, 378 U.S. 368, 382-86, 84 S.Ct. 1774, 1783-86, 12 L.Ed.2d 908, 919-21 (1964); State v. Jordan, 147 N.J. 409, 425-28, 688 A.2d 97 (1997); State v. Hampton, 61 N.J. 250, 264-65, 294 A.2d 23 (1972).

Since the formation of our constitutional form of government, the right of a parent to raise and educate his or her children has been regarded as a fundamental right. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599, 606 (1982); Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct. 705, 726-27, 35 L.Ed.2d 147, 176-77 (1973); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551, 558-59 (1972); Pierce v. *134Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 1070, 1077-78 (1925); In re Promulgation of Guardianship Servs. Regulations, 103 N.J. 619, 634, 512 A.2d 453 (1986); In re Guardianship of Dotson, 72 N.J. 112, 122, 367 A.2d 1160 (1976) (Pashman, J., concurring). That interest is “‘implicit in the concept of ordered liberty.’ ” Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405, 421 (1976) (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 151-52, 82 L.Ed. 288, 292 (1937)). A state’s interference with those fundamental rights may be justified only by the most important of state interests, and even then, the State must use the narrowest means which can be designed to achieve the public purpose, here, the protection of abused or neglected children. Under the majority’s opinion, that has not occurred in this case.

Whenever a liberty interest is at stake, due process must be followed before interfering with that interest. The question then becomes what due process is required. It has been described as an elusive concept whose “exact boundaries are undefinable.” Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed.2d 1307, 1321 (1960). It is both a flexible and “dynamic concept,” Callen v. Sherman’s, Inc., 92 N.J. 114, 134, 455 A.2d 1102 (1983), whose “sense of fairness cannot be imprisoned in a crystal.” Id. at 136, 455 A.2d 1102.

Defendant relies on two out-of-state cases to support his contention that his confession was coerced based on the interrogator’s not-so-subtle suggestion that if he did not cooperate, his fundamental right to his children would be jeopardized. This argument is persuasive. In Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), a confession was found to have been coerced because the interrogator told a mother that state financial aid for her children would be terminated, that her children could be taken from her, and that she would receive a long prison term unless she admitted to selling marijuana to an informant. Id. at 531-34, 83 S.Ct. at 919-20, 9 L.Ed.2d at 925-26.

*135In United States v. Tingle, 658 F.2d 1332 (9th Cir.1981), a mother of a two-year-old child confessed to participating in a robbery after her interrogator threatened that she would not see her child for a long time if she did not cooperate and warned her of the long term of imprisonment which could be imposed. The court held:

We think it dear that the purpose and objective of the interrogation was to cause Tingle to fear that, if she failed to cooperate, she would not see her young child for a long time. We think it equally clear that such would be the conclusion which Tingle could reasonably be expected to draw from the agent’s use of this technique. The relationship between parent and child embodies a primordial and fundamental value of our society. When law enforcement officers deliberately prey upon the maternal instinct and inculcate fear in a mother that she will not see her child in order to elidt “cooperation,” they exert the "improper influence” proscribed by Malloy.
[Id. at 1336.]

Both Lynumn and Tingle involved noncustodial interrogations in criminal cases. Both confessions were suppressed under the Due Process Clause. The same rule prevails when interrogations occur in civil cases regardless of whether criminal charges are likely to follow. See, e.g., Mathis v. United States, 391 U.S. 1, 4, 88 S.Ct. 1503, 1504-05, 20 L.Ed.2d 381, 384 (1968) (involving questions asked by Internal Revenue Service agent during routine tax investigation); United States v. Mata-Abundiz, 717 F.2d 1277, 1279 (9th Cir.1983) (involving questions asked during Immigration and Naturalization Service investigation); State v. Clark, 58 N.J. 72, 83, 275 A.2d 137 (1971) (involving welfare, bastardy and police proceedings).

A party to Title Nine litigation is permitted to speak with another party involved in that litigation who is known to be represented by counsel. However, a prosecutor may not use a DYFS worker as an agent to circumvent the rules of professional responsibility that forbid the prosecutor from directly speaking to such a party. See ABA Comm, on Ethics and Professional Responsibility, Formal Op. 95-396 (1995) (holding a lawyer may not direct an investigative agent to communicate with a represented person in circumstances where the lawyer would be prohibited *136from doing so). Because defendant’s wife had informed DYFS that he had admitted to shaking the child, the interrogation of defendant in isolation and without his attorney was designed to obtain evidence for the prosecution independent of DYFS’s needs necessitated by the Title Nine proceedings. Thus, when Kobran interrogated defendant, her “role changed and became essentially like that of an agent of the State.” Estelle v. Smith, 451 U.S. 454, 467, 101 S.Ct. 1866, 1875, 68 L.Ed.2d 359, 372 (1981); State v. Helewa, 223 N.J.Super. 40, 47, 537 A.2d 1328 (App.Div.1988).

Significantly, while acting like an agent of the prosecutor, Kobran told defendant essentially that unless he cooperated, he would lose his fundamental right to the custody and the rearing of his children. The absence of legal counsel and Kobran’s request that defendant’s father leave them alone, contributed to the coercive nature of the interrogation. See Blackburn v. Alabama, 361 U.S. 199, 207-08, 80 S.Ct. 274, 280-81, 4 L.Ed.2d 242, 249 (1960) (holding that the absence of legal counsel, friends and family members are factors bearing on whether there was coercion).

“The aim of the requirement of due process is ... to prevent fundamental unfairness in the use of evidence whether [that evidence is] true or false.” Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166, 180 (1941). Here, the degree of unfairness was enhanced by the fact that although Kobran knew defendant had counsel in the Title Nine action, which was constitutionally mandated because the stakes were so high, New Jersey Div. of Youth and Family Servs. v. E.B., 137 N.J. 180, 186, 644 A.2d 1093 (1994), she nonetheless, while acting as an agent of the prosecutor, ignored his expressed desire to have counsel present during her interrogation.

Governmental activities that are coercive may preclude a confession from being used as evidence when it was involuntarily obtained within the meaning of the Due Process Clause of the Fourteenth Amendment. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473, 484 (1986). Under the totality of the circumstances, I am persuaded that defendant’s confession *137was coerced. When a confession is coerced, it should be excluded from the State’s case-in-chief because it is deemed to be involuntary and therefore unreliable. Consequently, I would modify the judgment of the Appellate Division and affirm the suppression of the confession.

For reversal — Chief Justice PORITZ, and Justices HANDLER, O’HERN, GARIBALDI and STEIN — 5.

For affirmance — Justices POLLOCK and COLEMAN — 2.