dissenting.
New Jersey’s common law privilege against self-incrimination guarantees every person the “right to refuse to disclose ... to a police officer ... any matter that will incriminate him.” N.J.S.A 2A:84A-19; N.J.R.E. 503. Today’s ruling renders that longstanding privilege a hollow right unless one is in police custody or under official interrogation. The majority’s opinion instructs a person facing an impending criminal charge that he first must give his exculpatory account to the police — the very people likely to make a case against him — or else be condemned at trial for not doing so if he testifies at his trial. Under the regime affirmed by the majority, the prosecutor is allowed to argue at trial that a testifying defendant should not be believed because he did not speak to the police at the earliest opportunity before his arrest— in other words, a testifying defendant should be convicted because of his earlier silence. Because this paradigm makes a sham of the right to remain silent and runs contrary to the plain language and intent of our State privilege against self-incrimination, I respectfully dissent.
I.
I fully appreciate that the majority is following lock step our decision in State v. Brown, 118 N.J. 595, 613, 573 A.2d 886 (1990), and I cannot disagree that the reasoning of Brown, if followed, commands the result in this case. However, because I believe that Brown’s interpretation of our State privilege against self-*162incrimination is not just deeply flawed but wrong, I also believe that this Court is not bound to adhere blindly to the dictates of stare decisis.1
Both the United States Supreme Court and our Court have recognized that stare decisis, standing alone, is not a sufficient reason to uphold an incorrect interpretation of law. Although “[t]he doctrine of stare decisis is essential to the respect accorded to the judgments- of the Court and to the stability of the law, [i]t is not ... an inexorable command.” Lawrence v. Texas, 539 U.S. 558, 577, 123 S.Ct. 2472, 2483, 156 L.Ed.2d 508, 525 (2003) (reversing seventeen-year precedent); see also Payne v. Tennessee, 501 U.S. 808, 828, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720, 737 (1991) (¡‘Stare decisis is not an inexorable command; rather, it ‘is a principle of policy and not a mechanical formula of adherence to the latest decision.’ ” (quoting Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604, 612 (1940))) (italics added). Significantly, the United States Supreme Court has recognized that considerations favoring the application of the doctrine of “stare decisis are at their acme in cases involving property and contract rights” and that “the opposite is true in cases ... involving procedural and evidentiary rules.” Payne, supra, 501 U.S. at 828, 111 S.Ct. at 2610, 115 L.Ed.2d at 737.
Similarly, New Jersey courts have not viewed stare decisis as an inflexible principle of law. Chief Justice Vanderbilt observed in his dissent in Fox v. Snow, 6 N.J. 12, 23, 76 A.2d 877 (1950): “The doctrine of stare decisis [does not] renderf] the courts impotent to correct their past errors____ The doctrine when *163properly applied operates only to control change, not to prevent it.” We have followed that pragmatic approach. White v. Township of N. Bergen, 77 N.J. 538, 550-52, 391 A.2d 911 (1978) (noting acceptance of “Vanderbilt thesis”); see also State v. Int’l Fed’n of Prof'l and Technical Eng’rs., Local 195, 169 N.J. 505, 534, 780 A.2d 525 (2001) (acknowledging importance of stare decisis, but declaring that “this Court must not abdicate its responsibility to reevaluate the rules of the common law to determine if those rules remain in consonance with society’s needs”).
II.
With those principles in mind, a review of the rationale of Brown, which is the majority’s guiding precedent, is now required. In that ease, the State prosecuted codefendants Brown and Emm for vehicular homicide as the result' of a fatal accident that followed their roadway duel. Brown, supra, 118 N.J. at 600, 573 A.2d 886. Brown struck a car traveling in the opposite lane of traffic, killing the innocent motorist and severely injuring himself. Ibid. Without stopping, Emm proceeded to a nearby firehouse, where he served as a volunteer firefighter, reported the accident, and then returned to the scene to render assistance. Id. at 602, 573 A.2d 886. At the scene, Emm did not advise any of the investigating police officers of his involvement in the accident. Id. at 602-03, 573 A.2d 886. Two days later, after learning that the police were looking for the “other” ear, Emm reported to the police and gave a statement, explaining that Brown had been tailgating him and attempting to run him off the road immediately before the tragic accident. Id. at 603, 573 A.2d 886. That exculpatory account, basically, was the one given by Emm when he testified at trial. State v. Brown, 228 N.J.Super. 211, 217, 549 A.2d 462 (App.Div.1988), rev’d, 118 N.J. 595, 573 A.2d 886 (1990).
At trial, the prosecutor impeached Emm with his silence at the scene — his pre-arrest silence — and asked the jury to disbelieve Emm because of his failure to give his version to the police at the earliest opportunity. Brown, supra, 118 N.J. at 609-10, 573 A.2d *164886. That strategy apparently worked because Emm was convicted. Id. at 603, 573 A.2d 886.
In upholding Emm’s conviction, the Court concluded that “prearrest silence may be admitted for impeachment purposes provided no governmental compulsion is involved.” Id. at 613, 573 A.2d 886. In reaching that result, the Court followed Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), which held that under the' Fifth Amendment pre-arrest silence is admissible to impeach a testifying defendant. Brown, supra, 118 N.J. at 610-13, 573 A.2d 886. In Brown, the Court maintained that it was for the jury to infer whether “a reasonable person situated as [Emm] ... would naturally have come forward and mentioned his ... involvement” to the investigating police officers at the scene. Id. at 613, 573 A.2d 886. Because Emm was neither interrogated by the police nor in custody at the accident scene, the Court viewed his silence as probative, allowing the jury to draw “an inference of consciousness of guilt that bears on the credibility of the defendant when measured against the defendant’s apparent exculpatory testimony.” Id. at 613, 615, 573 A.2d 886.
As we recently noted in State v. Muhammad, “[conspicuously missing from the [Brown] Court’s list of possible reasons for Emm’s silence was that Emm might simply have been exercising the right not to incriminate himself.” 182 N.J. 551, 572 n. 7, 868 A.2d 302 (2005). Based on the Brown Court’s crabbed view of this State’s privilege against self-incrimination, Emm “had the Hob-son’s choice of either speaking to the police at the scene and incriminating himself or invoking his right to remain silent, in which case his silence could be used against him.” Ibid. By the reckoning of Brown, without the assistance of counsel and without any legal training, Emm had to calculate whether to condemn himself by his own words or by his silence.
Those are choices, I thought, our State privilege spared our citizens out of our abiding sense of the dignity of the individual. Forcing a person to be a witness against himself, to utter words from his own lips that might seal his fate, I thought, was contrary *165to our common notions of fair-play and was the very reason for the protection of the privilege. The construct approved by the majority sanctions compelled, pre-arrest self-incrimination. It is difficult to comprehend how such a coercive rule does not constitute governmental compulsion. When we devise a rule instructing a citizen that if he does not speak to the police he will later at trial be impaled on his silence — that is legal compulsion as effective as the most creative, third-degree interrogation technique. I do not see why compelled self-incrimination is any less noxious in the pre-arrest as opposed to the post-arrest stage.
The illogic of the Brown construct is fully realized when one considers that if a police officer had only initiated interrogation of Emm at the accident scene, Emm lawfully could have asserted his right to remain silent and no negative inference could later have been drawn at trial. However, because the police did not begin questioning him, Emm was required under Brown to voluntarily incriminate himself or later be incriminated by his silence. Defendant in this case faced a similar dilemma, except unlike Emm he had criminal charges filed against him during his pre-arrest silence period. Thus, under the majority’s opinion, defendant had to choose either to turn himself in and speak to the same people bent on prosecuting him or later be impeached with his silence, which ultimately happened.
In his dissent in Jenkins, supra, Justice Marshall, joined by Justice Brennan, presented powerful reasons why pre-arrest silence violated the Fifth Amendment’s prohibition on self-incrimination, reasons which are applicable with equal if not greater force under our statutory privilege. 447 U.S. at 246, 100 S.Ct. at 2133, 65 L.Ed.2d at 99-100 (Marshall, J., dissenting). As Justice Marshall observed, to penalize a defendant for his pre-arrest silence, unfairly burdens the exercise of the privilege against self-incrimination. Id. at 250, 100 S.Ct. at 2135, 65 L.Ed.2d at 102. “In practical effect, it replaces the privilege against self-incrimination with a duty to incriminate oneself.” Ibid. He forcefully illustrated *166the absurdity of allowing the use of pre-arrest silence in derogation of the Fifth Amendment, stating:
[I]f [a defendant] may later want to take the stand, he had better go to the police station right away to preserve his exculpatory explanation of the events — even though in so doing he must incriminate himself, he may anticipate that his right to testify in his Own defense will be undermined by the argument that his story is probably untrue because he did not volunteer it to the police at the earliest opportunity. All of these strategic decisions must be made before the individual even knows if he will be charged and of what offense he will be accused.
To force persons to make this kind of choice between two fundamental rights places an intolerable burden on the exercise of those rights.
[Id, at 253-54, 100 S.Ct. at 2137, 65 L.Ed.2d at 104.]
III.
The United States Supreme Court in Jenkins presented this Court with the invitation to provide greater protection for prearrest silence under our statutory privilege than is conferred- by the Federal Constitution. Id. at 240-41, 100 S.Ct. at 2130, 65 L.Ed.2d at 96 (majority opinion). Specifically, the Court noted that its holding “d[id] not force any state court to allow impeachment through the use of pre-arrest silence” and that each state was “free to formulate [its own] evidentiary rules” to handle such situations. Ibid. In my opinion, our Court should not have rejected the invitation to interpret our State privilege more broadly than the Jenkins interpretation of the Fifth Amendment.
Justice Brennan encouraged state courts to look to their own state constitutions as a source of rights more expansive than those federal rights recognized by the United States Supreme Court. See William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L.Rev. 535, 551 (1986) (“As tempting as it may be to harmonize results under state and national constitutions, our federalism permits state courts to provide greater protection to individual civil rights and liberties if they wish to do so.”); see also In re Grand Jury Proceedings of Guarino, 104 N.J. 218, 229, 516 A.2d 1063 (1986) (“It is undisputed that State common law may provide greater protection to individual rights than afforded under *167the United States Constitution.”). Indeed, this Court has recognized that our common-law privilege against self-incrimination, as codified both in N.J.S.A. 2A:84A-19 and N.J.R.E. 503 “offers broader protection than its federal counterpart.” Muhammad, supra, 182 N.J. at 568, 868 A.2d 302; see also Guarino, supra, 104 N.J. at 229, 516 A.2d 1063 (“In the past, we have held that the New Jersey common law privilege against self-incrimination affords greater protection to an individual than that accorded under the federal privilege.”).
The textual differences alone between the plain language of the Fifth Amendment and our State privilege suggest that the two privileges do not require similar interpretations. The Fifth Amendment provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. Our privilege, on the other hand, states that “every natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him.” N.J.S.A. 2A:84A-19; N.J.R.E. 503. The federal guarantee is spoken in negative terms while the State guarantee is spoken in positive terms. Moreover, our privilege does not speak expressly in terms of compulsion. Even though this Court in Brown, supra, read the language of our rule to “suggest[] that the right to remain silent might exist only in the face of a compulsion to speak,” that result does not follow from the words of our privilege. 118 N.J. at 612, 573 A.2d 886.
Accordingly, not only is this Court free to chart its own course, but it is our duty to do so “when our state’s interests are not advanced by federal precedent.” State v. Stanton, 176 N.J. 75, 118, 820 A.2d 637 (2003) (Albín, J., dissenting) (“In interpreting our State Constitution, particularly [if the provision is textually different], a decision of the United States Supreme Court is persuasive authority only if it can persuade by force of reason, logic, and historical interpretation.”).
The majority has pointed out that there is currently a split among other states about whether pre-arrest silence can be used *168for impeachment purposes. Ante at 157, 919 A.2d at 115. It may also be true that allowing such evidence is the slightly more popular view. See generally John H. Derrick, Annotation, Impeachment of Defendant in Criminal Case by Showing Defendant’s Prearrest Silence — State Cases, 35 A.L.R.4th 731 (1985). However, as we have recently stated: “In protecting the rights of citizens of this State, we have never slavishly followed the popular trends in other jurisdictions, particularly when the majority approach is incompatible with the unique interests, values, customs, and concerns of our people.” Lewis v. Harris, 188 N.J. 415, 456, 908 A.2d 196 (2006).
While a member of this Court, Justice Brennan commented that the privilege against self-incrimination, in its modem incarnation, “rest[s] on the view that compelling a person to convict himself of crime is ‘contrary to the principles of free government’ and ‘abhorrent to the instincts’ ” of our citizens. In re Pillo, 11 N.J. 8, 15-16, 93 A.2d 176 (1952) (quoting Boyd v. United States, 116 U.S. 616, 632, 6 S.Ct. 524, 533, 29 L.Ed. 746, 751 (1886)). The case in favor of using pre-arrest silence, even for impeachment purposes, runs contrary to those sentiments. Ultimately, the majority’s only reason for continuing the use of pre-arrest silence is because we have sanctioned that practice before. See ante at 157-58, 919 A.2d at 115-16 (“Regardless of whether we would agree ... that prearrest silence may be admitted for impeachment purposes when no governmental compulsion is involved if we were addressing the issue for the first time, we are obliged to follow them under principles of stare decisis.”).
Stare decisis is not a command to repeat the mistakes of the past. Before us is a case that would allow us to adjust our decisional law in a direction consistent with our progressive jurisprudence. Because the majority has failed to grasp this opportunity to give our State evidentiary privilege the meaning expressed in its words, I respectfully dissent.
Justice LONG joins in this opinion.
*169For affirmance — Chief Justice ZAZZALI and Justices LaVECCHIA, WALLACE, RIVERA-SOTO and HOENS — 5.
For reversal — Justices LONG and ALBIN — 2.
I do not find the majority’s adherence to stare decisis anymore persuasive by its reliance on State v. Burt, 59 N.J. 156, 279 A.2d 850 (1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 728, 30 L.Ed.2d 735 (1972). In Burt, the Court in a per curiam opinion affirmed the Appellate Division’s upholding of the use of prearrest silence for impeachment purposes. Ibid..; see also State v. Burt, 107 N.J.Super. 390, 391-93, 258 A.2d 711 (App.Div.1969). Burt, supra, contained no extensive analysis of the issue. 59 N.J. at 156, 279 A.2d 850. Thus, in Brown, decided just seventeen years ago, this Court for the first time addressed the issue of the use of pre-arrest silence to impeach a testifying defendant.