SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

State v. Terrell L. Hubbard (A-56-13) (073539)

Argued January 6, 2015 -- Decided June 24, 2015

CUFF, P.J.A.D. (temporarily assigned), writing for a majority of the Court.

In this appeal reviewing the determination on defendant’s motion to suppress, the Court addresses the 

applicable standard of review when part of the evidence considered by the trial court consists of a videotape of 

statements that defendant made during an interview at the police station, and whether the circumstances of that 

interview constitute a custodial interrogation warranting the administration of warnings under Miranda v. Arizona, 

384 U.S. 436 (1966) (Miranda). 

On October 20, 2008, defendant called 9-1-1 requesting assistance for his five-month old daughter, 

reporting that she was not breathing. When the police arrived, the infant was in an ambulance about to be taken to 

the hospital. Medical technicians informed the responding officers that the child was in critical condition. 

Defendant told a detective that, upon observing his daughter lying in bed, he noticed that she was not breathing. 

Defendant then called 9-1-1 for assistance and administered CPR. After speaking with a detective at the house, 

defendant acceded to the detective’s request that he come to the police station to provide further information that 

may be helpful for his daughter’s treatment. Prior thereto, a police sergeant told the detective that the house would 

be secured as a crime scene. Defendant was at the police station for a total of three hours (including breaks), during 

which he was interviewed for some forty minutes. Defendant told the detective that, earlier in the day, his girlfriend 

told him that the baby was cranky, and he tried to calm her over several hours. After advising defendant that the 

baby is at the hospital and doctors were able to get a pulse, albeit a weak one, the detective asked defendant if the 

baby had fallen, or been accidentally dropped. Defendant responded in the negative. The detective also asked 

defendant about his relationship with his girlfriend, whether her pregnancy was a surprise, how the baby’s birth had 

altered his life, and whether defendant ever became frustrated with the baby and resented her. At the conclusion of 

the interview, the detective drove defendant home. At no time prior to or while at the police station was defendant 

given Miranda warnings. Defendant’s daughter was declared dead three days later. 

 

Approximately 7 months later, defendant was arrested, and after being read his Miranda rights, admitted 

that he tossed the baby toward the bed, causing her to hit the wall. Defendant was subsequently indicted for seconddegree manslaughter contrary to N.J.S.A. 2C:11-4(b)(1), and second-degree endangering the welfare of a child, 

contrary to N.J.S.A. 2C:24-4(a). The trial court granted defendant’s motion to suppress his October 20, 2008 

statement, concluding that defendant was in custody at the time of the interview and that his rights were violated 

when he was not administered Miranda warnings. In reaching its conclusion, the court relied on several key factors 

regarding the detective’s interaction with defendant, including the detective’s instruction that defendant sit in a 

certain chair to permit the video camera to obtain a full face view of defendant, the detective’s physical proximity to 

defendant, and the probing nature of the questions that defendant was asked. The court also relied on testimony of 

witnesses at the evidentiary hearing demonstrating that the detective asked defendant to accompany him to the 

police station, defendant was placed in the back seat of the unmarked police car, defendant and the detective did not 

converse during the ride to the police station, and the house was secured to prevent entry by anyone. The trial court 

found that, under all of the circumstances, no reasonable person in defendant’s position would have felt free to leave 

the room or the police station. 

The Appellate Division granted the State’s motion for leave to appeal, and reversed. The Appellate 

Division found that this Court’s ruling in State v. Diaz-Bridges, 208 N.J. 544 (2012), permitted it to conduct a de

novo review of the trial record, without deferring to the findings of fact and credibility assessments made by the trial 

court, having concluded that the trial court based its findings of fact solely on the videotape that was equally 

available to the appellate court, without reliance upon other testimony. The Appellate Division conducted a de novo

review of the videotape, and concluded that defendant had not been subjected to a custodial interrogation. The court 
2

held that the failure to provide Miranda warnings therefore did not require suppression of defendant’s statement. 

The Court granted defendant’s motion for leave to appeal. 217 N.J. 281 (2014) 

HELD: Where a trial court relies on evidence in addition to a videotaped statement, including testimony presented 

to it, traditional rules of appellate review control and require deference to the findings of fact and credibility 

assessments made by the trial court. An appellate panel must therefore review the entire record to determine if the 

factual findings are supported by substantial credible evidence, rather than engage in de novo review of the record. 

Under this deferential standard of review, the trial court properly concluded, based on its review of the entire record, 

that defendant was the subject of a custodial investigation and therefore should have been given Miranda warnings. 

 

1. An appellate court reviewing a grant or denial of a motion to suppress evidence must defer to the factual findings 

of the trial court provided those findings are supported by sufficient evidence in the record. Deference by an 

appellate court is not required only when the trial court’s findings of fact are clearly mistaken. In that event, the 

reviewing court must examine the record, make findings of fact, and apply the governing law. In contrast, a trial 

court’s interpretation of the law is not entitled to special deference, and is subject to de novo review. (pp. 14-15) 

2. Although the means of recording statements, including custodial interrogations, have evolved over time from a 

stenographic record to audio and now video recording, the deference accorded to the findings of fact by the trial 

judge upon appellate review has not changed. The required deference is not limited to credibility findings by the 

trial court, but extends to findings of fact generally. In certain fact-sensitive contexts, appellate review may require 

examination of a videotaped statement or proceedings, and not be confined to a review of the transcript. However, 

review of an electronic record is not intended to elevate the appellate panel’s evaluation of that record over the 

factual findings of the trial court. The Court explained in Diaz-Bridges, supra, 208 N.J. at 565-66, that de novo

review of a videotaped statement on appeal is confined to the rare case in which the videotape is the only evidence 

before the trial court, or the trial court unequivocally relies on no other evidence to resolve the motion to suppress. 

(pp. 15-18)

3. Under Miranda, a confession or incriminating statement obtained during a custodial interrogation may not be 

admitted in evidence unless a defendant has been advised of his or her constitutional rights. Although a defendant 

may waive any or all of those rights, the waiver must be voluntary, knowing and intelligent. The failure to 

administer Miranda warnings prior to custodial interrogation creates a presumption of compulsion. If warnings were 

required by not given, statements made in the absence of the warnings must be suppressed even if otherwise 

voluntary under the Fifth Amendment. (pp. 18-19) 

4. Custodial interrogation” has been defined as questioning initiated by law enforcement officers after a person has 

been taken into custody or otherwise deprived of his freedom of action in any significant way. “Custody” for 

purposes of Miranda warnings does not require a formal arrest, nor physical restraint in a police station. Whether a 

suspect has been placed in custody is a fact-sensitive inquiry and may not easily be discerned. The critical 

determinant is whether there has been a significant deprivation of the suspect’s freedom of action based on the 

objective circumstances, rather than on the subjective views of law enforcement personnel or the person being 

questioned. Investigative questioning directed at an individual who is not a suspect does not require Miranda

safeguards. The State bears the burden of proving beyond a reasonable doubt the voluntariness of a defendant’s 

statements. (pp. 19-22; 26-27) 

 

5. In Diaz-Bridges, the Court referenced the videotape of the defendant’s custodial interrogation and delineated 

exceptionally limited circumstances when appellate review required reference to the video record. 208 N.J. at 565. 

Here, because the trial court relied on evidence other than the videotaped statement of defendant, the traditional 

standard of appellate review is applicable. The inquiry is whether the factual findings of the trial court are supported 

by substantial credible evidence, rather than de novo review. The Appellate Division erred when it dismissed the 

findings of fact of the trial court and conducted a de novo review of the record. (pp. 22-26) 

6. In light of the conditions, substance and duration of the detective’s interview of defendant, combined with the 

events at defendant’s home, the trial court’s conclusion that defendant’s interview was custodial in nature is 

supported by credible, factual evidence in the record, and the proper application of governing law. The interview, 

conducted without administration of defendant’s Miranda rights, must be suppressed. (pp. 26-28)
3

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Law 

Division for further proceedings.

JUSTICE ALBIN, CONCURRING, agrees with the majority that a deferential standard of review applies 

in this case. However, stating that the law must adapt to technological advances, Justice Albin notes that the 

applicable standard of review of videotaped evidence is an important judicial-policy issue on which other courts 

have reached differing results, and which remains to be decided by this Court after serious dialogue and thoughtful 

consideration in a case where the issue is squarely presented.

CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, 

and SOLOMON join in the opinion of JUDGE CUFF (temporarily assigned). JUSTICE ALBIN filed a 

separate, concurring opinion. 
1

SUPREME COURT OF NEW JERSEY

A-56 September Term 2013

073539

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRELL1 L. HUBBARD,

Defendant-Appellant.

Argued January 6, 2015 – Decided June 24, 2015

On appeal from the Superior Court, Appellate 

Division.

Wayne Powell argued the cause for appellant.

David M. Galemba, Assistant Prosecutor,

argued the cause for respondent (Jennifer 

Webb-McRae, Cumberland County Prosecutor, 

attorney).

Sara M. Fedorczyk, Deputy Attorney General, 

argued the cause for amicus curiae Attorney 

General of New Jersey (John J. Hoffman, 

Acting Attorney General, attorney).

JUDGE CUFF (temporarily assigned) delivered the opinion of 

the Court.

On October 20, 2008, police responded to a 9-1-1 call 

requesting assistance for an injured child. The child was 

 

1 Defendant’s first name is misspelled as “Terrell” in the 

Appellate Division decision and the parties’ submissions. In 

his October 20, 2008 police interview, defendant specifically 

explained that his name is spelled with “one R.” 
2

defendant Terrell Hubbard’s five-month-old daughter, Lanaya. 

When police arrived, the infant was in an ambulance about to be 

transported to the hospital. Medical technicians informed the 

responding police officers that the child was in critical 

condition. 

Defendant told a detective that he found his daughter lying 

on the bed and noticed that she was not breathing. He placed a

9-1-1 call and performed CPR while waiting for assistance. 

Defendant acceded to the detective’s request to come to the 

police station to provide information that might be helpful to 

medical professionals treating his daughter. Defendant was in 

the police station for a total of three hours, which included 

three breaks, ranging from a few minutes to two hours in 

duration. After the interview was concluded, the detective 

drove defendant home. The detective never administered Miranda2

warnings to defendant. Defendant’s daughter was declared dead 

three days later. 

A grand jury returned an indictment charging defendant with 

second-degree manslaughter, contrary to N.J.S.A. 2C:11-4(b)(1), 

and second-degree endangering the welfare of a child, contrary 

to N.J.S.A. 2C:24-4(a). The trial court granted defendant’s

motion to suppress his October 20, 2008 statement. The court 

 

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 

694 (1966).
3

concluded that defendant was in custody at the time of the 

interview and that police had failed to advise defendant of his 

Miranda rights. The Appellate Division granted the State’s 

motion for leave to appeal and reversed. The panel determined 

that this Court’s recent ruling in State v. Diaz-Bridges, 208 

N.J. 544 (2012), permitted it to conduct a de novo review of the 

trial record, without deferring to the findings of fact and 

credibility assessments of the trial court, because it concluded

that the trial court had based its findings of fact solely on 

the videotape of the October 20 interview. The appellate panel 

found that defendant had not been subject to a custodial 

interrogation; therefore, the failure to administer Miranda

warnings to defendant at the beginning of the interview did not 

require suppression of the statement. We granted defendant’s 

motion for leave to appeal. 

In Diaz-Bridges, the Court emphasized that de novo review 

of a video record is confined to the rare case in which the 

videotaped statement is the only evidence before the trial court 

or the trial court clearly and unequivocally relies on no

evidence other than the videotaped statement to resolve the 

motion to suppress. Id. at 565-66. In this matter, we have not 

been asked to examine the standard of review set forth in DiazBridges. There is no need to do so for in this matter the 

traditional rules governing appellate review of trial court 
4

findings control and should have been applied by the Appellate 

Division. The trial court relied on evidence other than the 

videotaped statement, including testimony presented to it when 

making its findings. 

We further determine that the interview conducted by the 

detective at the police station was a custodial interrogation

and the failure to administer Miranda warnings prior to the 

interview requires suppression of that recorded statement.

I.

On October 20, 2008, defendant Terrell Hubbard was alone 

with Lanaya, his five-month-old daughter, at the home he shared 

in Vineland with the child’s mother and her father. The child’s 

mother left Lanaya in defendant’s care to go to the dentist 

before reporting to work. At approximately 3:30 p.m., defendant 

placed a 9-1-1 call to report that his daughter was not 

breathing. The operator instructed defendant how to administer 

CPR as he awaited the arrival of emergency medical assistance.

Emergency medical personnel arrived at defendant’s home before 

the police. After restoring the child’s heartbeat, medical 

personnel placed her in an ambulance for transport to a 

hospital. Police arrived just before the ambulance departed. A 

medic informed Detective Jeff Travaline that the child was in 

critical condition.
5

After speaking to the medic, the detective went to the 

porch of the house, where defendant stood with another police 

officer. The detective asked defendant what had happened to the 

baby. Defendant stated that the child was lying on the bed and

had been crying. He picked her up, realized she was not 

breathing, and placed the call for assistance. When a police 

sergeant informed Travaline that he wanted to secure the house 

as a crime scene, Travaline and the sergeant conducted a “walkthrough” to confirm that no one else was in the house. 

Defendant remained on the porch with a police officer. 

After locking the front door, Travaline asked defendant to 

accompany him to the police station. Defendant assented and

Travaline drove him to the police station.

The parties disputed the circumstances surrounding 

defendant’s trip to the police station. Travaline maintains 

that he offered to drive defendant because defendant’s vehicle 

was being used by his girlfriend. Defendant, however, insists

that he had ready access to a vehicle but was given no option 

other than to ride in Travaline’s car. The trial court found 

that the detective offered defendant no option, directing him to 

the backseat of his unmarked police vehicle. Defendant and 

Travaline did not converse during the drive to the station. 

Defendant sat in the backseat of the vehicle. 
6

Defendant was not handcuffed or patted down at any time

that day. According to Travaline, defendant was not a suspect 

at that time; he was simply being interviewed to provide a 

fuller understanding of what transpired so that additional 

information could be relayed to the medical professionals 

treating defendant’s daughter.

At approximately 4:17 p.m., defendant entered an interview 

room at the station. He sat alone for almost three minutes 

before being joined by Travaline. After providing defendant

with water, Travaline asked him to move to a different seat in 

the corner of the room. The move permitted defendant to face

the video camera. Travaline sat across from defendant, between 

him and the door. Defendant was in the interview room for 

almost three hours. During that period, Travaline asked 

defendant questions for about forty minutes. Defendant was 

never advised of his Miranda rights that day.

Defendant told Travaline that, earlier in the day, his 

girlfriend informed him that the baby was cranky. Defendant 

tried to calm the baby over several hours. Eventually, he 

placed her on the bed and went to the kitchen to prepare

something to eat. On his return to the bedroom, he noticed that 

the baby “was flimsy and . . . wasn’t breathing,” so he called 

9-1-1. Travaline then asked defendant to “back up a little bit”

and clarify a few things. The detective’s questions focused on 
7

defendant’s movements and his interaction with his daughter. 

Defendant provided additional detail, explaining that Lanaya had 

been uncharacteristically fussy the night before and that her 

mother had given the child Tylenol earlier that day. 

At one point during the interview, Travaline left the room 

and returned about eight minutes later, informing defendant that 

the “[b]aby’s down at the hospital. They are still working on 

her. They do have a . . . pulse. It is a weak pulse, though.” 

Returning to the interview, Travaline asked defendant if 

Lanaya had fallen or been accidentally dropped, or if defendant 

may have been distracted at any point while watching her. 

Defendant answered each of these questions in the negative. 

Travaline asked defendant about his relationship with his 

girlfriend, whether her pregnancy was a surprise, and how the 

birth of the baby had altered his life. Travaline also asked if 

he was ever advised or counselled to treat the infant gently, 

whether he ever got frustrated with the baby, if he loved her, 

and if he ever resented her.

The exchange proceeded as follows:

[Q]: [T]here’s a reason that she, uh, there 

is a reason that we’re here. There is a reason 

that she stopped breathing. You know and . . 

.

[A]: I know.

[Q]: . . . and I don’t understand . . . the 

time period that you[’re] giving[. It] 
8

doesn’t account or explain why she would stop 

breathing, I mean?

[A]: [I] never heard of anything . . . like 

this, especially happening to my daughter.

. . . .

[Q]: You ever get mad because the baby’s, you 

know, not mad, mad[ is] the wrong word, maybe 

frustrated?

[A]: Yeah.

. . . .

[Q]: Did you get a little frustrated at all 

this afternoon?

[A]: Um, no I . . . I wasn’t with her long. 

I mean after a couple hours in the same . . . 

same crying and whining . . .

. . . .

[Q]: You love this baby?

[A]: Like so much. I never had nothing like 

this. I got her name tattooed on my arm. 

. . . .

[Q]: Just seem indifferent, you know.

[A]: Just everything changed when the baby 

was born. Stuff I could do before[.] I loved 

playing basketball. I don’t do it much. I 

think this summer I played about five times 

through the whole summer.

. . . .

[Q]: This wasn’t a planned event, having a 

baby?

[A]: No. No.
9

[Q]: [Y]ou ever resent the baby or . . . or 

her, you know for [. . .]

[A]: [W]hat happened . . .

[Q]: Uh-huh.

[A]: No. I mean, if it happened, it was meant 

to happen. Just how it goes. I’m not 

regretting anything . . . . 

At 5:12 p.m., after about an hour in the interview room, 

Travaline told defendant that he was going to check the baby’s 

status and that he would return in a few minutes. After an 

absence of approximately two hours, Travaline returned to the 

room, apologized for the wait, and told defendant he would drive 

him home. 

Defendant’s daughter died three days later. The medical 

examiner’s report noted a number of healing bruises and 

fractures, including a broken clavicle and three broken ribs. 

An examination of the child’s large intestine indicated some 

form of impact to that organ. The medical examiner also noted 

abnormal swelling of the brain and fluid in the spinal cord. A 

neurologist opined that a bleeding malformation in the child’s 

brain likely caused her to become increasingly fussy and to cry. 

The neurologist also opined that the child sustained a traumatic 

injury to the brainstem and spinal cord.

The police arrested defendant on May 7, 2009, approximately

seven months after the October 2008 interview. Sergeant Alexis 
10

Sheftall read defendant his Miranda rights, and Sheftall and 

Travaline questioned defendant. Eventually, defendant admitted 

that he tossed Lanaya toward the bed, causing her to hit the 

wall. When defendant noticed that she had stopped breathing, he

called 9-1-1. 

II.

The grand jury returned an indictment charging defendant 

with second-degree reckless manslaughter, contrary to N.J.S.A.

2C:11-4(b)(1), and second-degree endangering the welfare of a 

child, contrary to N.J.S.A. 2C:24-4(a). In a motion to suppress 

the recorded October 20, 2008 statement, defendant argued that 

the interview was a custodial interrogation and any statements 

made during that interview should be suppressed because the 

detective never advised him of his Miranda rights. 

The Law Division judge conducted a suppression hearing on 

February 9 and 16, 2012, at which Travaline and defendant 

testified and the court viewed the October 20, 2008 videotaped 

statement. The trial court confirmed the undisputed fact that 

the detective did not administer Miranda warnings to defendant

before or at any time during his interview. The court also 

found that defendant was in custody during the October 20 

interview. The court stated that several factors influenced 

this finding, including Travaline’s instruction that defendant 

sit in a certain chair to permit the camera to obtain a full-
11

face view of defendant, Travaline’s physical proximity to 

defendant, and the probing nature of the questions posed to 

defendant. In addition, the court cited several other facts

presented by witnesses at the evidentiary hearing in support of 

its finding that defendant had been the subject of a custodial 

interrogation, including Travaline’s request for defendant to 

accompany him to the police station, placing defendant in the 

back seat of the unmarked police car, securing the house to 

prevent entry by anyone, and preparing a crime log. The court 

also found that no reasonable person in defendant’s position

would have felt free to leave the room or the police station.

An order dated March 22, 2012, suppressed the October 20 

statement in its entirety. 

The Appellate Division granted the State’s motion for leave 

to appeal and reversed the March 22, 2012 order. Quoting DiazBridges, supra, 208 N.J. at 566, the appellate panel determined 

that it need not defer to the factual findings of the trial 

court because “‘the trial court’s factual findings [we]re based 

only on its viewing of a recorded interrogation that [wa]s 

equally available to the appellate court and w[ere] not 

dependent on any testimony uniquely available to the trial 

court.’” The panel conducted a de novo review of the videotape 

of the October 20 interview and concluded that the totality of 

the circumstances did not support the finding that “defendant 
12

was subject to ‘the inherent psychological pressure on a suspect 

in custody.’” (Quoting State v. Brown, 352 N.J. Super. 338, 351 

(App. Div.), certif. denied, 174 N.J. 544 (2002)). The panel 

also determined that the trial court erred in attaching any 

significance to the fact that Travaline suspected that the 

child’s injuries had been inflicted by someone. The panel also 

dismissed the import of the detective’s request that defendant 

sit in a certain chair or the detective’s posture.

This Court granted defendant’s motion for leave to appeal. 

217 N.J. 281 (2014). 

III.

Defendant argues that the Appellate Division erred by 

limiting its review of the record to just the videotape of the 

October 20 interview and then conducting a de novo review of 

that statement. In doing so, defendant asserts that the 

appellate panel misapplied Diaz-Bridges, because this is not a 

case in which the trial court relied solely on the videotaped 

statement. Rather, defendant contends that the trial court 

plainly stated that it relied on more evidence than simply the 

videotaped statement. Defendant argues that the panel was 

required to defer to the factual findings of the trial court, 

which were well-supported by the entire record. Finally, 

defendant insists that the facts, as found by the trial court,

lead to the inexorable conclusion that defendant was subject to 
13

a custodial interrogation without the benefit of Miranda

warnings on October 20, 2008, and that his statement must

therefore be suppressed. 

The State responds that “to the extent that the motion 

judge made any factual findings beyond the videotape, they are 

not proper considerations.” Therefore, the State contends that 

the Appellate Division was not required to defer to any findings 

of fact made by the trial judge and was free to limit its review 

to the videotape and make its own findings of fact and draw its 

own conclusions of law. The State argues that defendant freely 

and voluntarily entered the police station, that defendant was 

not subject to restraint or an otherwise coercive environment, 

that he freely and voluntarily responded to all questions posed 

by the detective, and that defendant was never told he could not 

leave. Therefore, the interview had none of the hallmarks of a 

custodial interrogation, and the detective was not required to 

administer Miranda warnings to defendant. 

The Attorney General, appearing as amicus curiae, submits 

that the Appellate Division properly adopted a de novo standard 

of review. The Attorney General concedes that an appellate 

tribunal should defer to the findings of fact of a trial court 

based on witness testimony, but contends that the findings of 

fact made by the trial court were founded solely on the 

videotape of the October 20 statement. Therefore, the appellate 
14

panel was not required to defer to the trial court’s findings of 

fact. Finally, the Attorney General submits that defendant was 

never in custody. Rather, the October 20 interview was nothing 

more than “part of an investigatory procedure” that did not 

require administration of Miranda warnings to defendant. 

IV.

A.

Appellate courts reviewing a grant or denial of a motion to 

suppress must defer to the factual findings of the trial court 

so long as those findings are supported by sufficient evidence 

in the record. State v. Gamble, 218 N.J. 412, 424 (2014); State 

v. Elders, 192 N.J. 224, 243 (2007). We defer to those findings 

of fact because they “are substantially influenced by [an] 

opportunity to hear and see the witnesses and to have the ‘feel’

of the case, which a reviewing court cannot enjoy.” State v. 

Johnson, 42 N.J. 146, 161 (1964). An appellate court should 

disregard those findings only when a trial court’s findings of 

fact are clearly mistaken. Id. at 162. In those situations, 

the interests of justice require the reviewing court to examine 

the record, make findings of fact, and apply the governing law. 

Ibid. A trial court’s interpretation of the law, however, and 

the consequences that flow from established facts are not

entitled to special deference. State v. Gandhi, 201 N.J. 161, 
15

176 (2010). A trial court’s legal conclusions are reviewed de 

novo. Ibid. 

The rule of deference announced in Johnson, and endorsed 

repeatedly through the years, see, e.g., Elders, supra, 192 N.J.

at 243; State v. Locurto, 157 N.J. 463, 470-71 (1999), arose in 

the context of stenographically recorded proceedings. 

Gradually, memorialization of the record progressed from the 

stenographer to audio recordings to video recordings. Following

a comprehensive study of “whether and how to implement the 

benefits of recording electronically part, or all, of custodial 

interrogations,” State v. Cook, 179 N.J. 533, 561 (2004), the 

Court adopted Rule 3:17 in 2005, which generally requires 

electronic recordation of custodial interrogations of those 

charged with certain enumerated serious offenses. Rule 3:17(a) 

outlines a series of circumstances in which the electronic 

recordation requirement applies when the person being 

interrogated is charged with murder, aggravated manslaughter, or 

manslaughter. Rule 3:17(b) outlines circumstances when the 

electronic recordation requirement does not apply. For example,

subsection (b)(vii) does not require electronic recordation of a 

statement given during an interrogation when the law enforcement 

officer conducting the interrogation has no knowledge that a 

crime for which a recording is required has been committed. The 

State bears the burden of proof by a preponderance of the 
16

evidence to establish that an exception to the recordation 

requirement applied. R. 3:17(b). 

Although the means of recording statements or proceedings

have changed, the deference accorded to the findings of fact of 

the trial judge has not. See Elders, supra, 192 N.J. at 243-44 

(reiterating need to defer to factual findings derived from 

record consisting of testimony of officers and videotape record 

of motor vehicle stop). That deference is not limited to 

credibility findings by the trial court. Indeed, in the course 

of rejecting the notion that appellate deference to factual 

findings should be limited to credibility findings, the United 

States Supreme Court commented that “[d]uplication of the trial 

judge’s efforts in the court of appeals would very likely 

contribute only negligibly to the accuracy of fact determination 

at a huge cost in diversion of judicial resources. In addition, 

. . . requiring [the parties] to persuade three more judges at 

the appellate level is requiring too much.” Anderson v. City of 

Bessemer City, 470 U.S. 564, 574-75, 105 S. Ct. 1504, 1512, 84 

L. Ed. 2d 518, 529 (1985).

Nevertheless, the introduction of electronic recordation of 

court proceedings and certain investigative proceedings, such as 

custodial interrogations, has triggered questions about whether 

the traditional standard of appellate review should be 

maintained. In Diaz-Bridges, supra, the Court indicated that 
17

when assessing the totality of the circumstances in certain 

fact-sensitive contexts, such as an assessment of whether a 

defendant invoked his right to remain silent or to terminate an 

interrogation or to request counsel, appellate review may 

require consultation of the videotaped statement. 208 N.J. at 

565. The Court remarked as follows:

As it relates to the invocation of the 

right to remain silent, both the words used 

and the suspect’s actions or behaviors form 

part of the inquiry into whether the 

investigating officer should have reasonably 

believed that the right was being asserted. 

As a result, the court’s inquiry necessarily 

demands a fact-sensitive analysis to discern 

from the totality of the circumstances whether 

the officer could have reasonably concluded 

that the right had been invoked. For this 

reason, it may be inadequate to confine 

appellate review to the transcript of the 

interrogation. Instead, as this appeal 

demonstrates, if the trial court has based its 

findings on conduct or behaviors that 

defendant exhibited during a videotaped 

interrogation that may be observed and 

analyzed with equal precision by an appellate 

court, a review of the videotape of the 

interrogation is appropriate.

[Ibid.]

Notably, the Court emphasized that it did not intend to elevate 

the appellate panel’s evaluation of the videotape over the 

factual findings of the trial court. Id. at 565-66. Rather, an 

appellate panel can confine its review to the recording of the 

interrogation “[w]hen the trial court’s factual findings are 

based only on its viewing of a recorded interrogation.” Id. at 
18

566. In Diaz-Bridges, it is clear that the Court referred to 

the videotaped statement to verify the findings of fact. The 

Court did not conduct a de novo review of the suppression 

hearing record.

B.

A confession or incriminating statement obtained during a 

custodial interrogation may not be admitted in evidence unless a 

defendant has been advised of his or her constitutional rights.

Miranda, supra, 384 U.S. at 492, 86 S. Ct. at 1637, 16 L. Ed. 2d 

at 734. A defendant may waive any or all of those rights; 

however, that waiver must be “voluntary, knowing and 

intelligent.” State v. Hreha, 217 N.J. 368, 382 (2014).

In Miranda, supra, the United States Supreme Court held 

that in order to safeguard a suspect’s Fifth Amendment right 

against self-incrimination, confessions obtained during 

custodial interrogations are inadmissible as evidence unless the 

defendant has been advised of his or her constitutional rights. 

384 U.S. at 492, 86 S. Ct. at 1637, 16 L. Ed. 2d at 734; see

Dickerson v. United States, 530 U.S. 428, 431-32, 120 S. Ct.

2326, 2329, 147 L. Ed. 2d 405, 412 (2000). 

The failure to administer Miranda warnings prior to 

custodial interrogation “creates a presumption of compulsion.” 

Oregon v. Elstad, 470 U.S. 298, 307, 105 S. Ct. 1285, 1292, 84 

L. Ed. 2d 222, 231 (1985). Hence, if warnings were required but 
19

not given, the unwarned statements must be suppressed -- even 

when they “are otherwise voluntary within the meaning of the 

Fifth Amendment.” Ibid.; see also State v. O’Neill, 193 N.J.

148, 170 (2007); State v. O’Neal, 190 N.J. 601, 616 (2007).

“Custodial interrogation” was defined by the United States 

Supreme Court as “questioning initiated by law enforcement 

officers after a person has been taken into custody or otherwise 

deprived of his freedom of action in any significant way.”

Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d 

at 706. Thus, the protections provided by Miranda are only 

invoked when a person is both in custody and subjected to police 

interrogation. State v. P.Z., 152 N.J. 86, 102 (1997). 

Essentially, “Miranda turns on the potentially inquisitorial 

nature of police questioning and the inherent psychological 

pressure on a suspect in custody.” Ibid. (citing Miranda, 

supra, 384 U.S. at 445-58, 86 S. Ct. at 1612-19, 16 L. Ed. 2d at 

707-14).

“[C]ustody in the Miranda sense does not necessitate a 

formal arrest, nor does it require physical restraint in a 

police station, nor the application of handcuffs, and may occur 

in a suspect’s home or a public place other than a police 

station.” Id. at 103 (internal quotation marks omitted). On 

the other hand, “[i]f the questioning is simply part of an 

investigation and is not targeted at the individual because she 
20

or he is a suspect, the rights provided by Miranda are not 

implicated.” State v. Timmendequas, 161 N.J. 515, 614-15 (1999)

(citing State v. Pierson, 223 N.J. Super. 62, 67 (App. Div. 

1988)), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed.

2d 89 (2001). Moreover, “Miranda warnings are not required 

‘simply because the questioning takes place in the station 

house, or because the questioned person is one whom the police 

suspect.’” California v. Beheler, 463 U.S. 1121, 1125, 103 S. 

Ct. 3517, 3520, 77 L. Ed. 2d 1275, 1279-80 (1983) (quoting 

Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 

L. Ed. 2d 714, 719 (1977)); see State v. Marshall, 148 N.J. 89, 

225-26, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.

2d 88 (1997).

Indeed, “[w]hether a suspect has been placed in custody is 

fact-sensitive and sometimes not easily discernible.” State v. 

Stott, 171 N.J. 343, 364 (2002). “The critical determinant of 

custody is whether there has been a significant deprivation of 

the suspect’s freedom of action based on the objective 

circumstances, including the time and place of the 

interrogation, the status of the interrogator, the status of the 

suspect, and other such factors.” P.Z., supra, 152 N.J. at 103; 

see also Timmendequas, supra, 161 N.J. at 614. 

The relevant inquiry is determined objectively, based on 

“how a reasonable [person] in the suspect’s position would have 
21

understood his situation,” Berkemer v. McCarty, 468 U.S. 420, 

442, 104 S. Ct. 3138, 3151, 82 L. Ed. 2d 317, 336 (1984); see

P.Z., supra, 152 N.J. at 103, and “not on the subjective views 

harbored by either the interrogating officers or the person 

being questioned,” Stansbury v. California, 511 U.S. 318, 323, 

114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293, 298 (1994). 

“Miranda safeguards come into play whenever a person in 

custody is subjected to either express questioning or its 

functional equivalent.” Rhode Island v. Innis, 446 U.S. 291, 

300-01, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 307-08 (1980). 

“[T]he term ‘interrogation’ under Miranda refers not only to 

express questioning, but also to any words or actions on the 

part of the police (other than those normally attendant to 

arrest and custody) that the police should know are reasonably 

likely to elicit an incriminating response from the suspect.” 

Id. at 301, 100 S. Ct. at 1689-90, 64 L. Ed. 2d at 308; see

State v. Bey, 112 N.J. 45, 68 n.13 (1988).

Furthermore, the State bears the burden of proving beyond a 

reasonable doubt that a defendant’s confession is voluntary and 

not resultant from actions by law enforcement officers that 

overbore the will of a defendant. Hreha, supra, 217 N.J. at 

383; State v. Galloway, 133 N.J. 631, 654 (1993). The State 

bears a similarly high burden when a defendant challenges a 

statement procured by a law enforcement officer without the
22

benefit of Miranda warnings. See State v. Clausell, 121 N.J.

298, 352-53 (1990).

We apply these principles to the facts of this case,

focusing first on the deference owed by an appellate panel to a 

videotaped statement.

V.

A.

This Court has subscribed unequivocally and continuously to 

the traditional rule that an appellate tribunal should adhere to 

the findings of fact of the trial court and must avoid 

disturbing those findings unless the evidential record provides 

insufficient support for those findings. Gamble, supra, 218 

N.J. at 424; Elders, supra, 192 N.J. at 243-44; Locurto, supra, 

157 N.J. at 470-71; Johnson, supra, 42 N.J. at 162. Notably, in 

Elders, supra, the Court rejected unequivocally the approach of 

the appellate panel in that case “that the availability of a 

videotape of the troopers’ encounter with defendants, 

particularly in the context of a hearing where witnesses 

testified, extinguishes the deference owed to a trial court’s 

findings.” 192 N.J. at 244. The most oft-cited reason for such 

deference is the unique position of the trial court to observe 

the presentation of the evidence, to evaluate the demeanor of 

the witnesses, and to resolve discrepancies between testimony 

and physical or documentary evidence. Ibid. But, there are 
23

reasons beyond credibility determinations that require 

deference. The visual record simply cannot capture the entirety 

of an interrogation, an evidentiary hearing, or a trial because 

the focus of the camera is too narrow.

Recently, in Diaz-Bridges, supra, the Court referenced the 

videotape of the custodial interrogation of the defendant on 

several occasions. 208 N.J. at 551, 556, 562, 570. The Court 

explained that it did so because the question of whether a 

defendant has invoked the right to remain silent is a factsensitive inquiry that may require an evaluation of the words 

uttered by the suspect and his actions contemporaneous with any 

utterance in order to determine whether “the investigating 

officer should have reasonably believed that the right was being 

asserted.” Id. at 565. The Court emphasized, however, that it 

did not intend to alter the traditional appellate standard of 

review of trial court fact-finding and further delineated 

exceptionally limited circumstances when appellate review 

required reference to the video record of an interrogation.

Ibid. The Court stated:

We do not suggest that we have altered 

our admonition to appellate courts that they 

give due deference to the fact-finding role of 

the trial courts. See State v. Locurto, 157 

N.J. 463, 471 (1999) (concluding that 

reviewing court should defer to factual 

findings of trial judge as long as they can 

reasonably be reached on sufficient credible 

evidence present in the record). Indeed, as 
24

we have recently reiterated, if the trial 

court has had the benefit of and has relied 

upon testimony of witnesses, appellate courts 

must give due deference to those findings 

because it is the trial court that had the 

opportunity to evaluate the credibility of the 

witnesses who appeared and testified. Elders, 

supra, 192 N.J. at 245 (observing that trial 

court based its evaluation on police testimony 

because patrol car’s videotape showed only 

part of interaction with individuals involved 

in traffic stop).

[Id. at 565.]

Thus, an appellate tribunal must defer to the factual 

findings of the trial court when that court has made its

findings based on the testimonial and documentary evidence 

presented at an evidentiary hearing or trial. Deference is also 

not confined simply to credibility findings. To be sure, when 

the evidence consists of testimony of one or more witnesses and 

a videotaped recording of a statement by a witness or a suspect, 

an appellate court is obliged to review the entire record 

compiled in the trial court to determine if the factual findings 

are supported by substantial credible evidence in the record.

Locurto, supra, 157 N.J. at 470-71. The appellate panel may 

reference a videotaped statement to verify a specific finding.

It may not substitute its interpretation of events. An

evidentiary hearing in the trial court or a trial conducted by a 

judge sitting without a jury is “the main event,” not a “tryout 
25

on the road.” See Wainright v. Sykes, 433 U.S. 72, 90, 97 S. 

Ct. 2497, 2508, 53 L. Ed. 2d 594, 610 (1977). 

This appeal is not one of those cases in which the trial 

record was confined to a video record of the interrogation. We 

acknowledge that the trial court referred to the videotape of 

the October 20 interrogation and that certain findings of fact 

are premised on that review. Witness testimony, however, played 

a key role in the trial court’s analysis of the record and its 

findings of fact. The trial court made repeated references to 

defendant’s interactions with police at his home. The trial 

court specifically noted that defendant’s daughter was being 

treated by emergency medical personnel at his home and then 

transported to the hospital by ambulance. Yet, the trial court 

found that Travaline sequestered defendant and then escorted 

defendant to the police station in a police vehicle. The trial 

court observed that a witness who was not suspected of a 

criminal act would not have been treated in that fashion. The 

trial court also expressly referred to the testimony provided by 

Travaline in which he initially described the circumstances of 

the child’s condition as “suspicious.” The trial court also 

referenced the detective’s initial interaction with defendant at 

the house, the creation of a crime log, the securing of the 

house, and the actions taken by police at the house before they

escorted defendant to the police station to answer questions. 
26

The trial court was uniquely situated to integrate the 

testimony and the video record to formulate its findings of 

fact. The appellate panel was not free to conduct a de novo 

review of the videotape, reject the findings of fact of the 

trial court, and substitute its own findings. The Appellate 

Division therefore erred when it dismissed the findings of fact 

of the trial court and conducted a de novo review of the record 

of the motion to dismiss. 

Our review of the entire record, including the 

detective’s testimony and giving the required deference to the 

trial court’s findings, including those pertaining to the 

credibility of the detective, leads us to conclude that those 

findings are supported by the entirety of the testimonial and 

videotaped record. The final inquiry is whether the trial court 

properly applied the governing law to those factual findings to 

conclude that defendant was the subject of a custodial 

interrogation. 

B.

The protections provided by Miranda apply only when a 

person is both in custody and subjected to police interrogation. 

P.Z., supra, 152 N.J. at 102. On the other hand, mere 

investigative questioning directed at an individual who is not a 

suspect does not implicate Miranda. Timmendequas, supra, 161 

N.J. at 614-15 (citing Pierson, supra, 223 N.J. Super. at 67). 
27

Essentially, the issue hinges on the inquisitorial nature of the 

questioning and “the inherent psychological pressure”

experienced by a suspect in custody. P.Z., supra, 152 N.J. at 

102. “The critical determinant of custody is whether there has 

been a significant deprivation of the suspect’s freedom of 

action based on the objective circumstances, including the time 

and place of the interrogation, the status of the interrogator, 

the status of the suspect, and other such factors.” Id. at 103.

In the present case, the officers secured defendant’s house 

as a crime scene. The trial court found that Travaline directed 

defendant to ride in the police cruiser to the station. 

Meanwhile, his daughter was in critical condition and removed 

from her home by emergency medical personnel to a hospital for 

treatment. Although not handcuffed, defendant rode in the 

backseat of the vehicle. Defendant and Travaline did not 

converse at all during the drive. 

Upon arrival at the station, defendant was directed into an 

interrogation room, where he sat alone for several minutes. 

When Travaline entered, he instructed defendant to move into the 

chair in the corner of the room, farthest from the door. The 

officer positioned himself between defendant and the door. 

The detective questioned defendant for approximately an 

hour before exiting the room, leaving defendant to wait

approximately two hours. The detective never advised defendant 
28

that he was free to leave, even after relaying the news that the 

hospital was able to restore and maintain his daughter’s 

heartbeat.

During the interview, the detective’s questions roamed far 

from merely obtaining information that might assist the child’s 

treatment. Specifically, the detective asked defendant to 

account for all of his movements on his return from work. He 

inquired whether defendant may have been distracted at any point 

while watching his daughter, if he ever got frustrated with the 

baby, if he loved the baby, and if he ever resented the baby. 

Rather than an attempt to secure information that may have 

assisted the child’s treatment, the targeted questions reflect a 

clear attempt on the part of the detective to cause defendant to

incriminate himself. 

In light of the conditions, substance, and duration of the 

interview, combined with the events at defendant’s home, the 

trial court’s conclusion that the October 20 interview was 

custodial in nature is sufficiently supported by credible, 

factual evidence in the record and the proper application of 

governing law. The October 20 interview, conducted without 

administration of defendant’s Miranda rights, must be 

suppressed.

VI.
29

The judgment of the Appellate Division is reversed, and the 

matter is remanded to the Law Division for further proceedings.

CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, PATTERSON, 

FERNANDEZ-VINA, and SOLOMON join in the opinion of JUDGE CUFF 

(temporarily assigned). JUSTICE ALBIN filed a separate, 

concurring opinion.
1

SUPREME COURT OF NEW JERSEY

A-56 September Term 2013

073539

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRELL L. HUBBARD,

Defendant-Appellant.

JUSTICE ALBIN, concurring. 

I fully concur with the majority’s opinion that a 

deferential standard of review applies in assessing the trial 

court’s finding in this case. The trial court’s finding that 

defendant was in custody when questioned without Miranda1

warnings was based on hearing in-court witness testimony and 

reviewing defendant’s videotape statement. 

Significantly, this case does not involve a trial court’s 

fact-finding based solely on the review of a videotape 

statement. In State v. Diaz-Bridges, 208 N.J. 544, 566 (2012), 

in a passing sentence to which no authority is cited, this Court 

stated that “[w]hen the trial court’s factual findings are based 

only on its viewing of a recorded interrogation that is equally 

available to the appellate court and are not dependent on any 

 

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 

694 (1966).
2

testimony uniquely available to the trial court, deference to 

the trial court’s interpretation is not required.” The standard 

of review was not an issue in Diaz-Bridges and therefore was not 

a subject of discussion. The time will come -- when the issue 

is properly raised -- to have a serious dialogue and to give 

thoughtful consideration to the standard of appellate review of 

trial-court findings based on a videotape of an interrogation or 

some other event. 

A number of jurisdictions have addressed the appellatereview standard when a trial court’s findings are based on 

videotape of some event, such as an interrogation or a search. 

Federal appellate courts take a deferential approach in such 

cases for reasons found in the United States Supreme Court’s 

decision in Anderson v. Bessemer City, 470 U.S. 564, 574-75, 105 

S. Ct. 1504, 1511-12, 84 L. Ed. 2d 518, 528-30 (1985). There, 

the Court listed the policy goals advanced for a deferential 

appellate standard of review of non-testimonial evidence:

Where there are two permissible views of the 

evidence, the factfinder’s choice between them 

cannot be clearly erroneous. 

This is so even when the district court’s 

findings do not rest on credibility 

determinations, but are based instead on 

physical or documentary evidence or inferences 

from other facts.

. . . .
3

The rationale for deference to the 

original finder of fact is not limited to the 

superiority of the trial judge’s position to 

make determinations of credibility. The trial 

judge’s major role is the determination of 

fact, and with experience in fulfilling that 

role comes expertise. Duplication of the 

trial judge’s efforts in the court of appeals 

would very likely contribute only negligibly 

to the accuracy of fact determination at a 

huge cost in diversion of judicial resources.

[Ibid. (internal citations omitted).] 

 

Federal Rule of Civil Procedure 52(a)(6) was amended the 

same year that the United States Supreme Court released its 

decision in Anderson. That Rule provides: “Findings of fact, 

whether based on oral or other evidence, must not be set aside 

unless clearly erroneous, and the reviewing court must give due 

regard to the trial court’s opportunity to judge the witnesses’ 

credibility.” Fed. R. Civ. P. 52(a)(6) (emphasis added). 

The Advisory Committee on the 1985 amendments to Fed. R. 

Civ. P. 52(a) explained its reasons for adopting the clearly 

erroneous standard for testimonial and non-testimonial evidence: 

The principal argument advanced in favor of a 

more searching appellate review of findings by 

the district court based solely on documentary 

evidence is that the rationale of Rule 52(a) 

does not apply when the findings do not rest 

on the trial court’s assessment of credibility 

of the witnesses but on an evaluation of 

documentary proof and the drawing of 

inferences from it, thus eliminating the need 

for any special deference to the trial court’s 

findings. These considerations are outweighed 

by the public interest in the stability and 

judicial economy that would be promoted by 
4

recognizing that the trial court, not the 

appellate tribunal, should be the finder of 

the facts. To permit courts of appeals to 

share more actively in the fact-finding 

function would tend to undermine the 

legitimacy of the district courts in the eyes 

of litigants, multiply appeals by encouraging 

appellate retrial of some factual issues, and 

needlessly reallocate judicial authority.

[Fed. R. Civ. P. 52(a) advisory committee’s 

note to 1985 amendment.] 

Thus, Fed. R. Civ. P. 52(a)(6) calls for the application of the 

clearly erroneous standard to physical or documentary evidence, 

including videotapes. Although the Federal Rules of Criminal 

Procedure do not contain a similar rule, “the considerations 

underlying Rule 52(a) -- the demands of judicial efficiency, the 

expertise developed by trial judges, and the importance of 

first-hand observation -- all apply with full force in the 

criminal context, at least with respect to factual questions 

having nothing to do with guilt.” Maine v. Taylor, 477 U.S.

131, 145, 106 S. Ct. 2440, 2451, 91 L. Ed. 2d 110, 125 (1986) 

(internal citation omitted). For example, findings made by a 

trial court at a suppression hearing, based on a review of a 

video recording of a police stop, are given deference. See

United States v. Murphy, 703 F.3d 182, 188-89 (2d Cir. 2012)

(applying clear-error standard in reviewing video evidence in

suppression hearing); United States v. Prokupek, 632 F.3d 460, 

462-63 (8th Cir. 2011) (applying clear-error standard in 
5

reviewing video evidence in suppression hearing from traffic 

stop); United States v. Simpson, 609 F.3d 1140, 1146 (10th Cir. 

2010) (stating that appellate court “defers to the district 

court’s finding of facts and reviews them solely for clear 

error, even when . . . there is video tape of the stop and 

detention”); United States v. Santos, 403 F.3d 1120, 1128 (10th 

Cir. 2005) (“The increasing availability of videotapes of 

traffic stops due to cameras mounted on patrol cars does not 

deprive district courts of their expertise as finders of fact, 

or alter our precedent to the effect that appellate courts owe 

deference to the factual findings of district courts.”); United

States v. Navarro-Camacho, 186 F.3d 701, 707-08 (6th Cir. 1999) 

(applying clear-error standard in reviewing evidence in 

suppression hearing involving video evidence). 

State courts have split on the appropriate standard of 

appellate review when the evidence at a hearing is a videotape 

of either an interrogation or some other police interaction. 

Some state courts favor a deferential standard. See, e.g., 

Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014) (stating that 

even when “faced with video evidence,” “appellate standard of 

review remains constant” and that court “do[es] not reweigh the 

evidence”); State v. Williams, 334 S.W.3d 177, 181 (Mo. Ct. App. 

2011) (stating that when reviewing video evidence from 

suppression hearing “[u]nder the ‘clearly erroneous’ standard of 
6

review, the trial court’s findings of fact are entitled to 

deference even where they are based on physical or documentary 

evidence which is equally available to an appellate court”); 

Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006) 

(embracing U.S. Supreme Court’s approach in Anderson and holding

that “deferential standard of review . . . applies to a trial 

court’s determination of historical facts when that 

determination is based on a videotape recording admitted into 

evidence at a suppression hearing”).

Other state courts favor a de novo review. See, e.g., 

People v. Hughes, 3 N.E.3d 297, 313 (Ill. App. Ct. 2013) 

(stating that appellate court’s “eyes are just as functional 

a[s] the trial court’s” in reviewing video evidence evaluated in 

making suppression ruling), appeal denied, 5 N.E.3d 1126 (Ill. 

2014); Commonwealth v. Novo, 812 N.E.2d 1169, 1173 (Mass. 2004) 

(reviewing video evidence de novo and stating that “lower court 

findings based on documentary evidence available to an appellate 

court are not entitled to deference”); State v. Binette, 33 

S.W.3d 215, 217 (Tenn. 2000) (“[W]hen a court’s findings of fact 

at a suppression hearing are based solely on evidence that does 

not involve issues of credibility, such as the videotape 

evidence in this case, the rationale underlying a more 

deferential standard of review is not implicated.”). 
7

The law must adapt to technological advances. The 

videotaping of interrogations has become a current law 

enforcement practice and is mandated by court rule in defined 

circumstances. See R. 3:17. Today, video cameras are mounted 

in many police vehicles recording motor vehicle stops and 

searches. Body cameras worn by police officers may soon be an 

integral part of an officer’s uniform. In the near future, it 

may be that an officer’s interaction with a suspect will be 

video-recorded from beginning to end, from a street arrest to an 

interrogation at police headquarters.

Whether a videotape of events is the sole evidence or one 

piece of evidence should not be determinative of the standard of 

review. It does not follow logically that a videotape of an 

interrogation when mixed with live testimony should be viewed 

deferentially, but when standing alone should be viewed without 

deference. The standard of review for fact-findings of 

videotape evidence should not vary from one hearing to another.

How appellate courts review a trial court’s fact-findings 

based on a videotape is an important judicial-policy issue. On 

the proper occasion, when the issue is squarely before us, we 

should give full consideration to all the competing rationales 

favoring either deference or de novo review.
SUPREME COURT OF NEW JERSEY

NO. A-56 SEPTEMBER TERM 2013

ON APPEAL FROM Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRELL L. HUBBARD,

Defendant-Appellant.

DECIDED June 24, 2015

Chief Justice Rabner PRESIDING

OPINION BY Judge Cuff (temporarily assigned)

CONCURRING/DISSENTING OPINIONS BY Justice Albin

DISSENTING OPINION BY 

CHECKLIST REVERSE AND 

REMAND CONCUR

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN (X) X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X

TOTALS 7