1

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. James P. Kucinski (A-58-15) (076798)

Argued October 26, 2016 -- Decided January 30, 2017 

Solomon, J., writing for a unanimous Court.

In this appeal, the Court considers whether cross-examination regarding facts to which defendant testified 

at trial, but omitted in his statement to police, was proper. 

Defendant was arrested and taken to police headquarters for questioning about the bludgeoning death of his 

brother, John. Defendant was advised of his Miranda rights and he requested an attorney. The officers stopped the 

interrogation and met with their supervisor. After approximately eighty minutes they returned to the interview room 

and advised defendant that he was going to be charged with murder. Defendant then asked if he could speak with 

the officers, stating “I’m gonna tell you the truth.” He was re-read his Miranda rights, which he waived. 

Defendant explained that a few weeks earlier a fight had occurred between him and his brother. When the 

officers attempted to redirect the discussion to “how it started today” -- the day of John’s death -- defendant 

responded, “Ah, well let’s not talk about that part.” He then shifted the dialogue to other topics. In response to 

inquiries about how John injured defendant, he stated, “Like I said, we’ll forget about that part.” Defendant 

responded to a series of questions about events leading up to the fight and the injuries he sustained. As the 

interrogation went on, defendant continued to turn to other topics and to evade answering questions directly.

Several times throughout the interrogation defendant answered questions with “I don’t know.” When asked how 

defendant felt about John’s death, he said he would “rather [] just see a lawyer,” and the interrogation ended. 

Before trial, defendant moved to suppress his statement to police and argued that the officers did not honor 

his invocation of the right to counsel. The court denied defendant’s suppression motion, and the case proceeded to 

trial. At trial, the prosecutor asked one of the officers if defendant spoke in detail about the events on the day John 

died and if defendant was given an opportunity to “explain what happened that day.” When defense counsel 

objected, the trial judge sustained the objection but held that if defendant testified, the prosecutor would be 

permitted to cross-examine him on inconsistencies between his trial testimony and statements to police.

Defendant elected to testify at trial and claimed to have acted in self-defense. On cross-examination, over 

defense counsel’s objection, the prosecutor was permitted to question defendant about details defendant had testified 

to in his direct examination that contradicted what he said in his post-arrest statement to police. The prosecutor 

focused on details that defendant testified to but failed to mention to police during his interrogation. After further 

questioning by the prosecutor, defense counsel moved for a mistrial. The trial court denied the motion but instructed 

the jury that defendant’s right to remain silent should be limited to assessing defendant’s credibility and may not be 

used to make the determination of guilt. Defense counsel did not object. 

When the trial resumed, defense counsel informed the court that the limiting instruction advised the jury 

that defendant’s silence could be used for impeachment purposes. Counsel requested a clarifying instruction to fix 

this error, which the trial court issued. This instruction was repeated, without objection, during the final jury charge. 

The jury found defendant guilty of passion/provocation manslaughter, as well as third-degree possession of a 

weapon for an unlawful purpose. 

The Appellate Division reversed defendant’s conviction and remanded for a new trial, determining that the 

prosecutor’s questions on cross-examination were improper. The panel found that defendant invoked his right to 

remain silent by telling the police that he did not want to talk about certain subjects and answer certain questions. 

The panel reasoned that, accordingly, the statements could not be used for any purpose, including impeachment. 

Further, the Appellate Division found the trial court’s instructions to the jury were fatally flawed.
2

The Court granted the State’s petition for certification. 224 N.J. 282 (2016). 

HELD: Defendant waived his right to remain silent and therefore the State permissibly questioned defendant on crossexamination about the inconsistencies between his post-arrest statement to police and his statement on directexamination at trial. 

1. The United States Supreme Court first considered whether a defendant’s pretrial silence could be used to impeach 

his credibility on cross-examination at trial in United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 

(1975). A year later, this Court considered a similar question in State v. Deatore, 70 N.J. 100, 108-09 (1976), and held 

that a defendant who remains silent “at or near the time of his arrest” cannot be cross-examined about that silence if he 

subsequently testifies to an exculpatory version of events at trial. In State v. Lyle, 73 N.J. 403 (1977), this Court again 

incorporated U.S. Supreme Court authority and concluded that “the State’s use of a defendant’s post-arrest silence for 

purposes of impeaching his exculpatory defense violates due process” and is “improper irrespective of whether 

[Miranda] warnings are given.” Id. at 409-10 (citation omitted). The Court applied the general principles of Lyle and 

Deatore in State v. Muhammad, 182 N.J. 551, 568 (2005), where the Court explained that “by speaking with the police, 

a suspect does not waive his right to invoke the privilege and remain silent at some later point.” (pp. 20-23)

2. With respect to cross-examination of a defendant on factual inconsistencies between his testimony at trial and his 

pretrial statement, the Court has held that “it is not an infringement of a defendant’s right to remain silent for the State 

to point out differences in the defendant’s testimony at trial and his or her statements that were freely given.” State v. 

Tucker, 190 N.J. 183, 189 (2007). (pp. 24-26)

3. When a defendant invokes his or her right to remain silent, the interrogation must cease, at least until some time has 

lapsed and the defendant is reread his Miranda rights. That being said, even if a defendant is successful in invoking his 

or her right to remain silent about a particular subject, this right is waived if the defendant discusses, of his or her own 

volition, that very topic just moments later. (p. 27)

4. In the present case, defendant waived his right to remain silent. Defendant was cognizant of his Miranda rights and 

clearly and unambiguously invoked his right to counsel when police originally administered Miranda warnings. 

However, after first invoking his right to counsel, it was defendant who asked to speak with officers so that he could 

“tell [them] the truth.” After acknowledging that he had fought with his brother, defendant avoided questions by saying 

“[a]h, let’s not talk about that part,” “we’ll forget about that part,” “it doesn’t matter,” and “I don’t remember.” 

Considered in context, defendant’s refusal to answer certain questions was not an attempt to end the dialogue, but rather 

was “part of an ongoing stream of speech,” which included information about the altercation and defendant’s family 

disputes. Most importantly, defendant voluntarily provided details about the altercation that led to John’s death—the 

very subject about which he previously said, “let’s not talk about that part.” In other words, defendant told 

investigators about his recollection of the altercation with John—he thus spoke on that subject. (pp. 27-29)

5. Because defendant waived his right to remain silent, cross-examination regarding facts to which he testified at trial, 

but omitted in his statement to police, was proper. During interrogation, defendant claimed his injuries were caused by 

John biting him. Defendant’s story changed during his testimony when he claimed John stabbed him with a 

screwdriver and he was forced to defend himself. Therefore, the State’s cross-examination sought to highlight the 

inconsistency between defendant’s statement to police during interrogation and his testimony on direct examination. 

This inconsistency is a permissible area for cross-examination. (pp. 29-30)

6. Because defendant did not invoke his right to remain silent, any error in the trial court’s instruction to the jury, to 

which defendant did not object, was harmless. (pp. 30-31)

The judgment of the Appellate Division is REVERSED and defendant’s conviction is REINSTATED. 

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZVINA, and TIMPONE join in JUSTICE SOLOMON’s opinion. 
1

SUPREME COURT OF NEW JERSEY

A-58 September Term 2015

076798

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JAMES P. KUCINSKI,

Defendant-Respondent.

Argued October 26, 2016 – Decided January 30, 2017

On certification to the Superior Court, 

Appellate Division.

Nancy A. Hulett, Assistant Prosecutor, 

argued the cause for appellant (Andrew C. 

Carey, Middlesex County Prosecutor, 

attorney).

Rochelle M.A. Watson, Assistant Deputy 

Public Defender, argued the cause for 

respondent (Joseph E. Krakora, Public 

Defender, attorney).

Sarah E. Ross, Deputy Attorney General, 

argued the cause for amicus curiae Attorney 

General of New Jersey (Christopher S. 

Porrino, Attorney General, attorney).

JUSTICE SOLOMON delivered the opinion of the Court.

We are called upon to determine whether a defendant invoked 

his right to remain silent after originally waiving his Miranda1

rights. If so, we must also decide whether the State wrongly

 

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

694 (1966).
2

cross-examined defendant by highlighting missing details in his 

post-arrest statement and whether the trial court’s curative 

instructions were flawed and warrant reversal of defendant’s

conviction.

Defendant was brought to the police station for questioning 

about the bludgeoning death of his brother, John. After 

receiving Miranda warnings, defendant refused to speak with 

police officers and was left alone for approximately eighty 

minutes. When the officers returned and told defendant that he 

was going to be charged with John’s murder, defendant asked to 

speak to the officers. He was re-read the Miranda warnings and 

waived his Miranda rights. Questioning ensued. 

During defendant’s interrogation, he refused to answer 

certain questions about his altercation with John. Instead, he 

pivoted the conversation to other topics. Eventually, however, 

defendant discussed details about the confrontation with, and 

death of, his brother. When asked how defendant felt about 

John’s death, he said he would “rather [] just see a lawyer,” 

and the interrogation ended.

Defendant was indicted for John’s murder and unsuccessfully

moved to suppress his statement to police. The matter proceeded 

to trial, and defendant testified on his own behalf. Over 

defense counsel’s objection, the prosecutor was permitted to 

cross-examine defendant about details of the incident he 
3

testified to in his direct examination but omitted from his 

post-arrest statement to police.

The jury convicted defendant of passion/provocation 

manslaughter, N.J.S.A. 2C:11-4(b)(2), and third-degree 

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(d). The Appellate Division reversed defendant’s conviction 

and remanded for a new trial. The panel found that the 

prosecutor’s cross-examination of defendant was improper and 

violated defendant’s right against self-incrimination. Further, 

the panel held that the instructions given to the jury were 

fatally flawed. We granted the State’s petition for

certification.

We hold that defendant waived his right to remain silent by 

voluntarily discussing details of his altercation with John, 

just moments after telling the officers that he did not wish to 

comment on that particular subject. Because defendant did not 

assert his right to silence, the State permissibly questioned 

defendant on cross-examination about the inconsistencies between 

his statement during interrogation and his statement on directexamination. In light of this holding, we find any error in the 

trial court’s instructions to be harmless. Therefore, we 

reverse the judgment of the Appellate Division and reinstate 

defendant’s conviction.

I.
4

A.

The pertinent facts of record follow. Defendant’s brother, 

John, lived in Edison with their eighty-one-year-old mother, 

Anna, and served as her caretaker. Defendant lived with his 

long-term girlfriend about a quarter mile away. Defendant and 

John had a strained relationship with a history of violent, 

physical altercations. According to their oldest brother, 

Steven, defendant’s drinking was the root of most of their 

conflicts. As a result, a family friend, Ralph Hopping, acted 

as a liaison between John and defendant and was defendant’s only 

source of information about his mother’s deteriorating health. 

The day before John’s death, defendant called Hopping 

because he was angry that he could not speak directly to his 

mother and wanted an update on her condition. He told Hopping, 

“You better get your suit ready. I have two brothers that 

belong in the cemetery.”

The next day, according to defendant’s girlfriend, John

spoke to defendant over the phone and threatened to kill 

defendant if he came to the house to see their mother. After 

the telephone conversation ended, defendant told his girlfriend

that he was going to see his mother and left the house. 

Defendant returned home thirty minutes later with blood on his 
5

arms, face, neck, and clothing. When his girlfriend asked about 

the blood, defendant told her, “I just did John.”

Meanwhile, one of Anna’s neighbors arrived home and saw 

John lying in the driveway. Police arrived shortly thereafter 

and observed John lying face-down in the driveway, with blood 

splatter, a leaf blower, and pieces of brick near his body. 

John was pronounced dead at the scene by emergency medical 

personnel.

Later that day, officers located defendant sitting inside 

his vehicle in a restaurant parking lot near his home. As the 

officers approached, they observed abrasions on defendant’s

hands and head and blood “spots” on his shirt. The officers 

ordered defendant out of his vehicle and noticed blood on his

boots as well.

Defendant was arrested and taken to police headquarters,

where he was met by Investigator George Trillhaase and Detective 

Tom Duffy for questioning. Defendant was advised of his Miranda

rights and he requested an attorney. Investigator Trillhaase 

and Detective Duffy stopped the interrogation and met with their 

supervisor. The decision was made to charge defendant with 

John’s murder. 

After approximately eighty minutes, Investigator Trillhaase 

and Detective Duffy re-entered the interview room and advised 

defendant that he was going to be charged with murder. 
6

Defendant then asked if he could speak with the investigators, 

stating “I’m gonna tell you the truth.” Defendant was re-read 

his Miranda rights, which he waived both orally and in writing. 

Defendant began the conversation by explaining that a few 

weeks earlier a fight had occurred involving him, John, and 

Steven during a visit to the hospital where their mother was 

being treated at the time. When the interrogators attempted to 

redirect the discussion to “how it started today” -- the day of 

John’s death -- defendant responded, “Ah, well let’s not talk 

about that part.” He then shifted the dialogue to weapons he 

believed John kept at Anna’s house. In response to inquiries 

about how John injured defendant, he stated, “Like I said, we’ll 

forget about that part. He’s not a good person[,] believe me.” 

Defendant then, once again, turned to the weapons in Anna’s 

house:

[Inv. Trillhaase]: Tell us why, tell us why 

you’re concerned about the loaded guns [at 

Anna’s house].

[Defendant]: Because he keeps telling me he’s 

gonna kill me.

[Inv. Trillhaase]: Ok.

[Defendant]: He’s gonna kill me.

[Inv. Trillhaase]: What happened today about 

the loaded gun or did that come in play at 

all?

[Defendant]: That came in play a long time 

ago.
7

. . . .

[Q]2: I believe he asked you if there was [a] 

gun involved today?

[Defendant]: Yes.

[Q]: How was a gun involved today?

[Defendant]: That’s, well he keeps . . .

[Q]: Did he threaten you with a gun?

[Defendant]: . . . telling me. He keeps 

telling me he’s gonna kill me.

[Q]: Ok, did he tell you that today?

[Defendant]: Yes, he did.

Defendant then responded to a series of questions about

events leading up to the fight and the injuries he sustained:

[Q]: Can you tell us how you got injured?

[Defendant]: Who knows? Him biting me. He 

was biting me. Yeah we had a confrontation 

but he was biting me. See?

[Det. Duffy]: I see, you got there, you got 

cuts on your hand. You got cut on your arm 

. . .

[Defendant]: Yeah, well . . .

[Det. Duffy]: . . . hand’s all swollen.

[Defendant]: . . . biting me here. He’s a 

c**t.

 

2 “[Q]” indicates a question from one of the two interrogators 

where the transcript does not specify whether Investigator 

Trillhaase or Detective Duffy is the one asking the question.
8

[Q]: Was anything used, other than your hands 

and your fists?

[Defendant]: No, no.

As the interrogation went on, defendant continued to turn

to other topics and to evade answering questions directly.

[Det. Duffy]: You said you kicked him on the 

way down or whatever, what, what, what other 

types of blows were thrown? I mean, we see 

obvious injuries, we’re trying to ask and 

trying to find out how did this occur?

[Defendant]: I defended myself.

[Det. Duffy]: That’s what we’ve been asking 

you.

[Defendant]: Ok.

[Det. Duffy]: What did he, what did he do 

that you had to defend yourself?

[Defendant]: It don’t it don’t matter.

[Det. Duffy]: It does matter.

[Defendant]: It doesn’t matter. Hey, I’m 

sorry he’s gone.

Several times throughout the interrogation defendant answered 

questions with “I don’t know.” For example:

[Det. Duffy]: We do believe you. Already 

told you that. That’s not even a question 

that I don’t, I understand that he threatened 

you before, you said he threatened you today, 

what happened today? We know you had a 

confrontation, he bit you, you have wounds on, 

on your hands, you said you kicked him in the 

head, we know that. But there’s the questions 

of cutting, a question of a knife.

[Defendant]: No knife.
9

[Det. Duffy]: What about the brick? The brick 

could have cut him?

[Defendant]: I don’t know. Honestly.

[Det. Duffy]: What do you mean, you don’t 

know, you don’t know? You don’t know. What 

was up with the brick? Did he attack you with 

the brick? That’s what I’m asking.

[Defendant]: I really can’t talk about stuff 

like that.

Near the end of questioning, the topic turned to 

defendant’s feelings about his brother’s death. He was asked to

“just walk through it” and “do your brother right.” Defendant 

responded, “I’d rather uh just see a lawyer. That’s all. Ok, 

thanks.” The interview concluded with defendant saying, “Put me 

down as a murderer. I’m gonna go down.” 

Defendant was charged with first-degree murder, N.J.S.A.

2C:11-3(a)(1) or (2), and third-degree possession of a weapon 

for an unlawful purpose, N.J.S.A. 2C:39-4(d). 

B.

Before trial, defendant moved to suppress his statement to 

police and argued that the officers did not honor his invocation 

of the right to counsel. At the suppression hearing, the motion

court received testimony from Investigator Trillhaase and viewed 

the videotape of defendant’s interview with Investigator 

Trillhaase and Detective Duffy. The court denied defendant’s 

suppression motion, and the case proceeded to trial.
10

During opening statements, the prosecutor explained to the 

jury:

[Defendant] says that he had to defend 

himself, but when pressed he doesn’t give 

details. He avoids them. He doesn’t explain. 

The detectives are asking him, you’ll see 

detectives are asking him to explain what 

happened that day, what happened on April 30? 

And he never says --

Defense counsel moved for a mistrial, contending that the State 

improperly commented on defendant’s right to remain silent. The 

trial court denied the motion.

During Investigator Trillhaase’s testimony at trial, the 

prosecutor asked him if defendant spoke in detail about the 

events on the day John died and if defendant was given an 

opportunity to “explain what happened that day.” At sidebar, 

defense counsel objected, claiming that the State was, once 

again, impermissibly commenting on defendant’s right to remain 

silent. The trial judge sustained the objection but held that 

if defendant testified, the prosecutor would be permitted to 

cross-examine him on inconsistencies between his trial testimony 

and statements to police.

Defendant elected to testify on his own behalf at trial and 

claimed to have acted in self-defense. Defendant stated that he 

and John had a volatile relationship because defendant was not 

kept informed about their mother’s health. Defendant confirmed 

that he went to his mother’s house on the day of John’s death. 
11

He said that he intended to visit their mother because she had 

just come home from a rehabilitation center. Defendant

testified that he did not expect John to be at home, but when 

defendant arrived, John was in the driveway fixing a leaf 

blower. According to defendant, John asked where he was going,

and defendant replied that he was going to see their mother. 

Defendant testified that John said, “No you’re not,” then pushed 

and hit defendant. By defendant’s account, John bit defendant

during their altercation and stabbed him with a screwdriver in 

his left arm. They then both grabbed bricks from a pile and 

swung them at each other.

Following defendant’s direct testimony, the trial judge

discussed with counsel the proper limits of cross-examination. 

The prosecutor argued that once a person waives his or her 

Miranda rights, any post-Miranda silence is subject to crossexamination or comment. The judge allowed the prosecutor to 

“use anything that [defendant] said [on direct] against him if 

[it] contradicts what he said in his statement” to police. The 

judge also instructed that “almost everything that [defendant] 

said as to what happened on that date is attackable” but that 

non-responsive answers to the police could not be raised. 

Although defendant’s pretrial motion to suppress his statement 

to police had been denied, defense counsel responded that the 

“entire statement was essentially a very long invocation of the 
12

right to remain silent” and that the State’s proposed line of 

questioning was an “inferential comment on [defendant’s] right 

to remain silent.” 

During defendant’s cross-examination, the prosecutor 

focused on details that defendant testified to on direct

examination but failed to mention to police during his postarrest interrogation.3 

[STATE:] Let me get this straight, sir. 

You’re now saying that some kind of 

screwdriver was involved?

[DEFENDANT:] Yes.

[STATE:] Okay. Ever mention a screwdriver at 

all in the statement that we saw yesterday?

[DEFENDANT:] No, I did not.

[STATE:] Ever?

[DEFENDANT:] No.

[STATE:] No. Did the Detectives ask you 

multiple times if any weapons were used?

. . . .

[DEFENDANT:] I didn’t want to answer any 

questions that had to do with that. What my 

brother did to me, what I did to him, I didn’t 

want to talk about that. 

 

3 In the interest of brevity, we do not include every portion of 

defendant’s cross-examination relevant to the issue in this 

appeal. Instead, the excerpts provided are representative of 

the dialogue between defendant and the prosecutor.
13

Despite an objection by defense counsel, the State 

continued to question defendant about missing details in his

post-arrest statement.

[STATE:] Did you tell the Detectives that you 

got stabbed with a screwdriver into your 

muscle?

[DEFENDANT:] No. I didn’t want to talk about 

that. They asked me about it. I didn’t want 

to talk about it.

[STATE:] So you defended yourself against 

this attack from John by a screwdriver and you 

don’t want to tell the cops that?

. . . .

[STATE:] You’re saying today, three-and-ahalf years later, you don’t want to tell the 

cops that you got stabbed by a screwdriver by 

John?

[DEFENDANT:] I didn’t want to talk about it. 

They asked me [what] other wounds I had on me 

and I just didn’t want to talk about it.

. . . .

[STATE:] When they asked you, “Were any 

weapons used other than your hands and fists,” 

you said what?

. . . .

[DEFENDANT:] I didn’t want to talk about it. 

I didn’t want to talk about what went on there, 

what he did and what I did.

[STATE:] After being charged with murder, you 

didn’t want to talk about it?
14

At sidebar, the court instructed the prosecutor to avoid 

questions about the information defendant did not disclose to

police. The prosecutor then continued as follows:

[STATE:] So back on April 30th, you tell the 

police “We just had an argument.” Right?

[DEFENDANT:] Uh-huh.

[STATE:] Today you give all kinds of details 

. . . [a]bout what happened in the driveway.

[DEFENDANT:] Once again, I didn’t want to 

talk about it.

[STATE:] After they charged you with murder, 

you didn’t want to talk about it?

[DEFENDANT:] I didn’t want to talk about it.

. . . .

[STATE:] [During the interrogation] the 

Detectives asked you what happened when you 

got there, and you say, “I don’t know.” Right?

[DEFENDANT:] Yes.

[STATE:] Today you give us all kinds of detail 

of what happened when you got there. Right?

[DEFENDANT:] I said I don’t know. This way 

I wouldn’t have to talk about it.

After further questioning by the prosecutor, defense 

counsel moved for a mistrial. The trial court denied the motion 

but gave the following instruction to the jury:

A Defendant has a right to remain silent, 

and no inference of guilt should be drawn from 

his exercise of that right. It should be 

limited to assessing the Defendant’s 

credibility and that invoking his right to 
15

remain silent may not be used in determining 

whether he is guilty or not guilty.

So if he said something which was 

contradictory in one statement as opposed to 

the other, that determines -- you can use that 

relative to determine [sic] his credibility. 

But the fact that he exercises his right to 

remain silent relative to some questions, you 

can’t make the determination of his guilt or 

innocence based on that. Okay?

Defense counsel did not object.

When the trial resumed five days later, defense counsel 

informed the court that the instructions previously given to the 

jury advised that defendant’s silence could be used for 

impeachment purposes. To fix this error, defense counsel

requested a limiting instruction. The trial court issued a 

clarifying instruction, stating that “a defendant has a right to 

remain silent and no inference of guilt should be drawn from his 

exercise of that right.” This instruction was repeated, without 

objection, during the final jury charge. 

The jury found defendant guilty of the lesser-included 

offense of passion/provocation manslaughter, N.J.S.A. 2C:11-

4(b)(2), as well as third-degree possession of a weapon for an 

unlawful purpose, N.J.S.A. 2C:39-4(d). The court merged the 

convictions and imposed a nine-year term of imprisonment subject 

to an eighty-five percent period of parole ineligibility 

pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, as 

well as appropriate fines and fees.
16

Defendant appealed, arguing that the prosecutor improperly 

cross-examined defendant on his failure to provide details of 

his self-defense claim during his post-arrest statement to 

police. The Appellate Division reversed defendant’s conviction 

and remanded for a new trial, determining that the prosecutor’s 

questions on cross-examination were improper and violated 

defendant’s right against self-incrimination. The panel found 

that defendant invoked his right to remain silent by telling the 

police that he did not want to talk about certain subjects and 

answer certain questions. It reasoned that, accordingly, the 

statements could not be used for any purpose, including 

impeachment. Further, the Appellate Division found the trial 

court’s instructions to the jury were fatally flawed because,

“[i]n both instructions, the judge failed to advise the jurors 

that no inference of defendant’s guilt or credibility should be 

drawn from the exercise of his right to remain silent.”

This Court granted the State’s petition for certification. 

State v. Kucinski, 224 N.J. 282 (2016). We also granted amicus 

curiae status to the Attorney General of New Jersey.

II.

The State contends that although it may not comment on a 

defendant’s silence at or near the time of arrest, defendant

here did not invoke his right to remain silent because he 

voluntarily waived his Miranda rights, both orally and in 
17

writing, and proceeded to speak to the detectives. Relying on 

this Court’s decision in State v. Tucker, 190 N.J. 183 (2007), 

and holdings of the United States Supreme Court, the State 

claims that “[t]he outline of the relevant precedent shows that 

a defendant who speaks freely after waiving his Miranda rights 

can be cross-examined if he testifies at trial inconsistently 

with his prior statement.” Because defendant here was not 

silent, and because he signed a waiver of his right to remain 

silent, the State argues that defendant was “no longer cloaked 

with the protections afforded under Miranda.” Therefore, “[t]he 

detailed story defendant provided from the stand at trial was 

subject to attack on the ground that when defendant spoke to 

police a few hours after the murder, he had said hardly any of 

it.” 

Like the State, the Attorney General contends that “[t]his 

case is not about silence” but is about defendant’s refusal to 

speak about certain subjects while freely speaking about others 

after he was read his Miranda rights and waived them. According 

to the Attorney General, defendant’s decision to select the 

degree of detail with which he would answer questions was not an 

assertion of the right to remain silent, and by offering more 

detail on the stand than during the interrogation, defendant 

presented two different versions of the event. 
18

The Attorney General argues that, by telling the officer “I 

don’t know” or “I don’t want to talk about that” in response to 

precise questions, defendant gave a statement that was “vastly 

different” from his testimony on the stand, in which he provided 

very specific details about the events that took place leading 

up to John’s death. If prosecutors are not permitted to 

question a defendant about omissions and inconsistencies between 

a post-Miranda statement and in-court testimony, the Attorney 

General asserts, “a defendant has the opportunity to manipulate 

his or her trial testimony with recently fabricated details 

based on gaps in his or her previous statements.” The Attorney 

General also maintains that any limiting instruction issued to 

the jury about defendant’s post-arrest statement was 

unnecessary.

Defendant asserts that “[a] reasonable interpretation of 

the Miranda warnings is that one has the right to say nothing at 

all, and should the right to speak be exercised, it does not 

carry with it the affirmative obligation to come forth with the 

complete and precise exculpatory version one intends to later 

rely on.” Therefore, defendant’s waiver did not “impose some 

affirmative obligation on him to speak, much less to speak on 

all matters of interest to the State and, therefore, he cannot 

be impugned for his failure to do so.” Defendant argues that

the right to remain silent is rendered “illusory” if the State 
19

is permitted to cross-examine a defendant who first waives his 

Miranda rights and then later invokes his right to remain silent 

by refusing to respond to certain questions. Finally, defendant 

claims that he was permitted to, and did, invoke his right to 

remain silent as to particular questions. 

III.

We begin by noting that the Fifth Amendment of the United 

States Constitution guarantees that “[n]o person . . . shall be 

compelled in any criminal case to be a witness against himself.” 

U.S. Const. amend. V. The federal protection against compelled 

self-incrimination must be “scrupulously honored.” Michigan v. 

Mosley, 423 U.S. 96, 103-04, 96 S. Ct. 321, 326, 46 L. Ed. 2d 

313, 321 (1975) (quoting Miranda, supra, 384 U.S. at 479, 86 S. 

Ct. at 1630, 16 L. Ed. 2d at 726); see also State v. Kennedy, 97 

N.J. 278, 288 (1984). 

Although New Jersey’s privilege against self-incrimination 

is not enshrined in our State Constitution, “the privilege 

itself is firmly established as part of the common law of New 

Jersey and has been incorporated into our Rules of Evidence.” 

State v. Hartley, 103 N.J. 252, 260 (1986) (quoting In re 

Martin, 90 N.J. 295, 331 (1982)); N.J.R.E. 501, 502, 503. 

Furthermore, “[o]ur state-law privilege against selfincrimination offers broader protection than its federal 
20

counterpart under the Fifth Amendment.” State v. Muhammad, 182 

N.J. 551, 568 (2005). 

A.

The United States Supreme Court first considered whether a 

defendant’s pretrial silence could be used to impeach his 

credibility on cross-examination at trial in United States v. 

Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975). 

There, the defendant was placed under arrest, given Miranda

warnings, and remained silent. Id. at 174, 95 S. Ct. at 2135, 

45 L. Ed. 2d at 103. During his testimony at trial, however, 

the defendant provided a detailed alibi for his whereabouts 

during the commission of the crime at issue. Ibid. Relying on 

evidentiary rather than constitutional grounds, the Court found 

that the risk of unfair prejudice by admitting it into evidence 

outweighed the probative value of the defendant’s pretrial 

silence, id. at 180, 95 S. Ct. at 2138, 45 L. Ed. 2d at 107, and

that “his failure to offer an explanation during . . . custodial 

interrogation can as easily be taken to indicate reliance on the 

right to remain silent as to support an inference that the 

explanatory testimony was a later fabrication,” id. at 177, 95 

S. Ct. at 2137, 45 L. Ed. 2d at 105.

A year later, this Court considered a similar question in 

State v. Deatore and held that, “whether or not the defendant 

received his Miranda warnings,” 70 N.J. 100, 117 n.10 (1976), a 
21

defendant who remains silent “at or near the time of his arrest” 

cannot be cross-examined about that silence if he subsequently 

testifies to an exculpatory version of events at trial, id. at 

108-09. 

The United States Supreme Court reached a similar 

conclusion, this time on constitutional grounds, in Doyle v. 

Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). The 

Court concluded that “it would be fundamentally unfair and a 

deprivation of due process to allow the arrested person’s 

silence to be used to impeach an explanation subsequently 

offered at trial.” Id. at 618, 96 S. Ct. at 2245, 49 L. Ed. 2d 

at 98.

We incorporated Doyle’s reasoning into our decision in 

State v. Lyle, 73 N.J. 403 (1977). In Lyle, supra, the victim 

was shot after he entered the defendant’s store. 73 N.J. at

405. When investigating officers arrived at the scene asking 

for “Henry,” the defendant responded, “Yes, I’m Henry. I shot 

him.” Id. at 406. The officers then administered Miranda

warnings, after which the defendant made no response. Ibid. At 

trial, the defendant testified that he acted in self-defense,

stating that the victim tried to attack him with a screwdriver. 

Id. at 405, 408. The prosecutor pointed out, in his crossexamination of the defendant and in summation, that the 

defendant failed to mention a screwdriver to officers who first 
22

responded to the scene. Id. at 408-09. Highlighting Doyle and 

Deatore, we made clear that “the State’s use of a defendant’s 

post-arrest silence for purposes of impeaching his exculpatory 

defense violates due process” and is “improper irrespective of 

whether [Miranda] warnings are given.” Id. at 409-10 (citing 

Deatore, supra, 70 N.J. at 117 n.10). 

This Court applied the general principles of Lyle and 

Deatore in our decision in Muhammad. In that case, a woman was 

walking home from her cousin’s house through an area in Paterson 

known for prostitution. Muhammad, supra, 182 N.J. at 559. As 

she walked, the defendant approached the woman in a vehicle, 

identified himself as a Paterson police officer, stated that she 

was under arrest for prostitution, and ordered her into the back 

seat of his car. Ibid. At the time of the offense, the 

defendant was a fifteen-year veteran of the City of Passaic 

police force but had been terminated from that job a month 

earlier. Id. at 559 n.1. The defendant drove the victim to a 

dark, dead-end street and sexually assaulted her. Id. at 559. 

Thereafter, the woman insisted that she be driven to the local 

jail, and, upon their arrival at Paterson police headquarters, 

the defendant told the sergeant on duty that the victim was 

brought in because she had harassed the defendant’s siblings. 

Id. at 560. The victim interrupted, accused the defendant of 

lying, told the sergeant she had been raped, and produced the 
23

condom the defendant used as proof. Ibid. The defendant became 

visibly nervous and asked if he could go home. Id. at 561. He 

was detained at the police station, however, and eventually 

placed under arrest. Ibid.

At trial, defense counsel asserted that the victim was a 

prostitute and the sex was consensual. Id. at 562. In opening 

and closing arguments and during questioning of witnesses, the 

prosecutor “repeatedly referenced [the] defendant’s failure to 

make any mention at police headquarters of a consensual 

encounter with [the victim] or that she was a prostitute.” 

Ibid. 

We held in Muhammad that the State’s questioning violated 

the defendant’s right against self-incrimination. Id. at 573-

74. Explaining that it was of no consequence that the defendant 

initially presented the story of harassment to officers before 

falling silent, we said, “A suspect who begins to speak to the 

police while in custody, during interrogation, or ‘at or near’ 

the time of his arrest does not waive his right against selfincrimination when he falls silent.” Id. at 568. “In other 

words, by speaking with the police, a suspect does not waive his 

right to invoke the privilege and remain silent at some later 

point.” Ibid.

B.
24

Also germane to the issue before this Court is whether a 

defendant may be cross-examined on factual inconsistencies 

between his testimony at trial and his pretrial statement. Both 

federal and New Jersey jurisprudence establish guidelines for 

cross-examination of a defendant on such inconsistencies. In

Anderson v. Charles, the United States Supreme Court found that 

the holding in Doyle -- that a prosecutor cannot cross-examine a 

defendant on his post-arrest silence after being given Miranda

warnings -- “does not apply to cross-examination that merely 

inquires into prior inconsistent statements . . . because a 

defendant who voluntarily speaks after receiving Miranda

warnings has not been induced to remain silent.” 447 U.S. 404,

408, 100 S. Ct. 2180, 2182, 65 L. Ed. 2d 222, 226 (1980). 

Importantly, the Court went on to explain that, while “two 

inconsistent descriptions of events may be said to involve 

‘silence’ insofar as [one] omits facts included in the other 

version[,] . . . Doyle does not require any such formalistic 

understanding of ‘silence,’ and we find no reason to adopt such 

a view in this case.” Id. at 409, 100 S. Ct. at 2182, 65 L. Ed.

2d at 227.

Following Anderson, this Court decided Tucker. There, the 

defendant, Tucker, called 9-1-1 and reported that he had 

returned home to discover his mother’s dead body. Tucker, 

supra, 190 N.J. at 185. Upon questioning by the responding 
25

officer, Tucker stated that he last saw his mother two days 

earlier when he drove her home from the grocery store, before 

leaving to spend the weekend with his girlfriend. Ibid. The 

police then transported Tucker to police headquarters and 

administered Miranda warnings. Ibid. Around that time, Tucker 

reiterated the story about how he last saw his mother when he 

brought her home from the grocery store. Id. at 186.

Subsequent investigation revealed that Tucker’s mother made 

a check out to cash in the amount of $3000, and that she cashed 

a check at the local bank on the day that Tucker claimed to have 

brought her to the grocery store. Ibid. In a second interview 

with the police, Tucker was again read his Miranda rights. 

Ibid. Tucker then admitted that he took his mother to the bank, 

but stated that he waited for her in the car. Ibid. 

Surveillance tapes from the bank revealed that Tucker went 

inside the bank with his mother. Ibid. 

At trial, the State called attention to those 

inconsistencies during its direct examination of officers who 

questioned Tucker, and in its opening and closing statements. 

Id. at 187. Tucker argued that “under established law, facts 

omitted from a statement are the same as the exercise of the 

right to remain silent, and therefore, the omissions are not 

admissible for any purpose.” Id. at 188. We disagreed. Id. at 

189. 
26

We determined that the prosecutor’s use of inconsistencies 

between a pretrial statement and the defendant’s testimony --

the situation in Anderson -- is comparable to highlighting

inconsistencies in several statements given prior to trial --

the situation in Tucker -- because there is “no meaningful 

distinction between the two situations that would justify a 

different result.” Id. at 189-90. We also distinguished Tucker

from Muhammad, in that the defendant in Tucker did not remain 

silent but freely related different stories to the police. Id.

at 190. Thus, we held that “it is not an infringement of a 

defendant’s right to remain silent for the State to point out 

differences in the defendant’s testimony at trial and his or her 

statements that were freely given.” Id. at 189.

IV.

A.

We must now apply state and federal precedent to the issue 

before the Court: whether defendant invoked his right to remain 

silent by refusing to answer certain questions posed by police; 

and, if so, whether the prosecutor improperly commented on 

defendant’s silence by cross-examining him about details to 

which he testified on direct examination but omitted from his 

account given to police.

This Court has a strong tradition of protecting the right 

to remain silent. See, e.g., Deatore, supra, 70 N.J. at 115-17.
27

When a defendant invokes his or her right to remain silent, the 

interrogation must cease, at least until some time has lapsed 

and the defendant is reread his Miranda rights. Hartley, supra, 

103 N.J. at 266-67; see also Mosley, supra, 423 U.S. at 104-105, 

96 S. Ct. at 327, 46 L. Ed. 2d at 322. That being said, even if 

a defendant is successful in invoking his or her right to remain 

silent about a particular subject, this right is waived if the 

defendant discusses, of his or her own volition, that very topic

just moments later. Miranda, supra, 384 U.S. at 478, 86 S. Ct.

at 1630, 16 L. Ed. 2d at 726 (“Any statement given freely and 

voluntarily without any compelling influences is, of course, 

admissible in evidence.”); see also Bradley v. Meachum, 918 F.2d 

338, 343 (2d Cir. 1990) (“[The defendant] cannot be said to have 

invoked his fifth amendment right regarding his willingness to 

discuss his involvement in the crime because, in the same 

breath, he denied any involvement.”), cert. denied, 501 U.S.

1221, 111 S. Ct. 2835, 115 L. Ed. 2d 1004 (1991); United States 

v. Lorenzo, 570 F.2d 294, 298 (9th Cir. 1978) (“[I]n light of 

the willingness with which [the defendant] began to talk to the 

officers - and continued to do so after his failure to respond 

to a single question - he cannot be said to have invoked his 

right to remain silent.”). 

First, we hold that defendant waived his right to remain 

silent. Defendant was cognizant of his Miranda rights and 
28

clearly and unambiguously invoked his right to counsel when 

police originally administered Miranda warnings and again at the 

end of the interview. However, after first invoking his right 

to counsel, it was defendant who asked to speak with officers so 

that he could “tell [them] the truth.”

After acknowledging that he had fought with his brother, 

defendant avoided questions by saying “[a]h, let’s not talk 

about that part,” “we’ll forget about that part,” “it doesn’t 

matter,” and “I don’t remember.” By making those remarks at 

specific moments during the interrogation, defendant exhibited 

hesitation to provide police with some details about John’s 

death. Nevertheless, considered in context, defendant’s refusal 

to answer certain questions was not an attempt to end the 

dialogue, but rather was “part of an ongoing stream of speech,” 

which included information about the altercation and defendant’s 

family disputes. Meachum, supra, 918 F.2d at 342. 

Defendant discussed his conflicts with his brothers, his 

concern that they would kill him, and the guns in Anna’s house. 

Most importantly, defendant voluntarily provided details about 

the altercation that led to John’s death -- the very subject 

about which he previously said, “let’s not talk about that 

part.” For example, defendant explained that John threatened to 

kill him when he got to Anna’s house, that they “had a 

confrontation,” and that his injuries resulted from John’s 
29

biting him. In other words, defendant told investigators about 

his recollection of the altercation with John -- he thus spoke 

on that subject. 

Because we find that defendant waived his right to remain 

silent, cross-examination regarding facts to which he testified 

at trial, but omitted in his statement to police, was proper. 

See United States v. Fambro, 526 F.3d 836, 842 (5th Cir.) (“A 

defendant cannot have it both ways. If he talks, what he says 

or omits is to be judged on its merits or[] demerits, and not on 

some artificial standard that only the part that helps him can 

be later referred to.” (quoting United States v. Goldman, 563 

F.2d 501, 503 (1st Cir. 1977), cert. denied, 434 U.S. 1067, 98 

S. Ct. 1245, 55 L. Ed. 2d 768 (1978))), cert. denied, 555 U.S.

1050, 129 S. Ct. 625, 172 L. Ed. 2d 617 (2008); United States v. 

Donnat, 311 F.3d 99, 104-05 (1st Cir. 2002) (“Where the 

defendant elects to speak to the police and gives statements 

that he later contradicts at trial, a prosecutor’s inquiry into 

the defendant’s failure to give the exculpatory account before 

trial does not draw a negative inference from defendant’s 

decision to remain silent but rather from his prior inconsistent 

statement.” (emphasis added)); Agnellino v. New Jersey, 493 F.2d 

714, 730 (3d Cir. 1974) (Weis, J., concurring) (“A defendant who 

chooses to answer questions with half truths cannot claim 

constitutional protection to remain silent as to the other half. 
30

A complete answer to a question may be as inconsistent with a 

partial reply as one completely different in detail.” (emphasis 

added)). If a defendant elects to speak to the police and 

offers an account of what happened, then he has not remained 

silent -- he has spoken. Tucker, supra, 190 N.J. at 189 (“[I]t 

is not an infringement of a defendant’s right to remain silent 

for the State to point out differences in the defendant’s 

testimony at trial and his or her statements that were freely 

given.” (emphasis added)); see Agnellino, supra, 493 F.2d at 730

(Weis, J., concurring).

During interrogation, defendant claimed his injuries were 

caused by John biting him. Interrogators followed up by asking 

if “anything [was] used, other than [his] hands and [] fists,” 

to which defendant responded, “No. no.” Defendant’s story 

changed during his direct examination when he claimed John 

stabbed him in the arm with a screwdriver and he was forced to 

defend himself. Therefore, the State’s cross-examination sought 

to highlight the inconsistency between defendant’s statement to 

police during interrogation and his testimony on direct 

examination at trial. This inconsistency is a permissible area 

for cross-examination. 

Finally, as a result of our conclusion that defendant did 

not invoke his right to remain silent, we find that any error in
31

the trial court’s instruction to the jury, to which defendant 

did not object, was harmless. R. 2:10-2.

V.

For the reasons set forth above, the judgment of the 

Appellate Division is reversed, and defendant’s conviction is 

reinstated.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, 

PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’s

opinion.