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 - 5 8 - 1 5 ) ( 0 76798 ) Argued Octobe r 26 , 201 6 -- 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. D efendant was advised of his Miranda rights and he requested an attorney

. The officers stopped the interrogation and met with their supervisor. A fter approximately eighty min utes they returned to the interview room and advise d 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 waiv ed. 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 de fendant, 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 an d to evade answering questions directly. Several times throughout the interrogation defendant answered questions with “I don’t know.” W hen 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 invoc ation of the right to counsel. The court denied defendant’s suppression motion, and the case proceeded to trial. A t 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 objecte d , t he trial judge sustained th e 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

- defen se. On cross

- examination, o ver defense counsel’s objection, the prosecutor was permitted to question defendant about details defendant had testified to in his direct examination that contradict ed what he said in his post

- arrest statement to police. The p rosecutor 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 c ourt denied the motion but instructed the jur y 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 i ssued. This instructio n 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 co nviction 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 subje cts 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 Th e Court granted the State’s petition for certification. 224 N.J. 282 (2016). HELD : D efendant waived his right to remain silent and therefore the State permissibly questioned defendant on cross

examination about the inconsistencies between his post

- ar rest statement to police and his statement on direct

examination 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. I n 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). Th e 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 differen ces 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 un til 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. D efendant was cognizant of his Miranda rights and clearly and unambiguously invoked his right to counsel when police originally administered Miranda warnings. However, after first in voking 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.” C onsidered 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 includ ed information about the altercation and defendant’s family disputes. Most importantly, d efendant voluntarily provided details about the altercation that led to John’s death

— the very subject about which he previously said, “le t’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 polic e during interrogation and his testimony on direct examination. This inconsistency is a permissible area for cross

- examination. (p p . 29

- 30) 6

. Because defendant did not invoke his right to remain silent, any error in the trial court’s instruction to th e 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 L a VECCHIA , ALBIN, PATTERSON, FERNANDEZ VINA , 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 , At torney 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 Mirand a 1 rights. I f 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 highlight ing 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 stat ion 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 tha t 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
. Q uestioning ensued.
D uring defendant’s interrogation, he refused to answer certain questions about his altercation with John
. Instead, he pivot ed the conversation to other topics. Eventually, however, d efendant discussed details about the confrontation with , and death of , his brother . W hen asked how defendant felt about John’s death, he said he would “ rather [] just see a lawyer , ” and t he interrogation ended. Defendant was indicted for John’s murder and unsuccessful ly

mo ved to suppress his statement to police
. T he matter proceeded to trial , and d efendant testified on his own behalf. O ver defense counsel’s objection, the prosecutor was permitted to

cross - examine defendant about details of the incident he3

testified to in his direct examination but omitted from his post
- arrest statement to police
. The jury convicted d efendant 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 convicti on and remanded for a new trial. The panel found that the prosecutor’s cross

- examination of defendant was improper and violated defendant’s right agai nst self

- incrimination. Further, the panel held that the instructions given to the jury were fatally flawed. W e 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
. B ecause d efendant 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 direct

examination
. In light of this holding , w e find any error in the trial cou rt’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 eigh ty
- one - year - old mother, Anna, and serve d 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 lia ison between John and defendant and was defendant’s only

source of information about his mother’s deteriorating health. The day before John’s death, def endant 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, a ccording 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
. A fter the telephone conversation ended, defendant told his girlfriend that he was going to see his mot her and left the house
. Def endant returned home thirty minutes later with blood on his5

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 l ying in the driveway
. Police arrived shortly thereafter and observ ed John l ying face

- down in the driveway, with blood splatter, a leaf blower, and pieces of brick near his body. John was pro nounced dead at the scene by emergency medical
pe rsonnel
. 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 officer s 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. T he 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 cou ld speak with the investigators , stating “I’m gonna tell you the tr uth
. ” 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 t oday”

-- the day of John’s death

-- defendant responded, “A h, 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 , “ L ike I said, we’ll forget about that part. He’s not a good person [,] believe me. ”
D efendant 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.
D efendant 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 confronta tion 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. H e’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 what ever, 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 s aid 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 wit h 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.” Defendan t responded, “I’d rather uh just see a lawyer. That’s all. Ok, thanks.” The interview concluded with defendant saying , “P ut 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 testimo ny from Investigator Trillhaase and viewed the videotape of defendant’s interview with Investigator Trillhaase and Detective Duffy. The co urt 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 3 0? And he never says

-- Defense counsel moved for a mistria l, contending that the State improperly commented on defen dant’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 objecti on but held that if defendant testified, the prosecutor would be permitted to

cross - examine him on inconsistencies between his trial testimony and statem ents to police. Defendant elected to testify on h is 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. Defenda nt confirmed
that he went to his m other’s house on the day of John’s death
.11

He said that he intend ed 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.
D efendant testified that John said , “No you’re not,” then pushed

an d hit defendant. By defendant’s account, John bit defendant during their altercation and stabbed him with a screwdriver in his left arm. Th ey then both grabbed bricks from a pile and swung the m at each other
. Following defendant’s direct testimony, the trial judge discussed with counsel the proper limits of cross

- examination. The prosecutor argued that on c e a person waives his or her Miranda rights, any post

- Miranda silence is subject to cross

examination or comment. The judge allowed the prosecutor to “use anything that [defendant] said [on direct] against him if [it] contradict s what he said in his statement ” to police. The judge also instructed that “almost ever ything that [defendant] said as to what happ ened on that date is attackable ” but that

non - responsive answers to the police could not be raised.
Al though defendant’s pretrial motion to suppress his statement to police had been denied, defense counsel respo nded that the “entire statement was essentially a very long invocation of the12

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, t he prosecutor focused on details that defendant testified to on direct examination but failed to mention to police during his post

arrest interrogation. 3

[STATE:] Let me get this straight, sir. You’re now saying that some kind of s crewdriver 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

D espite 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

- a half 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 weapon s 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 . T he prosecutor then continued as follows:

[STATE:] So back on April 30 th , you tell the police “We just had an argument.” Right? [DEFENDANT:] Uh

- huh. [STATE:] Toda y 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 ask ed you what happened when you go t 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 go t 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 tri al 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 a nd that invoking his right to15 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 st atement 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 advise d that defendant’s silence could be used for impeachment purposes
. To fix this error, d efense counsel requested a limiting instruction. T he tria l 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 char ge. 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 conviction s 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 prosecut or’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

an swer certain questions
. It reasoned that, accordingly , the statements could not be used for any purpose, including imp eachment. 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 Sta te’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 in17

writing, and proceed ed to speak to the detectives. Relying on this Court’s decision in State v. Tucker , 190 N.J. 18 3 (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 A ttorney General contends that “[t]hi s 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 A ttorney General , defendant’s decision to select the
de gree 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 A ttorney General argues that, b y 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 ab out the events that took place leading up to John’s death
. I f prosecutors are not permitted to question a defendant about omissions and inconsistencies between a post
- Miranda stateme nt and in

- court testimony, the A ttorney 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 A ttorney General also maintains that a ny 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.” Ther efore, 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 si lent is rendered “illusory” if the State19

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 per mitted 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, 1 03

- 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. Hart ley , 103 N.J. 252, 260 (1986) ( quo ting In re Martin , 90 N.J. 295, 331 (1982)); N.J.R.E . 501, 502, 503. Furthermore, “[o]ur state

- law privilege against self

incrimination offers broader protection than its federal20

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. C t. 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. I bid. Relying on evidentiary rather than constitutional grounds, the Court found that the risk of unfair p rejudice 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 te stimony was a later fabrication, ” i d. at 177, 95
S. Ct. at 2137, 45 L. Ed. 2d at 105. A year later, this Court considered a similar question in
St ate v. Deatore and held that , “whether or not the defendant received his Miranda warnings,” 70 N.J. 100 , 117 n.10 (1976) , a21

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 si milar

c onclusion, this time on c onstitutional grounds, in Doyle v. Ohio , 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976) . T he
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 reaso ning 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 cross

examination of the defendant and in summation, that the defendant failed to mention a screwdriver to officers who first22

responded t o 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
Dea tore , supra , 70 N.J. at 117 n.10).
T his 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 s he 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 arriv al at Paterson police headquarters , the defendant t old the sergeant on duty that the victim was brought in because she had harass ed the defendant’s siblings.
Id. at 560. T he victim interrupted , accused the defendant of lying, told the sergeant she had been ra ped, and produced the23

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 t hat the victim was a
pro stitute and the sex was consensual. Id. at 562. I n 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 wit h [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. E xplain ing 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 a rrest does not waive his right against self

incrimination 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 g ermane 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 o f 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. C t. 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 report ed that he had returned home to discover his mother’s dead body. Tucker , supra , 190 N.J . at 18 5
. Upon questioning by the responding25

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. I bid
. Around that time, Tucker reiterated the story about how he last saw his mother whe n he brought her home from the grocery store. Id. at 18 6
. 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 t he 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 office rs who questioned Tucker , and in its opening and closing statements.
Id. at 18 7
. 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 1 8 8
. W e disagreed. Id. at 18 9.26

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
. I d. 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 test imony at trial and his or her
statem ents that were freely given.” Id. at 189.
IV.
A.
We must now apply state and federal precedent to the iss ue before the Court: w hether 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 tes tified on direct examination but omitted f rom his account given to police.
T his Court has a strong tradition of protecting the right to remain silent
. S ee, e.g. , Deatore , supra , 70 N.J. at 115

- 17
.27

When a defendant invokes his or her right to remain silent , the interrog ation 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, e ven if
a defendant is successful in invoking his or her right to remain silent about a particu lar 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. ”); s ee also Bradley v. Meachum , 918 F. 2d 338, 3 43 (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 Stat es
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 invo ked his right to remain silent.”). First, we hold that defendant waived his right to remain silent
. D efendant was cognizant of his Miranda rights and28

clearly and unambiguously invoked his right to counsel when police originally administered Miranda warni ngs 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 a voided questions by saying “[a]h, let’s not talk about that part,” “we’ll fo rget 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 discuss ed his conflicts with his brothers, his
concern that the y would kill him, and the guns in Anna’s house
. Most important ly, 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 t o Anna’s house, that they “had a confrontation,” and that his injuries resulted from John’s29

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 nega tive 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 w ith 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)). I f 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)); s ee Agnellino , supra , 493 F. 2d at 730 ( Weis, J., concurring)
. D uring 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 examina tion 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 te stimony 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 in31

the trial court ’s instruct ion 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 L a VECCHIA , ALBIN, PATTERSON, FERNANDEZ
- VINA , and TIMPONE join in JUSTICE SOLOMON’s opinion.