1 

SYLLABUS 

This syllabus is not part of the Court’s opinion. 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 

Court. In the interest of brevity, portions of an opinion may not have been summarized. 

State v. Laura Gonzalez (A-47-20) (085132) 

Argued October 26, 2021 -- Decided February 8, 2022 -- Revised August 8, 2022 

SOLOMON, J., writing for a unanimous Court. 

 The Court considers whether defendant Laura Gonzalez invoked her right to 

counsel during a police interview and whether certain evidence should have been 

suppressed as a result. The Court also considers defendant’s challenges to other 

evidentiary determinations and jury instructions by the trial court. 

 In January 2017, Seth and Lisa B. hired defendant as an in-home nanny. On 

Thanksgiving morning that year, their son Tommy, who was less than a year old, cried 

whenever his leg was touched. The parents brought Tommy to a pediatrics office, where 

Dr. Aliah Khan noted that Tommy had two bone fractures and insisted that the parents 

take him to the hospital, where a third fracture was discovered. Detective Iris Reyes of 

the Somerset County Prosecutor’s Office met the parents at the hospital and interviewed 

them about Tommy’s injuries. Detective Reyes interviewed defendant at the Somerset 

County Prosecutor’s Office a few days later. 

 Defendant agreed to provide a videotaped statement after waiving her Miranda 

rights. Defendant initially denied any responsibility for Tommy’s injuries. As the 

interview continued, however, Detective Reyes told defendant that video surveillance 

cameras in the home captured footage of her interactions with Tommy; in truth, no 

cameras existed in the home. 

 During the interview, before defendant made any incriminating statements, 

Detective Reyes stated that if defendant lied, “[t]he situation is going to get worse.” 

Defendant then asked, “But now what do I do about an attorney and everything?” 

Detective Reyes responded, “That is your decision. I can’t give you an opinion about 

anything,” and added that defendant would “have a better option by telling the truth.” 

 Eventually, defendant acknowledged that she was “full of anger” and admitted to 

shaking, swinging, hitting, suffocating, and throwing Tommy. Near the end of the 

interview, Detective Reyes asked defendant if she wanted to write the B. family a note. 

Defendant agreed and wrote a note in which she described herself as a monster and 

expressed “hope God forgive[s] me and all that I did.” 
2 

 Defendant was charged with endangering and aggravated assault. Before trial, 

defendant moved to suppress portions of her statement to Detective Reyes and the note to 

the parents, arguing that both were made after she invoked her right to counsel. 

Following a Miranda hearing, the court denied defendant’s motion. 

 At trial, the State played defendant’s recorded statement, read the note aloud, and 

provided the jury with a transcript of defendant’s statement. Also relevant to this appeal 

were statements made during trial by Lisa and Seth over defense counsel’s objections, 

and the testimony of Dr. Gladibel Medina, the State’s expert in general pediatrics with a 

subspecialty in child abuse pediatrics. 

 Specifically, on direct examination, Lisa testified that upon discovering the 

fracture of Tommy’s left leg, Dr. Khan told her that “it was clear child abuse.” Then Lisa 

was asked whether Dr. Khan told her anything about the fracture. Defense counsel 

objected, but the court found that the hearsay statements were admissible as statements 

made for purposes of medical diagnosis or treatment under N.J.R.E. 803(c)(4). In 

response to the question, Lisa testified that she was told the abuse was intentional. 

Following Lisa’s cross-examination, the court instructed the jury that the statements by 

Dr. Khan to which Lisa testified “were admitted not for the truth of the matter asserted 

but to explain the actions that this witness took subsequent to hearing those statements.”

 Seth B. then testified that Dr. Khan told him, “This is, basically, textbook child 

abuse.” Defense counsel objected at side bar, and the court agreed to strike Seth’s 

testimony and instructed the jury that the quote could not be considered by the jury in any 

deliberations; the jurors responded that they could follow those instructions. 

 Dr. Medina testified as the State’s expert in pediatrics with specialized knowledge 

in child abuse. When asked whether she had an opinion “within a reasonable degree of 

medical certainty” as to what caused the injuries to Tommy’s right femur, Dr. Medina 

testified that “the only mechanism of trauma that was reported on the records” was the 

description by defendant in her interview of what she had done to Tommy. Dr. Medina 

testified that Tommy’s injuries could have been caused by the actions defendant 

described and that those actions were not consistent with “normal caregiving activity.” 

 The jury found defendant guilty of endangering the welfare of a child and of 

simple assault. Defendant appealed, and the Appellate Division affirmed both the trial 

court’s decision to deny defendant’s motion to suppress and the trial court’s rulings as to 

the disputed testimony at trial. The Court granted certification, 245 N.J. 466 (2021), 

limited to whether defendant’s statement and letter of apology should have been 

suppressed because defendant sufficiently invoked her right to counsel, as well as 

whether the trial court erred in admitting testimony by Dr. Medina regarding ordinary 

caregiving; in admitting testimony by Seth and Lisa as to what Dr. Khan told them; and 

in the form of its cautionary instruction regarding hearsay testimony by Seth. 
3 

HELD: Defendant’s question about the attorney was an ambiguous invocation of her 

right to counsel. Under settled New Jersey law, see, e.g., State v. Reed, 133 N.J. 237, 

253 (1993), the detective was required to cease questioning and clarify whether defendant 

was requesting counsel during the interview. Because the State played defendant’s 

recorded statement at trial and read the apology note -- written at the detective’s 

suggestion -- to the jury, the error in failing to suppress that evidence was harmful. The 

Court also finds plain error in the trial court’s admission of certain challenged evidence, 

and it provides guidance for the proceedings on remand. 

1. If a person subject to custodial interrogation “states that he wants an attorney, the 

interrogation must cease until an attorney is present.” Miranda v. Arizona, 384 U.S. 436, 

474 (1966). “The United States Supreme Court has drawn a strict line to identify what 

will qualify as a request for counsel.” State v. Alston, 204 N.J. 614, 620 (2011). Under 

the federal bright-line rule, officers must stop questioning a suspect only when the 

suspect’s request for counsel is “unambiguous or unequivocal.” Davis v. United States, 

512 U.S. 452, 461-62 (1994). If a suspect makes an ambiguous or equivocal statement 

regarding the right to counsel, officers are under no obligation to stop questioning him. 

Id. at 462. (pp. 16-17) 

2, In State v. Chew, the New Jersey Supreme Court rejected the standard enunciated in 

Davis and continued to require, in accordance with state precedent, that interrogators 

conduct an appropriate inquiry into a suspect’s ambiguous invocation of the right to 

counsel. 150 N.J. 30, 63 (1997). Under New Jersey’s more flexible approach, a suspect 

need not be articulate, clear, or explicit in requesting counsel; any indication of a desire 

for counsel, however ambiguous, will trigger entitlement to counsel. The Court provided 

guidance in Alston and reaffirmed that, in situations where “a suspect’s statement 

‘arguably’ amount[s] to an assertion of Miranda rights,” conducting a follow-up inquiry 

is the only way to ensure that a suspect’s waiver of their right was knowing and 

voluntary. 204 N.J. at 621-23. The Court instructed that where the suspect’s “statements 

are so ambiguous that they cannot be understood to be the assertion of a right, 

clarification is not only permitted but needed.” Id. at 624. The Alston Court noted, 

however, that officers are under no obligation to give a suspect advice about whether he 

should assert any of his rights. Id. at 628. (pp. 17-20) 

3. Here, defendant’s first mention of counsel, “[b]ut what do I do about an attorney and 

everything?” was an ambiguous invocation of her right to counsel that required the 

detective to cease all questioning and seek clarification. Defendant did not seek an 

opinion about whether she should have a lawyer present, but rather inquired about the 

availability of counsel. Additionally, defendant’s query made it unclear whether she 

wanted an attorney present at that time or in the future. Thus, defendant’s statement was 

“arguably” a request for counsel. Although the detective was under no obligation to give 

defendant any advice about obtaining counsel, she was required to cease the interrogation 

and ask follow-up questions to clarify defendant’s obstruse statement regarding counsel. 
4 

Because the detective made no further inquiry, all portions of defendant’s statement made 

thereafter, as well as defendant’s note of apology to the parents, should have been 

excluded at trial; admitting the evidence was plain error. (pp. 20-22, 28) 

4. With respect to the testimony by Dr. Medina, an expert witness may not base 

testimony on inadmissible evidence. Here, Dr. Medina relied on inadmissible evidence 

from defendant’s statement in forming her opinion as to how Tommy developed his 

injuries. The admission of her testimony constituted plain error, requiring reversal. 

Further, Dr. Medina, an expert in general pediatrics with a subspecialty in child abuse 

pediatrics, should not have been permitted to opine on the obvious when noting that 

“normal caregiving” doesn’t involve throwing or pulling a child’s legs, because that is a 

subject within the ken of the average juror. (pp. 23-25) 

5. Turning to the hearsay testimony of Lisa and Seth about what Dr. Khan told them, 

N.J.R.E. 803(c)(4) admits hearsay testimony that is “reasonably pertinent to . . . medical 

diagnosis or treatment” and describes “past or present symptoms or sensations; their 

inception; or their general cause.” In a case such as this, the rule is directed at patients 

and cannot be used to introduce hearsay statements by physicians. Further, N.J.R.E. 

803(c)(4) does not permit testimony as to the cause of physical symptoms. N.J.R.E. 

803(c)(4) does not apply here, and the trial court abused its discretion by admitting Lisa’s 

hearsay statement about what Dr. Khan said. Conversely, the trial court promptly struck 

Seth’s testimony that Dr. Khan told him “[t]his is, basically, textbook child abuse,” and 

issued “firm, clear, and prompt” curative instructions. (pp. 25-28) 

REVERSED and REMANDED to the trial court. 

 JUSTICE ALBIN, concurring, joins the opinion of the Court in full but writes to 

highlight the use of lies by Detective Reyes during the interrogation. First, Detective 

Reyes told defendant that telling the truth would help her and similar statements that 

flatly contradicted the Miranda warnings. Justice Albin stresses that, although defense 

counsel did not raise the issue, that is a clear violation of the Court’s jurisprudence. See

State v. L.H., 239 N.J. 22, 47-48 (2019). Second, Detective Reyes told defendant that 

surveillance cameras captured her conduct although there were no cameras in the home. 

Justice Albin raises questions about the Court’s current jurisprudence, which “gives 

officers leeway to tell some lies during an interrogation,” see id. at 44, and expresses the 

view that the Court will have to decide, when the issue is fully presented, whether the 

continued use of lies and trickery is a constitutionally permissible practice -- whether it is 

a principled and sufficiently reliable means of inducing a truthful confession from a 

suspect. 

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, 

FERNANDEZ-VINA, and PIERRE-LOUIS join in JUSTICE SOLOMON’s 

opinion. JUSTICE ALBIN filed a concurrence.
1

SUPREME COURT OF NEW JERSEY

A-47 September Term 2020

085132

State of New Jersey,

Plaintiff-Respondent,

v.

Laura Gonzalez,

Defendant-Appellant.

On certification to the Superior Court, 

Appellate Division.

Argued

October 26, 2021

Decided

February 8, 2022

Revised

August 8, 2022

Margaret McLane, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, Public 

Defender, attorney; Margaret McLane, of counsel and on 

the briefs, and Richard Sparaco, Designated Counsel, on 

the briefs).

Steven K. Cuttonaro, Deputy Attorney General, argued 

the cause for respondent (Andrew J. Bruck, Acting 

Attorney General, attorney; Steven K. Cuttonaro, of 

counsel and on the briefs, and Paul H. Heinzel, Assistant 

Somerset County Prosecutor, on the briefs).

Joseph Hayden argued the cause for amicus curiae

Association of Criminal Defense Lawyers of New Jersey 

(Pashman Stein Walder Hayden, attorneys; CJ Griffin, on 

the brief).
2 

Lauren Gottesman, of the New York bar, admitted pro 

hac vice, argued the cause for amicus curiae The 

Innocence Project (Dechert, attorneys; Lauren 

Gottesman, of counsel and on the brief, J. Ian Downes, 

Rose Marie Wong, of the Pennsylvania bar, admitted pro 

hac vice, Arif H. Ali, of the New York and District of 

Columbia bars, admitted pro hac vice, and Lindsay N. 

Zanello, of the New York bar, admitted pro hac vice, on 

the brief). 

JUSTICE SOLOMON delivered the opinion of the Court.

In 2017, police questioned defendant Laura Gonzalez -- after providing 

her with her Miranda warnings1 -- in connection with the discovery that the 

infant for whom she served as a nanny, Tommy2, had two fractures in his right 

leg and one in his left. In the middle of the interview, defendant asked, “But 

now what do I do about an attorney and everything?” Rather than seek 

clarification, the interviewing detective merely advised defendant, “That is 

your decision. I can’t give you an opinion about anything.” Ultimately, 

defendant admitted to abusing Tommy and, at the interviewing detective’s 

suggestion, wrote his parents an apology note. 

1

 Miranda v. Arizona, 384 U.S. 436 (1966).

2

 We continue the Appellate Division’s use of a pseudonym to protect the child 

victim.
3 

Defendant was charged with endangerment and aggravated assault. She

moved to suppress portions of her statement and the note, arguing that she 

invoked her right to counsel during her interview. The trial court denied 

defendant’s motion, reasoning that defendant’s statement did not rise to the 

level of being an assertion of her right to counsel -- not even an ambiguous 

assertion of that right, which triggers a duty for the interviewing officer to 

seek clarification under New Jersey law. State v. Reed, 133 N.J. 237, 253 

(1993). The jury found defendant guilty of second-degree endangering the 

welfare of a child and simple assault. 

Defendant appealed, challenging the denial of her suppression motion, as 

well as certain evidentiary determinations and jury instructions by the trial 

court. The Appellate Division affirmed defendant’s conviction.

We now reverse the judgment of the Appellate Division and remand the

matter for further proceedings. We conclude that defendant’s question about 

the attorney was an ambiguous invocation of her right to counsel and that, 

under settled New Jersey law, see, e.g., ibid., the detective was required to 

cease questioning and clarify whether defendant was requesting counsel during 

the interview. And, because the State played defendant’s recorded statement 

at trial and read the apology note -- written at the detective’s suggestion -- to 

the jury, we find the error to be harmful. We also find plain error in the trial 
4

court’s admission of certain challenged evidence, and we provide guidance for 

the proceedings on remand.

I.

In January 2017, Seth and Lisa B. hired defendant as an in-home nanny 

to help care for their son. At that time, Lisa was pregnant with the couple’s 

second child, Tommy, who was born a month later. Lisa returned to work in 

the spring of 2017, and defendant was then home alone with the two children 

while the parents were at work. 

In October 2017, the couple noticed Tommy favoring his right leg. 

Approximately one month later, while Lisa was away on business, Seth told 

her Tommy was crying more than usual and did not seem himself. Defendant 

also expressed concerns over Tommy’s behavior. When Lisa returned from 

her trip, she and Seth took Tommy to his pediatrician and an orthopedist. 

Neither doctor detected any issues with Tommy. 

On Thanksgiving morning, Tommy cried hysterically whenever Lisa 

tried to pick him up or touch his leg. Later that day, the parents traveled to 

Long Island to visit family, and, while there, took Tommy to a pediatrics 

office, where he was seen by Dr. Aliah Khan. An x-ray revealed a fracture of 

Tommy’s right femur, which Dr. Khan treated with a splint. After the parents 

returned to their family’s home in Long Island, Dr. Khan called and advised 
5 

them that Tommy’s left tibia revealed a “corner fracture,” and that he had 

notified the New York Department of Child Protection Services. Dr. Khan

insisted that the parents take Tommy to the hospital. 

The couple took Tommy to Morristown Memorial Hospital where further 

testing revealed a third, healing fracture of Tommy’s right tibia. The New 

Jersey Department of Child Protection and Permanency (DCPP) was notified; 

DCPP, in turn, notified the Somerset County Prosecutor’s Office. Detective 

Iris Reyes of the Somerset County Prosecutor’s Office met the parents at the 

hospital and interviewed them about Tommy’s injuries. Detective Reyes

interviewed defendant at the Somerset County Prosecutor’s Office a few days 

later.3

 

Detective Reyes advised defendant of her Miranda rights in English 

before switching to Spanish. Defendant also received and signed a Miranda

form written in Spanish. Defendant agreed to provide a videotaped statement 

after waiving her Miranda rights. 

Defendant initially denied any responsibility for Tommy’s injuries. As 

the interview continued, however, Detective Reyes told defendant that video 

surveillance cameras in the home captured footage of her interactions with 

3

 Detective Reyes speaks Spanish fluently and conducted the interview 

primarily in Spanish. Defendant’s statement was later translated into English. 
6

Tommy; in truth, no cameras existed in the home. During the interview, 

before defendant made any incriminating statements, the following colloquy 

occurred:

Detective Reyes: I don’t know what could happen. 

And I’m not going to lie to you[,] but yes[,] I can say 

that if you lie --

Defendant: Uh-humm.

Detective Reyes: The situation is going to get worse.

Defendant: But now what do I do about an attorney and 

everything?

Detective Reyes: That is your decision. I can’t give 

you an opinion about anything.

Defendant: Yes, but --

Detective Reyes: The only thing I can say to you is, 

that telling the truth --

Defendant: Uh-humm.

Detective Reyes: You will have a better option by 

telling the truth.

Defendant: Ok.

Detective Reyes: Than lying.

Defendant: No, there is nothing else, [Detective]. 
7

After, Detective Reyes suggested defendant was supplying information 

“little piece by little piece,” and the following colloquy ensued:

Defendant: You’re going to help me with an attorney.

Detective Reyes: I’m going to help you with an 

attorney? Or no --

Defendant: Yes, (inaudible).

Detective Reyes: Oh no, that is your decision what you 

want to do.

. . . .

Defendant: I don’t know I need you to guide me, I am 

honest, I don’t know.

Detective Reyes: I can’t guide you, all that [I] want is 

to know what happened to the boy. And I can see that 

you are not helping. 

Defendant acknowledged that she was “full of anger” and admitted to 

shaking Tommy aggressively, swinging him to get him to stop crying, hitting 

him in the head, suffocating him with her hands, and pulling his legs out from

under the highchair whenever he did not sit properly. Defendant also admitted 

to throwing Tommy onto his play mat and throwing water over his face. Near 

the end of the interview, Detective Reyes asked defendant if she wanted to 

write the B. family a note. Defendant agreed and wrote the following:
8 

Lisa, I’m so sorry about what happened. I never been 

happy in your home. I stayed because I have a family 

to feed and to -- me, too. I never thought to been in the 

monster -- monster that I transformed. My life will 

never be the same and yours, either. I hope God forgive 

me and all that I did. It’s no apology that can change 

that but I hope that you can understanding I never feel 

like family.

The interview concluded shortly thereafter.

Later, a Somerset County indictment charged defendant with seconddegree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2), and seconddegree aggravated assault, N.J.S.A. 2C:12-1(b)(1).

Before trial, defendant moved to suppress portions of her statement to 

Detective Reyes and the note to the parents, arguing that both were made after 

she invoked her right to counsel. Following a Miranda hearing, the court 

denied defendant’s motion to suppress, finding that defendant did not 

equivocally invoke her right to an attorney at any point during the interview. 

The court further reasoned that because defendant only requested advice on 

how to obtain a lawyer and never made an ambiguous assertion of her right to 

counsel, Detective Reyes was not obliged to clarify whether defendant wanted 

an attorney. 

At trial, the State played defendant’s recorded statement, read the note 

aloud, and provided the jury with a transcript of defendant’s statement 
9

translated into English. Also relevant to this appeal were statements made 

during trial by Lisa and Seth over defense counsel’s objections, and the 

testimony of Dr. Gladibel Medina, the State’s expert in general pediatrics with 

a subspecialty in child abuse pediatrics. 

Specifically, on direct examination, Lisa testified about what occurred 

the day she and Seth brought Tommy to be examined by Dr. Khan. Lisa 

testified that upon discovering the fracture of Tommy’s left leg, Dr. Khan told 

her that “the Department of Child Protection Services had been called because 

it was clear child abuse.” Then, when Lisa was asked whether Dr. Khan told 

her anything about the fracture, defense counsel objected on hearsay grounds. 

The court overruled the objection, finding that the hearsay statements 

were admissible as statements made for purposes of medical diagnosis or 

treatment under N.J.R.E. 803(c)(4). In response to the question, Lisa testified 

that “[t]hey said the way it was done was intentional. There is no way that 

there is an accident. [Ninety-nine] percent of the cases of this was intentional 

abuse.” Following Lisa’s cross-examination, the court instructed the jury as 

follows:

[Y]ou heard from this witness . . . regarding certain 

statements that Doctor Khan gave to her.

[T]hose statements were admitted not for the truth of 

the matter asserted but to explain the actions that this 
10

witness took subsequent to hearing those statements 

from Doctor Khan, as for any steps she may have taken 

included, but not limited to, . . . for treatment of 

[Tommy].

So they were not admitted for the truth of the matter 

asserted or the statements asserted.

Seth B. then testified that after Dr. Khan informed him that Tommy had 

another fracture, Seth asked whether the crib could be responsible for 

Tommy’s injuries. Seth then testified that Dr. Khan responded, “no, this is not 

a crib. This is, basically, textbook child abuse.” Defense counsel objected at 

side bar, and the court agreed to strike Seth’s testimony and gave the following 

instruction to the jury:

[Y]ou just heard from this witness regarding what he 

quoted as textbook child abuse. That answer is 

stricken. You are not to consider it in any of your 

deliberations. It is purely hearsay. It is an opinion that 

he is not qualified to give nor is he qualified to tell you 

what someone else said. You are not to consider that at 

all. It is stricken from the record.

The judge then asked the jurors if they could follow his instructions, to which

the jury responded in the affirmative.

Dr. Medina testified as the State’s expert in pediatrics with specialized 

knowledge in child abuse. When asked whether she had an opinion “within a 

reasonable degree of medical certainty” as to what caused the injuries to 

Tommy’s right femur, Dr. Medina testified that
11

the only mechanism of trauma that was reported on the 

records that I reviewed was provided by the other 

caregiver, who was the nanny in the home, where she 

reported that she had pulled on the child’s leg, thrown 

the child across 2 to 3 feet, hit the child. All of that 

may involve twisting-type forces, depending on how 

the infant is handled. Of course, all of that is handling

of an infant beyond routine caregiving. So that 

mechanism, potential mechanism, could have caused a 

. . . twisting-type force applied to his extremity to cause 

the right femur to spiral fracture.

When asked whether she had an opinion as to what caused the injuries to 

Tommy’s left tibia, Dr. Medina said that the “mechanism provided by the 

nanny . . . of pulling the legs and throwing the child could definitely account 

for the fracture and the symptoms that he experienced during that period of 

time.” 

Lastly, when asked whether she had an opinion about what caused the 

injuries to Tommy’s right tibia, Dr. Medina responded that

[t]he injury . . . is consistent with trauma . . . and the 

nanny, again, provided a history, not of when the 

incidents occur[red], but that while caring for this child 

she had thrown the child, hit the child, pulled on his 

legs, and that fracture could have happened by that 

mechanism of trauma that was provided by that 

caregiver.

. . . .

[N]ormal caregiving activity does not involve pulling, 

twisting, -- or, of course, not throwing -- of a child in 
12

that manner. Routine caregiving, changing diapers, 

dressing the kid, etc., is not physically harmful to the 

child . . . . Routine infant handling does not break bones 

in an infant, and that is why you know that the forces 

described by the third caregiver are beyond what was 

required for handling in this case.

Defense counsel did not object at trial to any of the above testimony from Dr. 

Medina.

The jury found defendant guilty of second-degree endangering the 

welfare of a child and not guilty of second-degree aggravated assault but guilty 

of the lesser-included offense of simple assault. Defendant was sentenced to

nine years in prison on the endangering count and a concurrent term of onehundred-eighty days’ imprisonment on the simple assault count.

II.

Defendant appealed, and the Appellate Division affirmed both the trial 

court’s decision to deny defendant’s motion to suppress and the trial court’s 

rulings as to the disputed testimony at trial. In doing so, the court relied on its 

opinion in State v. Messino, 378 N.J. Super. 559, 573, 578 (App. Div. 2005), 

where it held that the suspect’s question to police -- “Do you think I need a 

lawyer?” -- did not amount to even an ambiguous request for a lawyer. Ibid. 

As to the testimony elicited during trial, the court found that the trial 

court properly allowed Lisa to testify under N.J.R.E. 803(c)(4) that Dr. Khan
13

said Tommy’s fracture was “clear child abuse,” especially in light of the trial 

court’s curative instruction limiting the jury’s use of the information. The 

Appellate Division further concluded that the trial court properly struck Seth’s 

inadmissible statements and issued a proper curative instruction. As to Dr. 

Medina’s testimony, the court found her statements to be proper under 

N.J.R.E. 704. The Appellate Division also noted “that to the extent 

inadmissible evidence was heard by the jury . . . none of the testimony raise[d] 

a reasonable doubt that its admission led the jury to a result it otherwise would 

not have reached.”

We granted defendant’s petition for certification, 245 N.J. 466 (2021), 

limited to whether defendant’s statement and letter of apology should have 

been suppressed because defendant sufficiently invoked her right to counsel, 

as well as whether the trial court erred in admitting testimony by Dr. Medina 

regarding ordinary caregiving; in admitting testimony by Seth and Lisa as to 

what Dr. Khan told them; and in the form of its cautionary instruction 

regarding hearsay testimony by Seth. We granted leave to participate as amici

curiae to the Association of Criminal Defense Lawyers of New Jersey (ACDL)

and the Innocence Project. 
14

III.

Defendant asks this Court to reverse the Appellate Division’s decision 

denying her motion to suppress portions of her statement. The essence of 

defendant’s and amici’s argument is that defendant’s statements amounted to 

an ambiguous request for counsel, triggering defendant’s right to have the 

interrogation cease and requiring Detective Reyes to clarify whether defendant 

was indeed invoking her right to counsel. 

Defendant further contends that Dr. Medina wrongfully offered her 

opinion on defendant’s guilt. Additionally, amici assert that the trial court 

denied defendant her right to a fair trial because opinion evidence on the 

ultimate issue of child abuse invaded the province of the jury. Lastly, 

defendant argues that Dr. Medina’s expert opinion that “normal caregiving 

does not cause fractures simply stated the obvious and was not beyond the ken 

of the jury.” 

The State claims that the totality of the circumstances demonstrate that 

defendant’s mention of an attorney was not an equivocal request for counsel. 

Rather, according to the State, defendant was merely asking for guidance on 

how to obtain an attorney for subsequent proceedings. The State further 

contends that Dr. Medina’s testimony did not improperly usurp the province of 

the jury. Additionally, the limiting instruction following Lisa’s testimony 
15

adequately instructed the jury not to consider her testimony for its truth, but

rather to show the steps taken to treat Tommy. Lastly, the State argues that the 

trial court properly remedied Seth’s inadmissible testimony with a curative 

instruction.

IV.

We begin by considering defendant’s motion to suppress. We conclude 

that it should have been granted because defendant had ambiguously invoked 

her right to counsel, triggering the interviewing officer’s duty to seek 

clarification and to end the interview if necessary.

A.

Defendant’s suppression motion relies upon “[t]he right against selfincrimination . . . guaranteed by the Fifth Amendment to the United States 

Constitution and this state’s common law, now embodied in statute, N.J.S.A. 

2A:84A-19, and evidence rule, N.J.R.E. 503.” State v. A.M., 237 N.J. 384, 

396 (2019) (quoting State v. S.S., 229 N.J. 360, 381-82 (2017)). We recognize 

that our review requires that we “defer to the factual findings of the trial court

. . . supported by sufficient evidence in the record,” because a trial court’s 

decision is influenced by the opportunity to hear and see the witnesses. State 

v. Hubbard, 222 N.J. 249, 262 (2015). However, because the issue here turns 

on a question of law, we review it de novo. Id. at 263. 
16

Our review begins with the constitutional safeguards established by the 

United States Supreme Court to ensure that a person subject to custodial 

interrogation is “adequately and effectively apprised of his rights.” Miranda v. 

Arizona, 384 U.S. 436, 467 (1966). In the absence of those “[p]roper 

safeguards the process of in-custody interrogation of persons suspected or 

accused of crime contains inherently compelling pressures.” Ibid. 

Hence, where an “individual indicates in any manner, at any time prior 

to or during questioning, that he wishes to remain silent, the interrogation must 

cease.” Id. at 473-74. Similarly, “[i]f the individual states that he wants an 

attorney, the interrogation must cease until an attorney is present.” Id. at 474. 

“The United States Supreme Court has drawn a strict line to identify 

what will qualify as a request for counsel.” State v. Alston, 204 N.J. 614, 620 

(2011); see Smith v. Illinois, 469 U.S. 91, 95 (1984) (noting the Fifth 

Amendment right to counsel is a “rigid prophylactic rule” (internal quotation 

marks omitted)). Under the federal bright-line rule, officers must stop 

questioning a suspect only when the suspect’s request for counsel is 

“unambiguous or unequivocal.” Davis v. United States, 512 U.S. 452, 461-62 

(1994). However, if a suspect makes an ambiguous or equivocal statement 
17

regarding the right to counsel, officers are under no obligation to stop 

questioning him. Id. at 462.4

Our disengagement from the United States Supreme Court’s “bright line 

rule” began with State v. Wright, 97 N.J. 113 (1984), decided before the U.S. 

Supreme Court’s decision in Davis. In Wright, we held that a suspect’s 

statement that, “I won’t sign any more deeds [or waivers] without my lawyer 

present,” amounted to an invocation of his right to counsel, and “[a]t the very 

least . . . the interrogating agent was under an obligation to clarify the meaning 

of [the suspect’s] remark before proceeding with further questioning. 97 N.J. 

at 119-20 (first and third alterations in original). 

Following Davis, in State v. Chew, we determined that the suspect made 

an equivocal request for counsel when he asked his mother to contact his 

attorney as police removed him from his home. 150 N.J. 30, 63 (1997). 

Underscoring the significance of the right to counsel, we held in Chew that 

“[b]ecause the right to counsel is so fundamental, an equivocal request for an 

attorney is to be interpreted in a light most favorable to the defendant.” Ibid. 

Accordingly, we rejected the federal standard enunciated by the U.S. Supreme 

4

 The Court did note, however, that “when a suspect makes an ambiguous or 

equivocal statement it will often be good police practice for the interviewing 

officers to clarify whether or not he actually wants an attorney.” Davis, 512

U.S. at 461. 
18

Court in Davis and found “it prudent to continue to apply our precedent” 

requiring that interrogators conduct an appropriate inquiry into a suspect’s 

ambiguous invocation of the right to counsel. Ibid.

Explaining further New Jersey’s more flexible approach, Alston, 204 

N.J. at 621, we held in State v. Reed that “a suspect need not be articulate, 

clear, or explicit in requesting counsel; any indication of a desire for counsel, 

however ambiguous, will trigger entitlement to counsel.” 133 N.J. 237, 253 

(1993). A suspect therefore, does not need to express their desire to terminate 

an interrogation with the “utmost of legal precision.” State v. Bey, 112 N.J. 

45, 65 (1988). 

This Court provided guidance in Alston and reaffirmed our precedent

that, in situations where “a suspect’s statement ‘arguably’ amount[s] to an 

assertion of Miranda rights,” conducting a follow-up inquiry is the only way to 

ensure that a suspect’s waiver of their right was knowing and voluntary. 204 

N.J. at 621-23. We instructed that where the suspect’s “statements are so 

ambiguous that they cannot be understood to be the assertion of a right, 

clarification is not only permitted but needed.” Id. at 624. In situations where 

clarification is required, substantive questioning should resume only after “the 

suspect makes clear that he is not invoking his Miranda rights.” State v. 

Johnson, 120 N.J. 263, 283 (1990) (quoting Wright, 97 N.J. at 119 n.4). 
19

In Alston, we ultimately concluded that the suspect’s statement “should I 

not have a lawyer?” was a request for advice on seeking counsel rather than an 

“assertion of a right, ambiguous or otherwise.” 204 N.J. at 626. There, after

the suspect waived his Miranda rights orally and in writing, the following 

exchange occurred:

Alston: I feel like I’m signing my life away. 

Detective: Not signing your life away. 

Alston: Should I not have a lawyer in here with me?

Detective: You want a lawyer?

Alston: No, I am asking you guys, man. I don’t -- I’m 

just -- I see you guys, man.

Detective: I can’t make you. 

Alston: Sir, if I did want a lawyer in here with me 

how would I be able to get one in here with me?

Detective: That’s on -- that’s on you. If you want a 

lawyer, then we -- stop and you going to get your 

lawyer. That’s why he read that clearly to you and 

your waiver. If you want to stop at this time then we 

stop at this time. It’s either yes or no . . . .

Alston: I’m already waist-deep, why?

Detective: Huh?

Alston: I’m already waist deep about to drown, why?

Detective: You’ve got to answer yes or no.
20

Alston: I already did.

Detective: Do you want a lawyer? No -- that’s what 

you’re saying?

Alston: When I go to court, I guess. 

Detective: Do -- do you want to continuing answering 

questions -- answering our questions?

Alston: Sure. Why not? 

[Id. at 618.]

Our holding emphasized that when the detective asked whether Alston wanted 

a lawyer, he responded “No, I am asking you guys, man.” Id. at 626. We 

found that “[n]othing in that response amounted to even an ambiguous request 

for counsel; rather, it was an emphatic ‘no’ followed by a continued effort to 

secure advice and guidance from the police about what they thought [his] best 

course of action was at the time.” Ibid. Lastly, we noted that since officers 

are under no obligation to give a suspect advice about whether he should assert 

any of his rights, the detective did not err in refusing to do so. Id. at 628. 

B.

Applying the above principles of our jurisprudence to the present appeal, 

we find that defendant’s first mention of counsel, “[b]ut what do I do about an 

attorney and everything?” was an ambiguous invocation of her right to counsel 

that required the detective to cease all questioning and seek clarification. 
21

Here, unlike in Alston -- where the suspect asked the interrogating detectives 

“should I not have a lawyer?” -- defendant did not seek an opinion about 

whether she should have a lawyer present, but rather inquired about the 

availability of counsel. Additionally, defendant’s vague query here made it 

unclear whether she wanted an attorney present at that time or in the future. 

Thus, defendant’s statement was “arguably” a request for counsel. 

Secondly, although in Alston we determined that the suspect’s statement 

“should I not have a lawyer” was “not an assertion of a right, ambiguous or 

otherwise,” the officer nonetheless clarified by asking “You want a lawyer,” 

to which the suspect replied, “No, I am asking you guys, man.” 204 N.J. at 

626. Here the detective responded to defendant’s remark “[b]ut what do I do 

about an attorney and everything,” by saying, “I can’t give you an opinion 

about anything,” rather than seeking clarification. Defendant’s statement was 

at least ambiguous, and the detective failed to clarify what defendant meant. 

Although the detective was under no obligation to give defendant any advice 

about obtaining counsel, she was required to cease the interrogation and ask 

follow-up questions to clarify defendant’s obstruse statement regarding 

counsel. 

“Because the right to counsel is so fundamental, an equivocal request for 

an attorney is to be interpreted in a light most favorable to the defendant.” 
22

Chew, 150 N.J. at 63. We therefore interpret defendant’s question, “[b]ut what 

do I do about an attorney and everything,” to be an equivocal invocation of the 

right to counsel and, since the detective made no further inquiry, all portions 

of defendant’s statement made thereafter,

5 as well as defendant’s note of 

apology to the parents, should have been excluded at trial. 

V.

A.

Turning to other evidentiary issues raised by this appeal -- Dr. Medina’s 

expert testimony, Lisa’s testimony about statements by Tommy’s treating 

doctor, and the trial court’s instructions regarding Seth’s hearsay testimony

-- we first acknowledge that “[t]he decision to admit or exclude evidence is 

one firmly entrusted to the trial court’s discretion.” State v. Scott, 229 N.J. 

469, 479 (2017) (quoting Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 

202 N.J. 369, 383-84 (2010)). Evidentiary decisions are therefore reviewed by 

appellate courts under the deferential abuse of discretion standard, Hanges, 

202 N.J. at 383-84, and “we do not set such rulings aside unless it appears that 

‘there has been a clear error of judgment,’” State v. Prall, 231 N.J. 567, 580 

(2018) (quoting State v. J.A.C., 210 N.J. 281, 295 (2012)). In other words, “an 

5

 We therefore need not consider in detail the later problematic exchange 

recounted above.
23

appellate court should not substitute its own judgment for that of the trial court 

unless ‘the trial court’s ruling was so wide of the mark that a manifest denial 

of justice resulted.’” State v. Singh, 245 N.J. 1, 13 (2021) (internal quotation 

marks omitted) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). However, 

our review of a trial court’s evidentiary rulings does not end “when we find an 

abuse of discretion; rather, we must then determine whether any error found is 

harmless or requires reversal.” Prall, 231 N.J. at 581. 

“When a defendant does not object to an alleged error at trial, such error 

is reviewed under the plain error standard.” Singh, 245 N.J. at 13. In those 

cases, “an unchallenged error constitutes plain error if it was ‘clearly capable 

of producing an unjust result.’” Ibid. (quoting R. 2:10-2). Such an “error will 

be disregarded unless a reasonable doubt has been raised whether the jury 

came to a result that it otherwise might not have reached.” Ibid. (quoting 

State v. R.K., 220 N.J. 444, 456 (2015)). 

B.

With respect to the expert testimony by Dr. Medina, N.J.R.E. 702 

provides that expert testimony is admissible “[i]f scientific, technical, or other 

specialized knowledge will assist the trier of fact to understand the evidence or 

to determine a fact in issue.” The expert witness must have sufficient 

expertise to offer the intended testimony. State v. B.H., 183 N.J. 171, 194 
24

(2005). Additionally, “[a]s gatekeepers, trial judges must ensure that expert 

evidence is both needed and appropriate, even if no party objects to the 

testimony.” State v. Sowell, 213 N.J. 89, 99-100 (2013). And witnesses may 

not base their testimony on inadmissible evidence.6 See State v. Frisby, 174 

N.J. 583, 592 (2002) (finding that the defendant’s trial was tainted by a 

testifying witness’s reliance on inadmissible evidence). Applying those 

principles to the present case, we conclude that Dr. Medina relied on 

inadmissible evidence from defendant’s statement and that admission of her

testimony constituted plain error, requiring reversal. 

When asked her opinion as to what caused Tommy’s injuries, Dr. 

Medina referred to defendant’s statement that “she pulled on the child’s leg, 

[threw] the child across 2 to 3 feet, [and] hit the child.” Although defendant 

did not object to Dr. Medina’s testimony at trial, all of those admissions were 

made after defendant ambiguously invoked her right to counsel, and therefore 

Dr. Medina was not permitted to mention those portions of her statement

before the jury or to consider them in formulating her expert opinion. Because 

Dr. Medina therefore relied on impermissible evidence in forming her opinion 

6

 Although defendant does not challenge the admissibility of Dr. Medina’s 

testimony that references defendant’s statement, we find it necessary to 

address this issue in light of our decision to suppress portions of defendant’s 

statement.
25

as to how Tommy developed his injuries, see ibid., we find the admission of 

Dr. Medina’s testimony to be plain error.

For completeness, we mention that Dr. Medina, an expert in general 

pediatrics with a subspecialty in child abuse pediatrics, should not have been 

permitted to opine on the obvious when noting that “normal caregiving” 

doesn’t involve throwing or pulling a child’s legs, because that is a subject 

within the ken of the average juror. See State v. Sowell, 213 N.J. 89, 104-05 

(2013) (finding that expert testimony that relates to straightforward facts

“encroache[s] on the jury’s fact-finding role”); accord State v. Cain, 224 N.J. 

410, 426-27 (2016). It was inadmissible.7 

C.

Turning to the hearsay testimony of Lisa and Seth about what Dr. Khan

told them, which is challenged by defendant, hearsay testimony is inadmissible 

unless an exception to the hearsay rule applies. N.J.R.E. 802. Even if a 

hearsay exception applies, the testimony may still “be excluded if its probative 

value is substantially outweighed by the risk of . . . [u]ndue prejudice.” 

N.J.R.E. 403(a). 

7

 In light of our decisions to exclude portions of defendant’s statement and Dr. 

Medina’s testimony, we need not reach defendant’s claim that Dr. Medina 

offered improper opinion testimony on the ultimate issue of defendant’s guilt. 
26

That said, we recognize that “[t]rials are not perfectly orchestrated 

productions.” State v. Yough, 208 N.J. 385, 388 (2011). A curative 

instruction that is “firm, clear, and accomplished without delay” can be an 

appropriate remedy to a trial court’s error in admitting proscribed evidence, 

Prall, 231 N.J. at 586 (quoting State v. Vallejo, 198 N.J. 122, 134 (2009)), 

because the jury is presumed to follow the court’s instructions, State v. Burns, 

192 N.J. 312, 335 (2007).

We conclude that the trial court erred in admitting Lisa’s inflammatory

testimony regarding what Dr. Khan told her about Tommy’s injuries. 

Specifically, Lisa testified that Dr. Khan said, “it was clear child abuse” and 

“the way it was done was intentional. There is no way that there is an 

accident. [Ninety-nine] percent of the cases of this was intentional abuse.” 

N.J.R.E. 803(c)(4) admits hearsay testimony that is “reasonably pertinent to, 

medical diagnosis or treatment” and describes “past or present symptoms or 

sensations; their inception; or their general cause.” In the context of a case 

such as this, the rule “is directed at patients and cannot be used to introduce 

hearsay statements by physicians.” Biunno, Current N.J. Rules of Evidence, 

cmt. on N.J.R.E. 803(c)(4) (2021) (citing In re Civil Commitment of G.G.N., 

372 N.J. Super. 42, 57 (App. Div. 2004)). Further, N.J.R.E. 803(c)(4) does not 

permit testimony “as to the cause of physical symptoms.” Ibid. 
27

The rule against hearsay precludes the admission of a statement 

attributed to an out of court declarant “to prove the truth of the matter asserted 

in the statement.” N.J.R.E. 801(c). The trial court admitted Lisa’s testimony 

as a hearsay exception offered for the limited purpose of medical diagnosis and 

treatment, under N.J.R.E. 803(c)(4). Indeed, “[i]t has long been the rule in 

New Jersey that the declarations of a patient as to his condition, symptoms, 

and feelings made to his physician for the purpose of diagnosis or treatment 

are admissible in evidence as an exception to the hearsay rule.” Cestero v. 

Ferrara, 57 N.J. 497, 501 (1971)); accord Prioleau v. Kentucky Fried Chicken, 

Inc., 434 N.J. Super. 558, 586 (App. Div. 2014); see also Gonzales v. 

Hugelmeyer, 441 N.J. Super. 451, 462 (App. Div. 2015) (allowing a physician 

to testify under N.J.R.E. 803(c)(4) as to comments made by his patient 

regarding the patient’s back pain). 

But, here, Lisa testified to statements that Dr. Khan made to her about 

the cause of Tommy’s symptoms, not statements made to Dr. Khan for the 

purpose of his medical diagnosis or treatment. Hence, N.J.R.E. 803(c)(4) does 

not apply, and the trial court abused its discretion by admitting Lisa’s hearsay 

statement about what Dr. Khan said. We therefore need not consider whether 

the statement’s probative value is substantially outweighed by the risk of 

undue prejudice under N.J.R.E. 403. 
28

Conversely, we find that the trial court promptly struck Seth’s testimony 

that Dr. Khan told him “[t]his is, basically, textbook child abuse,” and issued

“firm, clear, and prompt” curative instructions. 

VI.

The trial court’s errors in admitting defendant’s statements after her 

equivocal invocation of her right to counsel, Lisa’s testimony about statements 

made to her by Dr. Khan, and Dr. Medina’s testimony about matters within the 

ken of the average juror constitute errors “clearly capable of producing an 

unjust result,” R. 2:10-2, entitling defendant to a new trial. We therefore 

reverse the judgment of the Appellate Division, and remand the matter to the 

trial court for further proceedings consistent with this opinion. 

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, 

FERNANDEZ-VINA, and PIERRE-LOUIS join in JUSTICE SOLOMON’s 

opinion. JUSTICE ALBIN filed a concurrence.

 
1 

State of New Jersey, 

Plaintiff-Respondent, 

v.

Laura Gonzalez, 

Defendant-Appellant. 

JUSTICE ALBIN, concurring.

I join the opinion of the Court in full. I write to highlight two other 

interrogation techniques used by Detective Reyes in questioning Gonzalez --

one which is prohibited under already existing principles of law, and another 

which this Court has yet to condemn but will have to address in some future 

case. Both issues concern the use of lies by the police during an interrogation 

-- and whether that practice should continue to be sanctioned by our courts. 

I.

In administering Gonzalez her Miranda rights, Detective Reyes correctly 

advised her that “everything may be used against you in a court of law.” See

State v. L.H., 239 N.J. 22, 42 (2019) (noting that a suspect must be warned 

“that anything he says can be used against him in a court of law” (quoting

Miranda v. Arizona, 384 U.S. 436, 479 (1966))). Because Miranda requires a 
2 

police officer, before questioning, to tell a suspect that anything he says can be 

used against him, the officer, during questioning, “cannot directly or by 

implication tell [the] suspect that his statements will not be used against him.” 

Id. at 44. That is so because “[a] police officer cannot directly contradict, out 

of one side of his mouth, the Miranda warnings just given out of the other.” 

State in Interest of A.S., 203 N.J. 131, 151 (2010) (quoting State v. Pillar, 359 

N.J. Super. 249, 268 (App. Div. 2003)). 

We have held that false assertions, such as telling a suspect that “the 

truth would be helpful” and “set [him] free,” L.H., 239 N.J. at 47-48 (alteration 

in original), and that answering questions “would actually benefit her,” A.S., 

203 N.J. at 151, contravene the Miranda warnings. See also State v. Puryear, 

441 N.J. Super. 280, 298-99 (App. Div. 2015) (finding a Miranda violation 

when the interrogating officer told the suspect that he “could not hurt himself 

and could only help himself by providing a statement”). 

In this case, in clear violation of our jurisprudence, Detective Reyes told

Gonzalez “the[] truth . . . sets everything free[]”; “that truth is going to help 

you in the long run”; “you are going to need that consideration that you told 

the truth”; “[y]ou can get into something that you can get yourself out of if you 

tell the truth”; and “[t]ell[ing] me [the] truth. . . . is going to help you.” Those 

statements, and others, flatly contradicted the Miranda warnings. The 
3 

statements Gonzalez made to Detective Reyes did not help her or set her free 

but were used against her by the prosecution. 

Defense counsel did not raise the issue, and therefore it is not addressed 

in the Court’s opinion. Nevertheless, law enforcement officers are on notice 

that they cannot “disarm the Miranda warnings during the interrogation by 

falsely asserting or suggesting that a suspect’s words will be used in his favor 

and not against him in court.” L.H., 239 N.J. at 47-48. The failure to abide by 

that simple dictate may lead to suppression of a suspect’s statement.

II.

In a future case, when the issue is joined, this Court will have to reassess

its jurisprudence, which “gives officers leeway to tell some lies during an 

interrogation.”1

 See id. at 44 (citing State v. Galloway, 133 N.J. 631, 655 

(1993); State v. Miller, 76 N.J. 392, 403-04 (1978)); see also State v. Baylor, 

423 N.J. Super. 578, 588-89 (App. Div. 2011) (holding that police may use 

“deception or trickery” to induce a confession so long as it does not offend due 

process and is not calculated to produce a false confession); State v. Manning, 

165 N.J. Super. 19, 30-31 (App. Div. 1978) (same). We have to determine 

whether sanctioning deception and trickery in the interrogation process offends 

1

 In L.H., we held that false promises of leniency are “impermissible lies” that 

may “have the capacity to overbear a suspect’s will.” See L.H., 239 N.J. at 44. 
4 

judicial integrity and whether the cost of potentially eliciting false confessions 

outweighs the benefits of eliciting a number of true confessions.

In this case, in an effort to secure a confession from Gonzalez that she 

physically abused the child in the B. home, Detective Reyes told her that 

surveillance cameras captured her conduct, suggesting that she was caught 

committing the crime. No surveillance cameras, however, were installed in the 

home. 

Justice Brandeis famously said that “[o]ur Government is the potent, the 

omnipresent teacher. For good or for ill, it teaches the whole people by its 

example.” Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., 

dissenting). When deceptive interrogation tactics are sanctioned by our courts, 

what is the lesson conveyed to the public -- that law enforcement officers can 

lie to a suspect, but when a suspect lies to the police, it is a crime? See

N.J.S.A. 2C:28-3. One day, this Court will have to decide whether the

continued use of lies and trickery is a constitutionally permissible practice --

whether it is a principled and sufficiently reliable means of inducing a truthful

confession from a suspect. 

The use of lies in the interrogation process is not just an ethical concern

about whether the ends justify the means. The use of lies may overbear the 

will of a suspect, overcome the suspect’s ability to resist the psychologically
5 

coercive pressures inherent in the interrogation process, and, in some 

instances, elicit a false confession. See State v. Patton, 362 N.J. Super. 16, 18, 

46 (App. Div. 2003) (recognizing the inherently coercive nature of providing a 

suspect with a falsified eyewitness account of the crime). 

Courts have come to recognize that the use of false statements by 

interrogators has the capacity to overbear the will of a suspect and induce not 

just trustworthy confessions, but also false confessions. One court, relying on

social science studies, has noted that “the presentation of false information

through confederates, witnesses, counterfeit test results,” and other means

“renders individuals more vulnerable to manipulation” and “has been shown to 

increase the rate of false confessions.” State v. Perea, 322 P.3d 624, 642-43 

(Utah 2013). Other courts have come to the same conclusion about the 

dangers of false statements inducing false confessions. See, e.g., State v. 

Baker, 465 P.3d 860, 878-79 (Haw. 2020) (recognizing “that false claims of 

physical evidence result in an unsettling number of false or involuntary 

confessions” and that “misrepresentations about the existence of 

incontrovertible physical evidence that directly implicates the accused is an 

exceptionally coercive interrogation tactic and its use is a strong indicator that 

the suspect’s statement was involuntary”); United States v. Rodgers, 186 F.

Supp. 2d 971, 977 (E.D. Wis. 2002) (“Notwithstanding that courts have been 
6 

tolerant of police lies about evidence, any form of police trickery in the 

interrogation room merits close judicial scrutiny.”). 

Although most courts will not automatically suppress a confession 

elicited by an interrogator’s false statements, such tactics are weighed in 

determining whether a suspect rendered an involuntary statement. See, e.g., 

Commonwealth v. DiGiambattista, 813 N.E.2d 516, 524-25 (Mass. 2004) 

(noting that although “false statements about the evidence against the suspect 

do not automatically render the suspect’s confession involuntary, . . . research 

has identified such use of false statements as a significant factor that pressures 

suspects into waiving their rights and making a confession” (citing, among 

other articles, Richard J. Ofshe & Richard A. Leo, The Decision to Confess 

Falsely: Rational Choice and Irrational Action, 74 Denv. U. L. Rev. 979, 

1008-13 (1997))); State v. Cooper, 217 N.W.2d 589, 597 (Iowa 1974) 

(“Deception of any nature by representatives of the state cannot be condoned. 

However, we conclude deception standing alone does not render a waiver of 

constitutional rights involuntary as a matter of law unless the deceiving acts 

amount to a deprivation of due process.”).

Courts also have declared that law enforcement’s use of lies during an 

interrogation is a practice inconsistent with the ideals of our criminal justice 

system. See, e.g., Ex parte Hill, 557 So. 2d 838, 842 (Ala. 1989) (finding that 
7 

police lying about evidence to compel a suspect to confess is “at odds with our 

concept of due process of law, and especially repugnant when used against 

suspects of diminished intellectual ability”); State v. Phelps, 696 P.2d 447, 452 

(Mont. 1985) (“[W]e cannot condone the tactics of this officer who informed 

Phelps as to the existence of incriminating evidence when the evidence was 

inconclusive.”); State v. Register, 476 S.E.2d 153, 158 (S.C. 1996) (stating 

that “the misrepresentation of evidence by police is a deplorable practice”). 

The United States Supreme Court too has expressed concern over the 

number of false confessions elicited during custodial interrogations, even 

without addressing the use of deception in the interrogation process. See

Corley v. United States, 556 U.S. 303, 320-21 (2009). In Corley, the Court

noted that “‘[c]ustodial police interrogation, by its very nature, isolates and 

pressures the individual,’ and there is mounting empirical evidence that these 

pressures can induce a frighteningly high percentage of people to confess to 

crimes they never committed.” Ibid. (quoting Dickerson v. United States, 530 

U.S. 428, 435 (2000)). 

I understand that today is not the occasion to reckon with this issue. The 

issue must be timely raised, developed on a complete record, and fully briefed. 

It is nevertheless an issue of supreme importance because “life and liberty can 

be as much endangered from illegal methods used to convict those thought to 
8 

be criminals as from the actual criminals themselves.” See Spano v. New 

York, 360 U.S. 315, 320-21 (1959).