Privilege Against Self Incrimination under New Jersey Law

Last week I blogged about the Fifth Amendment, Miranda v. Arizona1, and the right to remain silent. This post will summarize how New Jersey’s privilege against self incrimination applies more broadly than federal law. Additionally, it will look at issues related to federalism.

privilege against self incrimination, right to remain silent, fifth amendment, new jersey, Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, Warren County, criminal defense, drunk driving, traffic ticket, juvenile, attorney, lawyerBefore an American court will admit a confession, the State must prove the police informed the individual of her rights. Additionally, the State must prove s‎he knowingly, voluntarily, and intelligently waived her rights before she confessed. Indeed, these warnings negate perceptions related to psychological stress in police-controlled circumstances. This stress might compel a person to ‎speak where she would not have spoken otherwise.

Privilege Against Self Incrimination

Federal and New Jersey law differ with respect to the burden of proof, notice to an arrested individual, and the legal analytical framework. The Fifth Amendment provides the textual basis for federal law.2 And New Jersey Rules of Evidence provide the textual basis for the privilege against self incrimination in this state.3

  • BURDERN OF PROOF: New Jersey law requires the Prosecutor to prove waiver beyond a reasonable doubt. Federal law only requires proof of waiver by a preponderance of the evidence.
  • KNOWING CONFESSIONS: State law requires the police to inform suspects when there is already a criminal ‎complaint and arrest warrant. Federal law does not impose this notice requirement.
  • ANALYTICAL FRAMEWORK: New Jersey courts consider waiver based on the totality of circumstances. Federal courts apply a bright line rule.

Thus, political scientists, jurists, and other scholars may call this “Horizontal Federalism” within the context of New Judicial Federalism.


Vertical Federalism

Constitutions allocate power between political entities. To illustrate, the Federal Constitution allocates power between the branches of our Federal Government. For example, Article I grants power to Congress, Article II bestows specific powers on the President, and Article III allocates power to the Federal Judiciary. Additionally, the Constitution distributes power as between the Federal Government and the 50 States. For example, the Supremacy Clause establishes the hierarchy of power between the Federal Government and the 50 states.4 Therefore, scholars call the relationship between the Federal Government and the 50 states Vertical Federalism.

Horizontal Federalism

With respect to the relationship between each of the 50 states, scholars call this Horizontal Federalism. Indeed, each state has its own constitution and exercises power independently of the other 49 states. Consequently, with respect to one another, all States operate on an equal constitutional plane. Additionally, some individual rights and liberties that constrain state power fit within the framework of horizontal federalism.5

The right to remain silent and the privilege against self incrimination qualify as individual rights that constrain state power. Thus, some would consider New Jersey’s privilege against self incrimination an example of horizontal federalism. Indeed, each State is free to develop its own law to deal with its local needs and demands. Like New Jersey, the other 49 States are also free either to adopt federal legal standards in this area or independently develop the law of the State.

Experienced New Jersey Criminal Defense Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding the privilege against self-incrimination.

Call Now—(856) 812-0321.


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

2 No person…shall be compelled in any criminal case to be a witness against himself… U.S. Const. amend. V.

3 N.J.R.E. 502 and N.J.R.E. 503.

4 This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. Const. art. VI, cl. 2.

5 Allan Erbsen, Horizontal Federalism, 93 Minn. L. Rev. 493 (2008), available at