voluntary waiver in New Jersey

2007Other courts have adopted a per se rule that “a defendant is incapable of a voluntary waiver while incarcerated and that a retrial must therefore be granted in every such instance.” Givens, supra, 353 N.J.Super. at 287-88 , 802 A.2d 563 ; see, e.g., State v. Chavez-Inzunza, 145 Ariz. 362 , 701 P.2d 858, 861 (App.1985) (holding that defendant incarcerated in Mexico was not voluntarily absent from trial); State v. Okumura, 58 Haw. 425 , 570 P.2d 848, 851-52 (1977) (holding that court rule allowing trials to proceed in defendant’s absence applied to defendant who escaped or deliberately failed to

2002See United States v. Fontanez, *568 878 F. 2d 33 (2d Cir.1989) (after defendant was taken into custody on another charge, it was improper for the jury to hear readback of testimony in defendant's absence); People v. Liming, 183 Ill.App. 3d 960, 132 Ill.Dec. 308 , 539 N.E. 2d 871 (1989) (held that a defendant who was incarcerated elsewhere at the time of a probation revocation hearing did not voluntarily fail to appear); State v. Houtz, 714 P. 2d 677, 678 (Utah 1986) (a retrial was ordered after the State conceded that the trial court erred in proceeding with the trial after learning that defen

1994So too, "[w]hen the alternative is representation by the Public Defender, choosing to proceed pro se constitutes a voluntary waiver of counsel." State v. Crisafi, 128 N.J. at 517 , 608 A. 2d 317 (citing United States v. Robinson, 913 F. 2d 712, 715-17 (9th Cir.1990), cert. denied, 498 U.S. 1104 , 111 S.Ct. 1006 , 112 L.Ed. 2d 1089 (1991); United States v. Moya-Gomez, 860 F. 2d 706, 739 (7th Cir.1988), cert. denied sub nom.

1992United States v. Robinson, 913 F.2d 712, 715-17 (9th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 1006 , 112 L.Ed.2d 1089 (1991); Moya-Gomez, supra, 860 F.2d at 739 ; see Adams v. Carroll, 875 FI 2d 1441, 1445 (9th Cir.1989) (holding request to proceed without counsel unequivocal where defendant wishes to invoke right only as alternative to appointment of particular defense attorney).

2007Other courts have adopted a per se rule that “a defendant is incapable of a voluntary waiver while incarcerated and that a retrial must therefore be granted in every such instance.” Givens, supra, 353 N.J.Super. at 287-88 , 802 A.2d 563 ; see, e.g., State v. Chavez-Inzunza, 145 Ariz. 362 , 701 P.2d 858, 861 (App.1985) (holding that defendant incarcerated in Mexico was not voluntarily absent from trial); State v. Okumura, 58 Haw. 425 , 570 P.2d 848, 851-52 (1977) (holding that court rule allowing trials to proceed in defendant’s absence applied to defendant who escaped or deliberately failed to

2007Other courts have adopted a per se rule that “a defendant is incapable of a voluntary waiver while incarcerated and that a retrial must therefore be granted in every such instance.” Givens, supra, 353 N.J.Super. at 287-88 , 802 A.2d 563 ; see, e.g., State v. Chavez-Inzunza, 145 Ariz. 362 , 701 P.2d 858, 861 (App.1985) (holding that defendant incarcerated in Mexico was not voluntarily absent from trial); State v. Okumura, 58 Haw. 425 , 570 P.2d 848, 851-52 (1977) (holding that court rule allowing trials to proceed in defendant’s absence applied to defendant who escaped or deliberately failed to

1994So too, "[w]hen the alternative is representation by the Public Defender, choosing to proceed pro se constitutes a voluntary waiver of counsel." State v. Crisafi, 128 N.J. at 517 , 608 A. 2d 317 (citing United States v. Robinson, 913 F. 2d 712, 715-17 (9th Cir.1990), cert. denied, 498 U.S. 1104 , 111 S.Ct. 1006 , 112 L.Ed. 2d 1089 (1991); United States v. Moya-Gomez, 860 F. 2d 706, 739 (7th Cir.1988), cert. denied sub nom.

1992United States v. Robinson, 913 F.2d 712, 715-17 (9th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 1006 , 112 L.Ed.2d 1089 (1991); Moya-Gomez, supra, 860 F.2d at 739 ; see Adams v. Carroll, 875 FI 2d 1441, 1445 (9th Cir.1989) (holding request to proceed without counsel unequivocal where defendant wishes to invoke right only as alternative to appointment of particular defense attorney).

2026As an extension of that principle, the Court noted, "evidence that the accused was threatened, tricked, or cajoled into a waiver of his [of her] privilege will render the waiver involuntary." Nyhammer, 197 N.J. at 407 (internal quotations omitted); see also Moran v. Burbine, 475 U.S. 412, 421 (1986) (holding a voluntary waiver as one that is "the product of a free and deliberate choice rather than intimidation, coercion, or deception").

2026As an extension of that principle, the Court noted, "evidence that the accused was threatened, tricked, or cajoled into a waiver of his [of her] privilege will render the waiver involuntary." Nyhammer, 197 N.J. at 407 (internal quotations omitted); see also Moran v. Burbine, 475 U.S. 412, 421 (1986) (holding a voluntary waiver as one that is "the product of a free and deliberate choice rather than intimidation, coercion, or deception").

2021R. 2:11-3(e)(2). 16 A-4254-17T3 As to the voluntariness of the statement, the State bears the burden of proving beyond a reasonable doubt that defendant's statement was the result of a voluntary waiver of his rights and "that the police did not overbear the will of the defendant." State v. Hreha, 217 N.J. 368, 383 (2014) (citing State v. Galloway, 133 N.J. 631, 654 (1993)).

2021"Determining whether the State has met that burden requires a court to assess 'the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation. '" Ibid. (quoting Galloway, 133 N.J. at 654 ).

2021R. 2:11-3(e)(2). 16 A-4254-17T3 As to the voluntariness of the statement, the State bears the burden of proving beyond a reasonable doubt that defendant's statement was the result of a voluntary waiver of his rights and "that the police did not overbear the will of the defendant." State v. Hreha, 217 N.J. 368, 383 (2014) (citing State v. Galloway, 133 N.J. 631, 654 (1993)).

2007Givens, supra, 353 N.J.Super. at 288 , 802 A.2d 563 ; see, e.g., Commonwealth v. Perez, 757 A.2d 955, 956 (Pa.Super.Ct.2000) (upholding conviction where defendant was incarcerated on second day of trial and did not advise court or counsel of incarceration); *213 State v. Garza, 150 Wash.2d 360, 77 P.3d 347, 351-52 (2003) (imposing duty on incarcerated defendants to show they made reasonable efforts to contact court in order to retract preliminary finding of voluntary waiver).

2007Other courts have adopted a per se rule that “a defendant is incapable of a voluntary waiver while incarcerated and that a retrial must therefore be granted in every such instance.” Givens, supra, 353 N.J.Super. at 287-88 , 802 A.2d 563 ; see, e.g., State v. Chavez-Inzunza, 145 Ariz. 362 , 701 P.2d 858, 861 (App.1985) (holding that defendant incarcerated in Mexico was not voluntarily absent from trial); State v. Okumura, 58 Haw. 425 , 570 P.2d 848, 851-52 (1977) (holding that court rule allowing trials to proceed in defendant’s absence applied to defendant who escaped or deliberately failed to

2007Other courts have adopted a per se rule that “a defendant is incapable of a voluntary waiver while incarcerated and that a retrial must therefore be granted in every such instance.” Givens, supra, 353 N.J.Super. at 287-88 , 802 A.2d 563 ; see, e.g., State v. Chavez-Inzunza, 145 Ariz. 362 , 701 P.2d 858, 861 (App.1985) (holding that defendant incarcerated in Mexico was not voluntarily absent from trial); State v. Okumura, 58 Haw. 425 , 570 P.2d 848, 851-52 (1977) (holding that court rule allowing trials to proceed in defendant’s absence applied to defendant who escaped or deliberately failed to

2007Givens, supra, 353 N.J.Super. at 288 , 802 A.2d 563 ; see, e.g., Commonwealth v. Perez, 757 A.2d 955, 956 (Pa.Super.Ct.2000) (upholding conviction where defendant was incarcerated on second day of trial and did not advise court or counsel of incarceration); *213 State v. Garza, 150 Wash.2d 360, 77 P.3d 347, 351-52 (2003) (imposing duty on incarcerated defendants to show they made reasonable efforts to contact court in order to retract preliminary finding of voluntary waiver).

2007Other courts have adopted a per se rule that “a defendant is incapable of a voluntary waiver while incarcerated and that a retrial must therefore be granted in every such instance.” Givens, supra, 353 N.J.Super. at 287-88 , 802 A.2d 563 ; see, e.g., State v. Chavez-Inzunza, 145 Ariz. 362 , 701 P.2d 858, 861 (App.1985) (holding that defendant incarcerated in Mexico was not voluntarily absent from trial); State v. Okumura, 58 Haw. 425 , 570 P.2d 848, 851-52 (1977) (holding that court rule allowing trials to proceed in defendant’s absence applied to defendant who escaped or deliberately failed to

2007Other courts have adopted a per se rule that “a defendant is incapable of a voluntary waiver while incarcerated and that a retrial must therefore be granted in every such instance.” Givens, supra, 353 N.J.Super. at 287-88 , 802 A.2d 563 ; see, e.g., State v. Chavez-Inzunza, 145 Ariz. 362 , 701 P.2d 858, 861 (App.1985) (holding that defendant incarcerated in Mexico was not voluntarily absent from trial); State v. Okumura, 58 Haw. 425 , 570 P.2d 848, 851-52 (1977) (holding that court rule allowing trials to proceed in defendant’s absence applied to defendant who escaped or deliberately failed to

2002See United States v. Fontanez, *568 878 F. 2d 33 (2d Cir.1989) (after defendant was taken into custody on another charge, it was improper for the jury to hear readback of testimony in defendant's absence); People v. Liming, 183 Ill.App. 3d 960, 132 Ill.Dec. 308 , 539 N.E. 2d 871 (1989) (held that a defendant who was incarcerated elsewhere at the time of a probation revocation hearing did not voluntarily fail to appear); State v. Houtz, 714 P. 2d 677, 678 (Utah 1986) (a retrial was ordered after the State conceded that the trial court erred in proceeding with the trial after learning that defen

1994McKaskle v. Wiggins, 465 U.S. 168, 176-77 , 104 S.Ct. 944, 950 , 79 L.Ed. 2d 122, 132 (1984).

1994McKaskle v. Wiggins, 465 U.S. 168, 176-77 , 104 S.Ct. 944, 950 , 79 L.Ed. 2d 122, 132 (1984).

1987However, building on the Gaito reasoning, the Lemons court further explained that "[e]ach case must be considered in its own factual context, and, as with all rights which emanate from the Constitution, the government bears the burden of showing a voluntary waiver." Id. at 345-46 (emphasis added) (footnotes omitted). *111 Under Williams, the federal rule of law is that where defendant is represented by counsel, a waiver of defendant's right not to be compelled to appear at trial in prison garb is implied from defendant's failure to object.