Right to Remain Silent: Comments made when girlfriend records your statement with the help of police – Comments made in Closing are “FAIR COMMENT”

State v. Santamaria NJ Supreme Court Decision January 28, 2019

Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark.

Facts: Former middle school teacher Guillermo Santamaria was tried and convicted of aggravated sexual assault and official misconduct for his sexual relationship with a student at his school from the time she was fourteen. In this appeal we consider whether the trial court’s admission of some sixty-five photographs — approximately fourteen of which were sexually graphic — amounted to plain error. Additionally, we examine whether the State committed reversible error in its summation by commenting on defendant’s silence when the victim, H.B., accused him of having had sexual relations with her while she was a minor on multiple occasions over many years.

The Appellate Division reversed defendant’s convictions and remanded the matter for a new trial. The panel found that, although defendant did not object to the admission of the photographs, the trial court should have excluded them sua sponte as cumulative and unduly prejudicial under N.J.R.E. 403 and as other-crime evidence or bad acts under N.J.R.E. 404(b). The panel also offered guidance for retrial, demonstrating support for defendant’s argument that the State improperly commented on his silence during a recorded conversation with H.B.

We now reverse the Appellate Division’s judgment ordering a new trial. We find neither error in the admission of the photographs under N.J.R.E. 403 nor reversible error concerning the prosecutor’s closing comments regarding the defendant’s silence when H.B. made her recorded accusations. We nevertheless remind trial courts to be attentive to their gatekeeping function as they curate the admission of evidence.

  1. FACTS

We elicit the facts from the record, including the trial testimony. In 1997, thirteen-year-old eighth grader H.B. met forty-three-year-old defendant at the McGinnis Middle School in Perth Amboy, where he was employed as a science teacher. Defendant introduced himself as “the neighboring science teacher.” They spoke several times a week by telephone and later added instant messaging. H.B. confessed to having problems with her parents at home. In the spring of 1998, defendant encouraged H.B. to enroll in his twice- weekly Greek and Latin course. The class met regularly at the school and once at defendant’s home in Perth Amboy. When H.B. graduated from middle school in June 1998, their communications continued, becoming more intimate. She viewed it as the equivalent of a dating relationship. They met often at a local park and in June or July 1998, they kissed “passionately” for the first time.

With the detective’s help, H.B. scheduled a dinner with the defendant. She wore a hidden recording device to capture their conversation. At dinner, she questioned defendant about why he started the relationship with her when she was fourteen instead of when she was nineteen. She pointedly asked him, “How could you rape a fourteen-year-old?” Defendant made no admissions or denials; instead he steered the conversation away from the accusations.

Defendant was arrested three days after the recorded dinner with H.B. On October 1, 2010, a Middlesex County grand jury indicted defendant on one count of first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14- 2(a); two counts of second-degree sexual assault, contrary to N.J.S.A. 2C:14- 2(c); and two counts of official misconduct, contrary to N.J.S.A. 2C:30-2.

To underscore this argument, the prosecutor reviewed during summation before the jury the conversation recorded at the restaurant.

She highlighted H.B.’s accusation that defendant had raped her when she was fourteen, noting that defendant did not respond to the accusation.

We never hear from [defendant], “What are you talking about?” Yes, that’s what you should expect. That’s exactly what you should expect. But what you got was this: What you got was every time [H.B.] brought up high school, he told — he tried to distract her, “Oh, you’re gorgeous. Let’s talk about something else.” Controlling the conversation away from — because he doesn’t know why she’s there and, in fact, he said, “We’ll talk about this when I have some trust in you.” This is not a stupid man, ladies and gentlemen.


He can’t deny it, ladies and gentlemen, that’s why he doesn’t deny it in that taped statement.


He said, . . . after she confronted him, “why did you have sex with me when I was fourteen?”

“Oh, your memory is much better than mine.” Now, all of a sudden, he doesn’t remember. That’s convenient.


But what you should expect there . . . that’s what you should expect, him saying, “What are you talking about?” No. Instead you got a whole bunch, “Don’t look at that, let’s talk about this.”

NJ Supreme Court allows the jury to hear the taped statement and allow the prosecutor to make reference to the defendant’s silence in the state’s closing statement:

  1. The Fifth Amendment of the United States Constitution provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. Although the same right is not expressly included in the New Jersey Constitution, the privilege against self- incrimination is present in New Jersey common law and statutory law. See N.J.S.A. 2A:84A-19 (“[E]very natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate . . . .”) (emphasis added); State v. S.S., 229 N.J. 360, 381 (2017) (discussing embodiment of the Fifth Amendment privilege in New Jersey law). “The practical effect of the privilege to remain silent is . . . ‘that when a defendant expressly refuse[s] to answer, no inference can be drawn against him under the doctrine of acquiescence by silence or any other concept . . . .’” State v. Deatore, 70 N.J. 100, 115 (1976) (quoting State v. Ripa, 45 N.J. 199, 204 (1965)). This case does not invoke the scenario of official compulsion because we are not dealing with an officer interrogating a witness.

Importantly, “pre-arrest silence that is not ‘at or near’ the time of arrest, when there is no government compulsion and the objective circumstances demonstrate that a reasonable person in a defendant’s position would have acted differently, can be used to impeach that defendant’s credibility with an appropriate limiting instruction.” State v. Stas, 212 N.J. 37, 58 (2012) (citing State v. Brown, 190 N.J. 144, 158-59 (2007); State v. Brown, 118 N.J. 595, 613-14 (1990)). Pre-arrest silence “cannot . . . be used as substantive evidence of a defendant’s guilt.” Ibid.

  1. Although H.B. was wearing a body recorder, she spoke with defendant as a private citizen, in a public place, with defendant unaware of any police presence. See State in Interest of J.D.H., 171 N.J. 475, 477-78, 481 (2002) (upholding admission of defendant’s incriminating statement made during a recorded phone call with victim who asked questions provided by detective). Defendant argues that H.B. was acting as an agent of the police, which precludes the prosecutor from commenting on defendant’s silence in response.25

The mere use of a recording device to allow law enforcement to listen in on a conversation does not show government compulsion.

It is noteworthy that the prosecutor’s comments questioning defendant’s response to H.B.’s accusations were made only during summation and were fair comment. The court twice instructed the jury not to interpret anything said during summation as evidence. “We presume that the jury faithfully followed [the] instruction[s]” it received, State v. Miller, 205 N.J. 109, 126 (2011), and was aware that the prosecutor’s remarks were argumentative, not evidentiary, in nature.

A return to the language of New Jersey’s statutory privilege against self- incrimination is informative: “[E]very natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate . . . .” N.J.S.A. 2A:84A-19. Defendant’s “right to refuse to disclose” is not implicated when, as here, (1) there is no action; and (2) he did not disclose “to a police officer or other official.” Ibid.

The State’s comments on defendant’s silence were appropriate and did not infringe on defendant’s right to remain silent or privilege against self- incrimination.  

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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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