State v. Reed

627 A.2d 630, 133 N.J. 237, 1993 N.J. LEXIS 726

• Court: Supreme Court of New Jersey
• Decided: July 23, 1993
• Status: Published

Opinions

The opinion of the Court was delivered by

HANDLER, J.

In this case, the jury convicted defendant, John Reed, of knowing murder and aggravated criminal sexual contact. Defendant had confessed to those crimes and that confession constituted critically important evidence. The admissibility of defendant’s confession presents the sole issue on this appeal. The police refused, before and during defendant’s interrogation, to inform defendant that an attorney, who had been brought to police headquarters by a friend of defendant, was present and sought to confer with him. The issue is whether that refusal by the police violated defendant’s constitutional rights, including the privilege against self-incrimination, and therefore rendered defendant’s confession inadmissible.

I

At approximately 8:00 a.m. on March 16, 1987, the Franklin Township police received a call from Fran Varga. Varga told the police that her roommate and boyfriend, defendant, John Reed, had found the dead body of Susan Green, one of defendant’s coworkers. Varga asked the police to meet her and defendant at Green’s apartment.

After speaking with defendant and Varga, police entered Green’s apartment. The door to the apartment was unlocked, and Green’s body was found on the living room floor. She had been stabbed, and her pants and underwear had been pushed down around her knees. An assistant state medical examiner testified that the victim had been stabbed fifty-three times. Twenty-three of the wounds were potentially fatal, penetrating her abdomen, liver, lungs, and heart, and a strong blow to her head had fractured her skull.

At approximately 8:30 a.m., police informed defendant and Varga that they could leave provided they could be reached later for questioning. Shortly thereafter, Detectives Importico and Shedden, of the Franklin Township police, arrived and asked to speak to defendant.

Defendant suffers from a speech impediment due to a harelip and a cleft palate, and also tends to stutter severely when nervous. According to Varga, although she tried to help the officers understand defendant’s responses to their questions, the officers ignored her. Defendant agreed to go to the prosecutor’s office to give a statement and provide “elimination” fingerprints. Because defendant was still quite upset, Varga informed the police that she would drive him to the prosecutor’s office.

Defendant and Varga, along with Detectives Importico and Shedden, arrived at the prosecutor’s office shortly before 11:00 a.m. The detectives isolated defendant in an interrogation room, and asked Varga to remain in the waiting room. Varga testified that as soon as defendant was taken away by the police, she called her aunt who gave her the name of an attorney, Peter Lanfrit. Varga called Lanfrit shortly after 11:00 a.m., and told him that she and defendant were at the prosecutor’s office, that the police were about to question defendant, and that she and defendant “needed an attorney.” Lanfrit responded that he would immediately send William Aitken, an associate from Lanfrit’s office. Lanfrit then instructed Aitken to meet Varga and decide whether to represent defendant, Varga, or both of them.

Varga testified that immediately after speaking to Lanfrit she informed a police officer that an attorney was on his way and asked that the police not question defendant until the attorney arrived. The officer, according to Varga, nodded that he understood.

Meanwhile, Chief Richard Thornburg met Shedden and Importico and instructed them to move defendant to the Major Crimes Building, located a few blocks away. Instead of taking defendant past the area where Varga was waiting and down the elevator, the officers led him down the stairs and out the back door of the building. At trial, the officers denied that they had intended to avoid Varga, claiming that walking down four flights of stairs with defendant had been more convenient than using the elevator near which Varga was sitting. The officers drove defendant to the Major Crimes Building without informing Varga, arriving shortly after 11:00 a.m.

Earlier, at Green’s apartment, defendant had told police that Green had called him the previous Friday, terrified because a “black man” was pounding on the window. Defendant told police that when he arrived at Green’s house, no one was in sight, so he left after speaking with her for a few moments. The following day, defendant visited Green’s home for a dinner date they had made for 5:00 p.m. However, no one answered the door. Unable to reach Green by telephone the remainder of the weekend, defendant maintained that he decided to drop by her home on Monday morning before work. Finding the door unlocked, he entered the townhouse, found Green’s body, and called Varga.

Importico testified that he had administered Miranda warnings to defendant because he had been somewhat suspicious of defendant’s story. Orally acknowledging that he understood his rights, defendant signed a waiver form, which was witnessed by Importico and Shedden. In the presence of Shedden, Importico, and Thornburg, defendant now gave an account somewhat different from that which he had originally supplied the police. Most significantly, defendant claimed that on Monday morning he had entered Green’s home, discovered her body, covered it with a jacket and pillow, and then gone to work.

At trial, Importico testified that at the conclusion of defendant’s second account, he and Thornburg had considered defendant to be “more than just a witness.” At approximately 11:30 a.m., Thorn-burg asked defendant if he would submit to a polygraph exam, and defendant agreed to do so.

Meanwhile, at approximately 11:25 a.m., Aitken arrived at the prosecutor’s office. Varga met him, explained that defendant had been taken into an office for questioning, and asked him to go help defendant with the interrogation. Aitken approached the prosecutor who would eventually present the case against defendant. Aitken told the prosecutor that he was there to represent both Varga and defendant. The prosecutor informed Aitken that defendant was a witness and not a suspect, and stated that, in any event, Aitken had “no right to walk into an investigation.” Aitken gave the prosecutor a business card, and the prosecutor assured Aitken that the police would call him if and when defendant requested an attorney. Aitken then took Varga to a coffee shop, where Varga told him what had happened that day.

Because the prosecutor represented the State in the case against defendant, he did not testify at the pre-trial hearing. Thus, the record does not indicate whether the prosecutor informed the investigating officers that Aitken was present. Shed-den, however, testified that although he had not been aware that an attorney was present to assist defendant, he had known that one was there for Varga. No one informed defendant that a lawyer retained by Varga was waiting to see him.

Roughly about noon, Thornburg decided to administer a lie-detector test, and contacted polygraphist Lt. Mazzei. Mazzei gave defendant a “Miranda quiz” to ensure that he understood his rights. Mazzei testified that defendant answered all of the questions appropriately and indicated that he understood that if he could not afford an attorney, one would be appointed. Defendant also signed a statement that said, “I am here of my own free will, I know I can leave this room by merely telling [Mazzei] that I wish to leave.”

Before attaching defendant to the polygraph machine, Mazzei asked defendant some questions concerning his account of the murder. In response, defendant began to tell a story markedly different from the second account he had provided Thornburg, Importico, and Shedden. According to Mazzei, in the third version of the defendant’s story, defendant had actually witnessed Green being murdered when, looking through Green’s front window, defendant had seen a “black man” repeatedly stabbing her.

Mazzei wrote a synopsis of the story, which defendant read and signed. Mazzei then hooked defendant to a polygraph machine and demonstrated how the machine worked. Defendant decided he did not wish to take a lie-detector test, and Mazzei unhooked him.

Mazzei left the room and informed Thornburg and Shedden that defendant had changed his story. Mazzei then returned defendant to the interrogation room, where Thornburg and Shedden told defendant that they did not believe he had been telling the truth. Employing what is known as the classic “good cop-bad cop” technique,¹ Thornburg raised his voice and accused defendant of killing Green because she would not have sex with him, and stated that defendant was “nothing more than an animal.” Thorn-burg then left the room, claiming that he was going to file a murder complaint.

Shedden remained in the room with defendant. In a friendly tone, Shedden told defendant that although he also believed that defendant had killed Green, he could understand that defendant could have gotten upset with her for “any number of reasons,” and that “he could understand how maybe [Green] could have had this coming to her.” Defendant responded by admitting 'that he had killed Green.

After waiving his Miranda rights for a third time, defendant confessed on tape. Stuttering severely, defendant offered his fourth and final account of the events surrounding Green’s murder. Defendant explained that Varga had gone away for the weekend even though he had asked her not to go because he was feeling “depressed and weak.” After Varga left, defendant took three cans of beer and went to Green’s apartment. Defendant claimed that after they talked awhile, Green became seductive and began to unbutton her pants. When defendant told her he did not want to have sex, she called him names. According to defendant, they argued and Green brandished a knife. He asked her to put it down and to “back off.” Green asked him to leave, but suddenly grabbed a “board” and came towards him with it. Defendant said that he had then “freaked out and stabbed her.” Defendant could not remember where he had gotten a knife, how many times he had stabbed her (although he knew it was more than once), or whether Green had been alive when he left. He also had trouble remembering the clothes he had been wearing. The confession was taped at 3:52 p.m., almost five hours from the time defendant had been taken into custody and nearly four and one half hours from the time attorney Aitken had asked the prosecutor if he could speak with defendant.

On May 15, 1987, a grand jury indicted the defendant for first-degree murder contrary to N.J.S.A. 2C:ll:3a(l) and (2), first-degree felony-murder contrary to N.J.S.A. 2C:ll-3a(3), first-degree aggravated sexual assault contrary to N.J.S.A. 2C:14-2a, and third-degree possession of a weapon (knife) for unlawful purposes contrary to N.J.S.A. 2C:39-4. Defendant pled not guilty.

The matter was prosecuted as a capital case. Following defendant’s conviction of knowing murder and aggravated criminal sexual contact, the jury did not impose the death penalty. The trial court sentenced defendant to life imprisonment with a thirty-year period of parole ineligibility and a $10,000 Violent Crimes Compensation Board (V.C.C.B.) penalty for the murder conviction. The court also imposed a concurrent five-year sentence with a $30 V.C.C.B. penalty for the aggravated criminal sexual contact conviction.

Prior to trial, defense counsel moved to suppress defendant’s confession on the ground that defendant had not knowingly, voluntarily, and intelligently waived his Miranda rights. Defense counsel argued that defendant’s mental limitations, separation from his friend, and the prosecutor’s failure to inform defendant that his companion had obtained an attorney for him combined to cause an extremely coercive environment that had prevented defendant from understanding the nature of his rights and the consequences of waiving them.

The trial court found that defendant was sufficiently intelligent to have comprehended his rights and, because defendant was not retarded, the police had not erred in interrogating him without his friend present. The court also found that the police had no duty to inform defendant of the attorney’s presence because the attorney had never been retained to represent defendant. Further, the court concluded that even had the attorney been retained on defendant’s behalf, the police had not been obliged to inform defendant of that fact. Thus the police had adequately respected defendant’s rights, defendant’s Miranda waiver had been knowing and voluntary, and his pre-indictment statements and confession were therefore admissible.

Defendant appealed his conviction and sentence. The Appellate Division determined that the verdict sheet had not allowed the jury to consider whether defendant was guilty of passion/provocation manslaughter. Accordingly, the Appellate Division reversed defendant’s murder conviction and remanded the matter, 249 N.J.Super. 41, 592 A.2d 4 (1991). The court, however, rejected defendant’s contention that his waiver was invalid. It found ample evidence to support the trial court’s determination that defendant was not mentally retarded. Relying on federal precedent, the Appellate Division also concluded that the failure of the police to inform defendant that an attorney was seeking to speak with him had not violated defendant’s right against self-incrimination. Accordingly, defendant’s confession was admissible.

Defendant sought certification by this Court, asserting several grounds in support of his petition. The State filed a cross-petition based on the incorrect jury instruction on passion/provocation manslaughter. The Court denied the State’s cross-petition but granted defendant’s petition, limited to the issue of whether, under New Jersey law, the refusal to inform defendant of the attorney’s presence had violated defendant’s privilege against self-incrimination and rendered his confession inadmissible. 127 N.J. 552, 606 A.2d 365 (1991).

II

The Appellate Division, in rejecting defendant’s contention that his confession should have been suppressed, followed the decision of the United States Supreme Court in Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). The Appellate Division stated that Moran

squarely held, as a matter of federal constitutional law, that the police had no obligation to advise a defendant that a third party had summoned an attorney to advise him and that, in the absence of a request by the defendant himself, an attorney’s presence at the police station does not affect the right of the police to interrogate him.

In Moran, the defendant was in police custody for a burglary. While the defendant was in custody, the police received information connecting the defendant with a murder. The police proceeded to interrogate the defendant about the murder, even though they were aware that a public defender, retained by the defendant’s sister in connection with the burglary charge, had called to say that she would act as the defendant’s attorney if the police placed him in a lineup or interrogated him. Although the police assured the public defender that they had no plans to question the defendant that evening, nevertheless, shortly after the phone call, the police began interrogating the defendant about the murder. Before each interrogation session, the police informed the defendant of his Miranda rights and had him sign waiver forms, but they never informed him that his sister had retained a public defender to assist him or that the public defender was trying to reach him. Id. at 415-18, 106 S.Ct. at 1138-39, 89 L.Ed.2d at 417-18.

Writing for the majority, Justice O’Connor held that the actions of the police did not violate the defendant’s fifth, sixth, or fourteenth amendment rights. After noting that the voluntariness of the waiver was not at issue, the Court found that there was no question concerning the defendant’s understanding of the Miranda warnings and of the consequences of waiving them. In the Court’s view, the failure of the police to inform the defendant that an attorney was available to assist him was irrelevant to the question whether he had knowingly waived his rights. Id. at 422, 106 S.Ct. at 1141, 89 L.Ed.2d at 421.

The Moran decision elicited a powerful dissent from Justice Stevens, joined by Justices Brennan and Marshall. In the dissent’s view, the majority was “simply wrong” in stating that the analysis is complete on establishing that a waiver had been knowing and voluntary. Id. at 451-52, 106 S.Ct. at 1157, 89 L.Ed.2d at 440-41. The dissent instead stressed the fact that “custodial interrogation is inherently coercive, because disinterested witnesses are seldom available to describe what actually happened, and because history has taught us that the danger of overreaching during incommunicado interrogation is so real.” Id. at 450-51,106 S.Ct. at 1156-57, 89 L.Ed.2d at 440. Hence, when a waiver of constitutional rights has occurred in a custodial setting, the burden of proving the validity of such a waiver of constitutional rights is “especially heavy.” Ibid.

The majority decision in Moran signalled a marked departure from the fifth amendment jurisprudence that state and federal courts had established prior to Moran. At the time Moran was decided, many courts had held that when the police fail to inform a suspect that an attorney is actually available and seeking to render assistance, any subsequent waiver of the suspect’s Miranda rights was invalid. See, e.g., People v. Harris, 703 P.2d 667, 672-73 (Colo.1985); State v. Stephens, 300 N.C. 321, 266 S.E.2d 588 (1980); Weber v. State, 457 A.2d 674, 686 (Del.1983); Haliburton v. State, 476 So.2d 192, 194 (Fla.1985), cert. granted and judgment vacated, 475 U.S. 1078, 106 S.Ct. 1452, 89 L.Ed.2d 711 (1986), aff'd on remand, 514 So.2d 1088 (Fla.1987), cert. denied, — U.S.-, 111 S.Ct. 2910, 115 L.Ed.2d 1073 (1991); People v. Smith, 93 Ill.2d 179, 66 Ill.Dec. 412, 414-17, 442 N.E.2d 1325, 1327-30 (1982), cert. denied, 461 U.S. 937, 103 S.Ct. 2107, 77 L.Ed.2d 312 (1983); State v. Matthews, 408 So.2d 1274, 1278 (La.1982); Commonwealth v. Sherman, 389 Mass. 287, 450 N.E.2d (1983); State v. Luck, 15 Ohio St.3d 150, 15 OBR 296, 472 N.E.2d 1097, 1102-03, cert. denied, 470 U.S. 1084, 105 S.Ct. 1845, 85 L.Ed.2d 144 (1985); Lewis v. State, 695 P.2d 528, 530 (Okla.Crim.App.1985); State v. Haynes, 288 Or. 59, 602 P.2d 272 (1979) , cert. denied, 446 U.S. 945, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980); Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d 322, 323 (1977); State v. Hickman, 175 W.Va. 709, 338 S.E.2d 188, 194-95 (1985).

Those decisions likely prompted the Supreme Court in Moran to state explicitly: “Nothing we say today disables the States from adopting different requirements for the conduct of their employees and officials as a matter of State law.” 475 U.S. at 428, 106 S.Ct. at 1144, 89 L.Ed.2d at 425. As a result, since 1986, several state courts have had occasion to consider or reconsider the issue presented in Moran. Some.of those courts, persuaded by past precedent and the dissent of Justice Stevens, have expressly rejected Moran on the grounds that its holding offends state-constitutional provisions protecting the privilege against self-incrimination and due process rights. See, e.g., People v. Houston, 42 Cal.3d 595, 230 Cal.Rptr. 141, 724 P.2d 1166 (1986), (overruled by constitutional amendment, see People v. Ledesma, 204 Cal.App.3d 682, 251 Cal.Rptr. 417, 420-22 (1988)); State v. Stoddard, 206 Conn. 157, 537 A.2d 446 (1988); Bryan v. State, 571 A.2d 170 (Del.1990) (expressly reaffirming Weber); Roeder v. State, 768 S.W.2d 745 (Tex.Ct.App.1988); State v. Isom, 306 Or. 587, 761 P.2d 524 (1988) (impliedly reaffirming Haynes, supra); Haliburton v. State, supra, 514 So.2d 1088. See Note, Moran v. Burbine: Supreme Court Tolerates Police Interference with the Attorney-Client Relationship, 18 Loy.U.Chi.L.J. 251 (1986); Casenote, Criminal Procedure, 17 Seton Hall L.Rev. 402 (1987).

Defendant’s case now compels this Court to look to its own State law to determine the standards that should govern the conduct of law-enforcement officers in undertaking the custodial interrogation of a suspect and, specifically, to determine whether law-enforcement officers in conducting such interrogation must inform the suspect that an attorney retained on his or her behalf is present and seeks to provide assistance.

Ill

A.

In New Jersey, the right against self-incrimination is founded on a common-law and statutory — rather than a constitutional — basis. State v. Hartley, 103 N.J. 252, 260, 511 A.2d 80 (1986). From its beginnings as a State, New Jersey has recognized the right against self-incrimination and has consistently and vigorously protected that right. State v. Fary, 19 N.J. 431, 435, 117 A.2d 499 (1955); State v. Zdanowicz, 69 N.J.L. 619, 622, 55 A. 743 (E. & A.1903) (observing that “[although [New Jersey] ha[s] not deemed it necessary to insert in [its] constitution this prohibitive provision (the right against self-incrimination), the common law, unaltered by legislation or lax practice, is by us deemed to have its full force”). The right against self-incrimination is an integral and essential safeguard in the administration of criminal justice. The common-law right against self-incrimination was first codified in New Jersey in 1855. L. 1855, c. 236, § 4. Subsequently, the Legislature incorporated the right against self-incrimination in its enactment of the Rules of Evidence. N.J.S.A. 2A:84A-19; Evid.R. 24 and 25. Thus, although lacking a constitutional provision expressly establishing the right, “[t]he privilege against self-incrimination has been an integral thread in the fabric of New Jersey common law.” Hartley, supra, 103 N.J. at 286, 511 A.2d 80 (quoting Fary, supra, 19 N.J. at 435, 117 A.2d 499).

At its core, the privilege against self-incrimination means that “[i]n New Jersey, no person can be compelled to be a witness against himself.” Zdanowicz, supra, 69 N.J.L. at 622, 55 A. 743. A suspect has an absolute right to remain silent while under police interrogation, and at trial the State may draw no negative inference from that silence. State v. Ripa, 45 N.J. 199, 204, 212 A.2d 22 (1965). Waiver of that right must be knowing, intelligent, and voluntary. Hartley, supra, 103 N.J. at 260, 511 A.2d 80 (citing Miranda, supra, 384 U.S. at 463-66, 86 S.Ct. at 1622-24, 16 L.Ed.2d at 717-19). In demonstrating that a defendant has waived his or her right against self-incrimination the government bears the burden of proof and that burden is a heavy one. Ibid.

Like the right embodied in the Fifth Amendment to the federal Constitution, the state privilege against self-incrimination is not self-implementing. Although “the Constitution does not require any specific code of procedures for protecting the privilege against self-incrimination during custodial interrogation,” Miranda, supra, 384 U.S. at 490, 86 S.Ct. at 1636, 16 L.Ed.2d at 732, the United States Supreme Court and this Court have developed mechanisms for safeguarding that right. Foremost among those mechanisms are the so-called “Miranda” warnings. Id. at 479, 86 S.Ct. at 1630, 16 L.Ed.2d at 726; Hartley, supra, 103 N.J. 252, 511 A.2d 80. The Miranda warnings inform a suspect not only of the basic right against self-incrimination, but of other rights designed to effectuate that basic right. See Moran, supra, 475 U.S. at 451-52, 106 S.Ct. at 1156-57, 89 L.Ed.2d at 440-41 (Stevens, J., dissenting) (citing Miranda and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). The privilege, then, consists of a core right that is both preserved and defined by ancillary rights. See Hartley, supra, 103 N.J. at 290, 511 A.2d 80 (Handler, J., concurring in part and dissenting in part). The privilege may be conceived as a “cluster of rights” that collectively give substance to the right of a person not to incriminate himself or herself under custodial police interrogation. See Laurence A. Benner, Requiem for Miranda: The Rehnquist Court’s Voluntariness Doctrine in Historical Perspective, 67 Wash.L.Rev. 59, 84 (1989).

In effectuating the privilege against self-incrimination, this Court has recognized that ancillary rights, regardless of their legal characterization and derivation, are essential to preserving the privilege against self-incrimination. Hartley, supra, 103 N.J. 252, 511 A.2d 80; id. at 290, 511 A.2d 80 (Handler, J., concurring). This Court has found those ancillary rights may be given even greater protection under our State law than that accorded the federal right. We have done so, for example, with respect to the right to remain silent, State v. Harvey, 121 N.J. 407, 581 A.2d 483 (1990); State v. Bey, 112 N.J. 123, 548 A.2d 887 (1988); Hartley, supra, 103 N.J. 252, 511 A.2d 80; Ripa, supra, 45 N.J. at 204, 212 A.2d 22; the use of pre-arrest silence, see State v. Brown, 118 N.J. 595, 573 A.2d 886 (1990); the use of post-arrest silence, State v. Deatore, 70 N.J. 100, 116, 358 A.2d 163 (1976); Ripa, supra, 45 N.J. at 204, 212 A.2d 22; the information that must be given with respect to the consequences of incriminating statements, State v. Adams, 127 N.J. 438, 605 A.2d 1097 (1992); the right to terminate interrogation, Bey, supra, 112 N.J. at 136, 548 A.2d 887; State v. Kennedy, 97 N.J. 278, 288, 478 A.2d 723 (1984); and the right to counsel, ibid. The Court has thus “actively embraced the opportunity to move beyond the guidelines of federal directives in pursuit of an unyielding commitment to ensure the proper admissibility of confessions.” Hartley, supra, 103 N.J. at 301, 511 A.2d 80 (Handler, J., concurring in part and dissenting in part); see State v. Strong, 110 N.J. 583, 595, 542 A.2d 866 (1988).

The right to counsel has been the object of special judicial solicitude. The importance of that right was explained by Justice Pollock last term in the context of post-indictment police custodial interrogation. Although acknowledging that in the post-indictment context the right to counsel is the right to actual representation separately guaranteed by the Sixth Amendment, the Court noted the correlation between the assistance of counsel and the exercise of the privilege against self-incrimination, stating that the right to counsel during police interrogation is “a preventive measure that protects an accused from self-incrimination during police questioning.” State v. Sanchez, 129 N.J. 261, 266, 609 A.2d 400 (1992) (citing Miranda). However, equally relevant to the preindictment stage of a prosecution is the observation that the “essential purpose” of the right to counsel in the context of custodial interrogation “is to prevent compelled self-incrimination.” Ibid.

The significance of the right to counsel as an adjunct of the privilege against self-incrimination is evidenced by the special requirements that are affixed to that right. It is not sufficient to advise a suspect subjected to custodial interrogation only that he or she has a generalized right to an attorney. It is essential to inform the suspect that, if the suspect cannot afford one, an attorney will be provided at State expense. Kennedy, supra, 97 N.J. 278, 478 A.2d 723; Miranda, supra, 384 U.S. at 473, 86 S.Ct. at 1627, 16 L.Ed.2d at 723. It is also essential that the suspect be clearly informed that he or she may ask for counsel at any time during custodial interrogation, and, additionally, that interrogation will be stopped any time the defendant desires counsel. Kennedy, supra, 97 N.J. at 288, 478 A.2d 723. Further, 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. Bey, supra, 112 N.J. at 142, 548 A.2d 887; see State v. Wright, 97 N.J. 113, 477 A.2d 1265 (1984).

Our decisional law on the state right against self-incrimination is based on the understanding that the privilege is defined by the ancillary rights, like the right to counsel during custodial interrogation. Moreover, the protections afforded by those ancillary rights provide a metric by which to measure the strength of the privilege. The history of our case law reflects a strong commitment to enhance those ancillary rights to forestall the possible use of coerced confessions. Our own jurisprudence and legal traditions, in light of the distinctive origin and development of the privilege against self-incrimination in New Jersey, State v. Williams, 93 N.J. 39, 57, 459 A.2d 641 (1983), impel us to maximize the protections of the ancillary rights, including especially the right to counsel, to vindicate fully the privilege against self-incrimination.

B.

Many state courts, as already noted, have interpreted then-respective state constitutions to require that a suspect exposed to custodial interrogation be apprised of the presence of an attorney seeking to render assistance. See e.g., Stoddard, supra, 537 A.2d at 446; Bryan, supra, 571 A.2d 170; Isom, supra, 761 P.2d at 524; Haliburton, supra, 514 So.2d 1088. Courts have offered different rationales for imposing that duty. Some have based the duty on the fundamental constraints that govern the waiver of the right against self-incrimination. Those constraints are invariably expressed in terms of whether the waiver is “knowing, intelligent, and voluntary.” Thus, the Oregon Supreme Court, which reaffirmed in Isom the reasoning of its pre-Moran decision in Haynes, supra, 602 P.2d at 272, held that without the knowledge that an attorney was waiting to offer assistance, a suspect held in custody could not make a knowing and intelligent waiver of his ancillary right to counsel during interrogation.²

Other courts have derived the duty from notions of due process that insist on reasonable police conduct. The Delaware Supreme Court, for example, in Bryan, premised a valid waiver on the requirement that a suspect held in custody be apprised of the presence of an attorney, but focused on the nature of the police conduct in the custodial setting, rather than the subjective mental state of the suspect, in order not “to condone” excessive police conduct. 571 A.2d at 176. Similarly, the Florida Supreme Court in Haliburton, 514 So. 2d 1088, held that police failure to inform the defendant that an attorney was in the stationhouse asking to see him violated the due process provision of Florida’s Constitution. The Connecticut Supreme Court in Stoddard, supra, noted that informing a suspect of an attorney’s presence was important to the suspect’s making a knowing waiver of the right against self-incrimination, 537 A.2d at 452-53, but based its holding primarily upon its own “due process tradition.” Id. at 446.

The dissent here throws its lot in with those courts that believe that the essential criterion for determining the validity of a suspect’s waiver, in the context of this case, is “knowledge,” but concludes that the failure to inform a suspect, who has been given full Miranda warnings, of the presence of an attorney does not impugn or diminish the suspect’s knowledge of the Miranda rights. Post at 278-279, 627 A.2d at 651-652. The dissent thus endorses the Supreme Court’s observation in Moran, “Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.” Moran, supra, 475 U.S. at 422, 106 S.Ct. at 1141, 89 L.Ed.2d at 421.

The concurrence, in contrast, would ground the invalidation of defendant’s confession entirely on the rationale that “[without being informed of the attorney’s presence and availability, the suspect’s waiver of the privilege ordinarily could not satisfy the requirement that a waiver be knowingly and intelligently exercised.” Post at 270, 627 A.2d at 647.

However, we need not engage in an extended debate over the different approaches to dealing with the standards governing the validity of a waiver in this context. For while courts may differ on the rationale for imposing the duty to inform a suspect that an attorney is waiting to confer, they agree on one supervening principle: the atmosphere of custodial interrogation is inherently coercive and protecting the right against self-incrimination entails counteracting that coercion. Thus, although “knowledge” is always a relevant factor in assessing the validity of a waiver of the right against self-incrimination, because the right is against compelled self-incrimination, “knowledge” can be best understood as a condition of “voluntariness,” which itself denotes the absence of “compulsion.” Consequently, standards ostensibly imposed to enhance a suspect’s “knowledge” of the Miranda rights also counteract coercion and assure “voluntariness.” Some courts have recognized that connection. In Haynes, for example, in concluding that a suspect who has been deprived of the knowledge that an attorney was present and ready to confer with him could not make a fully “knowing” decision to waive his right against self-incrimination, or the ancillary right to counsel during custodial interrogation, the court pointedly observed that that right is meant “to forestall involuntary and incriminating disclosures.” 602 P.2d at 278. Similarly, in Bryan, the court in holding that “to knowingly, voluntarily, and intelligently waive” the ancillary right to counsel, the defendant had to be informed of his attorney’s efforts to render assistance, explained that “[t]o hold otherwise would be to condone ‘affirmative police interference in a communication between an attorney and suspect.’ ” 571 A.2d at 176 (quoting Moran, supra, 475 U.S. at 456, n. 42, 106 S.Ct. at 1159, n. 42, 89 L.Ed.2d at 443, n. 42 (Stevens, J., dissenting)).

The lesson to be drawn from this debate is that a waiver of the right against self-incrimination which, by all subjective indicia, appears knowing, intelligent, and voluntary, may still be deemed invalid when elicited in an atmosphere of coercion. That is because the determination of the subjective mental state that leads to a waiver is often so problematic. As Miranda itself observed, “Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, prior contact with authorities, can never be more than speculation; a warning is a clearcut fact,” 384 U.S. at 468-69, 86 S.Ct. at 1625, 16 L.Ed.2d at 720. That observation also applies to voluntariness and coercion. Professor Thomas has pointed out that people differ widely in their ability to resist pressure, withstand pain, exhibit courage, and persevere in their convictions. Hence threats that are adequate to overcome the will of one suspect may have little effect on another suspect. See George Thomas III, Justice O’Connor’s Pragmatic View of Coerced Self-Incrimination, 13 Women’s Rights L.Rep. 117 (1991). Accordingly, the most practical means to overcome coercion will be through normative rules that apply reasonable, specific, and objective standards. Although we cannot conclude with confidence that a suspect’s knowledge that an attorney is ready, able, and willing to represent him or her will enhance the suspect’s knowledge of the right to counsel, that knowledge will surely play an important role in “dissipating] the compulsion inherent in custodial interrogation and, in so doing, guard against abridgment of the suspect’s” right against self-incrimination. Moran, supra, 475 U.S. at 425, 106 S.Ct. at 1143, 89 L.Ed.2d at 423.

In contrast to the dissent, post at 280, 627 A.2d at 652, we believe that requiring the police to inform the suspect of an attorney’s presence will greatly reduce the temptation, on law enforcement authorities, to pressure the suspect into a confession before the attorney gains access to the suspect. The dissent seems to assume that police will regard every suspect taken into custody as having a lawyer “on the way.” Accordingly, the police, in a rush to secure a self-incriminating statement before the hypothetical lawyer arrives at the station house, will intensify their pressure to extract a confession. The dissent thus concludes that police officers, perceiving a more “limited window of opportunity” in which to question the suspect, will “cut corners in the effort to extract an incriminating statement.” Post at 280, 627 A.2d at 652. Because we find the basic premise of the dissent implausible, we reject its conclusion.

The only “window of opportunity” now open for the incentive to extract an involuntary confession is the one evidenced by defendant’s case: that period of time between police becoming aware of an attorney present and seeking to speak with the suspect, and the moment when a confession is finally extracted. As defendant’s case well illustrates, by allowing police to withhold the information that an attorney is available to see the suspect, enormous pressure is created, on the police, to secure a confession before either the suspect exercises the right to an attorney, or a break in the interrogation presents the opportunity for the suspect to contact family or friends who will surely tell the suspect of the attorney’s presence. We are convinced that our decision today closes and locks that window.

In rejecting the exclusive focus, of both the concurrence and the dissent, on the subjective knowledge of defendant, we are simply acknowledging that the ancillary rights, after all, are not designed merely to impart subjective knowledge. The central idea that inheres in the concept of a voluntary waiver is “freedom from coercion.” That realization led to our judgment in Hartley, supra, 103 N.J. at 262-63, 511 A.2d 80, and is at the very heart of the jurisprudence of Miranda. The Miranda decision itself clearly states:

We have concluded that without proper safeguards the process of incustody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.

[384 U.S. at 467, 86 S.Ct. at 1624, 16 L.Ed.2d at 719 (emphasis added).]

The ancillary rights of Miranda establish objective standards and although the strict application of those standards will sometimes prove overinclusive, Thomas, supra, 13 Women’s Rts.Rep. at 123, they constitute an indispensable counterweight to the inherently coercive nature of custodial interrogation.³

Consistent with the grounds of Miranda, we have stressed, as a matter of state law, that the salutary function of the ancillary rights defining the privilege against self-incrimination is to constrain official conduct. That understanding is illustrated by our decision in Hartley, supra, 103 N.J. 252, 511 A.2d 80. There, the Court went beyond federal precedent in establishing a strict rule requiring that a suspect who has exercised the right to remain silent be given fresh Miranda warnings before the resumption of interrogation in order fully and scrupulously to honor the “right to remain silent.” 103 N.J. at 261, 511 A.2d 80. The Court recognized fresh Miranda warnings as a necessary prescriptive measure to protect against “the inherently compelling pressures” of custodial interrogation. Ibid, at 267, 511 A.2d 80. In Hartley, federal agents, who induced the defendant’s incriminating statements, knew that they were coming “perilously close to violating the federal speedy-arraignment requirement” and such a violation would have led either to a dismissal or the likely suppression of any statement obtained from the defendant. Id. at 269, n. 3, 511 A.2d 80. Under such circumstances, the incentive to apply pressure on a suspect to make a confession is understandably immense. The rationale of Hartley is compelling in the circumstances of this case, in which an attorney retained for defendant was literally knocking at the door and seeking access to the defendant while the police were trying to get him to confess.

It is true that in Hartley the defendant had already asserted his right to remain silent while, in this case, defendant had not. The requirement that a confession be voluntary in order to be admissible is completely independent of and unaffected by the fact that the defendant has or has not previously asserted the right against self-incrimination or its attendant right to counsel. Accordingly, the need to overcome the coercion inherent in custodial interrogation, which may be significantly increased when a lawyer for the suspect is knocking at the jailhouse door, is no less imperative in those situations in which the suspect has not yet exercised the right to remain silent or the ancillary right to counsel. Indeed, if suspects held in custody are to have a meaningful opportunity for an initial exercise of the ancillary right to counsel, it is essential that every reasonable effort be made to overcome the inherent coercive pressures of custodial interrogation.

Justice Brennan while still a member of this Court observed: “The privilege ... against being compelled to incriminate himself, of ancient origin, is precious to free men as a restraint against high-handed and arrogant inquisitorial practices.” Fary, supra, 19 N.J. at 434, 117 A.2d 499 (citations omitted). We are convinced that by strictly enforcing these ancillary rights that define the privilege against self-incrimination, we can provide “ascertainable assurances” that the right has been adequately respected.

IV

Like the rule announced in Hartley, our decision today should be governed by a two-fold purpose: to enhance the reliability of confessions by reducing the inherent coercion of custodial interrogation and diminish the likelihood of unreasonable police conduct in those situations where police, knowing that an attorney has been retained for the suspect and is asking for contact with his or her client, are desperate to acquire a confession before the suspect speaks with the attorney.

The State nevertheless contends that the police had no duty to inform defendant about Aitken’s presence because Aitken could not be considered defendant’s attorney. The State stresses that defendant never requested an attorney and that Aitken had no legal authority to invoke defendant’s rights, and could not exercise, for defendant, the right to counsel. The State thus claims that because no attorney-client relationship existed between defendant and Aitken, law-enforcement authorities could not possibly have interfered in that relationship and defendant’s right to counsel.

In most cases in which courts have held that the police had a duty, in the absence of a request by the suspect, to inform the suspect of the presence or availability of an attorney during police interrogation, that attorney had been contacted by a member of the suspect’s family or a close friend, or had represented the suspect on previous charges and had voluntarily appeared at the police station, see e.g., Stoddard, supra, 537 A.2d 446; Haliburton, supra, 476 So.2d at 192, cert. granted and judgment vacated, 475 U.S. 1078, 106 S.Ct. 1452, 89 L.Ed.2d 711, aff'd on remand, 514 So.2d 1088 (Fla.1987); Luck, supra, 472 N.E.2d 1097; or the attorney had the apparent authority to represent the suspect, e.g., Weber, supra, 457 A.2d at 686; Haynes, supra, 602 P.2d at 277. However, other courts have held that the police have no duty to inform the suspect of an attorney’s presence if the attorney was unknown to the suspect or was truly a volunteer who had not been retained by anyone on behalf of the suspect. E.g., Harvey v. State, 529 So.2d 1083, 1085 (Fla.1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1175, 103 L.Ed.2d 237 (1989); State v. Chase, 55 Ohio St.2d 237, 9 O.O.3d 180, 378 N.E.2d 1064 (1978).

The State insists that the ancillary right to counsel cannot be exercised unless the suspect personally requests an attorney. The state contends that “neither an attorney nor a third party may exercise a suspect’s personal rights to counsel or to remain silent without any request for counsel by the suspect.” We disagree. A suspect, held in custody, who “has been provided with full access to counsel” may decline to make use of counsel during interrogation. Kennedy, supra, 97 N.J. at 288, 289, 478 A.2d 723. An attorney-client relationship between a suspect held in custody and an attorney, however, need not depend on a specific request by the suspect for representation by that attorney.

We are satisfied that an attorney-client relationship should be deemed to exist under such circumstances between the suspect and an attorney when the suspect’s family or friends have retained the attorney or where the attorney has represented or is representing the suspect on another matter. When, to the knowledge of the police, such an attorney is present or available, and the attorney has communicated a desire to confer with the suspect, the police must make that information known to the suspect before custodial interrogation can proceed or continue. Further, we hold that the failure of the police to give the suspect that information renders the suspect’s subsequent waiver of the privilege against self-incrimination invalid per se.

Our holding is essential to give effect to the right to counsel that, in turn, effectuates the privilege against self-incrimination. Moreover, our holding is supported in large measure by the special and essential role lawyers play in realizing the purpose of the right against self-incrimination. See Sanchez, supra, 129 N.J. at 266, 609 A.2d 400 (observing that an attorney was essential to effectuate privilege against self-incrimination in post-indictment custodial interrogation). As Justice Blackmun observed for the Supreme Court in Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979):

The rule in Miranda, however, was based on this Court’s perception that the lawyer occupies a critical position in our legal system because of his unique ability to protect the Fifth Amendment rights of a client undei'going custodial interrogation.

Whether it is a minor or an adult who stands accused, the lawyer is the one person to whom society as a whole looks as the protector of the legal rights of that person in his dealings with the police and the courts.

[Id. at 719, 99 S.Ct. at 2568-69, 61 L.Ed.2d at 208-09].

Our holding is also consistent with the Rules of Professional Conduct of the American legal profession. The American Bar Association’s Standards for Criminal Justice are unequivocally clear about the need for the earliest possible provision of counsel for an accused in custody. Standards 5-5.1; 5-7.1; see Moran, supra, 475 U.S. at 439-44, 106 S.Ct. at 1151-53, 89 L.Ed.2d at 433-35 (Stevens, J., dissenting) (noting that prosecutor’s failure to inform a suspect that an attorney was available to see him violated the American Bar Association’s Standards for Criminal Justice). We may note that the traditions of this State “presuppose access to counsel or family by persons in police custody.” State v. Leavitt, 107 N.J. 534, 541, 527 A.2d 403 (1987). In Leavitt, we noted that the Model Code of Pre-Arraignment Procedure of the American Law Institute, recommends that “[cjounsel for an arrested person shall have prompt access to him, by telephone, and in person on counsel’s arrival at any place where such person is detained.” 107 N.J. at 541, 527 A.2d 403 (citations omitted).

We do not, however, ground our decision on the right to counsel contained in the Sixth Amendment to the federal constitution. In Moran, the United States Supreme Court, noting that the Sixth Amendment right to counsel did not attach before the initiation of adversary judicial proceedings, found that because the defendant had not been formally charged, the actions of the police had not violated his right to counsel. Id., 475 U.S. at 428-30, 106 S.Ct. at 1144-46, 89 L.Ed.2d at 425-27.

Nor do we base our holding on the state constitutional right to counsel. N.J. Const, art. 1, § 10. In this regard we note that under New York law, a suspect’s right to counsel attaches “once the police know or have been apprised of the fact that the defendant is represented by counsel or that an attorney has communicated with the police for the purpose of representing the defendant * * * and this right is not dependent upon the existence of a formal retainer” or whether a third party has contacted an attorney on the suspect’s behalf. People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537, 538-39 (1968); accord People v. Pinzon, 44 N.Y.2d 458, 406 N.Y.S.2d 268, 377 N.E.2d 721, 724 (1978). Under the law of our State, although the right to counsel is implicated in the exercise of the privilege against self-inerimination in the pre-indictment stage of a criminal prosecution, it is not the right to counsel that is constitutionally guaranteed once a defendant has been indicted. See Sanchez, supra, 129 N.J. at 276-77, 609 A.2d 400.

Although we have, today, undoubtedly made explicit an additional responsibility of the State in its conduct toward criminal defendants, we do not believe that burden to be a heavy one. The duty to inform, that we place upon the State, is narrow and specific. It arises only where counsel has made known that he or she has been retained to represent the person held in custody, is present or readily available, and makes a request to consult with the suspect in “a reasonably diligent, timely and pertinent” fashion. Stoddard, supra, 537 A.2d at 454. We do not make incumbent upon the attorney the duty to communicate directly the interrogating officers. That communication will not, most times, be possible. Rather, whenever the attorney has communicated his presence and desire to confer with the suspect to an agent of the State in a position to contact the interrogating officers, we will impute to those officers knowledge of the attorney’s presence and desire to confer with the suspect. Thus, the police need do no more than receive and convey what has already been communicated: that an identified attorney retained for a person in custody is available to assist that person if he or she requests such assistance.

The standard that we adopt today declares certain police acts or omissions to invalidate a suspect’s waiver of the privilege against self-incrimination. As the court held in Haynes, supra, the defendant’s waiver of his Miranda rights without being advised of the availability of counsel was invalid: “When the opportunity to consult counsel is in fact frustrated, there is no room for speculation about what defendant might or might not have chosen to do after he had that opportunity.” 602 P.2d at 280. See Weber, supra, 457 A.2d at 674; Sherman, supra, 450 N.E.2d at 570; Commonwealth v. McKenna, 355 Mass. 313, 244 N.E.2d 560 (1969); Lewis, supra, 695 P.2d at 530; Hilliard, supra, 370 A.2d at 323; Hickman, supra, 338 S.E.2d at 194-95. The reasoning that we expressed in Hartley for the adoption of a bright-line rule for the violation of the ancillary right to remain silent applies with equal force to this situation involving the ancillary right to counsel. 103 N.J. at 261-63, 511 A.2d 80.

We acknowledge that some courts have declined to adopt a bright line rule, resorting instead to a rule that was based on the “totality of the circumstances.” E.g., Stoddard, supra, 537 A.2d at 456; Luck, supra, 472 N.E.2d at 1103; Roeder, supra, 768 S.W.2d ; State v. Beck, 687 S.W.2d 155, 159 (Mo.1985). We rejected the “totality of the circumstances” approach in Hartley, supra, because it is not feasible to determine defendant’s subjective state of mind. 103 N.J. at 268, 511 A.2d 80. The inherently coercive nature of incommunicado interrogations argues in favor of a clear principle to safeguard the presumption against the waiver of constitutional rights. See Moran, supra, 475 U.S. at 452, 106 S.Ct. at 1156-57, 89 L.Ed.2d at 440-41 (Stevens, J., dissenting); Hartley, supra, 103 N.J. at 261-63, 511 A.2d 80.

We also reject a “balancing approach” that weighs the cost of suppressing evidence of guilt against the value of the ancillary rights against self-incrimination. Such a balancing approach will always make the prophylactic rights appear minimal, marginal, or incremental. Moran, supra, 475 U.S. at 457, 106 S.Ct. at 1160, 89 L.Ed.2d at 444 (Stevens, J., dissenting).

We are satisfied that our holding will fully serve considerations of public policy and not undermine the proper and effective administration of criminal justice. The best response to the dissent’s argument that the rule we announce will unduly complicate effective law enforcement, post at 280-281, 627 A.2d at 652-653, is that offered by Justice Stevens in his Moran dissent: “This argument is not supported by any reference to the experience in the states that have adopted this rule.” 475 U.S. at 460, 106 S.Ct. at 1161, 89 L.Ed.2d at 446. Prior to Moran, a majority of states followed a rule similar to the one we enunciate today, without any apparent diminishment in the effectiveness of their law-enforcement agencies. In the states, since 1986, that have rejected Moran (e.g. Connecticut, Delaware, Florida, Oregon), no evidence exists that the police have been seriously hindered in their efforts to uphold the law.

Moreover, the dissent’s attempt to problematize the. rule we announce today by posing questions about its operation in hypothetical situations, is a technique that could be deployed against any number of the well operating legal rules this Court and the United States Supreme Court have established. E.g. Moran, supra, 475 U.S. at 461, n. 47, 106 S.Ct. at 1162, n. 47, 89 L.Ed.2d at 446, n. 47 (pointing out that the majority’s “one-sided” interest in clarity of Miranda warnings failed to recognize that each warning, no matter how clearly and simply expressed, can be subjected to the criticism of unlimited uncertainty in its application) (Stevens, J., dissenting).

Virtually any rule is susceptible to a parade of hypothetical inquiries. The relevant question is whether the rule will, in actual practice, be readily and efficiently followed. We are convinced that the rule we announce today is justified both by the ease and the practicality with which it can be implemented.

The most significant consideration behind the rule is that the duty to'inform a person held in custody of a specific opportunity to confer with a known lawyer is closely connected, both in logic and in experience, to the full effectuation of the privilege against self-incrimination. As we noted earlier, the right to counsel has been recognized as inextricably intertwined with the right against self-incrimination. “[I]t is not a generalized right to counsel that the decisions we have quoted enforce but, more concretely, the derivative right to the benefit of counsel’s efforts to forestall involuntary and incriminating disclosures.” Haynes, supra, 602 P.2d at 278. That right to counsel gives full force, “life and substance,” to the right against self-incrimination and is essential to the effectuation of that right. We reject, therefore, the dissent’s contention that the rule we enunciate today is unfairly biased against the “indigent defendant with no previous experience with law enforcement who is arrested while alone.” Post at 279, 627 A.2d at 652. It is probably true that such a person will be less likely to have a lawyer contacted to see him or her. In an ideal world, every defendant would have the family, friends, financial means, time, energy, and personal resources to mount the best defense. But we do not live in an ideal world.

Regrettably, reality compels us to tolerate significant differences in the empirical operation of the constitutional rules we enunciate. Would anyone dispute, after all, that the Sixth amendment right to counsel is experienced differently by a well educated defendant with access to any trial lawyer in the country and unlimited financial resources to present a defense, than by an illiterate and indigent defendant, without family or friends, who must rely on a highly competent and committed, but overworked; public defender? Yet we have never taken a disparity in the actual ability of differently-situated defendants to make use of a right as an argument against affording that right. Accordingly, the fact that not every suspect will benefit from the rule we announce today is no reason to deny the benefits of that rule to those suspects who may be advantaged by it.

V

Our determination of the nature and application of the ancillary right to counsel directs the focus of future judicial inquiry, in this state, away from the assessment of the subjective level of coercion to which a suspect was exposed and toward an evaluation of objective police conduct. Although we have based our holding on our analysis of New Jersey’s privilege against self-inerimination, such a focus — toward police conduct — invariably raises questions of due process.

In Moran, the United States Supreme Court, although noting that the “deliberate or reckless” withholding of information concerning an attorney’s availability was ethically objectionable, found that such conduct fell “short of the kind of misbehavior that so shocks the sensibilities of civilized society” as to violate the Due Process Clause of the Fourteenth Amendment. 475 U.S. at 433-34, 106 S.Ct. at 1147, 89 L.Ed.2d at 428-29. Further, the Court concluded, “nothing in the Constitution vests in us the authority to mandate a code of behavior for state officials wholly unconnected to a federal right or privilege.” Id. at 425, 106 S.Ct. at 1143, 89 L.Ed.2d at 423.

Justice Stevens, in dissent, remarked that in other circumstances the Court had given a more thoughtful consideration to the due-process requirement than a mere “shock the conscience” test. According to Justice Stevens, federal precedent demonstrates that the principles behind due process require “fairness, integrity and honor in the operation of the criminal justice system and in its treatment of the citizens’ cardinal constitutional protections.” Id. at 466-67, 106 S.Ct. at 1165, 89 L.Ed.2d at 450.

Our own views of due process underscore the great weight given to considerations of reasonableness, fairness, and judicial integrity that collectively define the bounds of tolerable police conduct. E.g., State v. Johnson, 127 N.J. 458, 606 A.2d 315 (1992). In this case, the inquiry into the applicability of due-process protections must be whether the police conduct in defendant’s case was so egregious as to violate due process under our State Constitution.

We now hold, however, that the failure of the police to inform defendant that an attorney was present and asking to speak with him violated defendant’s State privilege against self-incrimination. We decline, therefore, to resolve the issue of whether the police conduct was so egregious as to offend the due-process guaranteed by our State Constitution. Nevertheless, the police conduct in this case illustrates the close correlation between police conduct that can increase the inherently coercive atmosphere of custodial interrogation and conduct that is excessive, shocking, and fundamentally unfair and therefore violative of due process.

We are presented with a prosecutor misstating to an attorney retained to represent a client that the client was a witness not a suspect, and refusing to allow that attorney access to the client, thus violating the rules of his profession.⁴ In turn, the police hurried defendant down a back stairway to prevent defendant from seeing his girlfriend or the attorney retained to represent him. This, in turn, prompted the police to aver that taking four flights of stairs to exit a building was “more convenient” than using the elevator next to which defendant’s girlfriend was coincidentally sitting. We think that in this case the law-enforcement officers were under great pressure to secure a confession. To prevent defendant from speaking with his attorney, the police engaged in conduct that, if not egregious, exemplifies the ways in which the inherently coercive atmosphere of custodial interrogation can be materially increased in the efforts to obtain a confession.

Miranda details, at some length, the “third degree” techniques — types of crude coercion — that ill befit a free society. See 384 U.S. at 445-59 nn. 5-25, 86 S.Ct. at 1613-20 nn. 5-25, 16 L.Ed.2d at 707-14, nn. 5-25. Defendant’s case reminds us, as Chief Justice Warren observed, that “jw]e sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came and the fervor with which it was defended.” Id. at 458, 86 S.Ct. at 1619, 16 L.Ed.2d at 714. Although we withhold judgment on whether police conduct, in defendant’s case, violated the demands of due process, we do not hesitate to observe that police and prosecutorial behavior, in denying defendant access to counsel, did not well serve the investigative function. Such conduct does not promote public esteem for the law, and it substantially increases the possibility that a suspect’s confession will be involuntary. At a minimum, such conduct must not be encouraged by the courts.

VI

Accordingly, we hold today that when, to the knowledge of law-enforcement officers, an attorney has been retained on behalf of a person in custody on suspicion of crime and is present or readily available to assist that person, the communication of that information to the suspect is essential to making a knowing waiver of the privilege against self-incrimination, and withholding that information renders invalid the suspect’s waiver of the privilege against self-incrimination.

The judgment of the Appellate Division reversing defendant’s murder conviction is affirmed. The judgment of the Appellate Division affirming defendant’s conviction for aggravated criminal sexual contact is reversed, and the matter is remanded for proceedings consistent with this opinion.

1 Chief Justice Warren, in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), describes this technique as "the ‘friendly-unfriendly’ or ‘Mutt and Jeff act" in which one police interrogator is a "relentless" investigator who "knows the subject is guilty," while the other police interrogator is "obviously a kindhearted man" who disapproves of the other interrogator's tactics but "can’t hold [him] off for very long.” Id. at 452, 86 S.Ct. at 1616, 16 L.Ed.2d at 711 (describing various contemporary interrogation techniques and quoting from extant police-interrogation manuals).

2 At least one commentator has argued that in order for a suspect’s confession to be valid, the suspect should be provided with "as complete an understanding of his tactical position as possible.” See George E. Dix, Mistake, Ignorance, Expectation of Benefit and the Modem Law of Confessions, 1975 Wash.U.L.Q. 275, 330-31. On this view, deprivation of "crucial information” can convert what otherwise would be a noncoercive situation into a coercive situation. See George C. Thomas III, A Philosophical Account of Coerced Self-Incrimination, 5 Yale lournal of Law & the Humanities 79, 89 (1993) (citing Dix, supra).

The difficulty with this position is that it is unacceptably overinclusive: it would encompass information such as the death of a critical witness, the successful escape of an accomplice, and the destruction of crucial evidence. Certainly, each of these bits of information would play an important part in the suspect’s understanding of his or her "tactical position” and, accordingly, in the suspect’s decision to confess.

3 Though indispensable to reducing the coercion inherent in custodial interrogation, there is nothing, in principle, about the Miranda warnings to assure that they are adequate to dispel that coercion completely. Indeed, some commentators have suggested that the Miranda warnings are inadequate. See Thomas, supra, 5 Yale J. of L. & Hum. at 101-02. Though we engage in no argument with the Miranda warnings here, we note that those warnings were not based on any empirical studies of the psychology of suspects held in custody. Rather, the Miranda warnings represented the best estimation of the United States Supreme Court on what would be necessary to overcome the inherently coercive atmosphere of custodial interrogation and establish a rebuttal presumption of voluntariness on the part of the suspect who confessed. There is nothing in the Miranda warnings, per se, to suggest that the demands of a state constitution might not impose additional requirements to dispel the atmosphere of coercion even further.

4 Our own Rules of Professional Conduct state as a "special responsibility of a prosecutor" the duty to "make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel." RPC 3.8(b).