In an era of codification and statutory law, several states still rely on the common law to protect vital individual rights. As an example, New Jersey grounds its protection against self-incrimination in the common law, not its state constitution.
In this Article, I compare two remarkably similar cases involving police deception during custodial interrogations — one before the Supreme Court of the United States and the other before the Supreme Court of New Jersey. The issue faced by each court was the admissibility of confessions obtained after police officers failed to inform a suspect that an attorney had been retained on his behalf, was present, and was seeking to advise him. The article explains the federal precedent by examining Moran v. Burbine, a 1986 Supreme Court decision. By comparing Moran with State v. Reed, a New Jersey Supreme Court decision nearing its twentieth anniversary — I explore (1) the methods used by state courts when departing from federal precedent, and (2) the efficacy of using the common law to do so.
I posit that not only, was the court’s decision to base Reed on the common-law right against self-incrimination rather than resorting to constitutional adjudication legitimate, but that it was the better course of action. Indeed, I believe that New Jersey can serve as a model for other states in this regard. Not only does the court’s methodology conform to long-standing rules of judicial construction, it also affords a level of flexibility and reasonableness not available from broad constitutional pronouncements.