NJSBA Family Law Section

Hi Aleksandra,

In this case, a private lawyer, not a state actor, seeks to use evidence in a civil law matter (the FRO hearing) that the police – not the private lawyer or anyone acting on his or her behalf -- improperly gleaned from a criminal law defendant.

In my opinion, your client gets no benefit in civil litigation from a violation of the Miranda exclusionary rule.  The rule's purpose is to prevent law enforcement from violating a suspect's rights and then using the fruit of the poisonous tree against him or her in a criminal trial.  The public policy supporting the Miranda rule is punitive and deterrent in nature.  Relevant information is disallowed because the constitutional harm of its inclusion is deemed to outweigh the prosecution's right to prove its case beyond a reasonable doubt.

In United States v. Janis, 428 U.S. 433 (1976), the applicability of the exclusionary rule to civil proceedings was squarely in question.  Janis involved an Internal Revenue Service (IRS) assessment for unpaid wagering taxes. The assessment had been calculated solely on the basis of evidence illegally seized by state police officers investigating alleged bookmaking activity. Soon after the seizure, the IRS was notified of Janis's arrest and given access to the seized evidence. As a result, the IRS assessed wagering excise taxes of $89,000. Because the search was conducted per a defective warrant, the trial court suppressed the evidence at the state proceeding. Janis filed a civil action for a refund of the cash and the government counterclaimed for the balance of the assessment.

The issue as framed by the U.S. Supreme Court was a narrow one: "Is evidence seized by a state criminal law enforcement officer in good faith but unconstitutionally, inadmissible in a civil proceeding by or against the United States?" The suit was filed after the IRS dishonored Janis's claim for refund. Applying the balance of interests test developed in United States v. Calandra, the Court stated the marginal additional deterrence that might result from exclusion in the tax proceeding was so slight that it could not outweigh the greater societal cost of excluding this highly relevant evidence in a civil court setting.

Unless the NJ Supreme Court has made a different ruling under our State Constitution, perhaps due to the distinction of "quasi-criminal" versus "purely civil", then I predict the above analysis will prevail, against your client's position.  I am very interested to read whether others know of NJ precedents favoring your client's position.  Certainly, such a decision could be defended on public policy grounds, yet I am doubtful it has happened.

Hanan M. Isaacs, Esq.