                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                                  State v. Terrell L. Hubbard (A-56-13) (073539)

Argued January 6, 2015 -- Decided June 24, 2015

CUFF, P.J.A.D. (temporarily assigned), writing for a majority of the Court.

         In this appeal reviewing the determination on defendant’s motion to suppress, the Court addresses the
applicable standard of review when part of the evidence considered by the trial court consists of a videotape of
statements that defendant made during an interview at the police station, and whether the circumstances of that
interview constitute a custodial interrogation warranting the administration of warnings under Miranda v. Arizona,
384 U.S. 436 (1966) (Miranda).

          On October 20, 2008, defendant called 9-1-1 requesting assistance for his five-month old daughter,
reporting that she was not breathing. When the police arrived, the infant was in an ambulance about to be taken to
the hospital. Medical technicians informed the responding officers that the child was in critical condition.
Defendant told a detective that, upon observing his daughter lying in bed, he noticed that she was not breathing.
Defendant then called 9-1-1 for assistance and administered CPR. After speaking with a detective at the house,
defendant acceded to the detective’s request that he come to the police station to provide further information that
may be helpful for his daughter’s treatment. Prior thereto, a police sergeant told the detective that the house would
be secured as a crime scene. Defendant was at the police station for a total of three hours (including breaks), during
which he was interviewed for some forty minutes. Defendant told the detective that, earlier in the day, his girlfriend
told him that the baby was cranky, and he tried to calm her over several hours. After advising defendant that the
baby is at the hospital and doctors were able to get a pulse, albeit a weak one, the detective asked defendant if the
baby had fallen, or been accidentally dropped. Defendant responded in the negative. The detective also asked
defendant about his relationship with his girlfriend, whether her pregnancy was a surprise, how the baby’s birth had
altered his life, and whether defendant ever became frustrated with the baby and resented her. At the conclusion of
the interview, the detective drove defendant home. At no time prior to or while at the police station was defendant
given Miranda warnings. Defendant’s daughter was declared dead three days later.

          Approximately 7 months later, defendant was arrested, and after being read his Miranda rights, admitted
that he tossed the baby toward the bed, causing her to hit the wall. Defendant was subsequently indicted for second-
degree manslaughter contrary to N.J.S.A. 2C:11-4(b)(1), and second-degree endangering the welfare of a child,
contrary to N.J.S.A. 2C:24-4(a). The trial court granted defendant’s motion to suppress his October 20, 2008
statement, concluding that defendant was in custody at the time of the interview and that his rights were violated
when he was not administered Miranda warnings. In reaching its conclusion, the court relied on several key factors
regarding the detective’s interaction with defendant, including the detective’s instruction that defendant sit in a
certain chair to permit the video camera to obtain a full face view of defendant, the detective’s physical proximity to
defendant, and the probing nature of the questions that defendant was asked. The court also relied on testimony of
witnesses at the evidentiary hearing demonstrating that the detective asked defendant to accompany him to the
police station, defendant was placed in the back seat of the unmarked police car, defendant and the detective did not
converse during the ride to the police station, and the house was secured to prevent entry by anyone. The trial court
found that, under all of the circumstances, no reasonable person in defendant’s position would have felt free to leave
the room or the police station.

         The Appellate Division granted the State’s motion for leave to appeal, and reversed. The Appellate
Division found that this Court’s ruling in State v. Diaz-Bridges, 208 N.J. 544 (2012), permitted it to conduct a de
novo review of the trial record, without deferring to the findings of fact and credibility assessments made by the trial
court, having concluded that the trial court based its findings of fact solely on the videotape that was equally
available to the appellate court, without reliance upon other testimony. The Appellate Division conducted a de novo
review of the videotape, and concluded that defendant had not been subjected to a custodial interrogation. The court
held that the failure to provide Miranda warnings therefore did not require suppression of defendant’s statement.

         The Court granted defendant’s motion for leave to appeal. 217 N.J. 281 (2014)

HELD: Where a trial court relies on evidence in addition to a videotaped statement, including testimony presented
to it, traditional rules of appellate review control and require deference to the findings of fact and credibility
assessments made by the trial court. An appellate panel must therefore review the entire record to determine if the
factual findings are supported by substantial credible evidence, rather than engage in de novo review of the record.
Under this deferential standard of review, the trial court properly concluded, based on its review of the entire record,
that defendant was the subject of a custodial investigation and therefore should have been given Miranda warnings.

1. An appellate court reviewing a grant or denial of a motion to suppress evidence must defer to the factual findings
of the trial court provided those findings are supported by sufficient evidence in the record. Deference by an
appellate court is not required only when the trial court’s findings of fact are clearly mistaken. In that event, the
reviewing court must examine the record, make findings of fact, and apply the governing law. In contrast, a trial
court’s interpretation of the law is not entitled to special deference, and is subject to de novo review. (pp. 14-15)

2. Although the means of recording statements, including custodial interrogations, have evolved over time from a
stenographic record to audio and now video recording, the deference accorded to the findings of fact by the trial
judge upon appellate review has not changed. The required deference is not limited to credibility findings by the
trial court, but extends to findings of fact generally. In certain fact-sensitive contexts, appellate review may require
examination of a videotaped statement or proceedings, and not be confined to a review of the transcript. However,
review of an electronic record is not intended to elevate the appellate panel’s evaluation of that record over the
factual findings of the trial court. The Court explained in Diaz-Bridges, supra, 208 N.J. at 565-66, that de novo
review of a videotaped statement on appeal is confined to the rare case in which the videotape is the only evidence
before the trial court, or the trial court unequivocally relies on no other evidence to resolve the motion to suppress.
(pp. 15-18)

3. Under Miranda, a confession or incriminating statement obtained during a custodial interrogation may not be
admitted in evidence unless a defendant has been advised of his or her constitutional rights. Although a defendant
may waive any or all of those rights, the waiver must be voluntary, knowing and intelligent. The failure to
administer Miranda warnings prior to custodial interrogation creates a presumption of compulsion. If warnings were
required by not given, statements made in the absence of the warnings must be suppressed even if otherwise
voluntary under the Fifth Amendment. (pp. 18-19)

4. Custodial interrogation” has been defined as questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant way. “Custody” for
purposes of Miranda warnings does not require a formal arrest, nor physical restraint in a police station. Whether a
suspect has been placed in custody is a fact-sensitive inquiry and may not easily be discerned. The critical
determinant is whether there has been a significant deprivation of the suspect’s freedom of action based on the
objective circumstances, rather than on the subjective views of law enforcement personnel or the person being
questioned. Investigative questioning directed at an individual who is not a suspect does not require Miranda
safeguards. The State bears the burden of proving beyond a reasonable doubt the voluntariness of a defendant’s
statements. (pp. 19-22; 26-27)

5. In Diaz-Bridges, the Court referenced the videotape of the defendant’s custodial interrogation and delineated
exceptionally limited circumstances when appellate review required reference to the video record. 208 N.J. at 565.
Here, because the trial court relied on evidence other than the videotaped statement of defendant, the traditional
standard of appellate review is applicable. The inquiry is whether the factual findings of the trial court are supported
by substantial credible evidence, rather than de novo review. The Appellate Division erred when it dismissed the
findings of fact of the trial court and conducted a de novo review of the record. (pp. 22-26)

6. In light of the conditions, substance and duration of the detective’s interview of defendant, combined with the
events at defendant’s home, the trial court’s conclusion that defendant’s interview was custodial in nature is
supported by credible, factual evidence in the record, and the proper application of governing law. The interview,
conducted without administration of defendant’s Miranda rights, must be suppressed. (pp. 26-28)

                                                           2
         The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the Law
Division for further proceedings.

          JUSTICE ALBIN, CONCURRING, agrees with the majority that a deferential standard of review applies
in this case. However, stating that the law must adapt to technological advances, Justice Albin notes that the
applicable standard of review of videotaped evidence is an important judicial-policy issue on which other courts
have reached differing results, and which remains to be decided by this Court after serious dialogue and thoughtful
consideration in a case where the issue is squarely presented.

        CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA,
and SOLOMON join in the opinion of JUDGE CUFF (temporarily assigned). JUSTICE ALBIN filed a
separate, concurring opinion.




                                                        3
                                      SUPREME COURT OF NEW JERSEY
                                        A-56 September Term 2013
                                                 073539

STATE OF NEW JERSEY,

     Plaintiff-Respondent,

          v.

TERRELL1 L. HUBBARD,

     Defendant-Appellant.


          Argued January 6, 2015 – Decided June 24, 2015

          On appeal from the Superior Court, Appellate
          Division.

          Wayne Powell argued the cause for appellant.

          David M. Galemba, Assistant Prosecutor,
          argued the cause for respondent (Jennifer
          Webb-McRae, Cumberland County Prosecutor,
          attorney).

          Sara M. Fedorczyk, Deputy Attorney General,
          argued the cause for amicus curiae Attorney
          General of New Jersey (John J. Hoffman,
          Acting Attorney General, attorney).


     JUDGE CUFF (temporarily assigned) delivered the opinion of

the Court.

     On October 20, 2008, police responded to a 9-1-1 call

requesting assistance for an injured child.   The child was


1 Defendant’s first name is misspelled as “Terrell” in the
Appellate Division decision and the parties’ submissions. In
his October 20, 2008 police interview, defendant specifically
explained that his name is spelled with “one R.”
                                1
defendant Terrell Hubbard’s five-month-old daughter, Lanaya.

When police arrived, the infant was in an ambulance about to be

transported to the hospital.    Medical technicians informed the

responding police officers that the child was in critical

condition.

     Defendant told a detective that he found his daughter lying

on the bed and noticed that she was not breathing.    He placed a

9-1-1 call and performed CPR while waiting for assistance.

Defendant acceded to the detective’s request to come to the

police station to provide information that might be helpful to

medical professionals treating his daughter.    Defendant was in

the police station for a total of three hours, which included

three breaks, ranging from a few minutes to two hours in

duration.    After the interview was concluded, the detective

drove defendant home.    The detective never administered Miranda2

warnings to defendant.    Defendant’s daughter was declared dead

three days later.

     A grand jury returned an indictment charging defendant with

second-degree manslaughter, contrary to N.J.S.A. 2C:11-4(b)(1),

and second-degree endangering the welfare of a child, contrary

to N.J.S.A. 2C:24-4(a).    The trial court granted defendant’s

motion to suppress his October 20, 2008 statement.    The court


2  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
                                  2
concluded that defendant was in custody at the time of the

interview and that police had failed to advise defendant of his

Miranda rights.   The Appellate Division granted the State’s

motion for leave to appeal and reversed.    The panel determined

that this Court’s recent ruling in State v. Diaz-Bridges, 208

N.J. 544 (2012), permitted it to conduct a de novo review of the

trial record, without deferring to the findings of fact and

credibility assessments of the trial court, because it concluded

that the trial court had based its findings of fact solely on

the videotape of the October 20 interview.    The appellate panel

found that defendant had not been subject to a custodial

interrogation; therefore, the failure to administer Miranda

warnings to defendant at the beginning of the interview did not

require suppression of the statement.    We granted defendant’s

motion for leave to appeal.

    In Diaz-Bridges, the Court emphasized that de novo review

of a video record is confined to the rare case in which the

videotaped statement is the only evidence before the trial court

or the trial court clearly and unequivocally relies on no

evidence other than the videotaped statement to resolve the

motion to suppress.   Id. at 565-66.    In this matter, we have not

been asked to examine the standard of review set forth in Diaz-

Bridges.   There is no need to do so for in this matter the

traditional rules governing appellate review of trial court

                                 3
findings control and should have been applied by the Appellate

Division.    The trial court relied on evidence other than the

videotaped statement, including testimony presented to it when

making its findings.

    We further determine that the interview conducted by the

detective at the police station was a custodial interrogation

and the failure to administer Miranda warnings prior to the

interview requires suppression of that recorded statement.

                                 I.

    On October 20, 2008, defendant Terrell Hubbard was alone

with Lanaya, his five-month-old daughter, at the home he shared

in Vineland with the child’s mother and her father.    The child’s

mother left Lanaya in defendant’s care to go to the dentist

before reporting to work.    At approximately 3:30 p.m., defendant

placed a 9-1-1 call to report that his daughter was not

breathing.    The operator instructed defendant how to administer

CPR as he awaited the arrival of emergency medical assistance.

Emergency medical personnel arrived at defendant’s home before

the police.   After restoring the child’s heartbeat, medical

personnel placed her in an ambulance for transport to a

hospital.    Police arrived just before the ambulance departed.     A

medic informed Detective Jeff Travaline that the child was in

critical condition.



                                  4
    After speaking to the medic, the detective went to the

porch of the house, where defendant stood with another police

officer.   The detective asked defendant what had happened to the

baby.   Defendant stated that the child was lying on the bed and

had been crying.   He picked her up, realized she was not

breathing, and placed the call for assistance.    When a police

sergeant informed Travaline that he wanted to secure the house

as a crime scene, Travaline and the sergeant conducted a “walk-

through” to confirm that no one else was in the house.

Defendant remained on the porch with a police officer.

    After locking the front door, Travaline asked defendant to

accompany him to the police station.     Defendant assented and

Travaline drove him to the police station.

    The parties disputed the circumstances surrounding

defendant’s trip to the police station.    Travaline maintains

that he offered to drive defendant because defendant’s vehicle

was being used by his girlfriend.    Defendant, however, insists

that he had ready access to a vehicle but was given no option

other than to ride in Travaline’s car.    The trial court found

that the detective offered defendant no option, directing him to

the backseat of his unmarked police vehicle.     Defendant and

Travaline did not converse during the drive to the station.

Defendant sat in the backseat of the vehicle.



                                 5
    Defendant was not handcuffed or patted down at any time

that day.   According to Travaline, defendant was not a suspect

at that time; he was simply being interviewed to provide a

fuller understanding of what transpired so that additional

information could be relayed to the medical professionals

treating defendant’s daughter.

    At approximately 4:17 p.m., defendant entered an interview

room at the station.     He sat alone for almost three minutes

before being joined by Travaline.      After providing defendant

with water, Travaline asked him to move to a different seat in

the corner of the room.     The move permitted defendant to face

the video camera.     Travaline sat across from defendant, between

him and the door.     Defendant was in the interview room for

almost three hours.    During that period, Travaline asked

defendant questions for about forty minutes.      Defendant was

never advised of his Miranda rights that day.

    Defendant told Travaline that, earlier in the day, his

girlfriend informed him that the baby was cranky.      Defendant

tried to calm the baby over several hours.      Eventually, he

placed her on the bed and went to the kitchen to prepare

something to eat.     On his return to the bedroom, he noticed that

the baby “was flimsy and . . . wasn’t breathing,” so he called

9-1-1.   Travaline then asked defendant to “back up a little bit”

and clarify a few things.     The detective’s questions focused on

                                   6
defendant’s movements and his interaction with his daughter.

Defendant provided additional detail, explaining that Lanaya had

been uncharacteristically fussy the night before and that her

mother had given the child Tylenol earlier that day.

       At one point during the interview, Travaline left the room

and returned about eight minutes later, informing defendant that

the “[b]aby’s down at the hospital.    They are still working on

her.    They do have a . . . pulse.   It is a weak pulse, though.”

       Returning to the interview, Travaline asked defendant if

Lanaya had fallen or been accidentally dropped, or if defendant

may have been distracted at any point while watching her.

Defendant answered each of these questions in the negative.

Travaline asked defendant about his relationship with his

girlfriend, whether her pregnancy was a surprise, and how the

birth of the baby had altered his life.     Travaline also asked if

he was ever advised or counselled to treat the infant gently,

whether he ever got frustrated with the baby, if he loved her,

and if he ever resented her.

       The exchange proceeded as follows:

           [Q]: [T]here’s a reason that she, uh, there
           is a reason that we’re here. There is a reason
           that she stopped breathing. You know and . .
           .

           [A]:   I know.

           [Q]:   . . . and I don’t understand . . . the
           time   period that you[’re] giving[.      It]

                                  7
doesn’t account or explain why she would stop
breathing, I mean?

[A]: [I] never heard of anything . . . like
this, especially happening to my daughter.

. . . .

[Q]: You ever get mad because the baby’s, you
know, not mad, mad[ is] the wrong word, maybe
frustrated?

[A]:   Yeah.

. . . .

[Q]: Did you get a little frustrated at all
this afternoon?

[A]: Um, no I . . . I wasn’t with her long.
I mean after a couple hours in the same . . .
same crying and whining . . .

. . . .

[Q]:   You love this baby?

[A]: Like so much. I never had nothing like
this. I got her name tattooed on my arm.

. . . .

[Q]:   Just seem indifferent, you know.

[A]:   Just everything changed when the baby
was born. Stuff I could do before[.] I loved
playing basketball. I don’t do it much. I
think this summer I played about five times
through the whole summer.

. . . .

[Q]: This wasn’t a planned event, having a
baby?

[A]:   No.     No.


                       8
            [Q]: [Y]ou ever resent the baby or . . . or
            her, you know for [. . .]

            [A]:   [W]hat happened . . .

            [Q]:   Uh-huh.

            [A]: No. I mean, if it happened, it was meant
            to happen.    Just how it goes.      I’m not
            regretting anything . . . .

    At 5:12 p.m., after about an hour in the interview room,

Travaline told defendant that he was going to check the baby’s

status and that he would return in a few minutes.    After an

absence of approximately two hours, Travaline returned to the

room, apologized for the wait, and told defendant he would drive

him home.

    Defendant’s daughter died three days later.     The medical

examiner’s report noted a number of healing bruises and

fractures, including a broken clavicle and three broken ribs.

An examination of the child’s large intestine indicated some

form of impact to that organ.    The medical examiner also noted

abnormal swelling of the brain and fluid in the spinal cord.       A

neurologist opined that a bleeding malformation in the child’s

brain likely caused her to become increasingly fussy and to cry.

The neurologist also opined that the child sustained a traumatic

injury to the brainstem and spinal cord.

    The police arrested defendant on May 7, 2009, approximately

seven months after the October 2008 interview.    Sergeant Alexis


                                   9
Sheftall read defendant his Miranda rights, and Sheftall and

Travaline questioned defendant.    Eventually, defendant admitted

that he tossed Lanaya toward the bed, causing her to hit the

wall.   When defendant noticed that she had stopped breathing, he

called 9-1-1.

                                  II.

    The grand jury returned an indictment charging defendant

with second-degree reckless manslaughter, contrary to N.J.S.A.

2C:11-4(b)(1), and second-degree endangering the welfare of a

child, contrary to N.J.S.A. 2C:24-4(a).    In a motion to suppress

the recorded October 20, 2008 statement, defendant argued that

the interview was a custodial interrogation and any statements

made during that interview should be suppressed because the

detective never advised him of his Miranda rights.

    The Law Division judge conducted a suppression hearing on

February 9 and 16, 2012, at which Travaline and defendant

testified and the court viewed the October 20, 2008 videotaped

statement.   The trial court confirmed the undisputed fact that

the detective did not administer Miranda warnings to defendant

before or at any time during his interview.    The court also

found that defendant was in custody during the October 20

interview.   The court stated that several factors influenced

this finding, including Travaline’s instruction that defendant

sit in a certain chair to permit the camera to obtain a full-

                                  10
face view of defendant, Travaline’s physical proximity to

defendant, and the probing nature of the questions posed to

defendant.   In addition, the court cited several other facts

presented by witnesses at the evidentiary hearing in support of

its finding that defendant had been the subject of a custodial

interrogation, including Travaline’s request for defendant to

accompany him to the police station, placing defendant in the

back seat of the unmarked police car, securing the house to

prevent entry by anyone, and preparing a crime log.   The court

also found that no reasonable person in defendant’s position

would have felt free to leave the room or the police station.

An order dated March 22, 2012, suppressed the October 20

statement in its entirety.

    The Appellate Division granted the State’s motion for leave

to appeal and reversed the March 22, 2012 order.   Quoting Diaz-

Bridges, supra, 208 N.J. at 566, the appellate panel determined

that it need not defer to the factual findings of the trial

court because “‘the trial court’s factual findings [we]re based

only on its viewing of a recorded interrogation that [wa]s

equally available to the appellate court and w[ere] not

dependent on any testimony uniquely available to the trial

court.’”   The panel conducted a de novo review of the videotape

of the October 20 interview and concluded that the totality of

the circumstances did not support the finding that “defendant

                                11
was subject to ‘the inherent psychological pressure on a suspect

in custody.’”   (Quoting State v. Brown, 352 N.J. Super. 338, 351

(App. Div.), certif. denied, 174 N.J. 544 (2002)).   The panel

also determined that the trial court erred in attaching any

significance to the fact that Travaline suspected that the

child’s injuries had been inflicted by someone.   The panel also

dismissed the import of the detective’s request that defendant

sit in a certain chair or the detective’s posture.

    This Court granted defendant’s motion for leave to appeal.

217 N.J. 281 (2014).

                               III.

    Defendant argues that the Appellate Division erred by

limiting its review of the record to just the videotape of the

October 20 interview and then conducting a de novo review of

that statement.   In doing so, defendant asserts that the

appellate panel misapplied Diaz-Bridges, because this is not a

case in which the trial court relied solely on the videotaped

statement.   Rather, defendant contends that the trial court

plainly stated that it relied on more evidence than simply the

videotaped statement.   Defendant argues that the panel was

required to defer to the factual findings of the trial court,

which were well-supported by the entire record.   Finally,

defendant insists that the facts, as found by the trial court,

lead to the inexorable conclusion that defendant was subject to

                                12
a custodial interrogation without the benefit of Miranda

warnings on October 20, 2008, and that his statement must

therefore be suppressed.

    The State responds that “to the extent that the motion

judge made any factual findings beyond the videotape, they are

not proper considerations.”   Therefore, the State contends that

the Appellate Division was not required to defer to any findings

of fact made by the trial judge and was free to limit its review

to the videotape and make its own findings of fact and draw its

own conclusions of law.    The State argues that defendant freely

and voluntarily entered the police station, that defendant was

not subject to restraint or an otherwise coercive environment,

that he freely and voluntarily responded to all questions posed

by the detective, and that defendant was never told he could not

leave.   Therefore, the interview had none of the hallmarks of a

custodial interrogation, and the detective was not required to

administer Miranda warnings to defendant.

    The Attorney General, appearing as amicus curiae, submits

that the Appellate Division properly adopted a de novo standard

of review.   The Attorney General concedes that an appellate

tribunal should defer to the findings of fact of a trial court

based on witness testimony, but contends that the findings of

fact made by the trial court were founded solely on the

videotape of the October 20 statement.    Therefore, the appellate

                                 13
panel was not required to defer to the trial court’s findings of

fact.   Finally, the Attorney General submits that defendant was

never in custody.   Rather, the October 20 interview was nothing

more than “part of an investigatory procedure” that did not

require administration of Miranda warnings to defendant.

                                 IV.

                                 A.

    Appellate courts reviewing a grant or denial of a motion to

suppress must defer to the factual findings of the trial court

so long as those findings are supported by sufficient evidence

in the record.   State v. Gamble, 218 N.J. 412, 424 (2014); State

v. Elders, 192 N.J. 224, 243 (2007).      We defer to those findings

of fact because they “are substantially influenced by [an]

opportunity to hear and see the witnesses and to have the ‘feel’

of the case, which a reviewing court cannot enjoy.”      State v.

Johnson, 42 N.J. 146, 161 (1964).      An appellate court should

disregard those findings only when a trial court’s findings of

fact are clearly mistaken.   Id. at 162.     In those situations,

the interests of justice require the reviewing court to examine

the record, make findings of fact, and apply the governing law.

Ibid.   A trial court’s interpretation of the law, however, and

the consequences that flow from established facts are not

entitled to special deference.   State v. Gandhi, 201 N.J. 161,



                                 14
176 (2010).     A trial court’s legal conclusions are reviewed de

novo.   Ibid.

    The rule of deference announced in Johnson, and endorsed

repeatedly through the years, see, e.g., Elders, supra, 192 N.J.

at 243; State v. Locurto, 157 N.J. 463, 470-71 (1999), arose in

the context of stenographically recorded proceedings.

Gradually, memorialization of the record progressed from the

stenographer to audio recordings to video recordings.     Following

a comprehensive study of “whether and how to implement the

benefits of recording electronically part, or all, of custodial

interrogations,” State v. Cook, 179 N.J. 533, 561 (2004), the

Court adopted Rule 3:17 in 2005, which generally requires

electronic recordation of custodial interrogations of those

charged with certain enumerated serious offenses.     Rule 3:17(a)

outlines a series of circumstances in which the electronic

recordation requirement applies when the person being

interrogated is charged with murder, aggravated manslaughter, or

manslaughter.    Rule 3:17(b) outlines circumstances when the

electronic recordation requirement does not apply.     For example,

subsection (b)(vii) does not require electronic recordation of a

statement given during an interrogation when the law enforcement

officer conducting the interrogation has no knowledge that a

crime for which a recording is required has been committed.     The

State bears the burden of proof by a preponderance of the

                                  15
evidence to establish that an exception to the recordation

requirement applied.   R. 3:17(b).

    Although the means of recording statements or proceedings

have changed, the deference accorded to the findings of fact of

the trial judge has not.     See Elders, supra, 192 N.J. at 243-44

(reiterating need to defer to factual findings derived from

record consisting of testimony of officers and videotape record

of motor vehicle stop).    That deference is not limited to

credibility findings by the trial court.    Indeed, in the course

of rejecting the notion that appellate deference to factual

findings should be limited to credibility findings, the United

States Supreme Court commented that “[d]uplication of the trial

judge’s efforts in the court of appeals would very likely

contribute only negligibly to the accuracy of fact determination

at a huge cost in diversion of judicial resources.    In addition,

. . . requiring [the parties] to persuade three more judges at

the appellate level is requiring too much.”    Anderson v. City of

Bessemer City, 470 U.S. 564, 574-75, 105 S. Ct. 1504, 1512, 84

L. Ed. 2d 518, 529 (1985).

    Nevertheless, the introduction of electronic recordation of

court proceedings and certain investigative proceedings, such as

custodial interrogations, has triggered questions about whether

the traditional standard of appellate review should be

maintained.   In Diaz-Bridges, supra, the Court indicated that

                                  16
when assessing the totality of the circumstances in certain

fact-sensitive contexts, such as an assessment of whether a

defendant invoked his right to remain silent or to terminate an

interrogation or to request counsel, appellate review may

require consultation of the videotaped statement.   208 N.J. at

565.   The Court remarked as follows:

               As it relates to the invocation of the
          right to remain silent, both the words used
          and the suspect’s actions or behaviors form
          part of the inquiry into whether the
          investigating officer should have reasonably
          believed that the right was being asserted.
          As a result, the court’s inquiry necessarily
          demands a fact-sensitive analysis to discern
          from the totality of the circumstances whether
          the officer could have reasonably concluded
          that the right had been invoked.     For this
          reason, it may be inadequate to confine
          appellate review to the transcript of the
          interrogation.     Instead, as this appeal
          demonstrates, if the trial court has based its
          findings   on   conduct   or  behaviors   that
          defendant exhibited during a videotaped
          interrogation that may be observed and
          analyzed with equal precision by an appellate
          court, a review of the videotape of the
          interrogation is appropriate.

          [Ibid.]

Notably, the Court emphasized that it did not intend to elevate

the appellate panel’s evaluation of the videotape over the

factual findings of the trial court.    Id. at 565-66.   Rather, an

appellate panel can confine its review to the recording of the

interrogation “[w]hen the trial court’s factual findings are

based only on its viewing of a recorded interrogation.”     Id. at

                                17
566.   In Diaz-Bridges, it is clear that the Court referred to

the videotaped statement to verify the findings of fact.     The

Court did not conduct a de novo review of the suppression

hearing record.

                                B.

       A confession or incriminating statement obtained during a

custodial interrogation may not be admitted in evidence unless a

defendant has been advised of his or her constitutional rights.

Miranda, supra, 384 U.S. at 492, 86 S. Ct. at 1637, 16 L. Ed. 2d

at 734.   A defendant may waive any or all of those rights;

however, that waiver must be “voluntary, knowing and

intelligent.”   State v. Hreha, 217 N.J. 368, 382 (2014).

       In Miranda, supra, the United States Supreme Court held

that in order to safeguard a suspect’s Fifth Amendment right

against self-incrimination, confessions obtained during

custodial interrogations are inadmissible as evidence unless the

defendant has been advised of his or her constitutional rights.

384 U.S. at 492, 86 S. Ct. at 1637, 16 L. Ed. 2d at 734; see

Dickerson v. United States, 530 U.S. 428, 431-32, 120 S. Ct.

2326, 2329, 147 L. Ed. 2d 405, 412 (2000).

       The failure to administer Miranda warnings prior to

custodial interrogation “creates a presumption of compulsion.”

Oregon v. Elstad, 470 U.S. 298, 307, 105 S. Ct. 1285, 1292, 84

L. Ed. 2d 222, 231 (1985).   Hence, if warnings were required but

                                 18
not given, the unwarned statements must be suppressed -- even

when they “are otherwise voluntary within the meaning of the

Fifth Amendment.”     Ibid.; see also State v. O’Neill, 193 N.J.

148, 170 (2007); State v. O’Neal, 190 N.J. 601, 616 (2007).

    “Custodial interrogation” was defined by the United States

Supreme Court as “questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way.”

Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d

at 706.     Thus, the protections provided by Miranda are only

invoked when a person is both in custody and subjected to police

interrogation.    State v. P.Z., 152 N.J. 86, 102 (1997).

Essentially, “Miranda turns on the potentially inquisitorial

nature of police questioning and the inherent psychological

pressure on a suspect in custody.”     Ibid. (citing Miranda,

supra, 384 U.S. at 445-58, 86 S. Ct. at 1612-19, 16 L. Ed. 2d at

707-14).

    “[C]ustody in the Miranda sense does not necessitate a

formal arrest, nor does it require physical restraint in a

police station, nor the application of handcuffs, and may occur

in a suspect’s home or a public place other than a police

station.”    Id. at 103 (internal quotation marks omitted).      On

the other hand, “[i]f the questioning is simply part of an

investigation and is not targeted at the individual because she

                                  19
or he is a suspect, the rights provided by Miranda are not

implicated.”    State v. Timmendequas, 161 N.J. 515, 614-15 (1999)

(citing State v. Pierson, 223 N.J. Super. 62, 67 (App. Div.

1988)), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed.

2d 89 (2001).    Moreover, “Miranda warnings are not required

‘simply because the questioning takes place in the station

house, or because the questioned person is one whom the police

suspect.’”     California v. Beheler, 463 U.S. 1121, 1125, 103 S.

Ct. 3517, 3520, 77 L. Ed. 2d 1275, 1279-80 (1983) (quoting

Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50

L. Ed. 2d 714, 719 (1977)); see State v. Marshall, 148 N.J. 89,

225-26, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.

2d 88 (1997).

    Indeed, “[w]hether a suspect has been placed in custody is

fact-sensitive and sometimes not easily discernible.”       State v.

Stott, 171 N.J. 343, 364 (2002).       “The critical determinant of

custody is whether there has been a significant deprivation of

the suspect’s freedom of action based on the objective

circumstances, including the time and place of the

interrogation, the status of the interrogator, the status of the

suspect, and other such factors.”      P.Z., supra, 152 N.J. at 103;

see also Timmendequas, supra, 161 N.J. at 614.

    The relevant inquiry is determined objectively, based on

“how a reasonable [person] in the suspect’s position would have

                                  20
understood his situation,” Berkemer v. McCarty, 468 U.S. 420,

442, 104 S. Ct. 3138, 3151, 82 L. Ed. 2d 317, 336 (1984); see

P.Z., supra, 152 N.J. at 103, and “not on the subjective views

harbored by either the interrogating officers or the person

being questioned,” Stansbury v. California, 511 U.S. 318, 323,

114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293, 298 (1994).

    “Miranda safeguards come into play whenever a person in

custody is subjected to either express questioning or its

functional equivalent.”   Rhode Island v. Innis, 446 U.S. 291,

300-01, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 307-08 (1980).

“[T]he term ‘interrogation’ under Miranda refers not only to

express questioning, but also to any words or actions on the

part of the police (other than those normally attendant to

arrest and custody) that the police should know are reasonably

likely to elicit an incriminating response from the suspect.”

Id. at 301, 100 S. Ct. at 1689-90, 64 L. Ed. 2d at 308; see

State v. Bey, 112 N.J. 45, 68 n.13 (1988).

    Furthermore, the State bears the burden of proving beyond a

reasonable doubt that a defendant’s confession is voluntary and

not resultant from actions by law enforcement officers that

overbore the will of a defendant.    Hreha, supra, 217 N.J. at

383; State v. Galloway, 133 N.J. 631, 654 (1993).   The State

bears a similarly high burden when a defendant challenges a

statement procured by a law enforcement officer without the

                                21
benefit of Miranda warnings.    See State v. Clausell, 121 N.J.

298, 352-53 (1990).

    We apply these principles to the facts of this case,

focusing first on the deference owed by an appellate panel to a

videotaped statement.

                                 V.

                                 A.

    This Court has subscribed unequivocally and continuously to

the traditional rule that an appellate tribunal should adhere to

the findings of fact of the trial court and must avoid

disturbing those findings unless the evidential record provides

insufficient support for those findings.    Gamble, supra, 218

N.J. at 424; Elders, supra, 192 N.J. at 243-44; Locurto, supra,

157 N.J. at 470-71; Johnson, supra, 42 N.J. at 162.     Notably, in

Elders, supra, the Court rejected unequivocally the approach of

the appellate panel in that case “that the availability of a

videotape of the troopers’ encounter with defendants,

particularly in the context of a hearing where witnesses

testified, extinguishes the deference owed to a trial court’s

findings.”   192 N.J. at 244.   The most oft-cited reason for such

deference is the unique position of the trial court to observe

the presentation of the evidence, to evaluate the demeanor of

the witnesses, and to resolve discrepancies between testimony

and physical or documentary evidence.    Ibid.   But, there are

                                 22
reasons beyond credibility determinations that require

deference.   The visual record simply cannot capture the entirety

of an interrogation, an evidentiary hearing, or a trial because

the focus of the camera is too narrow.

    Recently, in Diaz-Bridges, supra, the Court referenced the

videotape of the custodial interrogation of the defendant on

several occasions.   208 N.J. at 551, 556, 562, 570.    The Court

explained that it did so because the question of whether a

defendant has invoked the right to remain silent is a fact-

sensitive inquiry that may require an evaluation of the words

uttered by the suspect and his actions contemporaneous with any

utterance in order to determine whether “the investigating

officer should have reasonably believed that the right was being

asserted.”   Id. at 565.    The Court emphasized, however, that it

did not intend to alter the traditional appellate standard of

review of trial court fact-finding and further delineated

exceptionally limited circumstances when appellate review

required reference to the video record of an interrogation.

Ibid.   The Court stated:

               We do not suggest that we have altered
          our admonition to appellate courts that they
          give due deference to the fact-finding role of
          the trial courts. See State v. Locurto, 157
          N.J.   463,  471   (1999)   (concluding   that
          reviewing court should defer to factual
          findings of trial judge as long as they can
          reasonably be reached on sufficient credible
          evidence present in the record). Indeed, as

                                  23
         we have recently reiterated, if the trial
         court has had the benefit of and has relied
         upon testimony of witnesses, appellate courts
         must give due deference to those findings
         because it is the trial court that had the
         opportunity to evaluate the credibility of the
         witnesses who appeared and testified. Elders,
         supra, 192 N.J. at 245 (observing that trial
         court based its evaluation on police testimony
         because patrol car’s videotape showed only
         part of interaction with individuals involved
         in traffic stop).

         [Id. at 565.]

    Thus, an appellate tribunal must defer to the factual

findings of the trial court when that court has made its

findings based on the testimonial and documentary evidence

presented at an evidentiary hearing or trial.   Deference is also

not confined simply to credibility findings.    To be sure, when

the evidence consists of testimony of one or more witnesses and

a videotaped recording of a statement by a witness or a suspect,

an appellate court is obliged to review the entire record

compiled in the trial court to determine if the factual findings

are supported by substantial credible evidence in the record.

Locurto, supra, 157 N.J. at 470-71.   The appellate panel may

reference a videotaped statement to verify a specific finding.

It may not substitute its interpretation of events.   An

evidentiary hearing in the trial court or a trial conducted by a

judge sitting without a jury is “the main event,” not a “tryout




                               24
on the road.”   See Wainright v. Sykes, 433 U.S. 72, 90, 97 S.

Ct. 2497, 2508, 53 L. Ed. 2d 594, 610 (1977).

    This appeal is not one of those cases in which the trial

record was confined to a video record of the interrogation.     We

acknowledge that the trial court referred to the videotape of

the October 20 interrogation and that certain findings of fact

are premised on that review.   Witness testimony, however, played

a key role in the trial court’s analysis of the record and its

findings of fact.   The trial court made repeated references to

defendant’s interactions with police at his home.   The trial

court specifically noted that defendant’s daughter was being

treated by emergency medical personnel at his home and then

transported to the hospital by ambulance.   Yet, the trial court

found that Travaline sequestered defendant and then escorted

defendant to the police station in a police vehicle.   The trial

court observed that a witness who was not suspected of a

criminal act would not have been treated in that fashion.     The

trial court also expressly referred to the testimony provided by

Travaline in which he initially described the circumstances of

the child’s condition as “suspicious.”   The trial court also

referenced the detective’s initial interaction with defendant at

the house, the creation of a crime log, the securing of the

house, and the actions taken by police at the house before they

escorted defendant to the police station to answer questions.

                                25
    The trial court was uniquely situated to integrate the

testimony and the video record to formulate its findings of

fact.   The appellate panel was not free to conduct a de novo

review of the videotape, reject the findings of fact of the

trial court, and substitute its own findings.   The Appellate

Division therefore erred when it dismissed the findings of fact

of the trial court and conducted a de novo review of the record

of the motion to dismiss.

        Our review of the entire record, including the

detective’s testimony and giving the required deference to the

trial court’s findings, including those pertaining to the

credibility of the detective, leads us to conclude that those

findings are supported by the entirety of the testimonial and

videotaped record.   The final inquiry is whether the trial court

properly applied the governing law to those factual findings to

conclude that defendant was the subject of a custodial

interrogation.

                                B.

    The protections provided by Miranda apply only when a

person is both in custody and subjected to police interrogation.

P.Z., supra, 152 N.J. at 102.   On the other hand, mere

investigative questioning directed at an individual who is not a

suspect does not implicate Miranda.   Timmendequas, supra, 161

N.J. at 614-15 (citing Pierson, supra, 223 N.J. Super. at 67).

                                26
Essentially, the issue hinges on the inquisitorial nature of the

questioning and “the inherent psychological pressure”

experienced by a suspect in custody.    P.Z., supra, 152 N.J. at

102.   “The critical determinant of custody is whether there has

been a significant deprivation of the suspect’s freedom of

action based on the objective circumstances, including the time

and place of the interrogation, the status of the interrogator,

the status of the suspect, and other such factors.”     Id. at 103.

       In the present case, the officers secured defendant’s house

as a crime scene.    The trial court found that Travaline directed

defendant to ride in the police cruiser to the station.

Meanwhile, his daughter was in critical condition and removed

from her home by emergency medical personnel to a hospital for

treatment.    Although not handcuffed, defendant rode in the

backseat of the vehicle.   Defendant and Travaline did not

converse at all during the drive.

       Upon arrival at the station, defendant was directed into an

interrogation room, where he sat alone for several minutes.

When Travaline entered, he instructed defendant to move into the

chair in the corner of the room, farthest from the door.       The

officer positioned himself between defendant and the door.

       The detective questioned defendant for approximately an

hour before exiting the room, leaving defendant to wait

approximately two hours.    The detective never advised defendant

                                 27
that he was free to leave, even after relaying the news that the

hospital was able to restore and maintain his daughter’s

heartbeat.

    During the interview, the detective’s questions roamed far

from merely obtaining information that might assist the child’s

treatment.    Specifically, the detective asked defendant to

account for all of his movements on his return from work.      He

inquired whether defendant may have been distracted at any point

while watching his daughter, if he ever got frustrated with the

baby, if he loved the baby, and if he ever resented the baby.

Rather than an attempt to secure information that may have

assisted the child’s treatment, the targeted questions reflect a

clear attempt on the part of the detective to cause defendant to

incriminate himself.

    In light of the conditions, substance, and duration of the

interview, combined with the events at defendant’s home, the

trial court’s conclusion that the October 20 interview was

custodial in nature is sufficiently supported by credible,

factual evidence in the record and the proper application of

governing law.   The October 20 interview, conducted without

administration of defendant’s Miranda rights, must be

suppressed.

                                VI.



                                 28
    The judgment of the Appellate Division is reversed, and the

matter is remanded to the Law Division for further proceedings.



     CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in the opinion of JUDGE CUFF
(temporarily assigned). JUSTICE ALBIN filed a separate,
concurring opinion.




                               29
                                         SUPREME COURT OF NEW JERSEY
                                           A-56 September Term 2013
                                                    073539

STATE OF NEW JERSEY,

     Plaintiff-Respondent,

          v.

TERRELL L. HUBBARD,

     Defendant-Appellant.


     JUSTICE ALBIN, concurring.

     I fully concur with the majority’s opinion that a

deferential standard of review applies in assessing the trial

court’s finding in this case.     The trial court’s finding that

defendant was in custody when questioned without Miranda1

warnings was based on hearing in-court witness testimony and

reviewing defendant’s videotape statement.

     Significantly, this case does not involve a trial court’s

fact-finding based solely on the review of a videotape

statement.     In State v. Diaz-Bridges, 208 N.J. 544, 566 (2012),

in a passing sentence to which no authority is cited, this Court

stated that “[w]hen the trial court’s factual findings are based

only on its viewing of a recorded interrogation that is equally

available to the appellate court and are not dependent on any


1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
                                   1
testimony uniquely available to the trial court, deference to

the trial court’s interpretation is not required.”   The standard

of review was not an issue in Diaz-Bridges and therefore was not

a subject of discussion.   The time will come -- when the issue

is properly raised -- to have a serious dialogue and to give

thoughtful consideration to the standard of appellate review of

trial-court findings based on a videotape of an interrogation or

some other event.

    A number of jurisdictions have addressed the appellate-

review standard when a trial court’s findings are based on

videotape of some event, such as an interrogation or a search.

Federal appellate courts take a deferential approach in such

cases for reasons found in the United States Supreme Court’s

decision in Anderson v. Bessemer City, 470 U.S. 564, 574-75, 105

S. Ct. 1504, 1511-12, 84 L. Ed. 2d 518, 528-30 (1985).    There,

the Court listed the policy goals advanced for a deferential

appellate standard of review of non-testimonial evidence:

         Where there are two permissible views of the
         evidence, the factfinder’s choice between them
         cannot be clearly erroneous.

              This is so even when the district court’s
         findings   do   not    rest   on   credibility
         determinations, but are based instead on
         physical or documentary evidence or inferences
         from other facts.

         . . . .



                                 2
              The rationale for deference to the
         original finder of fact is not limited to the
         superiority of the trial judge’s position to
         make determinations of credibility. The trial
         judge’s major role is the determination of
         fact, and with experience in fulfilling that
         role comes expertise.     Duplication of the
         trial judge’s efforts in the court of appeals
         would very likely contribute only negligibly
         to the accuracy of fact determination at a
         huge cost in diversion of judicial resources.

         [Ibid. (internal citations omitted).]

    Federal Rule of Civil Procedure 52(a)(6) was amended the

same year that the United States Supreme Court released its

decision in Anderson.   That Rule provides: “Findings of fact,

whether based on oral or other evidence, must not be set aside

unless clearly erroneous, and the reviewing court must give due

regard to the trial court’s opportunity to judge the witnesses’

credibility.”   Fed. R. Civ. P. 52(a)(6) (emphasis added).

    The Advisory Committee on the 1985 amendments to Fed. R.

Civ. P. 52(a) explained its reasons for adopting the clearly

erroneous standard for testimonial and non-testimonial evidence:

         The principal argument advanced in favor of a
         more searching appellate review of findings by
         the district court based solely on documentary
         evidence is that the rationale of Rule 52(a)
         does not apply when the findings do not rest
         on the trial court’s assessment of credibility
         of the witnesses but on an evaluation of
         documentary   proof   and   the   drawing   of
         inferences from it, thus eliminating the need
         for any special deference to the trial court’s
         findings. These considerations are outweighed
         by the public interest in the stability and
         judicial economy that would be promoted by

                                 3
         recognizing that the trial court, not the
         appellate tribunal, should be the finder of
         the facts.   To permit courts of appeals to
         share more actively in the fact-finding
         function   would   tend  to   undermine   the
         legitimacy of the district courts in the eyes
         of litigants, multiply appeals by encouraging
         appellate retrial of some factual issues, and
         needlessly reallocate judicial authority.

         [Fed. R. Civ. P. 52(a) advisory committee’s
         note to 1985 amendment.]

Thus, Fed. R. Civ. P. 52(a)(6) calls for the application of the

clearly erroneous standard to physical or documentary evidence,

including videotapes.   Although the Federal Rules of Criminal

Procedure do not contain a similar rule, “the considerations

underlying Rule 52(a) -- the demands of judicial efficiency, the

expertise developed by trial judges, and the importance of

first-hand observation -- all apply with full force in the

criminal context, at least with respect to factual questions

having nothing to do with guilt.”    Maine v. Taylor, 477 U.S.

131, 145, 106 S. Ct. 2440, 2451, 91 L. Ed. 2d 110, 125 (1986)

(internal citation omitted).   For example, findings made by a

trial court at a suppression hearing, based on a review of a

video recording of a police stop, are given deference.     See

United States v. Murphy, 703 F.3d 182, 188-89 (2d Cir. 2012)

(applying clear-error standard in reviewing video evidence in

suppression hearing); United States v. Prokupek, 632 F.3d 460,

462-63 (8th Cir. 2011) (applying clear-error standard in


                                 4
reviewing video evidence in suppression hearing from traffic

stop); United States v. Simpson, 609 F.3d 1140, 1146 (10th Cir.

2010) (stating that appellate court “defers to the district

court’s finding of facts and reviews them solely for clear

error, even when . . . there is video tape of the stop and

detention”); United States v. Santos, 403 F.3d 1120, 1128 (10th

Cir. 2005) (“The increasing availability of videotapes of

traffic stops due to cameras mounted on patrol cars does not

deprive district courts of their expertise as finders of fact,

or alter our precedent to the effect that appellate courts owe

deference to the factual findings of district courts.”); United

States v. Navarro-Camacho, 186 F.3d 701, 707-08 (6th Cir. 1999)

(applying clear-error standard in reviewing evidence in

suppression hearing involving video evidence).

    State courts have split on the appropriate standard of

appellate review when the evidence at a hearing is a videotape

of either an interrogation or some other police interaction.

Some state courts favor a deferential standard.   See, e.g.,

Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014) (stating that

even when “faced with video evidence,” “appellate standard of

review remains constant” and that court “do[es] not reweigh the

evidence”); State v. Williams, 334 S.W.3d 177, 181 (Mo. Ct. App.

2011) (stating that when reviewing video evidence from

suppression hearing “[u]nder the ‘clearly erroneous’ standard of

                                5
review, the trial court’s findings of fact are entitled to

deference even where they are based on physical or documentary

evidence which is equally available to an appellate court”);

Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006)

(embracing U.S. Supreme Court’s approach in Anderson and holding

that “deferential standard of review . . . applies to a trial

court’s determination of historical facts when that

determination is based on a videotape recording admitted into

evidence at a suppression hearing”).

    Other state courts favor a de novo review.   See, e.g.,

People v. Hughes, 3 N.E.3d 297, 313 (Ill. App. Ct. 2013)

(stating that appellate court’s “eyes are just as functional

a[s] the trial court’s” in reviewing video evidence evaluated in

making suppression ruling), appeal denied, 5 N.E.3d 1126 (Ill.

2014); Commonwealth v. Novo, 812 N.E.2d 1169, 1173 (Mass. 2004)

(reviewing video evidence de novo and stating that “lower court

findings based on documentary evidence available to an appellate

court are not entitled to deference”); State v. Binette, 33

S.W.3d 215, 217 (Tenn. 2000) (“[W]hen a court’s findings of fact

at a suppression hearing are based solely on evidence that does

not involve issues of credibility, such as the videotape

evidence in this case, the rationale underlying a more

deferential standard of review is not implicated.”).



                                6
    The law must adapt to technological advances.     The

videotaping of interrogations has become a current law

enforcement practice and is mandated by court rule in defined

circumstances.    See R. 3:17.   Today, video cameras are mounted

in many police vehicles recording motor vehicle stops and

searches.    Body cameras worn by police officers may soon be an

integral part of an officer’s uniform.    In the near future, it

may be that an officer’s interaction with a suspect will be

video-recorded from beginning to end, from a street arrest to an

interrogation at police headquarters.

    Whether a videotape of events is the sole evidence or one

piece of evidence should not be determinative of the standard of

review.     It does not follow logically that a videotape of an

interrogation when mixed with live testimony should be viewed

deferentially, but when standing alone should be viewed without

deference.    The standard of review for fact-findings of

videotape evidence should not vary from one hearing to another.

    How appellate courts review a trial court’s fact-findings

based on a videotape is an important judicial-policy issue.       On

the proper occasion, when the issue is squarely before us, we

should give full consideration to all the competing rationales

favoring either deference or de novo review.




                                   7
                  SUPREME COURT OF NEW JERSEY

NO.       A-56                                SEPTEMBER TERM 2013

ON APPEAL FROM                   Appellate Division, Superior Court




STATE OF NEW JERSEY,

      Plaintiff-Respondent,

                 v.

TERRELL L. HUBBARD,

      Defendant-Appellant.




DECIDED                June 24, 2015
                  Chief Justice Rabner                       PRESIDING
OPINION BY            Judge Cuff (temporarily assigned)
CONCURRING/DISSENTING OPINIONS BY                 Justice Albin
DISSENTING OPINION BY
                                    REVERSE AND
 CHECKLIST                                                CONCUR
                                      REMAND
 CHIEF JUSTICE RABNER                    X
 JUSTICE LaVECCHIA                       X
 JUSTICE ALBIN                          (X)                    X
 JUSTICE PATTERSON                       X
 JUSTICE FERNANDEZ-VINA                  X
 JUSTICE SOLOMON                         X
 JUDGE CUFF (t/a)                        X
 TOTALS                                  7
