On June 9, the court held that a defendant who pleads the Fifth Amendment at his retrial, and thereby exercises his right to remain silent, cannot offer into evidence his testimony given during his first trial. State v. McInerney, __ N.J. Super.__ (App. Div. 2017).

Defendant, a former high-school baseball coach was convicted of several counts of second degree endangering the welfare of his minor students, N.J.S.A. 2A:24-4. However, based upon errors in the jury charge, his conviction was reversed and remanded for a retrial.

Prior to the start of the retrial, because defendant had decided to exercise his constitutional right to remain silent and not testify in his second trial, defense counsel moved to introduce into evidence defendant's testimony from his first trial. Overruling the prosecutor's objection, the trial court ruled that “defendant's election not to testify made him an unavailable witness within the meaning of N.J.R.E. 804(a)(1), an exception to the hearsay rule,” thus allowing defendant to sit peacefully at counsel table instead of sitting on the witness stand and being subjected to the rigors of live cross examination.