State v. Kenny

Clifford, J.

(concurring). Quite apart from the immunity issue I would reach the same result as the majority based upon the alternative holding of the Appellate Division, 128 N. J. Super. 94, 108-11 (App. Div. 1974), that “[t]he prosecutor here went beyond the evidence and the indictment in both his opening statement and his summation. The departure was highly prejudicial to defendant, sufficient standing alone to justify a reversal.” 128 N. J. Super. at 111. My views on this subject were set forth (probably at too great length, given their conspicuous lack *33 of influence) in .a couple of dissents last term, State v. DiPaglia, 64 N. J. 288, 298 (N. J. 1974); State v. Perry, 65 N. J. 45, 55 (N. J. 1974), and I will not enlarge on them here in light of Judge Bischoff’s perceptive analysis of the matter below.

' With respect to the immunity question I have some concern about what the majority says and what is left unsaid. I understand the Court’s position to be that transactional immunity is as extensive as the testimony given, regardless of whether the crime testified to falls within the ambit of the subject matter of either the statute’s immunity provisions or the application for immunity made by the United States Attorney and approved by the Attorney General of the United States. This position runs counter to rational accommodation between the Eifth Amendment and the legitimate demand of government to obtain necessary information about criminal conduct which Congress intended to be furnished by such immunity statutes as 18 U. S. O. § 3514.

Immunity statutes are designed to aid in the gathering of information otherwise unreachable by reason of the privilege against compelled self-incrimination. Common sense therefore dictates that § 3514, for lack of a more illuminating legislative history, should be deemed a prosecutorial tool designed to be used with deliberation by the government in compelling testimony on subject matter the government believes necessary for the public good, rather than a device exclusively in the control of the defendant or his counsel. Judicial sights should be trained on the “grant” or authorization signed in the name of the United States Attorney General. Bursey v. United States, 466 F. 2d 1059 (9th Cir. 1972), presents an excellent analysis of the issue. As long as there exists a substantial relationship between the subject matter of the “grant” or the Attorney General’s letter of approval and the crime to which testimony relates, then the witness is immunized from any subsequent prosecution.

*34 At least three advantages flow from this approach. Firstly, the witness is prevented from taking an “immunity bath” and stating on the record crimes extraneous and irrelevant to the proceeding in which he testifies. Secondly, with many of the offenses enumerated in 18 U. S. C. §§ 2514 and 2516 bearing little relation to one another, no reason exists to assume that Congress believed the public interest would be served by having the request for transactional immunity pertaining to one crime apply also to other crimes listed therein, let alone apply to those crimes testified to but which could not be the subject of immunity because not included in the statutory language. See Comment, 48 N. Y. U. L. Rev. 171, 186 (1973). And finally, this approach is better suited for testimony received during trial rather than during the grand jury inquiries on whose case law the majority leans. Whereas the inordinately broad protection conferred by the majority opinion might well be in order because of the potential wide range of any grand jury probe, it should not ipso facto be extended to a trial proceeding which has prescribed bounds and defined issues and at which the immunized witness may not even be a defendant. See Bursey, supra, 466 F. 2d at 1076 .

However, the advantages of this position that would normally accrue to the State in prosecutions of the instant sort are not available here. The letter of approval from the Assistant Attorney General and the United States Attorney authorized the “grant” of immunity extending only to the crimes delineated in 18 U. S. C. § 2516 (1) (e) and (g). Incorporated by reference in § 2516(1) (c) is 18 U. S. C. § 1952 (a) which forbids, inter alia, use of any facility in interstate commerce to “promote, manage, establish [and], carry on * * * any unlawful activity.” “Unlawful activity,” in turn, embraces extortion in violation of the laws of the State in which committed. 18 U. S. C. § 1952 (b)(2). The subject matter relationship between the New Jersey crime of extortion charged in the indictment *35 herein and the provisions of the “grant” is obvious. The State prosecution is therefore barred on this ground.

Clifford, J., concurring in the result. '

Fo-r affirmance — Chief Justice Hughes, Justices Mountain, Sullivan, P ashman, Clifford and Schreiber and Judge Conford — 7.

For reversal — None.