Amicus Curiae Brief — Zicarelli v. New Jersey Comm'n of Investigation

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STATEMENT OF + Leqenzsr 0 OF THE Amreus CuRIAE oe ae

Summary ¢ or ARGUMENT .

Z _ Powt oe ‘testimonial ‘immunity grant con-

tained in N.J.S.A. 52:9M-17 is coextensive with

' the. scope of the. Fifth Amendment priviege

- against self-incrimination

_ Powmt II—The requirement that.an answer te:

“responsive” to the question in order to obtain-~

| immunity under N.J.S.A. 52:9M-17 neither ren-. -

ders’ the. statute unconstitutionally vague nor.

- conditions the grant of immunity -.....

+» Point I1I—The threat of foreign prosecution is

not relevant to the. privilege against self-in-

-erimination nor can‘ appellant demonstrate a

genuine fear’ that his compelled | testimony

might be used to incriminate him i in.a foreign -

, prosecution : nape

; A) Appellant: fails to deinimatrate Teal’ and

. substantial fear of. prosecution by. either

Venezuela or the Dominican Republic .......

B) ‘There is no threat that. Canada ‘would use

_ disclosures compelled. from appellant In a

subsequent prosecution in Canada .. Pe

- Hi... TABLE OF CONTENTS —

Point IV—The availability of a use immunity

statute is of significance to the effective ad-

ministration of criminal justice 3 3

Cowcuusios : TERE : ; - . 88

Peete ees eee”

* Albertson v. fabvenite Activities Control Board, rae

382 U.S. 70 (1965) ‘ ccna Myla 2 =

_ Brown v. Walker, 161 U.S. 591 (1896)............-5, 10-13, 29

“ Counselman v. Hitchcock, 142-U.S. 547. (1892). __5, 8-10, 12,

14, 16-18,.37

Ferrantello v. State, 158 Tex. Crim. 471, 256 S.W.

2d 857 (Tex. Ct. Cirm. App. MOS) 8, 527 one

‘Gardner v. Broderick, 392 U.S. 273 (1968) Mboctoesc oun |

Glickstein v. United States, 222 U.S. 139 (1911)... 22

’. _Henderson v. State, 208 Ga... 73, 75; 65 S.E. 2d 175,

' “177 (Sup. Ct. Ga. 1951) - rs 24°

-*Hoffinan v: United States, 341 U.S. 479 (1951)... aa 6, 25, 26.

a Joanne Kinoy, Tn.re, — F. Supp:-— (SDNY. a

AOTL).- oa: &": es an a p21

- ' -Lyneh v. Overholser, 369 U. S. 705, nom (1962) oa : oe

Malloy v. Hogan, 378 U.S. 1 (1964)... ..-.16, 18

Murphy v. Waterfront Commission, 378 U.S. 52 -

(196M) apeeecneneet sueeeee 4-6, 14-17, 19, 20, 28, 30-32, 34-36

Parker, In re, 411 F. 2d 1067 (10 Cir. 1969) cert.

granted, judgment vacated as moot, sub nom Park.

ker v. United States, 397 U.S. 96 (1970)... ..B0, 31

: Piecirillo v. New York, 400 US. 548 opie aoe 1s | :

" PAGE

s Zicareli, In re, 55 N: J. 249 (1970).

Fifth Amendment

TABLE OF CONTENTS ae oe ee

‘oa dees? at Plan:

Piche v.. Regina, 14 W.WR. 674, 11 D.L.R. 3d 700 et )

(Sup. Ct. Can. 1970) 3 SG | eames

. Prosko v.. Rex, 62 S8.C.R. “226 (Sup. Ct. Canada os

1922) : - ae |

Savings: Finance Corp. v. Blair, 280: SW. 2d 675,

| 677 (Mo. Ct, App. 1955) : i. 26 .

“Stevens v. Marks, 383 U.S. 234 (1966) - MESES + aa

‘Travellers Fire Peiusanian Co. ’ ise 322-P. 2d 2s

. 417, 423 (Okla. Sup. Ct. 1958) - 23:

- Ullmann v. United States, 350 US. 499 (1956).. WAS ESA .% te

United States v. “Blue, 384 U.S. 251 (1966)............. 7; 37, 38

|’

| United States v. Bryan, 339 U.S. 323, 335 et seq., re-

. hearing denied, 339 U.S. 991. (1950) -n-.-eeeeereo-mce 23

United States v. Shotwell. ‘Mftrg. Co, 355 U.S. 33 ;

(1957) - tte roveonnee seveenteenine dy 23

Watts v. Indiana, 388 US. 49 (1949)... et |

: 13,26°—

United States Cons itution Cited meer

; (2,4, 7, 10.18, 3, 34, 37, 38

Fee. Amendment » Le sennonne ‘ 38

' ¢ Statutes Cited : -o.

~ Canada Evidence Act, ei (1982), 6. 07 25 & 33

Section 5. “ bao iin 33

NIS. SA S1173 \ a ee

N.JS.A. 52:9M-15 ...... Acinisit teas SE

ae Ne TABLE OF CONTENTS

ee ee es _ PAGE

_NJS.A. 52:9M-i6 ify gi a

NJ.S,A. 52:9M-17 .1.........."..2, 6,7, 18, 17, 20, 21, 23-26, 38--

4 NJ.S.A. 52:9M-17(b) 2! ae

*\ NAY. Crim. Proe. Law §190 AO ee 25

* 715 Stat. 37 (1868) . + eee

Bhat. M8 (ay A a

18 UBC. $§6001-6003, Organized Crime Act of 1970 ee,

a, a Other Authorities Cited ;

Annot. 53 A:LR. 2d 1080, 1052, (1956) ciao eeees : . 87.

-. Annot. 118 ALR. 602,\627 (1989) ce neni OT

| Annot. Incriminatory alee 53 A.

, LR. 2d 51° (1956) 23

Bentham, Judicial Eviden é, 52-54 (London, 1825)... . 24

re Black. Law Dictionary, p: 147. (4th ed. 1951)2__. (26°

Canadian Food. and Drug Regulations estas 34 oe

Duncan, Federalism and the Fifth; Configuration ‘a ;

a Grants of. aera de 12 UCLA. L. Rev. 561

_ (1965). <<

Federal Rules of Criminal Procedure {Rule 6 (e) ...... 3031 ;

a eg VWederalian and Self Incriinination:. Common’

Law and British Empire Comparisons, 5 U.C.L.A.

AL ‘Rev. 1, 10 (1958)-" ane 32, 33

AR, 11157. 1 Baten thane WEB

HR. 12041 Ss lecuca eae: ce . 36

_ Sutherland, Statutory Construction, $5508 at 9 194s)

‘© TABLE OF CONTENTS , a te ep te

: ; PAGE

Webster’ 8 N ew International Dictionary, (2nd od).

p. 2124 .... ae

p! ‘Wigmore, Evidence 51851 P. 324 (3rd ed. 1940) - as

"3 ve neg op cit, § 785 .. : 25

_ 5. Wigthore, § 1392 | 25

) 8 ‘Wiggnare, Evidence 92256 (MeN sughton rev. 1961) ae

| *

oe < oe be

”

. 3 :

IN THE

_ Bupreni Court of the Muted States”

OcroBER TERM, 19 0

No.. 91

. : \

ee:

. JOSEPH ARTHUR 2iganeL, ae .

ere se NO. Appellant,

eG , ee ie |

‘THE NEW JERSEY STATE COMMISSION OF |

Anite ADVESTIGATION,: oy

as) Appellee:

: ‘On Appeal from the Supreme Court of New Jersey -

. i 8 y ‘ res

»™

a a

BRIEF FOR THE STATE OF NEW JERSEY,

— ‘CURIAE |

"Statement of Interest of the Amicus Curiae ee

The State of New- Jersey, amicus curiae, by its kdioiaes

General, respectfully submits this: brief in the abuve-cap-

_ tioned appeal in support of the position advanced by the |

: men State Commission of ——— 3

One of the principal purposes of:the amicus~curiae in

participating in this case is to demonstrate to this Court

that the interests of the administration of criminal justice

are enhanced by the, ability to employ “use plus fruits” im-

munity, as embodied in N. J. S.A. §2:9M-17.

It is the view of the amicus curiae that such an im-

‘inunity formula, by its own terms,’ offers the same pro-

tection as is afforded by the Fifth Amendment privilege

against self-incrimination: The reality of this protection .

.can be reliably guaranteed by the exclusionary rules of ©

. evidence developed by this.Court in the last fifty years.

In light of this, it would be illogicalfas well as socially,

undesirable to: require | that one compelled to. testify re-

ceive immunity from prosecution for violations arising out

-of the transactions about which he is compelled to testify.

fn'‘no other context has i€ bean suggested that the Fifth «.

Amendment’s protection extends this far. There being no

conceptual or® practical reason why such protection is

necessary to insure’ the witness that: his compelled testi-

mony, or evidence derived therefrom, will not be used .

against him, it is plain that such an -immunity is waste- ;

fully broader than the privilege it seeks to supplant. *. 3

- The fonggoing ¢ Gonclusion i is well illustrated. by the pres-

: ent case’ Appellant has stipulated to his. notoriety in the

area of organized crime. (App’s Br. pp. 6, 40). He is pres- :

ently the subject of six separate pending indictments in

New Jersey: and was receritly’ convicted upon an.indictment

charging him with conspiracy~to operate an illegal gam-

". bling organization and bribery of a public Official, =

‘It is clear from the: ‘very fact that appellant has hither-

to refused to testify before the State Commission of In-:

Yestigation ‘that in procyring the foregoing indictments-

and i in | obtaining appellant's conviction on the first of those :

ie)

: ingickneats to be tried, the State ne aot required the-use .

- of appellant’s compelled testimony in order to prdésecute

ee New J ersey, at the siti time, is confident

that it'will be able to secure convictions against appellant

on all of the presently pending indictments ‘on the basis

of evidence it now possesses. It isthe State’s belief, based

upon extensive ‘surveillance and confidential investigation

that appellant i is, or recently has been, a central force in

organized crime in the State. By virtue of his position, —

‘appellant may be reasonably supposed to possess a. great

knowledge. of the activities of en extgne in New i

J ersey.

As. appellant Lilian: the State freely | acknowledges

¢ that Zicarelli is now and has been for some time a main

‘or’ prime target for itg investigation.. If, however, the

_ .State and its investigatory agencies -were to be -bound. to

the so-called transactional immunity formula,. the prosecu-|

_ tion and society generally would be placed on the horns. —

_ of a dilemma. If the State, through the appellee ora

grand jury, sought to, compel. Zicarelli to testify purstant

_ to a transactional immunity standard, it presumably would

be forced to abandon further efforts té prosecute him even

though the evidence necessary ‘to prosecute and convict

him may have been independently obtained. . While’ such .

compulsion of appellant’s testimony might allow the State

to gather sufficient evidence to prosecute various of Zica-

relli’s associates successfully, Zicarelli himself would likely

& emerge. unscathed.

‘That the State in the present. case’ would face a Hob-.

~ \ son’s Choice under a ‘transactional standard i is made clear .

\by. the equally distasteful alternative that would: Temain:

if it declined: to immunize Zicarelli from prosecution. Tf

appellant were | allowed, to remain silent, the mae be- .

ta ok hl

_ lieves that he could’ be convicted under the’ indictments -

now pending. However, from the knowledge of the history —

of organized crime it,is feared that the organization it-

| self would remain , to some extent untouched.

; The’ State regards both of . the aforementioned piensa:

tives available in this case. under a transactional standard

as unsatisfactory. Either result is at odds with traditional ©

_notions’of ‘the proper administration of justice, of funda-—

, a fairness and of equal protection of the law: ,

If the State refused to allow appellant to escape prose-

’* eution and conviction, it would be relegated to attacking _

. the hierarchy of organized _erime on a ‘“one-at-a-time”

' basis, thereby permitting a continual retrenchment in the

> pariks even as leading figures’ were brought to justice. At .

this juncture in history, the amicus curiae respectfully

submits that law enforcement must be able to marshal more :

than the principle of deterrencé to deal. on -even terms .

_ with the forces of organized crime. Law enforcement.

agencies must be able ta wage their ‘assault on all fronts

and must be ablé to attack. saracrenass organizations at. all

levels. , Cie

_ For this reason, the interest of society requires the

ability ‘to employ an immunity formula which, though ee

- .reliably assures. one compelled to testify. that he receives

all of the protection he is entitled .to under the Fifth

| -Amengment, ‘may likewise vindicate ‘society’s right to pun-.

_ish him for, all ¢rimes that can be proven without benefit

_ of his own disclosures. Murphy v. Waterfront Commission;

' 378 U.S. 52 (1964) and Gardner v. ‘Broderick, 392 U.S. 273°"

(1968), ° offer cogent support. for the belief, as developed

in this brief, that an immunity formula which absolutely‘.

proscribes the use of compelled testimony or evidence de- |

. . “rived therefrom is coextensive with the privilege cau

co self-incrimination.

e .

The interest of. the amicus curiae and the other states

. that join in this. brief. in ‘the present case is founded on —

. that belief.

Sica: of Argument

- It is the position: of the State of New Jersey, amicus | =

curiaé, that N.J.S.A. 52:9M-17(b), which immunizes a wit?

ness from haying his compelled testimony or the fruits

therefrom. used ‘to expose. him to criminal prosecution or

penalty, provides’ a protection ‘coextensive with that fur-

nished~ by the. Fifth Amendment Bering. See self-

incrimination. We:

_ The sufficiency of such an. immunity formula has never

before been placed in focus by cases heretofore decided: —

on the merits by this Court. Previous cases have deter-

mined on the one hand that immunity formulas which only

' Jmmunize the -witness from the subsequent use of his com-

pelled testimony, but fail to’proscribe the use of such tes-

timony to-obtain investigatory leads or other sources of

incriminating evidence, are constitutionally defective, e.g.,

- Counselman v. Hitchcock, 142 U.S. 547 (1892); Albertson

“vy, Subversive Activities Control Board, 382 U.S. 70 (1965).

On the other hand, this Court has repeatedly held that

. grants of immunity: which provide for an absolute bar

against the. prosecution of a witness for any-act arising |

. out of a transaction about which. he is compelled to testify.

do furnish at least. as much protection a8 is afforded by.

the Fifth Amendment privilege. Brown v. Walker, 161

"U.S. 591 (1896); Ullmann v. United States, 350 US. 422" —

. (1956). However, such transactional immunity _ formulas. -

have" been rightfully. criticized for affording the witness

8 protection which is “wastefully. broader” -then that

granted by. the privilege. Murphy v.. a Com--

soca

9°

- mission, 378.0. s. 52, 107 (1964) (tr. Justice White 6 éon- -

curring).

The foiteuia, embodied in NJ. S.A, 52 OM. 17(b) differs

from either of the approaches yet considered by this Cort .

in that its contours are ineluctably determined by pes aa

- ameters of the privilege.

_ Contrary to the appellant’s further contention, the em-

ployment of the word “responsive” to characterize the

- type of answers sought and immunized against any direét

or indirect use against the witnéss actually serves to elim-

inate ambiguity And vagueness from the statute. Indeed

the use of the “responsiveness” critérion in conjunction

with the ‘word “answer” was inspired by this Court’s opin-’

ion in Hoffman v. United States, 341 US. 479 (1951), ae

_— employed | a similar concatenation. .

*" Appellant raises a further point with canard to the ap-.

_plicability of the priyilege against self-incrimination to,

the threat of foreign prosecution. The only authority on”

this question rejects the notion that. the privilege fur-

nishes protection against the use of compelled disclosure

in foreign. prosecution of the witness. Canada is the only.

foreign nation cited to which appellant ‘might be extra-

‘dicted. . Moreover it is the only country in which the fear ~ a

of. prosecution is not plainly fanciful. However, it is well . a

established under both Canadian case law and Canadian

federal statutes that the use of such. compelled testimony

would be barred in a subsequent Canadian prosecution.

From a practical standpoint the advantages to law en- :

forcement of being able: to employ an immunity formula

‘of the type embodied in N.J.S.A. 52:9M-17 are manifold. — |

The problem of guaranteeing that the immunity promised

the witness by the statute is insured in fact may be ade-

quately dealt under the ars miu rules or “ ,

i |

this Court. It has been sain that: such an approach

is able to‘furnish one compelled to offer evidence. or tes-

timony the same protection he would have reeeived had.

he been allowed’ to: remain. silent, while society’s. interest

in “having the: guilty brought to book” r also served.

United States v. Blue, 384 U.S. 251 (1966). 3

—*) ARGUMENT

POINT |I

2 The testimonial immunity asta contained in N.J.

S.A. 52:9M-17 is coextensive with the scope of -the.

Fifth Amendment privilege against self-incrimination.

N.J.S.A. 52 9M-17(b) provides that a person pooner Wea oe

. with an order to answer a question posed by the State

‘Commission of Investigation “shall be immune from hav-

ing such responsive answer given by him or such re :

sponsive evidence produced by him, or..eviderice derived —

therefrom used to expose him to cvininal prosecution -

penalty or to a forfeiture. of his estate.” It is the posi-..

tion ‘of the State of New Jersey, amicus curiae, that the

_ protection afforded by this statute is equivalent to that

_ offered by the Fifth ee privilege — elt

incrimination.

Appellant takes the position that. he is veonstitetonelly:

_ entitled to “transactional” immunity, 1:e., complete pro-

tection against prosecution for the offense to which the-

compelled testimony relates. He further contends. that

the New Jersey statute violates the Fifth. Amendment be- S

cause it grants only a “testimonial” immunity, i.e., pro-.

tection. against the: use of the compelled testimony and |

the fruits thereof. For this ah ag reli-

a8 ‘

ance is placed upon the decision of this Court in Counsel-

man v. Hitchcock, 142 U.S. 547 (1892). In response to

- that contention, the State respectfully urges -that Counsel-

man should. not be read to require transactienal. immunity

as a minimal constitutional standard and that to the ex- —

. tent it may require such standard, it should no longer be .

followed: by this ae

. At issue in Counselman was 4 statute eliacted by Con- —

oe) in, 1868 which provided follows: |

“No pleading of a party, nor any Sones: or evi-

- dence obtained from a. party of a witness by means —

of @ judicial proceeding in this or any foreign

country, shall be given in evidence, or in any man-

af ner used ‘against him or: his. property or estate,’

in any court of the United States, in any criminal: — }

proceeding, or for the enforcement of any. penalty

or forfeiture. aa os 1 Stat. 37 *(1868)

“Pon sopaiddcation” of the ‘statute, this Court held that

while the witness was protected thereunder from the use o

of the evidence obtainéd against him, he potentially was

exposed on the basis of other evidence to which his testi-,

_ tony might lead. It was clear to the Court that the’ _

Fifth Amendment’ would not’ be satisfied unless the wit. :

“ness were also shielded against: the latter possibility:

“It follows’ that any evidence: which might have

been obtained from Counselman by means’ of. his -

_ examination before the grand -Jury could not be’.

given in evidence or used against him or his prop-

erty in any ¢ourt of the United States, i in any crim-

~ inal proceeding, or for the enforcement of any pen-

_. alty or forfeiture. This, of course, proteeted him -

*, against the use.of his testimony against him or his —

property in . any oT agate — or. his

. % bd

. «

7 sonpiaty, in any sibhinal pisinibitiees in a court of: —

_ the United States. But it had only that éffect.

It could. not, and would not, prevent the use of his.

testimony to search out other testimony to be used

-.- in evidence. against him or his, property, in a crim-

inal proceeding in such court. It could not prevent.

the obtaining and the use-of ‘witnesses and evi-

dence which should be attributable directly to the —

testimony he- might give under compulsion, and ; .

on which he might be convicted, when otherwise,

_and if he had refused to. answer, he could not ;pos-

sibly have been convicted.” I d. 142 U. S. at 564.

After an ‘witeadnl review of a aah: of state and

federal decisions and statutes, Mr: Justice Blatchford

wrote. what has become the principal ammunition of those

who contend: that Counselman requires: transactional. im-

munity: «.

“We-are diate of cia a no statute sare

_. leaves the party or withess subject to prosecution :

- + after: he answers the criminating questions put. to:

him, can have the effect of supplanting the’ privi-

lege conferred by the Constitution of the United

States. Section 860 of the Revised Statutes does

- not supply: a completé protection from allThe perils

'' -. against which the constitutional ‘prohibitid® was de- ..

. signed to-guard, and is not a full substitute for —

that prohibition. In-view of the constitutional pro-

ie visions, a statutory enactment, to ‘be valid, must °

afford absolute immunity against, future _Drospen- ine

tion for the offerise ‘to which the question relates.”

Id. - US. at. 585-86. :

as is ee howev er,* that ‘immediately following :

the last-quoted eres the a ‘states:

*. :

' . duce such evidence. 27 Stat. 443 (1893)...

- The constitutiondlity of this act was sustained in Brown —

aes

: /

“Section - 860, ‘ moreover, affords ‘no protection’

against that use of compelled testimony which/-con-

2 sists in gaining therefrom a knowledge of the de-_.

tails of ‘a crime, and of sources of rmation that

may supply other means of. convicting ‘the witness |‘

- < or party.” Id. 142 U. 5 a 586 (Emphaiis supplied)

b, A was confronted with contradictory language:

din Counselman -and reacted by passing a new statute

which was designed to meet the broadest requirement dis-

- eernible from that opinion. The statute provided’ that

~ “no person ‘shall be prosecuted or subjected to any pen-

alty or forfeiture for or on account’ of any transaction :

matter or thing” concerning which he may give or pro-

- vy. Walker, 161 U.S. 591 (1896). ‘Fhe 1893: Act became a_

-. model for many “transactional immunity” statutes . en-

acted by the federal government and the states. :

If the -Counselman case, : supra, gave rise to intel-

- lectual uncertainty, the’ Brown ease did not remove that

- uncertainty:* Brown observes that: the’ Fifth Amendment

- is susceptible of two interpretations. The first is a literal

, ; one and would bar the application of compulsion to. force

testimony from # witness. The second interpretation,

and the one accepted by the Court*presupposes that the

‘object of the Fifth’ Amendment is fo secure-a witness

against a criminal prosecution which might be aided “di-.

rectly or indirectly by his-disclosufe. . . .’? Id. 161 U.S: at ©

595. The opinion pointed out that. if no such -prosecu-

. tion, were possible (in other words if the testimony oper-

_ ated as a complete pardon for the offense to which it

related), then a statute absolutely seeuring such’ immunity

a a: witnegy would vein ‘the demands of the Lea

meinapsantiesmabtnatinn. We

“ees

My ©

, Amendment. That reasoning i is relied tipon 5} appellant

in the present case and~by some courts and er

ion of Judge Motley in In re (Joanne) Kinoy, —— F. me

Supp. —— (S.D.N.Y. 1971).: Judge Motley furthersrelies .

-mentators as suppértive | of the concept that the

’ tution requires transactional immunity. See e.g., the

com-

upon the subsequent decision of this Court in Ullmann v. 4

United States, 350 U.S,422 (1956), as providing reaffirma- .

’ tion of the Concept. It should be pointed out, however that:

-. Ullmann did not consider whether a testimonial statute of

the: type, presented by this case. satisfies the e Fitth Amend. : 2

ment privilege.

The dissent. in Brown took ites iiatiels that, the

abse-

lute right. to remain silent created by. the Fifth Amend-

ment was beyond the reach of Congress. The theory of

the minority in Brown was that no immunity , statute

could supplant.the right of an individual to-be free

Such a concept appears to be uns

Dean Wigmore states the loving

dissent in Brown: ee

. having to disclose facts inyolving- dis bier or ‘self-infamy.

ftom

ported by history.

ith rennet, to the a

. [This] aincdindention | Fe the ayant

het | a.statutory immunity f ra érime cannot annul

the privilege against self nation because the

_ disgrace. at least remains. It thus rests upon the |

assumption that the ‘present constitutional

privi-

lege has the function of. pr@tecting againsf the. dis-.

-closure not only of crimin but also of .disgrace.

The ‘notion exhibited in t passages ignores the

- independence in principle, ™ details and in history

. of the two privileges.” 8-Wicmore, Evimence $2255. :

(McNaughton rev. set):

It. is not anton webaila to aided. that the main 1 thrust”

of . the majority y Y ‘Bas a Brown. was to demonstrate

* that’ the Ainsent was “wrong ini its. concept of the scope

juired immunity.

“The acstion of rego}

_Was-ntver really in focus. inwBrown. Thée.m

was Whether

: ‘lege, In essénce,

issue there

e.Court struck a bargain, panenty for

versus ~ ae immunity

n immunity statute could replace the privi-.-

assistance. -Nothingcin fhat- case and. indee ing in

_ the Counselmih case, supra, holds that anythix est than

"eormplete transactional _immunity* cannot match_the on-

tours of: the privilege ‘against self-i ay at ingtion. Indesd,

’ in Brown there is‘ ‘language that may ac — point to the ~ ,

opposite conclusion, to. wie

“Stringent. as a general rule faintnet- ‘self-inerim-

ination] is, however, eertain classes of cases have

_ always: heen: treated as not falling within the rea- |

sson of: the rule, and therefore constituted apparent :

exceptions. When examined, these cases will all

| be found. to be based upon the. idea that, if. the. —

i testimony sought cannot possibly be used as a -

. bt ae)

- basis for; or-in ‘aid of .a criminal — ution

' . against a witness the rule ceases. to apply . "ia

Bone. or Al, jC |

&. : és

. Further on’in “the majority opinion ‘in Sian: the Court nf |

makes reference fo another formula, different from that.

‘relied upon in upholding: the’ statute, under which the

Sompalston): of testimony . might avoid: self- incrimination:.

_“. . Swe ‘think that the witness cannot. properly

be said: to give such evidence against himself un-

_ less ‘evidence may in ‘some proceeding be used.

‘against him, or, unless he may beesubjected. to a_

_ prosecution for the transaction concerning which he

~ testifies.” Id: 161 U.S. at 604. —— supplied).

"The last-quoted hsironee desceibied two different’ situa- Pee al .

munity of the type : bodied=in N.J.S.A. 52:9M- 17 and ce

the second of which“8_ the type that. obtains under.a .° [| >.

statute of a general character. considered if Brown. Per- .

_ haps that porfion of the Brown opinion, foreshadowed. the |

“© emergence of a new genre of immunity statute. of which

_ «N.JA. 52:9M-17 is representatiye. To the extent that

_ Brown was a: reaffirmation of the. “absolute immunity”.

eoricept projected in Counselman it # urged that ——

too should no. longer be followed ‘since it appears. to exact |.

- too heavy a price from society. - eee | ¥ }

f In the opinion of the Supreme’ Court of New Jersey |

-- affirming the constitutionality ‘of the a tole ak under: | < +

consideration, In re Zicarelli, 55 NJ - 349 (1970), it was = 9 4

pointed. out ‘that at ‘the—time Counselinan was decided, .-

the immunity question. concerned only a federal statute

“and the restraint the Fifth Amendment-imposed upon the

_ fedéral gov ernment. In the words of Chief J ustice Wein-~ .

_ tramb:. :

es: “Since then the Fifth Amendment has os found -

_ to apply to the States as well, and, in \addition the |

_view has taken: hold. that ev idence the federal gov- ‘— -

ernment or.a State obtains by forbidding compul- |

sion may not be used by either. jurisdiction. -In

that. setting, the .scope of the, required immunity

assumes new. significance. If the immunity must © [

protect against prosecution with respect to’ any: of-

fense, both state and federal, ‘to which the - ‘testi- °

mony relates, the States would be unable to coni-.

pel testimony no matter how urgent the public néed

- since they ‘eould‘not immunize a witness from fed-.

eral. prosecution. And althotigh. the Congress can,

in ob ats of federal ‘investigations; bar state

- prosecutions, . still, the State’s sesponsibility and in- ~

. terest ‘in criminal ts being usually more per- ee

vasive aft demandingyat might be too high a price -

- to pay.. See. Knapp .v.. Schweitzer, 357 U.S. 371, »

378:379, 78 S:Ct. 1302, 2 L.Ed. 2d 1393, 1499 (1958).

In this Trew setting the more. acceptable solvent is

to ‘}frotect: the ‘witness against the use- of his com-, |

Lt ., pelled testimony by both ‘jurisdictions -but-with each -

_ #3 remaining free to prosecute on the’ basis of evi-

6. , - dence ree ema: obtained. Id. 55 N.J. at 267 «

| The New J ersey Supreme Court indiindted thatthe

_-problem was - resolved jin favor of permitting _testintony.-

to be compelled by both jurisdictions in the’ case of we

_. Murphy v. Waterfront Commission.of New York Harbor,

8378 US. 52 (1964). In that case, séveral - -persons had

been held in contempt for refusing to answer questions |

posed as a result of an immunity grant under a New’ .

Jersey statute. The statute protected them: from prose-

cution in New Jersey or -New York but Was silent with

respect to any federal offenses. ‘The individuals involved

refused.to answer.on the. ground, that they might i incrim-_

- inate themselves under, federal law: . This Court held that .

—the statute s should be affirmed, but on the ground that the |

witness . would indeed be protected- in_a federal _proseen-

tion by ‘virtue of. the Fifth Amendment.. S cman

af - After citing Counselman and. quoting ‘only those: pas- =

sages that criticized a prior federal statute for failing “ -

to proteet against use of the fruits of testimony, this.

- Conrt in Murphy held:. :

“ht: the - constitutional Tule_ to be that: a state

Bos - witness mily not «be, " compelled to give testimony

-. ! - -

which may bein der federal law : |

‘ “unless the compelled testimony and_ its fruits

ay ® & 7 a » . . . ;

. s t | — ; , 25 ; . , oe 7 aA

eannot be used: in any manner by federal officials in

connection with a criminal proseeytion against him.

We conelude, Moreover, that? ‘in order to- implement :

_ this ‘constitutional rule and accommodate the inter-

ests. of the State and, Federal Governments in in-

-vestigating and prosecuting crime, ‘the Federal Gov-

ernment must be prohibited from making any. sueh

use of compelled testimony arid its fruits: ‘This ex- _

_clusionary rule, while permitting the State%o seeure |

. information necessary for effective law’ enforcement,

leayes the ‘witness and the Federal Government in-

_ substantially the same position as if the witness 9 ;

: claimed , his privilege in the absence of % state er

. of can aie Id. 306 DS, at‘79.° + |

The con rring opinion of Mr. J saline White i in Mierphy

~~ Tends fe -to- the view that’ fhis Cofrt rejected the

-. contenti

that the Fifth Amendment requires a grant. of

_+ immunity from. prosecution. Particular reference’ is a

_ rected to the following language: ;

| +

. “Tn reachin v2 “its result. the: Court doés not met

the far-rea ing and in my view wholly unnecessary -

| constitutional principle that the privilege requires —

‘not only complete protection against any use of

compelled testimony in <any manner in other ‘juris-

“dictions but -also~absolute-immunity-in-these—juris-~ =

dictions from any prosecution pertaining to any of ~~

the testimony given. The rule which the Court does

not adopt finds only illusory support in a: dictum. of.

this Court and, apd I shall show, affords. no more

-protection ‘against - compelled inerimination - than

does the rule forbidding. federal officials access to ‘

statements made in exchénge for a grant of state

. immunity. But such a_rule_would invalidate the

*. ¢

? °°

Pe eee immunity statutes of the 50: States since the States

- . «+ re without authority to confer immunity from fed- .

eral prosecutions, and-would thereby cut deephy and

significantly into traditignal and important areas of

state authority and responsjbility i in.our federal s eon eo

_ -tem. It would not. only réquire widespread” gf ie eee

immunization from prosecution in federal investi- °_ ‘

gatory ‘proceedings of persons: who violaté state = «5 > -

.criminal laws, regardless of. the wishes ‘or needs of ~ Ee

: ~~ local law enforcement officials, but. fvould also defy: ~ re

a States the power to obtain aa ee &

\ _sary for state law a and oe are ee AP nee

_tign. ” Id. 378 US. st OY este . =

wr oa ae . Chea “Mar

While Minky dealt with an inten jurfedietional situa.

\s and did not~n its face purport. to affect whatever foree

- Counselman continued | to havé in the jntrasjurisdictional

situation, the likelihood is that Murphy articulated a sin- — “

“gle standard equafly applicable-to either situation. “Tf this

_were not true, then Murphy would hayé the result of es-

tablishing two co- existing standards: ‘absolute immunity.‘

from proseeution in context of a single jurisdictional:

situation and “use plus fruits immunity” as between two

——— ‘j oe

par, tic ularly a aiaiiods 3 inviewof- =.

. this Court’s holding on the ; same day as Murphy Se a

companion case of Malloy v. Hogan, 378 U:S. 1 (1964)) — ~ an

that the federal and stéte standards applicable to the

Fifth Amendment's ‘self-incrimination —_— were the

~ Same. d f

The effect of Murohy i is to reduge = siftaatly )

the force of the Counselman dietath-weth respect to abso-

——Tate — and to offer ‘compelling —o for the’

proposition that case plus fruits immacinity” is soaatibn: <

tionally adequate. See Dunean, Federalism and the Fifth;

_ Configuration of Grants of Immunity, 12 U. Ci. A. L. Rev.

561 (1965). 2

. i.

vig \ “Tn the case of iene: v. eit Activities Con-. .

trol Board, 382 U.S. 70. (1965), this Court found that the -

statute in qudstion suffered from an infirmity: more funda- .

. metifal then that which infected the statute considered in

~ Counselman, supra. The statute in Albertson met. neither

: the “absolute immunity” test nor the “use plus fruits”

standard. : :

> ihe question. of whether an immunity hind sai

testimony and its fruits was sufficient was left unanswered

in Stevens v. Marks, 383. U.S. 234 (1966). , However, in

Gardner v. Broderick, 392 U.S. .273 (1968), ‘it was stated

that. “answers may - be compelled regardless of the priv- 3

ilege if there“is immunity from federal and state use of

the , compelled testimony or its fruit in connection with a’:

criminal prosecution avainst the person reset citing

—

: i; oth Counselman and Murphy. ; | ee an ae

In urging before thi rt-that the ase pina £ fruits” “

_ immunity” concept contained in N.J.S.A. 52:9M-17 is coex--

‘tensive with the scope of the Fifth Amendment privilége, ,

the State of New Jersey, amicus curiae, is fully aware of |

_ the many statemehts that have ‘been made- by this Court.

\respecting the importance of that privilege. Justice Frank-:

furter, e.g., in Watts v. Indiana, 338 ‘U. S. 49 (1949) stated:

. “Ours j wis the accusatorial as ‘opposed to the i inquisi-

ean system. Such has been the characteristic .of.

Anglo-American criminal justice since it freed itself

_ from practices borrowed by the Star Chamber from

_ the wag or . . . under our system society car:

ries the

“8

urden of proving its charges against the

ali

accused not out of his owk- mouth.” . Id. 338 US. 24 .

o°

p> -

“

Mr. Justice a in. Malley v. iron mort, 378

US. at 7, stated “..... the American system of | crim-. |

* inal prosecution: is accusatorial; not inquisitorial, and .

the Fifth Amendment privilege i is its. essential mainstay, B.

* The validity of the observations i in the above statements:

is beyond : question. Appellee, joined -by the State of

New J ersey, urges, however, that the statute here invol Wed

is consistent with’ that amendment. ‘As Mr. Justice-Bren-

nan points out in his dissent i it it Piccirillo-v. D New York, 400

‘U.S. 548 (1971): ae

: ee of the Fifth Acindinent do not, in

— ‘terms, suggest. that government may compel men to

- incriminate! themselves provided’ it promises that it

~ will not prosecute them for the crimes revealed. The

clause does not prohibit’ a. prosecution or convic- .

tion; it prohibits - the application vel-non of compul-.

sion to an individual to force testimony. which in-

‘eriminates him, regardless of whether ‘he is actu-

ally, prosecuted. Historically, one of the major evils

Woo _ géught to be allayed by the development of the priv-

~ , . llege was the use of torture to extract a conféssion~

\ - . not the subsequent use of the conféssion in a erifn- #

“9 inal trial.” Id. 400 U.S. at 564 (dissenting opipion): .

vt It ‘is thus seen . that ‘prostention is not barred by. the

‘ “Fifth Amendment. It is the aspect of compulsion or tor-

~ ture that lies -at the heart of this clause. Fbid. In modern

~ eases this has come to mean simply that a witness cannot

“be convicted out of his own mouth. At the’ time of Coun-

selman, the concept of the “fruit of the poisonous tree”

‘doctrine had not been: ee Howerse, when this

P mk

‘gers and ‘not remote pr.speculative’ ones. . Rejecting ‘the

. that the evidence against him ‘was based lon his own testi-

a _ mony, Mr. Justice White states: :

oe mages ae « Me might” just’ as well argue that Pte Consti- .

; cation requires absolute immunity. from présecution

- wherever the Government has obtained an inadmis-

sible confession or other évidence ‘through, an il-

detention, and coercion. ©

J. . os _ for immunity and indeed As. excluded:in part because

} Sf os it is- compelled incrimination .in violatiog of tha_

Ox privilege.” Malloy v.~Hogan, 378. U.S., at 78, 84 S. as

_ Ct. at 1493-1494; Spano vy. ‘New York, "360 U.S: 315, —

: that testimony * or other evidence is a: fruit. of the ‘un-

lawfully obtained evidence. Nardone v. United °

4... States, 308 U.S. 338,°60 S. Cf. 266, 84 L. Ed. 307;

- Wilson v. United. ‘States,’218 F. 2d 754 (C.A. 10th

8th Cir.), which proposition jvould seem a fortiori

true where the Government has not engaged in il-

legal | or unconstitutional conduet and where the

eee

S 19 s os i oe : re a4 f se

sses | this. subject and points. ‘out that the- oie: :

iége against. self- iterimination protects against. real dan- %

arguments that a defendant May@tot be able to establish: :

coerced confession is as

_~ legal search and seizure, he illegal wiretap, illegal - a

revealing of leads as testimony given in exchange ~ |

19 S.Ct :A202, 3 L. Ed.:2d.1265; Bram v. United.

' . States, 168 U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568.

- _ In all these. situations a defendant. must establish

Cir.) ; Lotto v. United States, 157 F. 2d 623 €8:A.

~. inadmissible ‘testimony i is obtained. by a government

. : :

<- . 7. : oe \ 4 a

“¢ e ,

Rei

eas ey eae ; : ee

other than the. one bringing _ the ptosceution: and

for 4 purpose unrelated to the prosecution.” Id.

378 U: S. at 102- 103 — 5 peaks

‘The. remedy for one wh j is thle to show that-he hin tes-

tified in. exchange for immunity is to compel the prosecu-—

tion to demonstrate that its evidence is ‘not tainted. and. -

that it derives from‘ a. wholly independent” and proper. =

_., Souree, Id. 378 U.S. at 79, in. 18. But to bar any prosecu-.

. tion whatsoever would seem to extend a premium to the .

- eriminal that the framers of the Constftution never envis-

+ ioned. It, is urged that this Court affirm the constitution- -

ality of N.J:S.A. 52:9M-17 and hold that testimony of a

witness may be. compelled 0) long as that witness is im-

‘munized from the use of that compelled testimony or ,any-

thing derived therefrom. ee are ee a oe ie

. te

POINT AML be

: The requirement that : an answer be ‘ ‘responsive? to i

the question in order to obtain ‘immunity: under N.J.

: §.A, 52: .9M-17 neither renders the statute unconstitu- -

tionally vague nor conditions the grant of immunity.

It 4s appellant's further sonbintini that N. J.S.A. 52:9M-

17 is rendered unconstitutionally” vague. by its employment

of the adjective “respénsive” in conjunction with the word

: “answer”. Appellant reasons that in being compelled to

offer an answer to a question posed by the Commission

‘he is, in the sfirst iastance, left completely at the mercy

of the questioning ‘body as to whether his answeg will be

accepted is “responsive” and therefore infmunized from

latex “use. Further, appellant. perceives as inhering i in the

scheme of the*stdtute, the possibility that his answer may.

in the future be deemed “unréspoiisive”. by a court ignor- -

\ e seit eee oy Bi PO, OF

~ ant of: the ‘eabane aind intent: of: the Guimntasion! s inquiry .

ve \and thus be ‘admitted in in sridenen ha him at such ines

‘

«-@

ene Fe

a re

\It is sinuiantly clear that’ the kpptioniton of N.J. S. A.

52:9M=17 to: appellant poses’ neither. of these threats. In

In, re Joanne Kinoy; : supra, the - itness raised nearly

identical abjeetions . to testifying” ‘on the basis’ of the

due process ‘guarantee... The witness’s: argument: there -

- was bottomed on the notion that the immunizatién;of her

_ testimony could only run to answers to questions deemed «.

- related ‘to the subject matter of the order to testify. Thus,

the witness ‘argued that the proposed order placed her “in

an untenable position of having to,guess whether or not

the question is*related to the subject matter of the order.” |.

(Slip opinion, p. 4)>~ The “witness’s purported dilenima

_ there was expressed in virtually the same oe hoe i

by the appelgnt here: - ; fae

“ae she thinks ‘it is riot related and ee to an-.

swer, she may be held in contempt, if a court’ later

" determines it ig related. If she thinks it is related °.

to the subject. matter of the order and % answers the ~

ie ‘question she may have inerimina ed herself without.

the protection of immunity if a court, later deter-

-mines it is unrelated,’ ” Ibid. Bot,

J udge Motley, in remarks ‘eqhallpspertinett, to the pr

- ent cease, illushinated = ay of the wifriess’s. oe

nent: ee ‘ 4 pos,

2 “The court Nae that ales order ae a violative” |

_of.due process if the above described nee ?

faved directly from it. But the proposed order dog® _

not subject the witness to such perils, If the wit-

ness is not sure whether or "not a question is related

’ t :

ny .

ea .

. ; ae . oe

. “se

eZ «+ dy :

. - . . # e -

. m . * .

aii a ean - +; “ ' .

4 — ie we ties

* ' fy . . =

. : ¥ * . P . 3 | 7

é s* . ~“ °

. ; ‘ ‘es : Ee

. . ® > é * > o-

j ° 3 . i ‘ oe he z ad . j

‘ . . Fiat aa A “4 pice es ae os

* o’e*

e .

. e Se, ote f ‘ 7 aa "e . eo} “2 "8

tion. - *. sed 80 BY SE .

-Tused, to answer the question. cP. Be We i Web é oe

a ruling from a court. Only after such a alte d

the witness’s continued refusal: to answer would the

., witness . be subject for contempt. This proceedure .

- ensures the witness that he will know in ‘advance

* the conduct thaf is proscribed and cree that

he will not inadvertently waive his privilege.” (Shp

opinion, at PP. oo) a is Pee

A similar procedure j is available to ‘appellant. The Com:

* mission is unable wnilaterly. ‘to. eompels appellant's testi- -

-mony. upon pain of! contémpt or, “to refuse to- immunize

compelled testimony. At the* point of hisyrefusal to testify, -

the Commission must pursue | @ contempt citation agaigst

tl witness in. order to compell: ‘his testimony. At. this junc-

ture, the witness can obtain “from thie’ court,a delineation

of. what will constitute a “responsive dhswer” to ‘the nits-

o RHE oy oo

+ ‘ a se

Where. a <witness’s secre thas: heén. “nebepted by the.

Commission as responsive, without gbjection, oris pfs: 26

- fered after guidanee has’ been | received, from &. court the: ®

State is foreclosed from collaterally attacking the: “respon. °

siveness” of this answer in a later .PFesecition. Moreover,

“oR

appellant misconceives the possible sanction where; upon’ 8

answering immediately, his. answer is deemed to, hae heen’, ;

“unresponsive’’. The sanction imposed‘in: ‘this se ‘would =

be tHe : same. sanction. imposed in. the: évent the witness re-.

Both ‘of these conclusions are cleat’ from current prac-’

tice and the design of the: statute. In the contemplation. of |

a provision which seeks to’uncover: trtth, an unresponsive

-. 139 (1g )3 United States v. Shotwell Mitra. £0. a a

‘answer is tantamount to a.pro tanto refusal: to produce

relevankevidence. Cf. Glickstein v, United States, ee

--' yantello v. State, 158.Tex. Crim. 471,. 256 S.W. 2d 587

839 U.S. 323, 353 et seq., rehearing denied, 339 U.S. 991

, ae ploying the contempt power both in the ‘situation avhere

33 (1957) : Travellers’ Fire i Co. v. Wright, 322

P; 2d. 417, 423. (Okla. Sup. Ct. 1958); Amnot. Incrimina-.~ > |

tory Disclosures—Immunity, 53 A.L.R. 24 51 (1956); Fer- “-..

* (Tex. Ct. Crim. “App. 1952). ” —

eS -well established that jaaraantty- Legislation requires. : is

. the sanction of contempt.process to force all relevant evi- _

dence out of unwilling witnesses. United States v. Bryan,*

a ili ST nk a em.

sf . ,

7: - ¢

_ (1950). N.J.S'A. 52:9M-17 fulfills this requirement by, em-

Se th lak ty

the failure of the witness to comply with thé order to an-.

swer takes the form, of a refusal to answer (the instant | fF.

case), and the situation moar the. lack ‘of. compliance nS ae

sults from the answer’s “unresponsiveness”. The only if

sanction available under thé: statute to deal with such wh-

responsiv eness is prosecution of the Witness for contempt.

he witness may be held in contempt for failure t6 give:

“an answer... in accordanceswith the order of the com-: |

mission”; however, “such answer’ is not to be used:

ort: 7

“©. to expose hini-to criminal prosecution .

[but] any such answer- giv en or ev idence produced

shall be admissible against him... upon any in-—

| vestigation, proceeding or trial against him for such’

eontempt:” N.J. 8. A, 52:9M- it: Salat (Emphasis * sup-

. plied). Con , . ws,

: Where a “dink to testify there can be no “such -

answer given or evidence produced” to be admitted as evi-

dence. in a contempt proceeding. See United States v. —

Bryan, supra at. 339-340. Clearly, the provision for intro-

‘inetion of “such answers” in.a contempt. proceeding refers

“to “unresponsive answers” and therefore provides that —

“such answers” may only ‘be admitted in evidence against —

-/ . ; . ; . : s * me ‘ *

<2 Ar maRRIENE oper naia

WO TE

. ,

oad

OTN Lt A PE

Pog a

sumnymennatil

~ | 24 _

. : aa | i

; ~* Dome ; . | : : a .

. the defendant in such a‘contempt proceeding. Hence, there

is no'threat wader N.J.S.A: 52:9M-17 that appéllant’s. tes-

timony could later be used against-him upon a finding by.

-a court-at that time that such testimony was..not “respon-

- sive”. Unless the area objects. to an anfwer on. the «

grounds that itis not “re ponsive”, which objection. may - ~

go either to its incompleteness or its gratuitous and irrele-

- vant chaz acter, requiring the answer be stricken, and seeks

~~ order,, use of such answer: is absolutely barred. ©

to campel a “responsive: answer” ‘through a contefapt

- However, it is the contention ‘of the amicus curiae that

these quesfions © dre largely academic. The concept of .

_ “responsiveness” as applied to the witness’s: obligation to

testify is in no way elusive. The appellant’s claim that

the employment of the word “responsive” fatally obfus- .

cates the requirement to answer imposed: by the statute is -

belied by the long history of the use of this term by both .

courts and legal scholars in discyssing the law of evidence.

The employment of tlie word.“ responsive” in conjunc. -

tion with the obligation of a witness in giving answers

. extends at least to the time of Jeremy Bentham. Bentham

characterized “responsive” testimony as the first of the

principal means of producing “accuracy and completeness”

in the answers of a witness. BENTHAM, Jupmcran Evwence,

52- 54° (London, 1825). :

‘The meaning of the sued “responsive”. in association |

with the word “answer” has remained unchanged to this

day as the indicator of an answer’s aceuracy and complete-

_ ness. Herderson v. State, 208 Ga. 73, 75, 65 S.E. 2d 175, .

’ 177 (Sup. Ct.:Ga.° 1951); SUTHERLAND, Srarurory. Con-

}

| STRUCTION; $5303 at 9 (1943). . oy Paae

Indeed, the inclusion of ‘the word “responsive” ‘in this

- particular statute appears to have been inspired by this

- sponsive answer to -

‘it cannot be..answe

_ -Court’s employment of the term to qualify the word “an-

a dee in the context of an immunity sfatute. In deter-

ning at what point a witness.must be afforded immunity - =

to compel his testimony after an invocation of the privilege

against self-incrimination, this Court bas — that _im- , at

munity must be granted where: it appears ‘ . that-a re-

ed might: be dangerous because in-

jurious diséfosures coukl. result. y ‘Hoffman v. United

States, 341 US. 479, 487- (1950). :

In thus stating the rule, the Court employed termi-'

nology favored by Dean Wi igmore “who

the question is in n_the tenor not improper, but is answered |

with inadmissible matter not .responsive ‘to’ the question, .

| objection, made upon the answer is reasonable; ‘its form

‘here is a motion to strike eut the answer.” 1 WicMork,

Evivence § 18 at 324 (3rd ed..1940). See also 3 Wicmore.

ops.cit.' supra § 785; 4) Wicaoré, s supra § 1392.

Fhe New Jersey Legislature, in drafting N.J.S.A. 52:

9M-17, was not alone in concluding the term was not too - «:

abstruse for inclusion in an immuaiity statute. Research

_ reveals that <the word “responsive” is also. used in the

_ basie New York immunity statute to describe answers re-

quired : ‘under: that provision: #

“A witness’ who gives evidence in a grand jury :

proceeding receives immunity unless:

(a) . oe

(b) such evidence is ‘not responsive ‘to any an-

, quiry and is gratuitously. given or volunteered by.

the witness with knowledge that it is not +éspon-

a Crm. Proc. Law ei 2, (Emphasis

e question or.an. rare ‘of why

ates, “where ©

eat

Nyt

2600

..F

.. From the Court’s use of the word “responsive” in

~ Hoffman, supra, as well .as its employment in the New.

York statute, it is plain that “responsive” is not an arcane

word. Rather than being a word: fraught with uscer-

ED _ - tainty its meaning is easily comprehended. » It -is:

na ; &, . [the property of] Answering, ’ constituting or

comprising 2 complete answer. -A ‘ responsive’. al- .

legation is’ ‘one which seed answers, the ‘allega-.

/. tion it is intended to ‘meet . 2” Brack, Law Dro-

-TIONARY 147 (4th ed. 1951).

. “Responsive” has ‘also. feon: defined as: “ ‘that (which)

responds; answering, replying, . (Webster’s New ‘Interna- .

tional Dictionary, (2nd ed.) p.,2124)’.’’. Savings Finance

Corp, v. Blair, 280 S.W: 2d 675, 677 (Mo. Ct. App. 1955).

. In-drafting N.J.S.A. 52:9M- 17, the Legislature sought

to caicaab that only. a reply which actually was intended to _

“answer” the inquiry. would be. immunized. The clear in-

. tent was to-avoid sham answers and unsolictted admis-

sions designed to. confer “immunity baths” -of the type

_ proseribed by the New York immunity statute, cited

auth just as surely_as the provision was a to ~

‘avoid perjury er complete faitures* ‘to answer. ~ United.

_ States. v. Bryan, supra, 339: U.S. ‘at 338-339.

‘Intention more cleayly than if the * “word “answer” had ap-

peared alone in the provision. From appellant’s point

of view, it might just as well be argued that the word

- “answer” is itself too vague a. be to satisfy due process,

for itifact a “responsive answer” means no more than a |

“good faith answer, that is, a bona fide attempt to present

‘ to the best of the witness’s ability that information -

sought by the. inquiry. See In_re Zicarelli, supra, oo. N:J.

at 270-271. —

wal

Even if the threat of subsequent use to incriminate the

witness. did ex? t-as a result of the “responsive” require-

take a prophylactic approach to the statute. and deter-

mine ‘the use of-the word “responsive” to be redundant,

thus eliminating the. alleged vagueness. Tygch v. Over-

holser, 369 U.S. 705; 710-711 (1962).

' “ment,” it is. well established that. this Court could. simply:

Appelldnt’s contention that the grant of immunity is -

substance. The only “condition” placed upon -the grant

somehow defective in that it is: conditional is withont

- of immunity is a cognate of the condition of truthfulness .

| ‘itself, by which the witness has-sworn to’ abidé. Clearly - |

the use of the word “truthfully” does not. result in a con- -

ditional.immunity. Ferrantello v. State, supra, 256 S.W.2d

~” at'595. Annot. 53 A.L.R. 2d 1030, 1052 (1956) ; Annot. 118 .

A.ER. 602, 627 (1939). In thé context of an immunity pro-

vision the word “responsive” is nothing more than a re- °

statement of the oath’s requirement that ‘the witness tell

_ the “whole truth, nothing but the truth.” An evasive, in-

‘ complete, irrelevant or misleading answer does not tell the

2” g

' “whole truth” and is not. offered _ in good fai 7

_that_purpose.——=—-2——~

98 . ° - _— f ; . .

POINT a

"The threat of fotelinin prosecution is not relevant to

the privilege against’ self-incrimination nor can appel- |

lant demonstrate’ a genuine fear that his compelled

testimony might be used to incriminate him i in a for-

eign prosecution. |

az ee] ; oe 4

A). Appellant fails. to ‘demonstrate teat: and ‘substantial

fear of. prosecution by either Venezuela or the Do- .

minican Republic. “. f 4

It is appellant’s, contention that in addition to the

threat of prosecution in this country, he: currently faces

“a “real, and substantial fear of foreign prosecution” it

three other countries. Cf. _Murphy' v. Waterfront Com:

mission, supra; 378 U.S. at 67- 68. These other soniivteies:

are. the Dominican Republic, Venezuela and Canada.

“Apart. from referring’ to an article which indidates th

~ appellant “has holdings in Venezuela” (App’s Br. P. 8)

whjch in itself is innocuous, appellant offers nothing to

substantiate his claim that he is threatened’ with prosecu-

tion in Venezuela. Moreover, appellant acknowledges that

he could not be extradicted to Venezuela even if an actual

prosecutign in* that country was imminent. ;

_. .The allegations connecting appellant with formef Do-

| minican’ Republic President Trujillo, although they inti-

mate that. appellant’ may have engaged in foul play at

the behest of Trujillo, go no further than’.to allege his

complicity in violating the laws of the State of’ New

York and the United States, the locus of the alleged acts..

It is hard to fathom on what basis appellant woyld have

’ this Court. determine that there is a real possibility of”

him being prosecuted and punished. by the. Dominican

_ Republic for his alleged involvement in acts which took —

- Mo A

place fifteen or twenty years ago in NewYork, avec if the

victims of such alleged crimes’ were Dominican -citizens.

Again, the fact that appellant admits there is no treaty

. - ‘under which he. might | be. extradited te the Dominiean’ Re- .

Ee public for such crimes ‘would appear to dispose- of his con-

“| ..| tention with regard to that country. On’ the basis of ap-.

pellant’s ewn recitals it is respectfully submitted that. the

= iescaie aes of the appellant by the Dominican Republic:

3. not a. real and. e anager with ref-

ee 3 - ference to inary operations of the law in the.

—. ‘courts, but ‘a danger of an imaginary. ¢ and -

_— unsubstantial. character haying reference to some _

“> extraordinary and barely possible contingengy, so Y

improbable that no reasonable fhan would suffer at

to influence his conduct’”.. Brown v. Walker, supra, -

(161 US. at 608. 2 oe rel ah

B) ‘Phere is no threat that Canada would use disclosures .

_ costipdlled from.appellant in a subsequent prosecution

in Fanada. aia < % ey —

. Of the three countries mentioned appellant concedes »

that ‘Canada is the only one to which he could be ex-

tradited. (App’s Br. p. 43). Appellant contends that he

could be prosecuted for alleged violations of the Canadian

_ Food and- Drug Regulations in which he had .been impli--

* _ cated. For argumient’s sake it may ‘be assumed that ap- ~-

pellant faces a “real and appreciable danger. of prosecu: . :

‘tion on these charges.” . ee & |

| Given. the foregoing premise, two ‘principal questions cre

are raised: (1) May appellant be" compelled to testify un-:

. eder grant of immunity, if such immunity. does not pur-

port to protect him against the possible. use of his com-

~*~ ”

ne by itself infinitesimal.

( 30

pelled testimony in a foreign prosecution? (2) Would a |

Canadian court permit such compelled testimony to be

used against appellant in.a subsequent Canadian ‘prose-

eution? -

- The result in 1 Murphey y

is clearly bottomed on the proposition that a state clearly

can compel testimony though. by itself it lacks the power,

_and cannot even purport. ‘to protect the witness through its

owlt devices, against the use of his compelled testimony by

the secorid soverign, 1.€., the. federal government.

In re Parker, 411 F. 2d 1067. (10 Cir. 1969). cert. granted.

judgment ‘vacated’ as ‘moot, sub nom Parker v. United.

- States, 397 U.S. 96 (1970) deals with the application of

~ this principle to the same state of facts which underlies:

| fae appellant argued that

although she had been “granted immunity from both fed-

eral and state prosecution and. accordingly adequately

- protected against her danger of self-incrimination: in all

-- courts within’ the United. States .

oe could , properly: refuse to. testify. on the grounds that

“certain of the questions, spropounded to her, if answéred,

- would furnish a: link in the chain of éviderfce needed to -

the first question. In Parker,

prosecute. herefor an extraditable Canadian crime. ” Ibid.

- Appellant makes nearly the identical contention.

-. Before* dealing directly with this issue the Tenth. Cir-

“cuit observed that Rule 6 (e) of the hain Rules of -

- Criminal Procedure would. prev ent disclosure ‘of matters

brought before the grand. jury unless ‘otherwise ordered

,by a federal court; thus, the likelihood: of such testimony

ever ‘being made available to a Canadian prosecutor’ was

| | Td. at 1069-1070. It should be

noted that the Commission’s proceeding in\which appellant

was called to testify was i camera and provisions similar

eres Commission, supra, |

.”, id. at 1069, she

_ . Be

% Rule 6 (e): govern the ‘conduct of its investigations.

_ Under N.J:S\A. 52:9M-15 and 1 16, it is likewise highly im-,

probable that any information . _ elicited ‘from: appellant -

could reach Canadian authorities. |

‘The court in Parker however, because of the wate of

the: District Court’s decision, squarely met the- question

of the relevancy of possible foreign” prosecution t the

protection of the’ privilege. In affirming the District ,

- Court’s holding “that the Fifth Amendment provides

- shelter for appellant. against inerimination in a- we. &

‘jurisdiction”, éd. at 1070, the court went on to dispose of -

the. argument that Murphy v. Waterfront Commission, oe

supra, pointed to any different result: . , ex

“It is true that Mr. Justice Goldberg, writing. for.

the majority ‘in Murphy, supra, trewed the history

“and importance of theprivilege against: self-inerim-

ination and in so doing indicated approval of some

_ early English cases where the privilege was,thought™

| But the Justice’s reference to such cases was:simply :

by way of argumentative analogy to this. nation’s

state-federal, relationship: and carries no further

persuasion.. The Fifth. Amendment was intended to

protect against self-incrimination for crimes com- -

mitted against the Uilited States: and the several

. gtates, but need not, and should not be interpreted

- as applying ‘to acts’ ‘made -erimina] by the ay of

| De stiles a6 nation.” Ibid. —

Although the sanction was not reached i in Parker, it is

well established that the Canadian courts would bar a |

- Canadian Prosecutor from. making any use of’ incriminat- _

ing, testimony obtairie through compulsion in this coun-

29: - detponstrated below, sean would have the

same protection from the use of his compelled disclosures ,

by. a Canadian. prosecutor as he would have against the

use of such evidence in a subsequent proseedffion brought

by another ‘state or the federal government, by virtué of.

the rule of Murphy v. Waterfrong Commission, supra.

Canada, along with’ the United States, inherited - the

-. privilege agawhst self-incrimination from the English com-

mon law. ‘Canada has atways honored. that privilege with-.. .

out’ deference to the~“dual sovereignty” doctrine. which

. limited its efficaoy"Tn this country before Murphy.

More, than forty’ years. prior to the Murphy decision,

“ Supreme Court of Canada in Prosko v. Rex, 62 S.C.R.

_ * 226 (Sup. Ct. Canada 1922), rejected the notion that the —

- dual sovereignty doctrine had any relevance where both |

. sovereigns adhered to the privilege against sself-incrimina-

tion. Grant, Féderalism and S¢lf-Incrimination: Common.

_ .Lauf and Beisiok Empire seu abecatte 3. U. C. L.A. L. Rev.

1, 10 (1958). - |

In Prosko, thé ‘Canadian Court articulated the ‘deaiiedpls

that the.use of compelled evidence i is barred Under a single:

‘standard. This principle appears to have remained un-

chiallenged from that time. In that case, defendant, after

having been involved ‘in a murder in‘Quebec, escaped over ~

_the border. to Detroit whereupon he was ‘arrested by

. United States Immigration officials: with the connivance of

the Canadian. authofities. . Upon being told that. the Immi-:

gration Board -was considering his deportation to Canada, ‘

he revealed his complicity in the Canadian’ murder .to

American officials*in an effort to avoid deportation. He.

repeated fhe same story | before ‘the United States Immi-

gration Board and was thereupor deported, to Canada. .

A’ 8 for murder ensued «in Canada during which e

American immigration opeigis: rot eae at the. trial. and

oe | up foo % 2

sabited the eiiilaaiiahca Prosko had made to ther and to Be

.' the Immigration Board. Prosko was convicted of murder

_ and appealed to the Supreme Court of Canada.

Chief Justice Davis for the .court found that irrespec: : 2

_* ‘tive of the place-where the statements were made, their _

, aon before a Canadian court was: ta, be governed by:

.-[what] ‘has Jong been established as, ‘a ‘positive ~ :

s 3 ; ode of English’ criminal law, that no statement of

. an accused is admissible in evidence’ against him

* > unless it is shewn fsic] by the prosecution to have.

not been obtained frcm im by fear of prejudice or __

hope of advantage exercised or held out by the per- _

_C& * gon in: authority.’ T ee | is as old as Lord :

Hale.” Id., 63 S.C.R. cat 229-230. “Bee also, re ad-

~ * _.. missibility Piche v. Regina, 74 W.W-R 674, 11 D.L.

_.B. 3d 700 (Sup. Ct. Can. 1970) ; Grant, Federalism .

\ _ and — ucrimination, supra at meg

: 1952, the Federal Parliament of . Cariada enacted | the

” advan Evidence Act, R.S.C. (1952), .c. 307. Section 5 of

this act in effect abrdgates the common law privilege =

against @lf-incrimination ard replaces it with a broad |

BS “use” immunity *provision,. ya ‘wits. * ,

ae) ~<a). No witness shall be exensed from answer-

ing any question upon the grounds that the answer -

alt _~ to such question may tend to. criminate him, or may ..

tend to éstablish his liability to a civil proceeding

" at the instance of. the Crown or of any person. .

. objects to answer upon the ground that his answer

‘may tend to criminate bim, or. may tend to estab-

lish his liability to a cil proceeding at the instance

yy? ° ° t .

@', ee ie

aa) ° ‘ - ; ‘ ¢ a

ba OF ,"; 0 ' Y . ‘i .

: ' ’ , i

‘ e ° ’ .

Reis Py

Be ri

é '« LEB .

: Gn.

* of the Crown or. of any. person, and if: but for this.

Act, or the Act ‘of any provincial legislature, the

is by reason. of this Act, or by reason of such p

vincial: Act compelled to answer, the answer so 4iv-

2 nf - .witness would therefore have been. excused from

answering stich question, then, although the witness

- en‘shall not be used or receivable in evidence _ ..

against him thereafter, taking place other than

prosecution for perjury in the giving of such evi-

dence.” ” .

. 2

‘By its own terms, this provisiog protects the appellant

from the use of his testimony in a Canadian prosecution |

where,. as heré, he objects, to answering such ‘question on.

the grounds that his answer may “fend” to incriminate

him. under Canadian Law, that is, furnish a “link in the

chain” of evidence‘required to establish his guilt under the

_ Canadian Food and’ Drug Regulations. | Thus, it is appar-.

_. ent that vis a vis a Canadian Federal prosecution, appel-

lant would enjoy the same protection he is afforded under

Murphy v.- Waterfront Commission, supra, with respect

‘to a subsequnt federal prosécution. seco: his com-

~pelled testimony in New Jersey. |

Hence, even if the threat of a pfosecution i in a foreign

- country were withtn the scope of-the ‘prptection afforded

‘by the -Fifth Amendment, it is clear that‘appellant does

not. face any real ‘threat that evidence he_is compelled to

give before the Staté Commission of Investigation may be

used against him in a foreign prosecution. Canada, the

only foreign jurisdiction where: such threat is even color- 7

able would not permit the introduction of testimony ob-

tained sarong compulsion ina Canadian federal _prosecu-

tion.

POINT Ivo ee

The aepilahitity of a use Siieealies étatute. is of

significance to the effective administration of criminal

justice. ¢

fe.

The statute at issue in this case. controls the workings

‘of an investigatory agency of the State of New Jersey.

-That ‘agency plays an integral role in the team..concept

of law-enforcement that has developed i in New, Jersey and.

elsewhere in direct response to the sophisticated methods

‘that are now being regularly employed by criminal ele-

ments throughout the United States. |

In order to meet this challenge, the State has devéloped 7

a-number of innovative weapons such as. state-wide grand

juries, full-time prpsecutors, availability of electronic sur-

veillance under controlled: conditions, as well. as witness: .

immunity acts.

. New Jersey is not alone in promulgating a ‘statute that.

compels testimony in exchange: for. immunity from the use

of that testimony or its fruits. The Congress included a

similar provision in the Organized Crime Act: of 1970, 18

U.S.C. §§6001-6003.

In his. concurring opinion in Murphy v. * Waterfront!’

| Commission, supra, Mr. Justice White points ‘out:

. the States still bear the primary responsibility

in ic thie eountry for the administration of the crim-

inal law; most crimes, particularly those for which’

immunity acts have been proved mest ‘useful and

_ necessary, are matters of local concern; federal pre- . ~

~“emption of areas of crime control. traditionally re- |

‘served to the States has: ‘been relatively unknown and

this area has been’ said to be at the core of the con-

. 8

Gas

: 36 ~

. ~

‘tinuing viability ‘of the ‘States i in ‘our federal. Sys-

tem.” Id. 378 at 96.

The experience that ‘eprelies has had: with the «elit .

in the present case illustratés how difficult it is to get at ~~

the. roots. of organized crime and to uncover information

that will. be useful in carrying out the mandate of the’

States to enforce the criminal law. <

In testimony before a Congressional subcominittee, Pro- .

fessor Robert Dickson, a consultant. to the National Com- —

mission on:Reform of Federal Criminal. Law, pointed. out

that, an immunity statute of. the sort here presented may

have only corollary utility i in certain kinds of conventional

- eriminal investigation (as for example where there is a

potentially cooperative witness), but that its great value

lies in overcoming the resistance of the witness: who does.

- not intend to cooperate: at all, regardless’ of the induce-

2 ment. Hearings on, H.R. 11157 and. H.R. 12041 before

~Subcomm. No. 3 of the Comm. on the Judiciary House

of Represénigtives, 91st Cong., 2d Sess. Admittedly, not

even an immunity7Stattite will necessarily .compel testi-

mony, but it is lan helpful in many’ situations.

The experiencé New Jersey under this statute and

under a related hike which is applicable to grand jury:

and court proceedings (N.J.S. 2A :81- 1@8) is still rather

limited. However, the present case suggests that the use

immunity statute is making tts mark. The State, there-

to this Court and to have a definitive ruling in this most

important area. . .? SO oY

In supporting the sippellee in ‘this ease, the State

‘fof New JerSey;: “as amicus curiae, respectfully” urges thit

the best reason for “alirging the aman of a use im-

a ©",

'. by modern day

; Y ae ad . =

- munity statute is that there is nothing suggested by the

Fifth Amendment to ‘compel any ‘greater tender to a

“witness. It has been pointed out that Counselman and its

progeny dev eloped ina different era ‘before the exclu-

sionary\tules. Y br before many of ‘the problems presented

rime had even. been imagined.

If a mani. is compelled to testify but guaranteed that

that. testimony and the fruits of that testimony ¢ can never

be used against'him, it strains the concept of reasonable- ‘

ness to understand why he must be provided, in addition

to that guarantee, an absolute assurance that he will not»

be prosecuted: : If the gov ernment is successful in ob- -

taining evidence independently; it should be permitted to,

; procede with that evidence. While its burden may: be

'. great the question jof whether it has carried that burden

is factual and “ae be left to the wisdom of the courfs_

and the juries that ‘will. ultimately consider it. Paren-

thetically, it has-been suggested by the appellee that

under a transactional immunity statufe, there may actu-

ally be ‘greater problems of proof that. befall a | witness -

than under a use immunity statute. . :

In the case of United States-v. Blue, 384 U.S. 251

(1966), Mr. Justice Harlan writing for this Court pointed

out that if the gov ernment acquires evidence in violation,

of the Fifth Amendment, the remedy is to suppress that .

evidence and its fruits at trial, not to- dismiss the indiet- |

-ment. He said: | 7 :

— “So drastic a step [barring prosecution, altogether]

might advance marginally some of the ends ‘served

by the exclusionary rules, but it would also increase

‘ to an intolerable degree interference with a public.

interest in having the oa brought , to book.” Id.

384 U.S. at 255. |

- i

388 |

‘The reasoning. in the Blue case tae: - great pertinenss

here. It is similarly urged that to refrain from any

would be ‘an intolerable - interference with the public in-

terest in having the guilty brought t > justice. It is urged

therefore that this*Court put an @Ad to the chillanges

to the congept of “use plus fruits” itnmunify, and ftee

thé states to continue forthwith with their efforts to com-

c concept. |

ae ro CONCLUSION

-. For the reasons expressed herein it is respectfully ;

"urged that N.J.S.A. 52:9M-17 be declared constitu-

tional under the Fifth and Fourteenth Amendments of —

_< the United States Constitution and that the judgment “

~ of the Court below be affirmed.

Respeetfully submitted,

Givens FF. Kvorsn, JR. a.

_ Attorney General: of the State of New Jersey

>». Attorney.For the State of New Jersey, =

ao Amicus Curiae. -

*, Barky H. Tivascrace : va : —

Deputy Attorney General . " o

*.”. “Dividtion-of. Criminal Justice

MicHaet R: PErte / oy

Deputy Attorney General . a.

Division of Criminal Justice =

Of Counsel and*on the Brief.

prosecution as the price for information of’ criminality ‘

bat criminality —— resort to statutes ee that | |

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.