# Amicus Curiae Brief — Zicarelli v. New Jersey Comm'n of Investigation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0016%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1972 - **Citation:** 406 U.S. 472 ## Text Be pas.ot Ta © TABLE OF CONTENTS — _* 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 20 29 - 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 é e 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). . 3 : 7 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) 3. : 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 . - 7 3) 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 a] 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 “ , . a 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 s 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 |‘ - My © , Amendment. That reasoning i is relied tipon 5} appellant in the present case and~by some courts and er . 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: | - .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: 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> - “ i 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 7 . that the evidence against him ‘was based lon his own testi- a _ mony, Mr. Justice White states: : 6c 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 . : : ~ 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 . a . 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 | 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 ii “©. 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 ‘ * 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 unless it is shewn fsic] by the prosecution to have. / © been a voluntary statement, in the sense that it has’ 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) ~ '. 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. | \ a - i 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 — _». Attorney.For the State of New Jersey, = ao Amicus Curiae. - *, Barky H. Tivascrace : va : — Deputy Attorney General . " o _ Chief, Appéllate Section © °« ae *.”. “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 | | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0016%3A6. Public record. Not legal advice.