cdTOCtest

ing the limits of the contempt power in some cases, the
Court philosophized, “Not all prosecutions turn out
perfectly. Sometimes the essential piece of evidence
remains just beyond the State’s grasp, and in the end,
there is nothing the State can do about it.” 266 N.J.
Super. at 380.

III. TESTIMONY MUST BE TRUTHFUL

N.J.S.A. 2A:81-71.2a(2) provides that when a
public employee is compelled to testify over a claim of a
Fifth Amendment privilege, “such testimony and the
evidence derived therefrom shall not be used against such
public employee in a subsequent criminal proceeding ...;
provided that no such public employee shall be exempt
from prosecution or punishment for perjury or false
swearing committed while so testifying.” For private
persons, N.J.S.A. 2A:81-17.3, in slightly broader terms,
bars the use of immunized testimony in future criminal
proceedings, except “for any perjury, false swearing or
contempt committed in answering, or failing to answer,
or in producing, or failing to produce, evidence in
accordance with the order.”

The United States Supreme Court has held that
immunized testimony, protected by the federal use
immunity statute, nonetheless may be used to form the
basis for a perjury prosecution. United States v.
Apfelbaum, 445 U.S. 115 (1980). Neither the immunity
statute nor the Fifth Amendment privilege precludes the
use of immunized statements, whether true or untrue, at
a subsequent prosecution for perjury or false declarations,
so long as the testimony conforms to otherwise acceptable
rules of evidence. Id. at 131-132.

New Jersey courts have applied the perjury or false
swearing exception to the subsequent use of immunized
testimony in other contexts. In Stone v. Keyport Boro Police
Dep’t., 191 N.J. Super. 554 (App. Div. 1983), the court
held that immunity was unavailable to prevent
impeachment that may uncover the perjurious basis of a
criminal defendant’s civil claim. Id. at 558. The plaintiff
made previous statements to establish a factual basis for
a guilty plea to an assault charge. The civil case stemmed
from the same incident. Id. at 557. Plaintiff sought to
immunize his statements made at the entry of the plea
under R. 3:9-2, providing: “For good cause shown the
court may, in accepting a plea of guilty, order that such
plea not be evidential in any civil proceeding.” The court
ruled that defendant waived any immunity protection
under R. 3:9-2, by offering testimony to support his civil

claim that was materially inconsistent with the testimony

given to support the plea. Id. at 558.

IV. AUTHORITY TO GRANT IMMUNITY

N.J.S.A. 2A:81-17.3 and N.J.S.A. 2A:81-17.2a(2)

set forth, respectively, the procedures to be used to grant

use immunity for private persons and public employees.

A. Private Individuals

For private individuals, use immunity may be

granted only in criminal cases at the request of a county

prosecutor with the consent of the Attorney General or at

the direct request of the Attorney General. N.J.S.A.

2A:81-17.3. The State Commission of Investigation also

may grant use immunity. See N.J.S.A. 52:9M-17; In Re

Ippolito, 75 N.J. 435, 443 (1978). Absent compliance

with the prescribed statutory scheme, the trial court may

not grant immunity to compel a witness to testify.

Whippany Paper Board Co. v. Alfano, 176 N.J. Super. 363,

370 (App. Div. 1980).

B. Public Employees

Unlike private individuals, public employees are

required to appear and testify before any court, grand jury

or the State Commission of Investigation regarding

matters directly related to the conduct of their office.

N.J.S.A. 2A:81-17.2a(1). Should they refuse to do so

under these circumstances, they may be discharged

under certain enumerated conditions. Id. When a public

employee asserts the Fifth Amendment privilege, then

use immunity may be conferred in exchange for the

compelled testimony. N.J.S.A. 2A:81-17.2a(2). See,

State v. Vinegra, 73 N.J. 484, 487 n.1 (1977).

The statute is no longer self-executing. State v.

Korkowski, 312 N.J. Super. 429, 434 (App. Div. 1998).

While Vinegra was pending, N.J.S.A. 2A:81-17.2a(2)

was amended to require a public employee to claim the

privilege against self-incrimination to receive immunity

under the statute. Id., at 434-35. Moreover, the grant

of immunity under N.J.S.A. 2A:81-17.2a(2) applies

only to public employees who are targets of the grand jury

investigation. 312 N.J. Super. at 436. Targeted

employees must be warned of their right to assert the

privilege against self-incrimination, and the prosecutor

will then determine whether to grant use and fruits

immunity. Should immunity be granted, the employee

must testify or lose his or her employment. 312 N.J.

Super. at 437.