cdTOCtest

VI. THE TARGET DOCTRINE AND WARN-

INGS TO WITNESSES

The conferral of use immunity and subsequent use of
immunized testimony varies depending on whether the
person from whom evidence is sought is a private person
or public employee, a target or non-target witness, and
whether the State gives certain statutorily-mandated
warnings.

A non-target witness is an individual not identified or
reasonably identifiable by the prosecutor as an object of
a grand jury inquiry or investigation. The State is not
required to advise a non-target witness of the Fifth
Amendment privilege if the person is called to testify
before a grand jury conducting a general investigation.
Failure of the witness to invoke the privilege in these
circumstances allows the State to use the testimony
against the individual in subsequent proceedings. State
v. Fary, 19 N.J. 431 (1955).

If the individual witness does assert a Fifth
Amendment privilege against self-incrimination, the
person must demonstrate to the court a factual basis to
justify the privilege claim. State v. McGraw, 129 N.J. 68,
77 (1992); In re Ippolito, 75 N.J. 435 (1978); In Re
Boiardo, 34 N.J. 599 (1961); See also N.J.R.E. 502. If the
witness answers questions without asserting the Fifth
Amendment privilege, the individual waives his or her
Fifth Amendment rights. State v. Toscano, 13 N.J. 418
(1953).

The target doctrine provides that targets of a grand
jury proceeding must be informed that they are targets
and be advised of their Fifth Amendment rights. In re
Addonizio, 53 N.J. 107 (1968). If the State fails to meet
these requirements, the witness’ testimony is suppressed
and the indictment is dismissed if based on the tainted
testimony. State v. Williams, 59 N.J. 493, 503 (1971).
Target witnesses need only show that they are targets of
a criminal investigation to sufficiently justify invocation
of the Fifth Amendment privilege. In re Addonizio, supra,
53 N.J. at 116-117.

As opposed to private individuals, the target doctrine
does not per se apply to public employees and officials
because of their duty to testify on matters directly related
to conduct of their office. State v. Vinegra, supra, 73 N.J.
at 489. For these individuals, the immunity conferred
under N.J.S.A. 2A:81-17.2a(2) adequately protects their
Fifth Amendment rights and common-law privilege
against self-incrimination. Id. at 490. See IV.B., supra.

VII. GRANTS OF IMMUNITY BASED ON

COMPELLED INCRIMINATING CONDUCT

A. Statutes Requiring the Surrender of Contraband

The privilege against self-incrimination does not

shield only against compelled testimony, but also against

actions compelled by law if the compelled act threatens

to implicate the actor in an illegal act. State v. Patton, 133

N.J. 389 (1993); see also I.E.2, supra, discussing the

compelled production of documents.

1. N.J.S.A. 2C:35-10c

In Patton, the New Jersey Supreme Court considered

a constitutional challenge to N.J.S.A. 2C:35-10c, which

requires a possessor of a controlled dangerous substance

to voluntarily deliver the substance to the nearest law

enforcement officer. The statute was said to violate a

defendant’s privilege against self-incrimination, because

it requires a person to surrender to police tangible

evidence of guilt of violating N.J.S.A. 2C:35-10a, the

statute against unlawful possession of a controlled

dangerous substance. To preserve the validity of the

statute, the Court construed it to confer use and

derivative-use immunity on any person who complies

with its mandate, as well as transactional immunity for

offenses defined in N.J.S.A. 2C:35-10.

In State v. Gredder, 319 N.J. Super. 420 (App. Div.

1999), the Appellate Division held that the immunity of

N.J.S.A. 2C:35-10c is not implicated where the

defendant’s surrender of the drugs was not voluntary

because it was compelled by a confrontation with police

officers. 319 N.J. Super. at 425.

2. N.J.S.A. 2C:39-12

This provision provides immunity for the voluntary

surrender of weapons before any charges have been filed

or investigation has commenced for the unlawful

possession. The statute explicitly states that the

immunity is limited to the unlawful possession offense.

VIII. EFFECT ON CODEFENDANTS

N.J.S.A. 2C:2-6f provides that an accomplice may be

convicted of the offense even though the principal has an

immunity to prosecution. The same principle holds true

with respect to conspiracy. A conspirator is still liable