B. Rejection of Stipulation on Appeal
An appellate court may reject the parties’ stipulation.
Negrotti v. Negrotti, 98 N.J. at 432-33. The Negrotti
Court stated, however:
Our decision should in no way be taken as an invitation
to litigants or trial courts to sidestep the binding nature
of factual stipulations. Quite to the contrary, it is
important for attorneys to have confidence in stipulations
as a tool to avoid the expense, trouble, and delay of
coming forward with proofs when certain otherwise-
contestable facts are admitted. The basic thought is that
generally litigants should be held to their stipulations
and the consequences thereof.
[Id. at 432 (citation omitted)]
Nonetheless, should a reviewing court refuse to adhere to
a stipulation entered on the record, the party losing the
benefit of the stipulation must be given an opportunity
to present his proofs as if there were no stipulation below.
Id. at 432-33.
As to whether a stipulation entered into prior to trial
remains binding during subsequent proceedings
between the parties, see State v. Powell, 176 N.J. Super.
190, 192-95 (App. Div. 1980), certif. denied, 87 N.J.
333 (1981); Waldorf v. Shuta, 142 F.3d at 616-17.
SUBPOENASSUBPOENASSUBPOENASSUBPOENASSUBPOENAS
I. INTRODUCTION
A subpoena is a medium for compelling the
attendance of witnesses in court or before a public body
or agency. A subpoena duces tecum is the process by which
a court or public body requires the production before it
of documents, papers, or tangible things. Generally, the
issuance, form, service, and enforcement of subpoenas
and subpoenas duces tecum are governed by N.J.S.A.
2A:81-15 et seq. and R. 1:9-1 et seq.“A subpoena is simply ‘a command to appear at a
certain time and place to give testimony upon a certain
matter.’” Silverman v. Berkson, 141 N.J. 412, 422, cert.
denied, 516 U.S. 975 (1995) (quoting Black’s Law
Dictionary 1279 (5th ed. 1979)). The party subpoenaed
has an opportunity before compliance to move to quash
or modify the subpoena. Greer v. New Jersey Bureau of Sec.,
288 N.J. Super. 69, 81 (App. Div. 1996).II. THE POWER TO SUBPOENA
Subpoenas may not be issued except upon
constitutional and legislative authority. Reiman v.
Breslin, 175 N.J. Super. 353, 356 (App. Div.), certif.
denied, 85 N.J. 147 (1980). However, this authority may
be implied and need not be expressly stated within the
statute. In re Shain, 92 N.J. 524, 532 (1983).A subpoena to appear in court may be issued by the
clerk of the issuing court or by an attorney or a party, in
the name of the clerk. R. 1:9-1. In municipal court cases
involving non-indictable offenses, law enforcement
officers may issue and serve subpoenas. R. 7:7-8. In
criminal prosecutions, both the Sixth Amendment of the
United States Constitution and article I, paragraph 10, of
the New Jersey Constitution guarantee a defendant the
right to subpoena witnesses and compel production of
materials for the defense. In re Farber, 78 N.J. 259, 273-
74, cert. denied, 439 U.S. 997 (1978).In State v. Hilltop Private Nursing Home, Inc. 177 N.J.
Super. 377 (App. Div. 1981), the Appellate Division
upheld the right of a prosecutor to issue a subpoena to
testify or a subpoena duces tecum for investigative purposes
without express grand jury authorization and without
formal proof of the existence of a grand jury investigation
so long as the subpoena is made returnable to a grand jury
on a date on which it is sitting. In re Nackson, 221 N.J.
Super. 187, 205 (App. Div. 1987), aff’d, 114 N.J. 527