(1989), confirmed that “our Rules give the prosecutor no
pretrial subpoena power independent of the grand jury.”
See State v. Johnson, 287 N.J. Super. 247, 258 (App.
Div.), certif. denied, 144 N.J. 587 (1996); State v. Misik,
238 N.J. Super. 367, 376 (Law Div. 1989).
In Reiman v. Breslin, 175 N.J. Super. at 364, a
prosecutor’s practice of using three-week, on-call
subpoenas for police witnesses was upheld as a reasonable
way of insuring the appearance of the police officers at
trial when their testimony was required. The Appellate
Division upheld the validity of the on-call subpoena,
finding that it was not an unreasonable burden or
restriction on the officers’ movement, nor was it an
unconstitutional infringement on the right to travel. Id.
at 363. The court stated that “[a] person is subject to a
subpoena even if his appearance is required beyond the
date set forth on the face of the subpoena.” Id. at 358.
The Appellate Division further stated in Reiman “that a
subpoena issued in New Jersey creates a continuing
obligation which cannot be satisfied until the person is
released from it.” Id. at 359. “[A] subpoena in its
traditional form does not have a specified termination
date -- it is valid until the person is dismissed by the court
or by the person who had subpoenaed him.” Id.
In the case of a public body or agency, the right of
each to issue subpoenas is provided by statute. Most state
agencies, boards, and other bodies have the power to issue
subpoenas as part of their investigatory or enforcement
functions. In Hayes v. Gulli, 175 N.J. Super. 294, 302
(Ch. Div. 1980), the Chancery Division held that
because of the absence of a specific statutory grant, it
could not conclude that the Office of Administrative Law
and its administrative law judges have their own inherent
power to issue subpoenas. However, the Court ruled that
where an administrative law judge is hearing a contested
case for an agency which has its own statutorily granted
subpoena power, the Office of Administrative Law
assumes substantively the same power of subpoena as is
held by the agency. Id.
As for municipalities, a city council under the mayor-
council form of government was held to have implicit
power to issue subpoenas by virtue of its legislative
function under the Faulkner Act, N.J.S.A. 40:69A-1 et
seq. In re Shain, 92 N.J. at 532. In Shain, the Supreme
Court reasoned that a concomitant part of the council’s
legislative power is the power to investigate, which
includes the power to compel testimony. Id. at 531-32.
The Court also stated that no specific statutory grant was
necessary to vest a legislative body with subpoena power.
Id. at 532.
N.J.S.A. 40:48-25 specifically confers subpoena
power on a municipal investigating committee composed
of a municipality’s governing body. A municipal
investigating committee not composed of members of the
governing body does not have authority to issue
subpoenas. Traino v. McCoy, 187 N.J. Super. 638, 649-
50 (Law Div. 1982).III. WHO CAN BE SUBPOENAED (See also,
WITNESSES, this Digest)
A. General PrinciplesOrdinarily, all persons within the jurisdiction of the
court may be compelled to appear as witnesses before it
by means of duly issued subpoenas. The Uniform Act to
Secure the Attendance of Witnesses from without a State
in Criminal Proceedings, N.J.S.A. 2A:81-18, et seq. (see
also, TOPIC, this Digest), allows a court in this state to
subpoena an out-of-state resident to testify in a criminal
prosecution or grand jury proceeding in this state. It also
permits a court in any state which has a similar provision
to subpoena a New Jersey resident to testify in out-of-
state criminal prosecutions and grand jury investigations.
In both situations the following must be shown: (1) a
criminal prosecution is pending or a grand jury
investigation has commenced or is about to commence;
(2) the required witness is material and necessary to the
proceeding; and (3) it will not cause undue hardship to
the witness to be compelled to testify in the proceeding.
N.J.S.A. 2A:81-19. N.J.S.A. 2A:81-21 protects a witness
coming into the state in response to a subpoena to testify
in a criminal proceeding from arrest or the service of
process, civil or criminal, in connection with matters
arising before his or her entrance into this state under the
subpoena.Our Supreme Court held that the New Jersey Bureau
of Securities may subpoena a non-resident who has
engaged in purposeful conduct expressly aimed at the
New Jersey’s securities market. Silverman v. Berkson, 141
N.J. at 432.In Marxe v. Marxe, 233 N.J. Super. 247, 250-52 (Ch.
Div. 1989), a North Carolina resident required to be a
witness in a New Jersey matrimonial action was not
immune from service by virtue of his non-resident, non-
party status.A witness who refuses to obey a subpoena on valid
grounds of self-incrimination may be granted use
immunity as to his or her testimony or evidence produced
under N.J.S.A. 2A:81-17.3. If the witness refuses to