testify after being granted immunity, he or she may be
held in contempt and incarcerated until agreeing to
testify. See In re Zicarelli, 55 N.J. 249, 271-72 (1970),
aff’d, 406 U.S. 472 (1972). (See also, IMMUNITY and
SELF-INCRIMINATION, this Digest). In In re Grand
Jury Proceeding of Guarino, 104 N.J. 218, 232 (1986), the
Court held that the business records of a sole proprietor
were not privileged against compelled self-incrimination
because they lacked elements of personal privacy.
Generally, public employees may be subpoenaed,
and under N.J.S.A. 2A:81-17.2a1, all public employees
have a duty to testify upon subpoena or face removal from
office. However, high-level government officials should
not be subpoenaed absent a showing of first-hand
knowledge or direct involvement in the events giving rise
to the action, or absent a showing that their testimony is
essential to prevent injustice. Hyland v. Smollok, 137 N.J.
Super. 456, 460 (App. Div. 1975), certif. denied, 71 N.J.
328 (1976). In Hyland, the court denied a request to take
the depositions of the Attorney General and the Director
of Criminal Justice because such a showing had not been
made. Id.
In State v. Mitchell, 164 N.J. Super. 198, 201 (App.
Div. 1978), the court held that subpoenas duces tecum
served upon the Attorney General and other top law
enforcement officials were not enforceable where there
was no preliminary showing that any of these officials had
any first-hand knowledge of the facts of the case or that
the taking of their depositions was necessary to prevent
injustice.
In State v. Medina, 201 N.J. Super. 565, 580 (App.
Div.), certif. denied, 102 N.J. 298 (1985), the Mercer
County Prosecutor and an assistant prosecutor were
subpoenaed to testify in a narcotics trial regarding an
investigator’s possible motives for entrapping the
defendant in a cocaine sale. The trial court quashed the
subpoenas, and the Appellate Division upheld the trial
court’s decision on the ground that the probative value of
the evidence sought from the officials was greatly
outweighed by its capacity to mislead and confuse the
jury. Id.
Also in Hyland, 137 N.J. Super. at 462, plaintiff
sought the removal from office of a school business
manager who refused to obey a subpoena to appear before
a grand jury investigating alleged corruption in the use of
school funds and in connection with school contracts.
The Appellate Division held that his belated offer to
testify after three earlier refusals did not protect him from
removal from office. Id. However, in Municipal
Investigating Comm. of the City of Bayonne v. Servello, 200
N.J. Super. 413, 423 (Law Div. 1984), the court held
that where a public employee refused to obey a subpoena
duces tecum on valid self-incrimination grounds, the
Public Employees Statute, N.J.S.A. 2A:81-17.2a et seq.,
did not require the employee to obey the subpoena unless
he was first offered use immunity as to the evidence
sought.B. Newsperson’s Privilege (See also, FREEDOM OF
PRESS, this Digest)Under the Shield Law, also entitled the
“newsperson’s privilege,” in N.J.S.A. 2A:84A-21 and
N.J.R.E. 508, a newsperson may not be subpoenaed in
any legal or quasi-legal proceeding or before any
investigative body in order to disclose confidential
sources of information. The newsperson’s privilege not to
disclose confidential sources or materials is absolute
absent a conflict with other constitutional rights such as
a criminal defendant’s right to a fair trial. Maressa v. New
Jersey Monthly, 89 N.J. 176, 189, cert. denied, 459 U.S.
907 (1982).To invoke this privilege against disclosure, the
newsperson claimant must make a prima facie showing
that the subpoenaed materials were obtained during his
or her professional activities. N.J.S.A. 2A:84A-21.3. The
burden then shifts to the party seeking enforcement of
the subpoena to show by clear and convincing evidence
that the privilege has been waived or by a preponderance
of the evidence that (1) the material sought is relevant,
material, and necessary for the defense; (2) less intrusive
sources are unavailable; (3) the value of the particular
information as it bears upon the issue of guilt or
innocence outweighs the importance of the privilege; and
(4) the request is not overbroad, oppressive, or
unreasonably burdensome. N.J.S.A. 2A:84A-21.3. The
procedures for subpoenaing confidential materials from
newspersons under N.J.S.A. 2A:84A-21.1 et seq. are
available only to the defense in a criminal trial. These
procedures could not, for example, be used by the
prosecution in a criminal trial or at a grand jury
proceeding. See Statement of Assembly Judiciary, Law,
Public Safety and Defense Committee to Assembly Bill
No. 3062 (1979).In State v. Boiardo, 82 N.J. 446, 449 (1980), the
Court reversed a trial court’s order directing a reporter to
produce a letter from a prosecution witness because the
defendants failed to meet their burden of demonstrating
by a preponderance of the evidence the nonavailability of