records in his possession. The court interpreted the term
“subpoena” as used in the Act to include “subpoena duces
tecum,” and affirmed the order. Moreover, the statutory
protection afforded to persons during appearances as a
witness also apply to property the witness produces
under a subpoena duces tecum. See also In re Grand Jury
Investigation into Corrup. in Lindenwold, 136 N.J.Super.
at 169-71 (affirming order requiring production of a
New York law firm’s records; nothing warranted
disturbing trial judge’s determination of materiality of
records to an ongoing New Jersey Grand Jury
investigation into possible municipal corruption).
A person entering New Jersey in obedience to a
summons issued pursuant to the Act compelling his or
her appearance in this State, or passing through the State
to appear in obedience to such a summons as a witness in
another state, is granted immunity from arrest or service
of civil or criminal process in connection with matters
which arose before his or her entrance into this State.
N.J.S.A. 2A:81-21; but see State v. Seefeldt, 51 N.J. 472,
492-93 (1968) (immunity unavailable to one who re-
enters State voluntarily, rather than pursuant to
summons issued in accordance with Act); In re Subpoena
Duces Tecum Inst. Management Corp., 137 N.J.Super.
208, 211-15 (App. Div. 1975); In re Schuler, 120
N.J.Super. 79, 83 (App. Div. 1972) (same).
As to the availability of witnesses, the Act provides a
process for criminal defendants to exercise their
constitutional right to produce witnesses, without
jurisdictional proscription, if they are material and their
address is known. Prosecutors must exercise good faith
diligence in ascertaining a witness’ whereabouts, even if
that witness is a DEA informant and disclosing their
address would raise “some safety concerns.” State v.
Farquharson, 280 N.J.Super. 239, 248-50, 253 (App.
Div.), certif. denied, 142 N.J. 517 (1995); see also State v.
Roman, 248 N.J.Super. at 147-49 (Act, which is drafted
to deal with defiant witnesses, also applies to child
witnesses; prosecutor cannot simply state that such
witnesses are out-of-state, and thereby have admitted
against defendant their hearsay statements, without
exercising due diligence to locate them).
Furthermore, a witness who testified at defendant’s
first trial was not unavailable within the meaning of
former Evidence R. 62(6) because the State did not invoke
the Uniform Act’s provisions to gain his attendance.
Thus, the State should not have been permitted to read
that witness’ testimony at the retrial, and the error was
not harmless since it deprived defendant of his
confrontation right. State v. Hamilton, 217 N.J.Super.
51, 54-56 (App. Div.), certif. denied, 108 N.J. 581
(1987). In 1991 the Supreme Court of New Jersey
replaced Evidence R. 62 with N.J.R.E. 801 , the latter of
which omitted any definition of the term “unavailable as
a witness.”An order denying an application under the Act to
compel witnesses to testify in a sister State is appealable.
State of New Jersey v. Bardoff, 92 A.D.2d 890, 459
N.Y.S.2d 878, 879 (N.Y. App. Div. 1983).