be determinative of a case. State v. Mucci, 25 N.J. 423
(1957); see N.J.R.E. 403.
The limitation cannot be applied where the subject
of the inquiry is composed of many elements, and one
witness might be qualified on one element and another
witness on another, or where persuasion could turn on
particular knowledge and testimonial qualifications of a
given witness or upon consultation. Cumulative
evidence is defined as additional evidence to support the
same point and of the same character already produced.
A party does not have an absolute right to force upon an
unwilling tribunal an unending and superfluous mass of
testimony limited only by his own judgment, or whim.
See State v. Mucci, supra; Matter of Cole, 194 N.J. Super.
237, 246 (App. Div. 1984) (doctor’s request that 70
patients be allowed to testify on his behalf properly
denied as unreasonable). See also State v. Carter, 91 N.J.
86, 106 (1982).
IV. PRIVILEGE AGAINST SELF-INCRIMINA-
TION
It is fundamental that the privilege against self-
incrimination is personal to the individual claimant, and
the election to invoke it must be exercised by the witness
himself, on the stand and under oath, after hearing a
question or questions addressed to him. The privilege
cannot be invoked by an attorney as his surrogate. Thus,
it is error for a trial judge to infer a claim of privilege by
a witness from his counsel’s several statements that he is
advising the witness not to testify and for the attorney to
invoke that witness’s privilege. A witness must claim the
privilege himself. State v. Jennings, 126 N.J. Super. 70
(App. Div. 1972), certif. denied, 60 N.J. 512 (1972).
Accord, State v. Jamison, 64 N.J. 363, 378-379 (1974).
If the State calls a witness who states in advance that
he will exercise his Fifth Amendment privilege and refuse
to answer any questions, it is ordinarily preferable first to
examine the witness on voir dire, as otherwise the
circumstances may lead the jury to draw unfavorable
inferences against defendant. State v. Jamison, supra, at
373, n.1. If the witness then declines to testify on voir
dire, the court may, in its discretion, preclude the State
from calling the witness before the jury. Id. See State v.
Jordan, 197 N.J. Super. 489, 502 (App. Div. 1984).
If a defendant calls before a jury a witness who states
in advance that he will invoke his Fifth Amendment
privilege and refuse to testify, State v. Cito, 196 N.J. Super.
220 (Law Div. 1984), holds that that witness may be
brought before the jury only when the trial court knows
that the witness has evidence which could have some
impact on the facts in issue or the innocence of the
defendant. Id. at 227. However, State v. Karlein, 197
N.J. Super. 451, 455-456 (Law Div. 1984), holds that
the defense may not call a witness for the sole purpose of
asserting his Fifth Amendment privilege in the presence
of a jury. State v. Schlanger, 197 N.J. Super. 548, 553
(Law Div. 1984), holds that a state’s witness, under
cross-examination, should not be brought before the jury
to claim his privilege as to a collateral matter not in issue.
See also, State v. Morales, 138 N.J. Super. 225, 230 (App.
Div. 1975).In State v. Crews, 208 N.J. Super. 224, the Court
reversed a conviction where the trial judge ruled that it
could only avoid a Clawans instruction by presenting the
witness and having him assert the privilege in the
presence of the jury. Rather, the proper procedure was for
the court to determine if a witness will exercise the Fifth
Amendment privilege is for the court to hold a R. 8 (now
N.J.R.E. 104(c)) hearing out of the presence of the jury.
State v. Crews, 105 N.J. 498 (1987), affirming State v.
Crews, 208 N.J. Super. 224 (App. Div. 1986).A trial judge was found to have abused his discretion
by apprising a witness that he was subject to criminal
charges and had the right to remain silent. By so doing,
the Court found that the principles of State v. Jamison, 64
N.J. 363 (1974) had been transgressed. State v. Johnson,
223 N.J. Super. 122 (App. Div. 1988). Where the
witness is the defendant at trial, the trial court has no
duty to advise the defendant that he had a right not to
testify. The ultimate decision rests with the defendant to
be made with the advice of counsel. State v. Bogus, 223
N.J. Super. 409 (App. Div. 1988), certif. denied, 111 N.J.
567 (1988).If a witness is willing to voluntarily testify on behalf
of a criminal defendant that the witness, not the
defendant, committed the offense, the trial court should
not impede this testimony by insisting on appointing
counsel for the witness prior to allowing him to testify.
State v. Jamison, supra at 377. The primary function of
a trial is to arrive at the truth and all privileges of witnesses
should be strictly construed to advance the truthfinding
function. If the witness later properly claims the privilege
against self-incrimination, on the ground that his voir dire
admission of guilt may be prosecuted as perjury through
his subsequent recantation under oath, the subsequent
statements will be accorded a limited use immunity by
the judiciary. In addition, if the trial court improperly
rejects a well-founded claim of privilege and compels a
witness to testify, then that witness is cloaked with a