A newspaper reporter who has acted as an investigator
and may have personal knowledge of material facts is
subject to sequestration from a trial if he is subpoenaed by
the defense and rejects an opportunity from the court to
testify in camera prior to, and after, the State’s case. State
v. Jascalevich, 158 N.J. Super. 488 (Law Div. 1978).
In State v. Cooper, 307 N.J. Super. 196 (App. Div.
1997), the Appellate Division reversed the trial court’s
dismissal of the State’s indictment. The trial judge had
done so at defendant’s request because the prosecutor had
violated a sequestration order, and ruled that double
jeopardy barred any retrial because of the State’s
“inexcusable neglect.” The Appellate Division
acknowledged that the United States Supreme Court in
Oregon v. Kennedy, 456 U.S. 667 (1982), had held that
defendant’s successful mistrial motion can preclude a
retrial only when the conduct giving rise to the motion
was intended to provoke defendant into so moving, and
had narrowed the exception to the general rule that a
defendant’s mistrial motion constituted a waiver of his or
her double jeopardy rights. Reaffirming that the state
double jeopardy protection was coextensive with the
federal constitutional standard, the court was satisfied
that even if the prosecutor here acted improperly or
inexcusably, he did not “goad” defendant into moving for
a mistrial. Defendant, in choosing to seek a mistrial,
elected not to take his chances with the jury and seek
reversal on appeal for violation of the sequestration order,
in which event he could have been retried. The trial court
had relied upon the improper “inexcusable neglect”
standard, and Kennedy had overruled the decision the
judge had relied on, State v. Nappo, 185 N.J. Super. 600
(Law Div. 1982).
In State v. Dayton, 292 N.J. Super. 76 (App. Div.
1996), the Appellate Division held that the trial court
erred in not permitting defendant’s counsel to withdraw
because he was defendant’s only witness to statements
made by the alleged victim during an interview by
defense counsel. The court also expressed concern over
defense counsel’s interview of the victims of the alleged
offense without the presence of a third party or
investigator who could be called to testify. The court also
found reversible error in the trial court’s refusal to let a key
defense witness testify on surrebuttal because of a
violation of the sequestration order.
Sequestration is within the discretion of the trial
court, and reviewed on appeal by an abuse of discretion
standard. State v. Miller, 299 N.J. Super. 387, 399 (App.
Div. 1997), certif. denied, 151 N.J. 464 (1997). The
judge should clarify the terms of the sequestration order.
State v. Cooper, 307 N.J. Super. 196, 199 n.1 (App. Div.
1997).VII. AVAILABILITY AND RIGHT TO CON-
FRONT WITNESSES AND TO COMPULSORY
PROCESS
Defendants charged jointly often attempt to justify
severance by claiming that they intend to rely for their
defense on the testimony of one or more of their
codefendants. In such a case the codefendant indicated
that he would assert his privilege against self-
incrimination. State v. Morales, 138 N.J. Super. 225
(App. Div. 1975). The defendant responded with a
motion for severance or for an order compelling the
codefendants to testify. The Appellate Division held that
both motions were properly denied because a defendant
who is on trial in a criminal case cannot be compelled to
testify for the State, a codefendant, or even on his own
behalf. With regard to the issue of severance, the court
held that when a defendant’s case rests upon the
exculpatory testimony of a codefendant who is fearful of
prejudicing his own defense if he testifies, a separate trial
should be ordered. However, there must be some
showing that the proffered testimony will be
forthcoming. Moreover, as a matter of common sense, it
is difficult to conceive of a situation in which an accused
will be willing to testify at a separate trial but not at a joint
one. An additional prerequisite is a showing that the
testimony of the codefendant would be exculpatory of the
defendant who seeks to call him as a witness. Id. See State
v. Scovil, 159 N.J. Super. 194 (Law Div. 1978).R. 3:13-2 provides for the use of depositions in a
criminal trial where a witness is unavailable to testify.
The witness must be unable to testify at the trial because
of death or physical or mental incapacity, and the
deposition must be necessary to prevent a “manifest
injustice.” R. 3:13-2(a); State v. Harris, 263 N.J. Super.
418, 422-23 (Law Div. 1993). This rule was amended
effective January, 1987, to limit the use of depositions in
criminal cases to those situations where it is truly
necessary. Pressler, Current N.J. Court Rules, Comment 1
to R. 3:13-2, (Gann).In State v. Driker, 204 N.J. Super. 558 (Law Div.
1985), aff’d 214 N.J. Super. 467 (App. Div. 1987), the
trial court allowed the use of a videotaped deposition of
a witness at defendant’s robbery and burglary trial when
the witness became ill and was unable to testify. The
court found that R. 3:13-2 implicitly authorized the use
of such videotaped depositions. Id. Further, the court