cdTOCtest

Division rejected defendant’s claim that an identification
charge should have been given, noting that not only was
the charge not requested, identification was not an issue
because no witness identified defendant); State v. Ridout,
299 N.J. Super. 233 (App. Div. 1997) (the Appellate
Division reversed defendant’s convictions finding the
trial judge should not have instructed the jury that the
out-of court identifications were admissible and that he
had found the identifications reliable and trustworthy).
In conformance with the Supreme Court’s decision in
State v. Cromety, supra, the Model Jury Charge on
identification was revised on October 18, 1999. The
revised identification charge instructs the jury to consider
the fact that often people have greater difficulty in
accurately identifying members of a different racial
group.

In State v. Little, 296 N.J. Super. 573 (App. Div),
certif. denied, 150 N.J. 25 (1997), the Appellate Division
upheld defendant’s convictions for a variety of drug
offenses, ruling that the undercover officer was properly
allowed to make an in-court identification of the
defendant, the photographic array in the out-of-court
identification was not impermissibly suggestive, and the
defendant did not receive ineffective assistance of counsel
because his counsel did not request a Wade hearing.

In State v. James, 144 N.J. 538 (1996), the Supreme
Court held that once out-of-court and in-court
identification evidence is excluded as impermissibly
suggestive, it was error to admit this evidence
substantively under the “opening the door,” “complete-
ness” or “curative admissibility” doctrines if defendant
sought to question carjacking victim about an earlier
misidentification of another as the perpetrator or about
his earlier description of the perpetrator. Forcing
defendant to chose between his right to cross-examine the
victim about the earlier misidentification and his due
process right to exclusion of unreliable identification
evidence was reversible error. The State was entitled to
rebut evidence that victim identified another with
subsequent retraction but not with suppressed
identification testimony.

IMMUNITYIMMUNITYIMMUNITYIMMUNITYIMMUNITY

The Fifth Amendment to the United States

Constitution provides that no person shall be compelled

in any criminal case to be a witness against himself. When

a person is compelled to testify despite claiming the Fifth

Amendment privilege, State law gives the person

immunity from prosecution by the use of the testimony

and evidence derived therefrom. N.J.S.A. 2A:81-17.3;

see also 2A:81-17.2a2 (providing for immunity for public

employees compelled to testify on the threat of removal).

Immunity statutes are not incompatible with the values

protected by the Fifth Amendment; they instead seek a

rational accommodation between the imperatives of the

privilege and the legitimate demands of government to

compel citizens to testify. Kastigar v. United States, 406

U.S. 441, 445-46 (1972). The existence of immunity

statutes reflects the importance of testimony, and the fact

that, for many offenses, the only persons capable of giving

useful testimony are implicated in the crime. Id. at 446.

I. FORMS AND SCOPE OF IMMUNITY

There are two forms of immunity: “transactional

immunity” and “use immunity.”

A. Transactional Immunity

Transactional immunity protects the witness from

subsequent prosecution for any crime related to the

transaction about which the witness testifies.

B. Use and Derivative Use Immunity

Use immunity is more limited. It guarantees that the

testimony and evidence derived from the immunized

testimony will not be used against the witness. The

witness may, however, be prosecuted for any crime

related to the transaction, so long as the State can prove

that the evidence in the subsequent proceeding was

obtained from a source independent of the immunized

testimony. See, generally, Murphy v. Waterfront Comm’n

of N.Y. Harbor, 378 U.S. 52 (1964). Although a witness

would prefer transactional immunity, the United States

Supreme Court has held that, for Fifth and Fourteenth

Amendment purposes, use and derivative use immunity

is a sufficient substitute for the privilege against self-

incrimination. Kastigar v. United States, 406 U.S. 441.

New Jersey’s immunity statutes confer use and

derivative use immunity, rather than transactional

immunity, to prevent the use of immunized testimony in