any criminal proceeding, except those involving perjury
or false swearing. N.J.S.A. 2A:81-17.2a(2); N.J.S.A.
2A:81-17.3.
N.J.S.A. 2A:81-17.3 prohibits the State from using
evidence against a person that is “directly or indirectly
derived” from his compelled testimony. In order to pass
constitutional muster, a grant of immunity must be as
comprehensive as the privilege against self-incrimina-
tion. The immunity grant must leave the testifying
witness in substantially the same position as if the witness
had made no statement at all, as if he had claimed the
Fifth Amendment privilege. Kastigar v. United States,
406 U.S. 441. To ensure that a compelled witness will
be placed in this position the New Jersey Supreme Court
in State v. Strong, 110 N.J. 583 (1988), erected a strict
“but for” standard that bars the State’s use of all after-
acquired testimony and evidence that would not have
been developed or obtained but for the compelled
testimony.
In State v. Irizarry, 271 N.J. Super. 577 (App. Div.
1994), the Appellate Division noted that based on
Strong, it appears that New Jersey extends immunity to
non-evidential uses such as focusing an investigation,
deciding whether to file charges or to plea bargain, and
planning trial strategy. 271 N.J. Super. at 587, n.1.
C. Burden of Proof
In State v. Strong, supra, the New Jersey Supreme
Court concluded that our state-law privilege against self-
incrimination is, if anything, more protective than the
Fifth Amendment. 110 N.J. at 595.
The Court in Strong specifically held that when the
State seeks to use against a defendant evidence relating to
criminal acts or events that were the subject of previously
compelled testimony obtained from the defendant in
exchange for use and derivative use immunity conferred
pursuant to N.J.S.A. 2A:18-17.3, the State has the
burden of proving that the evidence it seeks to use was
“developed or obtained from sources or by means entirely
independent of and unrelated to the earlier compelled
testimony.” 110 N.J. at 595-96. Compare Kastigar v.
United States, 406 U.S. at 461. In State v. Irizarry, 271
N.J. Super. 577, the trial court had dispensed with a
Kastigar hearing, but disqualified the entire County
Prosecutor’s office on the grounds of conflict of interest in
the prosecution of a capital defendant who had given
immunized testimony at a codefendant’s trial. The
Appellate Division, on interlocutory appeal, held that at
a minimum a Kastigar hearing was required, and that it
was for the State to decide who should prosecute its case,
with the hearing to establish whether the evidence to be
presented was truly independent of the immunized
testimony.The State must make the showing that the evidence
is truly independent by clear and convincing evidence.
State v. Strong, 110 N.J. at 596. A trial court’s
determination that the State’s evidence was wholly
independent is subject to limited review on appeal. The
test is whether the trial court’s findings could reasonably
have been reached on sufficient credible evidence in the
record. See State v. Barrone, 147 N.J. 599, 615 (1997).D. Use of Immunized Testimony by the Grand JuryThe receipt by a grand jury of evidence obtained in
violation of a person’s Fifth Amendment right does not
infect an indictment based on such testimony.
Suppression of the grand jury evidence (and fruits
thereof) at trial adequately protects a defendant’s Fifth
Amendment rights. State v. Vinegra, 73 N.J. 484 (1977).
This conclusion was not overruled by State v. Strong,
supra. State v. Maiorana, 240 N.J. Super. 352, 365-
66(App. Div. 1990), certif. denied, 127 N.J. 327 (1991).E. Compelled Business Records- Contents of Records
In Matter of Grand Jury Proceedings of Guarino, 104
N.J. 218 (1986), the New Jersey Supreme Court
confronted the question of whether and to what extent
the voluntarily-prepared records of a sole proprietor are
privileged against compelled self-incrimination. Guarino
arose from a State Grand Jury investigation of Green Acres
Estates, a real estate concern organized as a sole
proprietorship. Guarino, the sole proprietor, was served
with a subpoena duces tecum directing him to produce
certain business records pertaining to sales of real
property by Green Acres Estates. Guarino moved to
quash the subpoena. The trial court ordered him to
appear. At his appearance before the Grand Jury,
Guarino, relying on his Fifth Amendment privilege
against self-incrimination, refused to produce the
documents called for in the subpoena. Upon application
by the Attorney General, the trial court entered an order
pursuant to N.J.S.A. 2A:81-17.3, compelling Guarino to
produce the records and immunizing him from the “use
of the evidence against him of the act of production of said
records....” Guarino again moved to quash on the ground
that the use of the contents of the subpoenaed documents
violated his privilege under the United States