cdTOCtest

with Hubbell that provided for dismissal of the charges
unless the United States Supreme Court clarified that
Hubbell’s immunity would not bar his prosecution. The
Supreme Court granted the IC’s petition for certiorari to
determine the precise scope of a grant of immunity for the
compelled production of documents.

The Supreme Court explained, citing Fisher v. United
States, 425 U.S. 391 (1976), and United States v. Doe,
supra, that a person may be required to produce specific
incriminating documents because the creation of the
documents was not “compelled” within the meaning of
the privilege. The act of producing documents, on the
other hand, may have a testimonial aspect. The act of
production itself communicates certain facts, such as the
existence of the papers, that they are in the person’s
custody, and their authenticity. The person may also, as
was Hubbell, be compelled to answer questions to
determine whether he has produced everything
demanded by the subpoena. All of these questions are
distinct from the question whether the contents of the
documents are incriminating. And even if the
information communicated by the act of production is
itself not incriminating, information that may lead to
incriminating evidence is also privileged.

It was apparent from the text of the subpoena that the
IC needed Hubbell’s assistance to identify potential
sources of information and to produce those sources. The
subpoena could be characterized as a “fishing expedition”
that did produce a fish, albeit not the one the IC expected
to hook. Hubbell’s production of the documents, his
truthful reply to the subpoena, was the first step leading
to the tax prosecution. It was necessary for Hubbell to use
the contents of his own mind to identify the hundreds of
documents responsive to the subpoena. The Supreme
Court analogized that the assembly of these documents
was like telling an inquisitor the combination to a wall
safe, not like being forced to surrender the key to a
strongbox. The IC’s “anemic” view of Hubbell’s act of
production as merely physical and principally
nontestimonial was rejected. The IC’s overbroad
argument that a businessman will always possess business
and tax records that fall within the broad categories of the
subpoena did not cure the deficiency of the government’s
failure to show any prior knowledge of the existence or
whereabouts of the documents. Accordingly, the
indictment was dismissed. Id.

F. Immunized Testimony Cannot Generally be Used For

Impeachment

In a significant case involving New Jersey’s immunity

statute covering public employees, N.J.S.A. 2A:81-

17.2a(2), the United States Supreme Court ruled that a

person’s statutorily immunized testimony before a grand

jury cannot constitutionally be used to impeach the

person when he is a defendant in a later criminal trial on

extortion charges. New Jersey v. Portash, 440 U.S. 450,

459-460 (1979). Finding that the testimony obtained

by the promise of immunity was by definition coerced

and therefore involuntary, the Court determined that the

immunity conferred under the New Jersey statute

specifically was designed to protect defendant from the

use of this compelled testimony in later criminal

prosecutions. Id. at 457-459. This rule, however, does

not apply to a subsequent perjury prosecution. Point III,

infra.

II. AN ADEQUATELY IMMUNIZED WITNESS

MUST TESTIFY (See also, CONTEMPT, this

Digest)

An immunized witness may be held in criminal

contempt for refusing to testify. N.J.S.A. 2A:81-17.3;

State v. Sotteriou, 123 N.J. Super. 434, 439-441 (App.

Div. 1973). A recalcitrant witness may be incarcerated

or subjected to other penalties deemed appropriate by

the court to compel the immunized testimony. Id. at

441-442. However, a witness refusing to testify should

be released from custody if no substantial likelihood

exists that further incarceration will achieve the goals

intended by the contempt order. Catena v. Seidl, 68 N.J.

224 (1975).

A trial court lacks the authority to hold a defendant

in contempt based upon his statement that he did not

intend to testify at some time in the future. State v. Matos,

273 N.J. Super. 6, 17 (App. Div. 1994). There is no

doctrine of “anticipatory contempt.” Id., at 18. If

current procedures for contempt are inadequate, the

Court suggested, then it is for the Legislature to extend

the Court’s power. Id. at 22.

There are times when the court, out of Fundamental

Fairness, will grant a defendant immunity from

prosecution because of delay caused by a recalcitrant

prosecution witness, even though the prosecution is not

at fault, and the Double Jeopardy Clause has not been

violated. State v. Dunns, 266 N.J. Super. 349 (App. Div.

1993), certif. denied, 134 N.J. 567 (1993). Acknowledg-