C. Defense Witnesses
As noted, supra, New Jersey law establishes that use
immunity may be conferred in criminal cases at the
request of the county prosecutor with the consent of the
Attorney General or at the direct request of the Attorney
General. N.J.S.A. 2A:81-17.3. The trial court lacks
authority to grant such use immunity. State v. Jordan,
197 N.J. Super. 489, 503 n.5 (App. Div. 1984).
This principle was unequivocally set forth in
Whippany Paper Board Co. v. Alfano, 176 N.J. Super. 363,
where the court held that the trial court lacked authority
under N.J.S.A. 2A:81-17.3 to grant defendants a
protective order in a civil proceeding that, in effect, would
have conferred a form of judicial immunity after
defendants had invoked their Fifth Amendment
privilege. Id. at 369-370. Apart from the absence of
statutory authority for a judicial grant of immunity in a
civil proceeding, the court observed that the trial court’s
protective order was insufficient guarantee for defendants
that the compelled testimony would not later become
available to other parties. Id. at 370-371.
In a criminal case, however, a New Jersey Law
Division case held, for the first time, that trial judges have
inherent powers to grant use immunity to defense
witnesses to vindicate the witnesses’ Fifth Amendment
privilege and the defendant’s due process rights. State v.
Summers, 197 N.J. Super. 510, 514-515 (Law Div.
1984). Such grants of immunity should be limited to
those rare cases when it is compelled by due process
considerations. Id. at 516. Relying on Government of
Virgin Island v. Smith, 615 F.2d 964 (3d Cir. 1980), the
court established a careful balancing test to determine
appropriate circumstances that might require grants of
immunity to defense witnesses. Id. at 516-518.
The Summers reasoning has come under attack. In
State v. Jordan, 197 N.J. Super. at 503 n.1, the court
rejected Summers’ premise of inherent judicial powers to
confer immunity, and reiterated that grants of use
immunity were strictly statutory.
One of the issues in State v. Cito, 213 N.J. Super. 296
(App. Div. 1986), certif. denied, 107 N.J. 141 (1987),
involved the authority of a trial judge to grant use
immunity to a defense witness. The court held that the
trial judge properly denied defendant’s request since: (i)
the witness intended to invoke the Fifth Amendment; (ii)
there was no evidence that defendant had sought to have
the Attorney General or the prosecutor with consent of
the Attorney General apply for use immunity for the
witness; and (iii) there was nothing to indicate what the
witness’ proffered testimony would be.State v. Robinson, 253 N.J. Super. 346 (App. Div.
1991), involved a new trial motion based on newly-
discovered evidence. The newly-discovered evidence was
information from a codefendant who was unavailable, as
a matter of law, at the time of trial. The witness was
unavailable because a defendant has no right to call a
codefendant to the stand during a joint trial. 253 N.J.
Super. at 365. As only the State, and not a defendant, can
immunize a witness, the Court concluded that “[t]here
may be constitutional issues and questions of
fundamental fairness” projected by the inability of a
defendant to call a witness to the stand to assert his Fifth
Amendment privilege before the jury and obtain a
beneficial inference. Given this state of affairs, the
Appellate Division rejected the State’s contention that
the defendant’s failure to seek immunity for the
codefendant amounted to a lack of due diligence and
would preclude his new trial motion. Id. at 365-66.V. THE EFFECT OF ONE SOVEREIGN’S
GRANT OF IMMUNITY ON A SUBSEQUENT
CRIMINAL PROSECUTION BY ANOTHER
SOVEREIGN
It is well-settled that once a witness has been granted
statutory immunity by one jurisdiction, whether state or
federal, the witness’ immunized testimony may not be
used in a criminal proceeding brought against the witness
in another jurisdiction. Murphy v. Waterfront Comm’n of
N.Y. Harbor, 378 U.S. 52 (1964); In re Zicarelli, 55 N.J.
249 (1970). Thus, an immunized state witness may not
be compelled to give testimony and its fruits cannot be
used in any manner by federal officials as part of a criminal
prosecution against the witness. Kastigar v. United States,
406 U.S. at 456-457.A promise not to prosecute is not a grant of immunity
and does not bind another sovereign. A federal plea
agreement containing a promise not to prosecute is not
the equivalent of a grant of immunity and hence it does
not bar the derivative use in New Jersey courts of
defendant’s testimony at proffer sessions. State v.
Barrone, 147 N.J. at 610-11.