(1992). The privilege, of course, applies whether the
potentially incriminating answer refers to past, present, or
prospective acts, provided the hazards of incrimination are
not “trifling and imaginary.” Marchetti v. United States,
390 U.S. 39 (1968). In this regard, a trial court is not
bound to accept the witness’s unsupported statement that
an answer will tend to incriminate him. In Re Ippolito; In Re
Pillo, 11 N.J. 8 (1952); State v. Johnson, 223 N.J. Super. 122
(App. Div. 1988), certif. denied, 115 N.J. 75 (1989).
Rather, the determination as to the reasonableness of the
basis for apprehension of criminal prosecution rests
exclusively with the trial court. Hoffman v. United States,
341 U.S. 479 (1951); In Re Ippolito; In Re Pillo.
Accordingly, a witness must appear before the tribunal
where he has been subpeoneaed to testify and assert the
privilege at that proceeding. In Re Addonizio; In Re Boiardo,
34 N.J. 599 (1961).
Obviously, the privilege against self-incrimination
ceases after the danger of incriminating oneself has been
obviated by conviction or acquittal. In Namet v. United
States, 373 U.S. 179 (1963), the United States Supreme
Court reviewed the substantial authority for the
proposition that a plea of guilty terminates the testimonial
privilege. Similarly, no privilege exists following the
expiration of period of limitations. Hale v. Henkel, 201
U.S. 43 (1906), and following an official statutory grant of
immunity, Reina v. United States, 364 U.S. 507 (1960).
Furthermore, the privilege is not self-executing and
must be invoked by the person seeking its protection.
Maness v. Meyers, 419 U.S. 449 (1975); State v. P.Z., 152
N.J. 86 (1997); State v. Korkowski, 312 N.J. Super. 429
(App. Div. 1998). The privilege will be deemed to be
irrevocably waived based upon the failure to claim it at the
appropriate time. State v. Fary, 19 N.J. 432 (1955); State v.
Toscano, 13 N.J. 418 (1953); State v. Soney, 177 N.J. Super.
47 (App. Div. 1980); certif. denied, 87 N.J. 313 (1981).
Lastly, the privilege may be asserted in civil proceedings as
well as criminal. State v. Kobrin Securities, Inc., 111 N.J.
307 (1988).
B. The Testimonial Limitation Of The Privilege
The privilege against self-incrimination applies only to
“testimonial” evidence. In Schmerber v. California, 384
U.S. 757 (1966), the United States Supreme Court
observed that the “privilege is a bar against compelling
‘communications’ or ‘testimony,’ but that compulsion
which makes a suspect or accused the source of ‘real or
physical evidence’ does not violate it.” Accord State v.
Green, 209 N.J. Super. 347 (App. Div. 1996). This tenet
has particular salience with respect to the investigative
phase of criminal proceedings. Thus, orders requiring the
production of physical evidence, such as blood or hair
samples, voice and handwriting exemplars, breath tests,
lineups, saliva samples, fingerprints, etc., do not implicate
the privilege against self-incrimination. See Schmerber v.
California; United States v. Wade, 388 U.S. 218 (1967);
Gilbert v. California, 388 U.S. 263 (1967); State v. Stever,
107 N.J. 543, cert. denied, 484 U.S. 954 (1987); State v.
Dyal, 97 N.J. 229 (1984); State v. Andretta, 61 N.J. 544
(1972); State v. Bernhardt, 245 N.J. Super. 210 (App. Div.),
certif. denied, 126 N.J. 323 (1991). In addition to the
foregoing, facial expressions, State v. Marshall (I), 123 N.J.
1 (1991), cert. denied, 507 U.S. 929 (1993), the odor of
one’s breath, State v. Phillips, 213 N.J. Super. 534 (App.
Div. 1986), and a DWI suspect’s conduct at field sobriety
checkpoint, State v. Green, have likewise been found to fall
beyond the scope of the privilege. However, in United
States v. Doe, 465 U.S. 605 (1984), the United States
Supreme Court recognized that in some circumstances the
act of producing evidence pursuant to subpoena may be
incriminating and therefore held that the privilege may be
invoked when the act of production involves testimonial
self-incrimination.C. Use Of Post-Arrest SilenceUse by any trial tactic of defendant’s post-arrest silence
for impeachment purposes is flatly proscribed. In Doyle v.
Ohio, 426 U.S. 610 (1976), the United States Supreme
Court held that not only is every post-arrest silence
“insolubly ambiguous” because it may be nothing more
than the arrestee’s exercise of [his] Miranda rights,” but use
of the silence to impeach “would be fundamentally unfair”
given the fact that the warnings carry the implicit
“assurance that silence will carry no penalty.” New Jersey’s
prohibition against the use of post-arrest silence applies
regardless of whether defendant received Miranda
warnings, thus conferring broader protection than the
federal rule, which applies only if Miranda warnings were
given. State v. Lyle, 73 N.J. 403 (1977); State v. Deatore, 70
N.J. 100 (1976); State v. Pierce, 330 N.J. Super. 479 (App.
Div. 2000); State v. Jenkins, 299 N.J. Super. 61 (App. Div.
1997); State v. Aceta, 223 N.J. Super. 21 (App. Div. 1988);
see also Fletchter v. Weir, 455 U.S. 603 (1982) (finding
permissible impeachment with post-arrest silence when
defendant had not been given a Miranda warning).Relying on Doyle, the United States Supreme Court
subsequently concluded that the prosecution’s use of
defendant’s post-arrest silence to rebut his insanity defense
also violates due process. Wainright v. Greenfield, 474 U.S.
284 (1986). Similarly, in State v. Oglesby, 122 N.J. 522
(1991), the Supreme Court of New Jersey concluded that