On appeal from the Monmouth County Court, certified to this court on its own motion.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justice Heher. The opinion of the court was delivered by William J. Brennan, Jr., J.
Appellants, Benjamin and Harry Fary, sold gravel to Ocean Township, Monmouth County, on orders placed by appellant, Vogel, the township's road foreman. The Monmouth County grand jury which sat for the January 1953 term indicted the Farys for alleged cheats and frauds in the sale of the road gravel to the township and indicted Vogel for allegedly aiding and abetting them. This appeal, taken with leave of the Appellate Division and certified to this court on its own motion, brings up for review an order of Judge Giordano denying appellants' motion to dismiss the indictments. The single point on the brief is that the indictments are invalid because "the defendants were subpoenaed before the grand jury and, without any notification of their rights as to their privilege against crimination, were required to testify with the end result that the indictments were found against them."
This grand jury was the second to conduct an inquiry into the operations of the township road department, the 1952 May term grand jury having conducted a like investigation without handing up indictments but filing a presentment in sharp criticism of the laxity of "elected Township officials" in supervising purchasing practices. The January 1953 term grand jury reopened the inquiry and its investigation resulted in the handing up of the indictments here under attack, without other action. The three appellants testified before both grand juries without claiming the privilege against self-incrimination before either body.
The privilege of a witness against being compelled to incriminate himself, of ancient origin, is precious to free men as a restraint against high-handed and arrogant inquisitorial practices. 8 Wigmore, Evidence (3 d ed. 1940), p. 276 et seq.; Corwin, 29 Mich. L. Rev. 1 (1930). It has survived centuries of hot controversy periodically rekindled when there is popular impatience that its protection sometimes allows the guilty to escape. It has endured as a wise and necessary protection of the individual against arbitrary power; the price of occasional failures of justice under its protection
is paid in the larger interest of the general personal security. "The wisdom of the exemption has never been universally assented to since the days of Bentham, many doubt it today, and it is best defended not as an unchangeable principle of universal justice, but a law proved by experience to be expedient." Twining v. State of New Jersey, 211 U.S. 78, 113, 29 S. Ct. 14, 53 L. Ed. 97, 112 (1908). Although not written into our State Constitution (as it is in the Fifth Amendment to the Federal Constitution and in the constitutions of all our sister states except Iowa), and not given even statutory expression until it appeared as section 4 of the Evidence Act of 1855, L. 1855, c. 136, sec. 4, p. 668, now N.J.S. 2 A:81-5, the privilege has been firmly established in New Jersey since our beginnings as a State. State v. Zdanowicz, 69 N.J.L. 619 (E. & A. 1903); State v. Miller, 71 N.J.L. 527 (E. & A. 1905); Fries v. Brugler, 12 N.J.L. 79 (Sup. Ct. 1830); In re Vince, 2 N.J. 443 (1949); In re Pillo, 11 N.J. 8 (1952).
It is a fallacy, however, to regard the right of a witness to remain mute when a criminating fact is inquired about as a fixed barrier to the search of the judicial process for truth. The barrier is up as to any question only when the witness himself chooses to put it up, but the court, and not the witness, is the ultimate arbiter whether the witness is entitled to the protection of the privilege. In re Pillo, supra. The witness may not claim the privilege until the question is put, Vineland v. Maretti, 93 N.J. Eq. 513, 521 (Ch. 1922), and if he answers the question without claiming the privilege he irrevocably waives it. State v. Toscano, 13 N.J. 418, 423 (1953).
It is a logical corollary of the personal quality of the privilege that there is no general requirement calling for a warning to the witness, before the question is put, of his option to refuse to answer the question. See State v. Mohr, 99 N.J.L. 124, 129 (E. & A. 1923). The contrary notion lost any support it had over a century ago, Wigmore, supra, p. 398, as knowledge of the nature of the privilege and the right to assert it became widespread. Certainly in the present
day it is difficult to believe that there are any witnesses unaware of their privilege after the almost daily publicity and discussion of it which has followed the practice of witnesses who, in the vernacular, "take the Fifth Amendment" before Congressional and state inquiries. Even upon trial, although it is not improper for the judge, of his own motion or on request of counsel, to warn a witness of his privilege when it is believed that justice requires it, it is not error to fail or refuse to do so. Vineland v. Maretti, supra.
Should an exception be made, and an indictment be quashed, if, as here, a grand jury conducting an inquiry into public affairs indicts a witness summoned to testify in such inquiry, when he was not warned of his privilege? The affirmative of the proposition argues that our conception of the fair play and self-respect which should attend a great state's administration of criminal justice demands that law enforcement authorities show a scrupulous regard for the rights of those accused of crime, State v. Borg, 9 N.J. Misc. 59 (Sup. Ct. 1931). These are the considerations, related to the privilege, which underlie the provision of N.J.S. 2 A:81-8 that on the trial of an indictment a defendant shall be admitted to testify only if he offers himself as a witness, State v. Edelman, 19 N.J. Super. 350, 357 (App. Div. 1952), and the provisions of R.R. 8:3-3(b) that upon the arraignment of an accused on a criminal complaint the magistrate shall inform him, among other things, "of his right to make a statement not under oath as to the charge against him, that he is not required to make such a statement, and that any statement made by him may be used against him."
Nevertheless, as Federal Judge Medina recently pointed out, in United States v. Scully, 225 F.2d 113 (2 d Cir. 1955), there is serious doubt that the safeguards, stemming from the privilege, surrounding inquiry of a person actually on trial for a crime apply with the same force to the inquisitorial proceedings of a grand jury. It doubtless is not, as it should not be, the practice of our prosecutors and grand juries to ...