For modification -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. Opposed -- None. The opinion of the court was delivered by Weintraub, C.J. Jacobs, J., concurring in result.
[33 NJ Page 338] Charlotte Hansen appeals from convictions for criminal contempt arising out of refusals to testify.
Mrs. Hansen appeared before a grand jury investigating a homicide. Three men were indicted for murder, in part upon her testimony. Later, a New York daily carried a story of her purported recantation. She was thereupon summoned by a subsequent grand jury before which however she declined to answer the same questions she had answered before the first grand jury. The Superior Court ordered her to answer, and upon her continued refusal she was adjudged guilty of contempt and fined $100. She appealed, and we certified the matter on our motion before the Appellate Division considered it.
While the first appeal was awaiting reargument, the murder indictment was brought to trial. Mrs. Hansen, subpoenaed by the State, again disobeyed an order to answer the same questions. She was adjudged guilty of criminal contempt and fined $500. She appealed, and we certified the matter on our motion.
Mrs. Hansen did not suggest further testimony would tend to incriminate her with respect to the homicide, the subject of the original grand jury examination. Indeed she expressly disavowed that hazard. Rather she claimed further interrogation might reveal perjury in the testimony she had given.
We shall first consider the conviction for refusal to answer before the second grand jury.
The State presses a procedural objection. It contends Mrs. Hansen should have appealed from the order directing her to answer and that an appeal from the judgment of conviction is a "collateral" attack upon that order. We disagree.
An order sustaining a refusal by a witness to answer disposes of the immediate issue with finality and therefore is a final judgment, Application of Tiene, 19 N.J. 149, 159-160 (1955), but an order to answer is at best interlocutory and hence not reviewable of right until the proceeding
against the witness is concluded by the judgment of sentence. See Alexander v. United States, 201 U.S. 117, 26 S. Ct. 356, 50 L. Ed. 686 (1906). The process is but a single one, to enforce the underlying duty to testify. A witness who in good faith asserts a privilege not to answer is entitled to a ruling, and indeed without one his refusal could not ordinarily be said to be contumacious. See Quinn v. United States, 349 U.S. 155, 165, 75 S. Ct. 668, 99 L. Ed. 964, 973-4 (1955). The decision upon the claim of privilege and the order to answer thus have but an intermediate role. We see no reason to cloak the order with finality and thereby fragmentize the process of enforcing the witness's duty to testify. The order to answer is accordingly reviewable upon an appeal from the final judgment of sentence.
Hence we reach the merits. The State contends the second grand jury inquiry was but a continuation of the first, and Mrs. Hansen having testified before the first without claim of privilege, she waived her right thereafter to assert it, at least as to the very questions she had answered. Further the State urges that even if the second inquiry be deemed independent of the first, the waiver nonetheless continued.
The fact that an earlier grand jury has returned an indictment does not foreclose a reinvestigation by a later grand jury of the same offense. If circumstances suggest the offense nonetheless may be unsolved, another grand jury may inquire if the actual offender is at large. Here the news account of appellant's recantation would readily have invited that further inquiry, and had the second grand jury been so concerned, the issue of waiver would have arisen in the form in which the State offers it. But the record plainly shows the second grand jury sought to explore the criminal liability of appellant for perjury. In response to the foreman's inquiry as to the purpose for which appellant was about to be questioned, the prosecutor explicitly said an indictment against appellant was sought if she did not adhere to her prior testimony. Thus, although originally a witness
with respect to the criminality of others, she was summoned to reveal involuntarily a basis for her own indictment for perjury in her initial testimony.
The privilege against self-incrimination is of ancient origin. Its genesis is traced to inquisitions by ecclesiastical officials and later by secular authority to compel a man to disclose the commission of an offense with which he had not been charged. Later it applied as well to protect one under formal charge from compulsory condemnation by his own lips. Morgan, Basic Problems of Evidence (1957), p. 127. Thus the privilege was oriented to the protection of a defendant, actual or prospective. This is apparent in the usual constitutional phrasing, such as in the Fifth Amendment of the Federal Constitution, that "No person * * * shall be compelled in any criminal case to be a witness against himself."
At an early date the common law applied the privilege as well to the ordinary witness notwithstanding he was neither accused nor suspect. The constitutional provisions to which we have referred are construed to embrace that extension. In New Jersey, the privilege, although not assured by organic law, nonetheless was originally protected as a matter of common law and now is by statute. State v. Auld, 2 N.J. 426, 436 (1949). At the time of the present litigation N.J.S. 2 A:81-5 (since superseded by L. 1960, c. 52, §§ 17 and 19) provided:
"No witness shall be compelled to answer any question if the answer will expose him to a criminal prosecution or penalty or to a forfeiture of his estate."
Protection is given a witness to achieve the basic policy against compulsory self-condemnation. But it has other implications, for manifestly it affects the interests of litigants who are denied the benefit of the facts the witness conceals under his personal privilege. Such is the context in which the validity of the second conviction before us will presently be weighed. But where, as in the case of the
first conviction to which our attention is now addressed, the purpose of the inquiry is to determine the liability of the witness for a crime supposedly committed by her, we have the precise situation for which the common law privilege was established. 8 Wigmore, Evidence (3 d ed. 1940), § 2263, p. 362. Appellant was the target of an inquisition designed to compel her to reveal whether she had committed crime.
We think the case is controlled by State v. Browning, 19 N.J. 424 (1955) and State v. Fary, 19 N.J. 431 (1955). There the doctrine was accepted that a person whose criminal liability is the object of a grand jury inquiry must be informed of his privilege to withhold evidence tending to his own incrimination. If there is a duty to warn, the privilege not to testify is implicit.
The State however cites the concluding paragraph of Fary (19 N.J., at p. 440) which states "a waiver barring their right to assert the privilege at the second inquiry may be constructed" when the questions put in the second proceeding are the same as those answered before the first grand jury without claim of privilege. But in Fary the witnesses were not the target of either proceeding before the grand jury. On the contrary, both proceedings were general inquiries into the operations of the township road department.
The State also advances Loubriel v. United States, 9 F.2d 807 (2 Cir. 1926). There a witness before a grand jury testified he did not know the names of his employer's customers. The answer was found to be a palpable refusal to answer. He was adjudged in civil contempt and committed with the proverbial "key" in his pocket. He later sought an opportunity to purge himself, and since the first grand jury had already been discharged, he was accorded the opportunity before a new grand jury. Upon his appearance there, his answers were inadequate and hence it was found he had not purged himself. Upon habeas ...