For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
Defendant Boiardo was convicted of contempt for refusing to answer questions before a grand jury after having been ordered to answer by a judge of the Superior Court. He was sentenced to a term of 30 days. We certified the ensuing appeal.
The issue is whether the court erred in overruling the claim that answers would tend to incriminate.
The State sought to question Boiardo with respect to a shooting affray in the City of Newark. Learning of the
prosecutor's interest in his testimony, Boiardo, accompanied by his counsel, appeared voluntarily at the office of the prosecutor on November 8, 1960. He was examined under oath. He answered all question concerning his whereabouts at the time of the shooting and as to whether he had been wounded. He testified he was in Florida on the day of the shooting, denied he had been shot, and explained that he had injured both legs in a fall from a dock during his southern sojourn. The record of the interrogation covers some 47 printed pages. His counsel offered to produce him for further questioning if it should be desired. Boiardo agreed to submit to a medical examination and did.
Boiardo was then subpoenaed to testify before the grand jury. He asserted the privilege against self-incrimination as to six questions. The Superior Court ordered him to answer. Upon returning to the grand jury room he answered four questions but declined to answer the remaining two. These two questions were in net effect identical with questions Boiardo had voluntarily answered in the interrogation by the prosecutor described in the paragraph above.
On the hearing which led to the order to answer, the trial court pointed out that it, not the witness, must evaluate the claimed hazard. The court referred to the statement in In re Pillo, 11 N.J. 8, 19 (1952), repeated in State v. De Cola, 33 N.J. 335, 350 (1960), that "The trial judge is not to accept the witness's mere statement that the answer will tend to incriminate him." The court stated it was not satisfied with a mere assertion in general terms that incrimination was feared and invited Boiardo to take the stand to reveal the basis for his refusal to answer. Boiardo declined, saying only that before his attorney left the State (at this hearing, Boiardo was represented by a partner of that attorney) he was told "not to say anything until I get back."
In refusing to answer the two questions upon his return to the grand jury room, Boiardo did not state that he feared incrimination with respect to the shooting. The sole disclosure
of what he apprehended may be found in the following excerpt from his testimony:
"Q. In any event, you don't want to discuss with the jury the subject matter of your interview in the Prosecutor's office on November 8? A. I gave you a sworn statement, sir, on the 8th when I came in with my attorney, and actually talking about it now, sir, I am afraid might tend to incriminate me because I might deviate one way or another innocently. I don't want to talk. I might tend to incriminate myself."
Thus the only revelation by the witness as to what he feared, made after the order to answer, related to a charge of perjury or false swearing by reason of a conflict between the testimony he might give and his prior testimony. This basis, had it been advanced on the application to compel the witness to answer, would not have sufficed. As we held in State v. De Cola, supra (33 N.J., at pp. 351-352), a court cannot evaluate a naked claim of possible deviation from prior testimony and hence the witness may be compelled to answer, he however ...