For affirmance in part and reversal in part -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, and Haneman. Opposed -- None. The opinion of the court was delivered by Weintraub, C.J.
[53 NJ Page 112] Two orders are involved on this appeal. A subpoena was issued to appellant, Hugh J. Addonizio, to produce certain records before a grand jury. He refused to comply, except in an insignificant aspect, asserting the Fourth, Fifth, and Fourteenth Amendments to the Federal Constitution. His objections were overruled and an order was entered directing obedience to the subpoena. That order is here under review. The second order denied a motion by Addonizio and his wife to set aside grand jury subpoenas served upon a bank and a brokerage firm for the production of their accounts with them and also for disclosure by the bank as to the existence of safe deposit boxes in their names.
The Appellate Division allowed leave to appeal and we certified the matters before they were heard by that court.
For the reasons which follow we find the subpoena to Addonizio must be set aside but the trial court correctly upheld the subpoenas to the bank and the brokerage firm.
The grand jury had been charged by the Assignment Judge to investigate allegations of official corruption in the City of Newark. Addonizio is the Mayor of the City and has held that office since 1962. Addonizio did not challenge the validity of the basic inquiry, and in fact directed all city personnel to cooperate fully with respect to official records. But as to his personal records and the records of private institutions which reflect transactions with him, Addonizio pressed the constitutional objections to which we now turn.
We will deal first with Addonizio's Fifth Amendment objection to the subpoena upon him to produce his own records. The subpoena calls for the following:
"1. Checking account statement
4. Check books and check stubs
7. List of securities and/or bonds held
8. Statements of account from brokerage houses, investment clubs, mutual funds or any other source for the purchase of securities and/or bonds.
9. List of all real and personal property together with the location of same, date of purchase, purchase price, date of disposition, disposition price, and the name in which same is held.
10. List of all partnerships, corporations, or joint ventures in which you have an interest together with financial statements of such entities."
The State said below that it intended a time limitation, i.e., the period of Addonizio's incumbency as Mayor of the City, and asked that the subpoena be so understood. This limitation did not, however, obviate the objection. Addonizio produced only recorded deeds and mortgages relating to his homes and a statement of his public salary as Mayor. In short, he revealed only what was already a matter of public record.
As to the Fifth Amendment, Addonizio sufficiently stated his belief that the subpoenaed records would tend to incriminate him with respect to some crime constituting corruption in public office. The trial court held, however, that Addonizio failed to reveal a basis for that belief. As to this Addonizio contended (1) that under L. 1968, c. 195 (N.J.S. 2 A:81-17.3), a mere assertion of the privilege against self-incrimination bars any inquiry unless the Attorney General, or the prosecutor with the approval of the Attorney General, asks the court to compel an answer, and (2) that in any event a sufficient basis for the plea was revealed.
As to the first proposition, we quote the statute in full:
"In any criminal proceeding before a court or grand jury, if a person refuses to answer a question or produce evidence of any other kind on the ground that he may be incriminated thereby and if the Attorney General or the county prosecutor with the approval of the Attorney General, in writing, requests the court to order that person to answer the question or produce the evidence, the court shall so order and that person shall comply with the order. After complying and if but for this section, he would have been privileged to withhold the answer given or the evidence produced by him, such testimony or evidence may not be used against the person in any proceeding or prosecution for a crime or offense concerning which he gave answer or produced evidence under court order. However, he may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing, or failing to produce, evidence in accordance with the order. If a person refuses to testify after being granted immunity from prosecution and after being ordered to testify as aforesaid, he may be adjudged in contempt and committed to the county jail until such time as he purges himself of contempt by testifying as ordered without regard to the expiration of the grand jury; provided, however, that if the grand jury before
which he was ordered to testify has been dissolved, he may then purge himself by testifying before the court."
The bill, which became this law, had been patterned after the Model State Witness Immunity Act but was amended by substituting the italicized language for the following provision of the Model Act:*fn1
"* * * that person shall not be prosecuted or subjected to penalty or forfeiture for or on account of any transaction, matter or thing concerning which, in accordance with the order, he gave answer or produced evidence."
Referring first to the Model Act, we think it clear that under it the claim of privilege must be passed upon and upheld by the court before immunity need be offered. We so read the Commissioners' Prefatory Note, 9C Uniform Laws Ann. 189. The reason is plain. It would be an invitation to obstruction if whenever a reluctant witness intoned the naked words of the constitutional privilege, a trial or other hearing had to be suspended and so remain until the Attorney General acquainted himself with the matter and decided upon immunity. Moreover, the Attorney General is better situated to decide whether immunity should be granted when the witness gives some indication of the matters upon which immunity is sought. A contrary result is not
suggested, as Addonizio contends, by so much of the Model Act as makes the immunity from prosecution depend ultimately upon whether the privilege against self-incrimination was in truth available when it was claimed. That provision doubtless appears because a spurious claim of privilege could get by on a preliminary hearing and hence the grant of immunity from prosecution should be voided if it later appears the evidence the witness revealed was not incriminating at all.
We think the same conclusion is required of our statute as adopted even though an immunity from use of the evidence was substituted for the Model Act's immunity from prosecution. The reasons are the same. It is equally evident that the Legislature would not want to permit false or frivolous interruption of trials and hearings. And although immunity from use of evidence is less than an immunity from prosecution, still it is sound to require the witness to make a claim of privilege the court finds sufficient. Such a disclosure may aid the Attorney General in deciding whether the testimony which the witness can supply is worth the immunity in practical effect which the witness may receive if the State should be unable to show it obtained evidence of the witness's guilt from independent sources. Thus there is ample reason to retain the thesis of the Model Act that the claim of privilege must be examined by the trial court as heretofore, and that that statute comes into play only if the court finds a basis for the claim. The trial court was correct in taking that view of the act.
But we think Addonizio's claim of privilege must be upheld. It is true a witness may not make himself the final judge of the availability of the Fifth Amendment privilege and hence enough must appear to permit the court to pass upon it, see Hoffman v. United States, 341 U.S. 479, 486-487, 71 S. Ct. 814, 95 L. Ed. 1118, 1124 (1951); Malloy v. Hogan, 378 U.S. 1, 11-12, 84 S. Ct. 1489, 12 L. Ed. 2 d 653, 661-662 (1964); In re Pillo, 11 N.J. 8, 19-20 (1952); State v. De Cola, 33 N.J. 335, 350-352
(1960); In re Boiardo, 34 N.J. 599, 602 (1961); In re Boyd, 36 N.J. 285 (1962), and accordingly when the privilege is asserted with respect to records, the witness must produce them so that the court may determine whether the claim is spurious, Consolidated Rendering Co. v. Vermont, 207 U.S. 541, 552-553, 28 S. Ct. 178, 52 L. Ed. 327, 335 (1908). And it is true that Addonizio made no effort to come within those cases. But it is evident that Addonizio is himself the target of the grand jury's investigation, for it is inconceivable that the records of Addonizio could reveal criminality upon the part of others without also implicating him. When a witness is thus a target of the grand jury's inquiry, no more need appear to support his Fifth Amendment claim. We so held in State v. De Cola, supra, 33 N.J., at 341-342; and see also In re Boiardo, supra, 34 N.J., at 604-606.
Addonizio's refusal to produce his records having been sustained under the Fifth Amendment, it is unnecessary to consider his further reliance upon the Fourth Amendment. However, the Fourth Amendment is involved in the attack on the subpoenas of the bank and the brokerage firm and since a discussion of Addonizio's Fourth Amendment claim with respect to the subpoena served upon him will serve equally to resolve the challenge to the subpoenas upon the bank and the ...