Kilkenny, Halpern and Lane. The opinion of the court was delivered by Halpern, J.A.D.
Defendant appeals from a judgment of conviction for false swearing (N.J.S.A. 2A:131-4). He was sentenced to a State Prison term of 2-3 years.
The undisputed facts are that on November 12, 1967 Robert Jones was murdered in the City of Newark. On January 17, 1968 defendant was brought to the Essex County Prosecutor's office where he signed a sworn Statement identifying Willie Washington as the murderer. In July 1968 a prosecutor's detective and an assistant prosecutor interviewed defendant several times at the Yardville Reformatory where he was then confined for a different offense. Presumably their purpose in seeing defendant was to prepare for trial since he was the State's only eyewitness. Defendant told them he intended to repudiate his sworn statement of January 17, 1968 because it had been obtained under duress, and that he would not, or could not, identify Washington as the murderer.
With this knowledge in mind the assistant prosecutor, on September 17, 1968, on notice to Washington, caused defendant to be brought before a Superior Court judge in Essex County, for a "special hearing" in open court for
two reasons: (1) to ascertain if the State still had a case, and (2) if defendant recanted, to lay a foundation for a false swearing complaint. Defendant was neither advised of his right to the assistance of counsel, nor warned that his answers might incriminate him. Defendant was not represented by counsel at the "special hearing" when he repudiated his January 17, 1968 sworn statement.
The holding of such a "special hearing" was proper since the State had to be certain that defendant, if placed under oath, would recant. State v. Guido , 40 N.J. 191, 200 (1963). In Guido a witness recanted during trial, and the court, in considering whether his testimony could be neutralized, suggested that:
When counsel has been advised a witness will not adhere to a prior statement but feels he should test that disavowal under oath, he should so inform the court at side bar. The witness should then be examined in the absence of the jury. [at 200]
The court suggested this procedure because if the State offered the witness at trial with reasonable cause to believe he intended to recant, and he did recant, such would be reversible error because of the resulting prejudice. State v. Fournier , 91 N.J. Super. 477, 480-481 (App. Div. 1966); United States of America ex rel. Fournier v. Pinto , 408 F.2d 539, 541 (3 Cir. 1969).
We see no reason why the procedure suggested in Guido , with appropriate modification, may not be utilized prior to trial if the State has probable cause to believe that a witness will recant during trial. See State v. Cullen , 103 N.J. Super. 360, 364 (App. Div. 1968). In fact, from the State's viewpoint, it is essential, because of the time and expense involved that it know in order properly to prepare for trial. In the instant case the court dismissed the indictment on motion of the prosecutor, presumably made under R. 3:25-1, because defendant was its only witness.
Defendant was subsequently indicted and convicted by a jury of false swearing based upon the difference in his
original sworn statement of January 17, 1968 and his sworn testimony at the "special ...