For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For reversal -- None. The opinion of the Court was delivered by Weintraub, C.J.
Defendant Williams was convicted of false swearing. The Appellate Division reversed, finding defendant was denied his Fifth Amendment privilege against self-incrimination, 112 N.J. Super. 563 (App. Div. 1970). We granted certification, 58 N.J. 161 (1971). We affirm the judgment of the Appellate Division but for reasons other than those it gave.
This case involves the recurring problem of a recanting State's witness in a criminal prosecution. Williams gave a sworn statement to the prosecutor identifying Willie James Washington as the perpetrator of a homicide. Before the grand jury considering the charge against Washington, Williams wavered but finally reiterated the substance of the sworn statement and on the basis of that testimony Washington was indicted for murder. In preparing for the murder trial, the prosecutor learned from Williams that he would not repeat that testimony. Having no case without the testimony of Williams, the State subpoenaed him to testify at a pretrial hearing in the homicide matter to determine whether he would, under oath, recant. Williams did recant, the murder indictment was dismissed, and Williams was then indicted for false swearing, the charge involved upon this appeal.
We should say a word about the procedure thus employed to determine whether Williams would or would not adhere to his sworn statement. In State v. Guido, 40 N.J. 191, 199-200, 191 A.2d 45, 50 (1963), we said:
We should add an observation with respect to the problem posed by the State's plea of 'surprise' to Vella's testimony. It is perfectly apparent that before Vella was called, the State had been told it would get the very answers he gave but nonetheless it called him to the stand. Defendant says the prosecutor therefore was not 'surprised' by the disappointing answers and neutralization should not have been permitted, citing State v. Caccavale, 58 N.J. Super. 560, 573 (App. Div. 1959). As the Appellate Division there said, in some cases there may be residual harm despite a trial court's firmest effort to erase what is revealed before the jury in the neutralizing process. Yet the State should not be compelled to accept an unsworn disavowal,
for it may not really know whether the witness will, under oath, maintain the second story. Cf. State v. DeCola, 33 N.J. 335, 351 (1960). We think that fairness can be assured in the following way. 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. So much of his testimony as is not neutralized may then be repeated in its presence.
In the case at hand, the State did not await the trial of the homicide charge to learn whether Williams would recant under oath, and probably did not do so because it knew the murder indictment would fall if Williams did repudiate his original statement. Hence the expeditious course was to have a pretrial hearing in the homicide case. The Appellate Division, 112 N.J. Super. at 566, found this procedure was consonant with Guido, and we agree. We turn then to the meritorious issue.
N.J.S.A. 2A:131-4 provides:
Any person who willfully swears falsely in any judicial proceeding or before any person authorized by any law of this state to administer an oath and acting within his authority, is guilty of false swearing and punishable as for a misdemeanor.
If a person has made contrary statements under oath, it shall not be necessary to allege in an indictment or allegation which statement is false but it shall be sufficient to set forth the contradictory statements and allege in the alternative that one or the other is false.
Proof that both statements were made under oath duly administered is prima facie evidence that one or the other is false; and if the jury are satisfied from all the evidence beyond a reasonable doubt that one or the other is false and that such false statement was willful, whether made in a judicial proceeding or before a person authorized to ...