Fritz, Crahay and Ard. The opinion of the court was delivered by Ard, J.A.D.
[145 NJSuper Page 264] The State Commission of Investigation (Commission) subpoenaed Carl "Pappy" Ippolito to appear before it in executive session to answer certain questions. Thereafter he was asked 182 questions and availed himself of his Fifth Amendment privilege against self-incrimination on 98 of the questions. The Commission subsequently filed an order to show cause why Mr. Ippolito should not be
ordered to give responsive answers to the questions propounded by it. In doing so the Commission challenged Ippolito's right to invoke the Amendment in 80 of the questions.
On the return day of the order to show cause Ippolito took the stand and each one of the 80 questions was repeated by the judge. Appellant's brief includes a copy of the pages of the transcript containing the question in issue and is referred to as exhibit "A". The questions are numbered 1 through 80 in the exhibit. Our numerical reference to these questions shall correspond to the number accorded the question in exhibit "A".
During the question-by-question procedure the witness withdrew his refusal to answer certain questions which he originally claimed as incriminating, and the judge ruled he did not have to answer certain questions which the Commission does not dispute. There were, however, a series of "Do you know * * *?" questions which the witness claimed to be incriminating without further explanation. He was sustained by the judge. The Commission appeals the ruling as to these latter questions. Specifically, they are questions nos. 23, 24, 29, 30, 45 through 70, inclusive, and 73 through 75, inclusive.
The primary issue concerns the propriety of invoking the Fifth Amendment when one is asked if he knows a named individual popularly recognized as a member of organized crime.
In sustaining the witness' right not to answer or give a reason why the answer would be incriminating, the judge said:
Don't you think that if a person admits being friendly with eight or ten or twelve known Mafia people, that he has reasonable cause to apprehend that he's going to be criminally prosecuted? That's what the Rule says. [T43:16-20; T45:10-15]
The Fifth Amendment privilege against self-incrimination is applicable, not only to federal proceedings, but also to the proceeding of any state. In Malloy v. Hogan , 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964), it was held the same standards must determine whether an accused's silence is justified in either a federal or state proceeding.
The R. 24 of the New Jersey Rules of Evidence defines incrimination as:
Within the meaning of this article, a matter will incriminate (a) if it constitutes an element of a crime against this State, or another State or the United States, or (b) is a circumstance which with other circumstances would be a basis for a reasonable inference of the commission of such a crime, or (c) is a clue to the discovery of a matter which is within clauses (a) or (b) above; provided, a matter will not be held to incriminate if it clearly appears that the witness has no reasonable cause to apprehend a criminal prosecution. * * *
A witness can only refuse to answer a question which will incriminate him, and his mere declaration that his answer to a particular question may tend to incriminate him is not dispositive. Hoffman v. United States , 341 U.S. 479, 71 S. Ct. 814, 95 L. Ed. 1118 (1951); In re Boiardo , 34 N.J. 599 (1961). The witness must support the invocation of the privilege by testimony indicating the nature or area of the criminal exposure which he fears. It is necessary for him to pinpoint the area to the ...