For affirmance -- Justices Mountain, Sullivan, Clifford and Schreiber and Judge Conford. For reversal -- Chief Justice Hughes and Justice Pashman. The opinion of the court was delivered by Sullivan, J. Hughes, C.J., dissenting. Pashman, J., dissenting.
Defendant, Victor Vinegra, then the City Engineer of Elizabeth, was called before a Union County grand jury which was making an inquiry into official misconduct in Elizabeth involving a street improvement project. He was questioned before the grand jury without being advised of the scope of the investigation or that he was a possible target of the inquiry. Also, he was not told of his privilege against self-incrimination or his right to testimonial immunity under N.J.S.A. 2A:81-17.2a2. It is undisputed that defendant, in his appearance before the grand jury, did not assert his privilege against compulsory self-incrimination. Following his extensive testimony before the grand jury, defendant and one Harry E. Allen (not involved in this appeal) were charged with criminal conduct by the same grand jury which returned a nine-count indictment against them on June 29, 1973. Eight of the counts involve defendant. The first seven charge him with misconduct in office and conspiracy; the eighth count charges false swearing before the grand jury.
On April 11, 1974 the trial court granted in part a motion made by defendant and dismissed the first seven counts of the indictment as to him. It refused to dismiss the eighth count which charged defendant with false swearing. See N.J.S.A. 2A:81-17.2a2; State v. Mullen, 67 N.J. 134 (1975). The trial court found that defendant was a target of the grand jury investigation and that there had been a failure to inform him of the scope of the investigation or to warn him of his privilege against self-incrimination. It held that this was a violation of defendant's Fifth Amendment rights and, relying on State v. Fary, 19 N.J. 431 (1955), State v. Sarcone, 96 N.J. Super. 501 (Law Div. 1967) and State v. Rosania, 96 N.J. Super. 515 (Law Div. 1967), ordered that counts one through seven be dismissed.
On leave granted to appeal, the Appellate Division held that there was sufficient evidence to justify the factual findings made by the trial judge. However, it disagreed with his
conclusion that dismissal of the charges was required. Instead, the Appellate Division held that defendant's Fifth Amendment rights were adequately protected by virtue of N.J.S.A. 2A:81-17.2a2 which provided that if any public employee
* * * testifies before any * * * grand jury * * *, such testimony and the evidence derived therefrom shall not be used against such public employee in a subsequent criminal proceeding under the laws of this State.
Although defendant had not claimed privilege or been informed of such statutory immunity when he appeared before the grand jury, the Appellate Division held that the statute was "self-executing" and required no assertion of privilege by the witness and no confirmatory action by the court or by the State.*fn1
The Appellate Division held that by virtue of N.J.S.A. 2A:81-17.2a2, defendant's testimony before the grand jury could not be used against him in any subsequent criminal proceeding except as it might be relevant in a prosecution for perjury or false swearing. State v. Mullen, supra. This statutory immunity, the Appellate Division held, adequately protected defendant's Fifth Amendment rights so that dismissal of the indictment was not warranted. It therefore reinstated counts one through seven. This Court granted defendant's motion for leave to appeal.
The United States Supreme Court, in similar factual circumstances, has held that, insofar as a violation of the Fifth Amendment privilege against self-incrimination is involved, the remedy is not dismissal of the indictment but rather suppression of the grand jury testimony and its fruits should
the Government seek to use it at trial. United States v. Blue, 384 U.S. 251, 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1966); United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). See, Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), reh. den. 408 U.S. 931, 92 S. Ct. 2478, 33 L. Ed. 2d 345 (1972); United States v. Mandujuano, 425 U.S. 564, 96 S. Ct. 1768, 48 L. Ed. 2d 212 (1976).
When a witness appears before a grand jury, as a general rule, he does not have the status of a defendant in a criminal trial and it is not required that he be informed of the privilege against compulsory self-incrimination. State v. Fary, supra, 19 N.J. at 435. The failure to warn such a witness of his right to refuse to answer incriminating questions has a bearing on the matter of invasion of his privilege, only if the witness was under formal criminal charges at the time and was questioned as to the charges, or, though not under formal charges, the grand jury proceeding was not a general inquiry but one directed at the witness with the object of returning an indictment against him. State v. Browning, 19 N.J. 424, 427 (1955).
This court has not had occasion to rule directly on the question whether a "target" of a grand jury proceeding must be advised that he is a target and of his right not to incriminate himself, failing which an indictment based on his testimony will be quashed. However, we have in numerous decisions approved this principle. State v. Williams, 59 N.J. 493, 503 (1971); In re Addonizio, 53 N.J. 107, 117 (1968); State v. DeCola, 33 N.J. 335, 342-344 (1960); State v. Browning, supra; State v. Fary, supra. Trial courts have uniformly adhered to the target rule. State v. Sibilia, 88 N.J. Super. 546 (Essex Cty. Ct. 1965); State v. Sarcone, supra; State v. Rosania, supra.
This principle grows out of the privilege against self-incrimination in this State which, although not written into our State Constitution, is firmly established as part of our common law. State v. Deatore, 70 N.J. 100 (1976); In re
Pillo, 11 N.J. 8 (1952); State v. Zdanowicz, 69 N.J.L. 619 (E. & A. 1903). The privilege is now also incorporated in our Rules of Evidence, N.J.S.A. 2A:84A-1 et seq.; see Evid. R. 23, 24 and 25. However, for reasons which follow, we need not in this particular case, resolve the question whether we should continue to adhere to the "target" principle as part of our common law privilege against self-incrimination.
The target doctrine, insofar as it calls for dismissal of the indictment against a target witness, has been modified to some extent as to public employees by legislative action heretofore referred to. In 1970 a statute was enacted making it the duty of every public employee to appear and testify upon matters directly related to the conduct of his office and subjecting him to removal if he failed to do so. N.J.S.A. 2A:81-17.2a2.*fn2 The statute also provides that such testimony and the evidence derived therefrom shall not be used against such public employee in a subsequent criminal proceeding under the laws of this State. N.J.S.A. 2A:81-17.2a2. Recent amendments not here pertinent are referred to in footnote 1, supra.
This statute has the effect of making the target doctrine inapplicable to a public employee insofar as it imposes a duty on him to testify upon matters directly related to the conduct of his office. At the same time it seeks to protect his privilege against self-incrimination by giving him the use and fruits immunity heretofore referred to.
Defendant argues that the immunity conferred by the statute is an inadequate protection of his Fifth Amendment and common law privilege against self-incrimination. He notes that the immunity granted only extends to use of such testimony in a subsequent criminal proceeding and that the grand jury which heard such testimony would be free to use it to indict him.
So far as the Fifth Amendment is involved, the United States Supreme Court has consistently held that the receipt by a grand jury of evidence obtained in violation of a person's Fifth Amendment rights does not infect an indictment based on such testimony. Blue, supra; Calandra, supra. As noted, these cases hold that suppression of such grand jury evidence (and fruits thereof) at trial adequately protects a defendant's Fifth Amendment rights.
The common law privilege against self-incrimination in New Jersey as expounded in our target doctrine seems to afford greater protection than that given by the Fifth Amendment. However, the privilege and doctrine stem from the common law and are subject to legislative modification.
Concededly the statute in question takes away from a certain class of the citizenry the protection of the target doctrine to the extent that it imposes a duty on a public employee to testify upon matters directly related to the conduct of his office. However, it cannot be said that the statutory classification is arbitrary and unreasonable or denies equal protection in the constitutional sense. A public employee attends to the business of government. It is the public's right and in the public interest to require such employee to account for his stewardship. This limitation on the common law privilege is grounded in public policy and is well within the legislative power.*fn3
See for example N.J.S.A. 2A:84A-17(4) which embodied a restriction on the common law privilege against self-incrimination in New Jersey extending back to Parker v. State, 61 N.J.L. 308 (Sup. Ct. 1897), affirmed 62 N.J.L. 801 (E. & A. 1899). Under it, if an accused in a criminal action did not testify after direct evidence was received of facts which tended to prove some element of the crime and which facts, if untrue, the accused could disprove by his own testimony, counsel and the judge could comment on the accused's failure to testify, and the trier of fact was permitted to draw an inference that the accused could not truthfully deny those facts.
This statute and the rule of law it expressed ultimately were held to be unconstitutional in State v. Lanzo, 44 N.J. 560 (1965) but only because the United States Supreme Court had held that the Fifth Amendment privilege against self-incrimination in the United States Constitution, made applicable to the states through the due process clause of the Fourteenth Amendment, forbade either comment by the prosecution on the accused's silence or instructions by the court that such silence was evidence of guilt. Griffin v. State of California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).
Our conclusion is substantially that arrived at by the Appellate Division. We hold that dismissal of the first seven counts of the indictment was not required and that the immunity given defendant by N.J.S.A. 2A:81-17.2a2 adequately protected his Fifth Amendment rights. So far as N.J.S.A. 2A:81-17.2a1 et seq. limits defendant's common law privilege against self-incrimination in its application to a public employee who is called on to testify upon matters directly related to the conduct of his office, it has not been shown to be an improper exercise of the legislative power.
We repeat the Appellate Division's admonition that protection of defendant's Fifth Amendment rights will require that the State, at trial, have the burden of proving that the evidence it uses "is derived from a legitimate source wholly
independent" of his grand jury testimony. Kastigar v. United States, 406 U.S. 441, 460, 92 S. Ct. 1653, 1665, 32 L. Ed. 2d 212, 226 (1972). Also, for obvious reasons the count for false swearing must be tried separately from the other counts.
The foregoing opinion was written prior to May 23, 1977 decisions by the United States Supreme Court in United States v. Wong, U.S. , 97 S. Ct. 1823, 52 L. Ed. 2d 231, and United States v. Washington, U.S. , 97 S. Ct. 1814, 52 L. Ed. 2d 238. Neither case is directly in point but the holdings therein merit some comment.
Wong, who was under investigation for possible criminal activity was called to testify before a grand jury. Following her testimony, she was indicted for perjury based on such testimony. On motion, the District Court ordered the testimony suppressed as evidence of perjury on the ground that no effective warning of the Fifth Amendment privilege to remain silent had been given. The Ninth Circuit affirmed, 553 F.2d 576 (1974). The United States Supreme Court, in a unanimous opinion reversed. Citing United States v. Mandujuano, 425 U.S. 564, 96 S. Ct. 1768, 48 L. Ed. 2d 212 (1976), it held that the Fifth Amendment grants a privilege to remain silent but "does not endow the person who testifies with a license to commit perjury." Glickstein v. United States, 222 U.S. 139, 142, 32 S. Ct. 71, 56 L. Ed. 128 (1911). In the instant case Vinegra has also been indicted for perjury based on his grand jury testimony.
In the second case, Washington was also a target of a criminal investigation. He was called before a grand jury and advised of his Fifth Amendment rights but was not told that he was a potential defendant in danger of indictment. Following his testimony, he and others were indicted for grand larceny and receiving stolen property.
Washington's motion to suppress his testimony and quash the indictment was granted by the Superior Court for the
District of Columbia on Fifth Amendment grounds. It held that the most significant failing of the prosecutor was in not advising Washington that he was a potential defendant. The District of Columbia Court of Appeals agreed and affirmed the trial court ruling insofar as it suppressed Washington's grand jury testimony as trial evidence. However, it reinstated the indictment against Washington holding that an indictment returned by a properly constituted grand jury is not subject to challenge on the ground that it was based on unconstitutionally obtained evidence. See United States v. Calandra, supra; United States v. Blue, supra. Washington's petition to review this portion of the Court of Appeals ruling was denied. Washington v. United States, 426 U.S. 905, 96 S. Ct. 2225, 48 L. Ed. 2d 830 (1976). However, the Government's petition to review the holding which suppressed Washington's grand jury testimony as trial evidence was granted and the decision of the Court of Appeals was reversed.
The United States Supreme Court, with Justices Brennan and Marshall dissenting, held that the comprehensive warnings which Washington had in fact received, whether or not such warnings were constitutionally required, dissipated any element of compulsion to self-incrimination. The Court also held that it was not required that Washington be warned that he was a potential defendant since a target witness status neither enlarges nor diminishes the constitutional protection against compelled self-incrimination and potential defendant warnings add nothing of value to protection of Fifth Amendment rights.
Suffice it to note that this holding would appear to afford a grand jury target witness considerably less protection under the Fifth Amendment privilege against self-incrimination than he receives under the common law privilege in this State. See State v. Williams, supra, and other cases cited on pp. 488 and 489.
HUGHES, C.J., dissenting. With all respect, I dissent from the opinion of the majority. It affirms Appellate Division reversal of the trial court decision to dismiss seven of the eight counts of an indictment returned against a subpoenaed grand jury witness, Victor Vinegra. It does not deal as fully as I would feel necessary with the rights of a "target" witness, if that witness is protected by immunity arising from the statute. The statute in effect at the time of the Vinegra indictment and its partial dismissal concerned the forced testimony of public employees. It was an immunity statute precluding the use of the witness' testimony or evidence derived therefrom in any subsequent criminal proceeding, thus seeking to balance the needs of the State's investigatory power and the valuable testimony which a public employee might give, as against the individual's privilege against compulsory self-incrimination. Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972); Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967).
Notwithstanding the statute and the supposed sufficiency of the immunity it confers upon the public employee witness, from the use of such compelled testimony and its derivatives against him in a later criminal proceeding, I believe that the rights of this defendant were so abused that such remedy is insufficient and that the trial court dismissal of the counts referred to was entirely justified.
New Jersey courts from the earliest times have been zealous to protect an important common law right -- that of free men to be shielded from compulsory self-incrimination. "The privilege of a witness against being compelled to incriminate himself, of ancient origin, is precious to free men as a restraint against high-handed and arrogant inquisitorial practices." State v. Fary, 19 N.J. 431, 434 (1955). See also State v. Deatore, 70 N.J. 100, 113 & n. 8 (1976); State v. Zdanowicz, 69 N.J.L. 619, 622 (E. & A. 1903); Fries v. Brugler, 12 N.J.L. 79, 82 (Sup. Ct. 1830). See generally 8 Wigmore, Evidence § 2250 (McNaughton rev. 1961).
In Fary, Justice Brennan, writing for this Court, recalled that:
Decisions outside our State apparently agree that a failure to warn the witness of his right to assert the privilege is fatal to an indictment if the grand jury indicts the witness after questioning him about specific criminal charges made against him in a formal way, as by a criminal complaint. * * * The same result is reached even as to a witness not under formal criminal charges if it is made unmistakably to appear that the grand jury was actually conducting an investigation directed against the witness and summoned him to testify with the purpose of getting evidence to fix a criminal charge on him. The rationale of these decisions is that where the investigation is in fact a proceeding against the witness, or being ostensibly a general investigation is, in fact, as shown by the circumstances in evidence, a proceeding against him, then there is a gross encroachment upon the witness' privilege if he be subpoenaed before the body, sworn and questioned, though he makes no claim of the privilege. * * * Chief Justice Case implied, in State v. Grundy, 136 N.J.L. 96, 98 (Sup. Ct. 1947), that the burden of the indicted witness is to show that " there was a ruse by which it was sought to induce [ the witness ], unwittingly, to give evidence against himself." Any doubt in that regard, under the prevailing view, is resolved in favor of the validity of the indictment and the treatment of the indicted witness as merely an ordinary witness who waived the privilege by not claiming it. [ State v. Fary, supra, 19 N.J. at 437-38 (citations omitted) (emphasis added)].
But no such doubt is apparent in the present case, for the Appellate Division left undisturbed, as obviously should we, the trial court determination of the factum of such prosecutorial ruse*fn1 and its relationship to the appearance of Vinegra before the grand jury.
The focal question raised by this appeal is not to ascertain whether a fundamental wrong was done (essentially admitted on all sides) but rather to determine what should be its consequence, and that in the aspect not only of basic constitutional right but of rights and principles imbedded in the common law. One pauses here to note that in New Jersey there has been no judicial hesitancy in going beyond naked constitutional right as defined by the United States Supreme Court.*fn2 There have been recognized in our jurisdiction other and broader rights, seen as judicially enforceable, which have sometimes been described as responsive to a New Jersey "fairness and rightness" doctrine. See State v. Johnson, 68 N.J. 349, 353 (1975); Avant v. Clifford, 67 N.J. 496, 520-21 (1975); Donaldson v. Board of Ed. of No. Wildwood, 65 N.J. 236, 243 (1974); Rodriguez v. Rosenblatt, 58 N.J. 281, 294 (1971); Monks v. New Jersey State Parole Bd., 58 N.J. 238, 246 (1971); White v. Parole Board, 17 N.J. Super. 580, 586 (App. Div. 1952).
In applying that doctrine in the present circumstance, our scrutiny should extend to the power and responsibility of both grand jury and prosecuting attorney; the rights of the public employee "target" witness called before the grand jury; and the just and necessary impact upon those rights of the acknowledged public need for investigative access to
the ramifications of official wrongdoing, in support of which need the immunity statutes were enacted.
In our present system the grand jury is a powerful instrument of government. Its deliberations are secret, and its members officers of the court exercising judicial functions, and therefore immune from civil responsibility for their official acts, O'Regan v. Schermerhorn, 25 N.J. Misc. 1 (Sup. Ct. 1946). Its role is hybrid in the sense that it acts for the people not only in the exercise of its investigative, indictment and presentment power, but just as importantly in defense of the citizen as to whom it finds no probable or just cause to hold to trial by an indictment or expose to public denunciation by a presentment.
While its accusatory role is the more publicly noticed, its function to shield the citizen's rights became apparent very early in its history. The grand jury system can be traced at least as far back as 1166 when its forerunner operated as an arm of the English Crown. The early grand jury was responsible for reporting to the Crown on any major crimes of which the members had knowledge. From its inception as a body for accusation, the grand jury slowly evolved into a protector which acted to shield individuals from unfounded Royal prosecutions.
In 1667 a court held that grand jurors ought not be fined or imprisoned for failure to return a true bill desired by the King. The King v. Windham, 84 Eng. Rep. 113 (K.B. 1667). However, the two treason cases of The Trial of Stephen Colledge, at Oxford, for High Treason, 8 How. St. Tr. 550 (1681), and Proceedings at the Old-Bailey upon a Bill of Indictment for High Treason, against Anthony Earl of Shaftesbury, 8 How. St. Tr. 759 (1681), are recognized as the beginnings of the grand jury shielding function. In both cases the grand jury returned the Bill of Indictment with "ignoramus" (we ignore it) inscribed upon it, thus refusing to find a true bill.
"Many of the colonies utilized the grand jury in their struggle with England. Through it they could frustrate royal authority and prevent criminal prosecution. * * * The grand jury's image as a public protector against despotism was furthered by a colonial grand jury's refusal to indict Peter Zenger for criminal libel after his newspaper attack upon New York's English Governor." Note, "Grand Juries," 7 Seton Hall L. Rev. 484, 489 & n. 43 (1976).
Recognizing the necessary day-by-day assistance provided it by the prosecuting attorney, the law nevertheless intends a clear autonomy for the grand jury, as well said by our Appellate Division in State v. Hart, 139 N.J. Super. 565, 567-68 (1976):
A grand jury has wide latitude to make inquiry into violations of the criminal law. The scope of it[s] powers reflects its special function to insure fair and effective law enforcement. The proceedings before it are not adversary in nature in which the guilt or innocence of an accused is determined. As provided by R. 3:6-1 et seq., it functions as an independent body with very broad powers. Its hearings are held in secret and only the prosecuting attorney, interpreters when needed, a stenographer and the grand jury clerk may be present while it is in session. No person other than the clerk and the prosecuting attorney may be present when the grand jury is deliberating. It may even request the clerk and the prosecuting attorney to leave the jury room during its deliberations.
The grand jurors are instructed by the assignment judge of each county that the prosecutor will present the evidence to them but that if they need further instructions they should advise the assignment judge thereof through their foreman or clerk. We recognize that there is no impropriety in the prosecutor assisting in the investigation and examination of witnesses; in advising the grand jury as to the admissibility of evidence and the proper mode of procedure and in explaining the testimony with reference to the law of the case.
The integrity of such grand jury independence must be defended whether it is impinged upon mistakenly or from honest zeal, as was apparently the case in Hart, or whether it is interfered with at the hands of an inordinately aggressive or politically ambitious and publicity conscious prosecuting attorney. I do not suggest either postulate in the present matter, but only mention the contrasting motivations to indicate that in either case the legal result is exactly the same -- the corruption of the whole process, perilous alike to the citizen and to the administration of justice. New Jersey courts have held it essential that free men be held to answer to the law for infamous crime only on indictment by a grand jury, acting independently on its own conscience -- and not as a mere receptacle for formal evidence, parroting in its factual decisions the wishes of any other, whether prosecutor or judge. Such is the concept of the common law, and the pure stream of justice would be tainted were this independence to be weakened. In such eventuality, as in Hart, the product of such encroachment, an indictment thus wrongfully induced, should be aborted by judicial action, without prejudice, ordinarily, to a re-presentment to another grand jury.
Nor is it realistic to doubt that the grand jury process needs continuing judicial surveillance. It would be naive to depend today upon the viability of the truism stated in 1955 by Justice Brennan in Fary:
It doubtless is not, as it should not be, the practice of our prosecutors and grand juries to summon witnesses whose indictment is contemplated. [ State v. Fary, supra, 19 N.J. at 436].
One need not go beyond the present record to justify skepticism on this point.
It is not to be expected that the lay citizens who comprise a grand jury be sophisticated as to all the elements of constitutional or basic law. Nor, in further explication of the juror's oath of office (taken at the organization of the grand jury*fn3) should it be necessary for the Assignment Judge to forewarn the jury to anticipate (much less, how to deal with) instances where rights under constitutional and common law protection are apt to be overrun -- as by the production before it of a witness, ostensibly only that, but in truth a known and intended target for indictment -- as in the present case.
Grand jurors upon being empaneled are generally charged by the Assignment Judge that the evidence respecting violations of the criminal law will be presented to them in the privacy of the grand jury room by the prosecuting attorney "whose experience and assistance you will have." So it is that the grand jury begins its service with a sense of reliance upon the prosecuting attorney, even though its members are reminded in the Assignment Judge's charge of the essential autonomy of the grand jury to which I have referred. I think it not amiss to speculate that the grand jury, at least at this stage and without knowing intimately the multitude of judicial precedents which have so described him, visualizes the prosecuting attorney as a minister of justice, as interested
in protecting the innocent, unjustly suspected or accused, as he is in seeking by indictment an avenue of prosecution of the guilty.*fn4 This leads to a consideration of what the law and the public expect of the prosecuting attorney.
The county prosecutor is a constitutional officer. N.J. Const. (1947), Art. VII, § II, par. 1. Of prosecutors it has been said variously that a public prosecutor is a quasijudicial officer, retained by the public for the prosecution of persons accused of crimes; that his constitutional office is held as a public trust, and the incumbent is charged with grave responsibilities calling for the exercise of learning in the law and sound judgment; that the United States Attorney and his assistants are officers of the court, holding quasijudicial positions, and it is their recognized duty, not only to prosecute the guilty but also to protect the innocent; that the district attorney represents the commonwealth and the commonwealth demands no victims, it seeks justice only -- equal and impartial justice; that in the trial of a criminal case the code of ethics of the district attorney cannot too closely follow the ethics of the bench; that a prosecutor should not act as a partisan eager to convict but as an officer of the court, whose duty it is to aid in arriving at the truth in every case; that his object, like that of the court, should be simply justice and to see that the criminal laws of the
state are honestly and impartially administered; that he holds a position analogous to that of the judge who presides at the trial; that he is not a mere legal attorney, but a sworn minister of justice; that the district attorney who permits his zeal to secure convictions to cause him to disregard his duty as a sworn minister of justice not only wrongs the defendant, but impedes the administration of criminal justice and brings the administration of criminal law into disrepute. See United States v. Jones, 140 U.S. App. D.C. 1, 433 F.2d 1107, 1108 (D.C. Cir. 1970); Griffin v. United States, 295 F. 437, 439-40 (3d Cir. 1924); State v. Spano, 64 N.J. 566, 568 (1974); Appeal of Nicely, 130 Pa. 261, 18 A. 737, 738 (1889); O'Neill v. State, 189 Wis. 259, 207 N.W. 280-81 (1926); Ex Parte Bentine, 181 Wis. 579, 196 N.W. 213, 216 (1923). See also State v. Winne, 21 N.J. Super. 180, 200-01 (Law Div. 1952), rev'd 12 N.J. 152 (1953).
In Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935), it was noted that the prosecutor represents the state, whose interest "is not that it shall win a case, but that justice shall be done. * * * [W]hile he may strike hard blows, he is not at liberty to strike foul ones." In Giles v. Maryland, 386 U.S. 66, 100, 87 S. Ct. 793, 810, 17 L. Ed. 2d 737, 759 (1967), it was stated: "A criminal trial is not a game in which the State's function is to outwit and entrap its quarry. The State's pursuit is justice, not a victim." (Fortas, J., concurring.) The American Bar Association Canons of Professional Ethics, No. 5, provides: "The primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done."
Instances of egregious prosecutorial error or excesses continue to come under judicial scrutiny. They are sometimes seen, however wrong they are, as inconclusive or of minor effect in the face of overwhelming trial evidence of guilt, excusable reaction to defense provocation, and the like. See Dunlop v. United States, 165 U.S. 486, 498, 17 S. Ct. 375, 379, 41 L. Ed. 799, 803 (1897); State v.
In other cases they require judicial reversal of the trial convictions to which they were incident, in vindication of essential justice. See State v. Carter, 69 N.J. 420, 434 (1976); State v. Spano, supra, 64 N.J. at 568; State v. Farrell, 61 N.J. 99, 104-06 (1972); State v. Taylor, 49 N.J. 440, 455-56 (1967); State v. Siciliano, 21 N.J. 249, 262-63 (1956); State v. Sims, 140 N.J. Super. 164, 176 (App. Div. 1976).
It would be unrealistic to assume that such prosecutorial lapses are, in the main, evilly intended. More likely most are due to inexperience, mistake, the excitement of trial, zeal for the conviction of the supposedly guilty and like understandable human factors. Here again, it is not the purpose but the consequence which is important. It is that consequence, and its impact on constitutional and common law rights, that deserve preeminent consideration in terms of judicial remedy. With each uncorrected violation of such rights, the ideals of American justice ...