stabbing and exculpated A, thus contradicting an earlier statement to the police in which he inculpated A. Because of the seriousness of the admission, the judge appointed counsel for the witness, and counsel informed the court that the new testimony was withdrawn and that B would claim his Fifth Amendment privilege. The Supreme Court ruled that the judge's intervention was not warranted and probably deprived A of B's exculpatory testimony, albeit its credibility was open to challenge because of his first inculpatory statement.
In footnote 1, at pp. 373-374 of 64 N.J. 316 A.2d 439, reference is made to the practice, when the State calls an accomplice or co-participant, of conducting a voir dire examination first to avoid having the jury draw unfavorable inferences against defendant, and the rule under which the State can be precluded from calling the witness before the jury when he declines to testify on the voir dire. The policy considerations for that practice and rule are noted as not applicable in the reverse situation, when the defense wishes to call the witness, though no final articulation is made.
In any event, Jamison is not applicable because it presented the reverse situation, one where the defense wished to call the witness, not where the prosecution did.
Argument based on Thompson's failure formally to claim the Fifth Amendment is misplaced. First of all, these are not the McCarthy days during which a witness who did not pronounce the exact abracadabra was in jeopardy of being held to have waived the privilege. In the second place, Thompson could not raise a valid Fifth Amendment claim about the robbery of Dupont. He had pleaded guilty to that very charge, on the same indictment, and had been sentenced. Whatever Thompson was asked about the Dupont robbery, his answers could not amount to self-incrimination on that offense. His only risks were if he lied, in which case he could be charged with perjury or false swearing, for which the law gives no license, or if he refused to answer after being ordered to do so, in which case he could be punished for contempt or subjected to coercion as a recalcitrant witness. Cf. 18 U.S.C. § 6002, and 28 U.S.C. § 826.
To put this case in its proper context, a number of aspects must be considered,
One : under New Jersey law, the fact that a witness has been convicted of a crime is one of the matters that may be shown for the purpose of affecting his credibility. See N.J.S. 2A:81-12 (but note that the final phrase, "but no conviction of an offender ... upon which the conviction was based", is superceded by reason of the "Official Note" to N.J.Ev.Rule 60(20), dealing with a hearsay exception in civil proceedings). With some variations by limitation, Fed.Ev.Rule 609 is essentially the same.
Two : it has long been common practice in both State and Federal courts, to allow the party who has called a witness to elicit on direct examination of his own witness any prior conviction of the witness. This is on the theory that the fact will be elicited anyway on cross-examination, and to allow it to be elicited on direct helps to neutralize any "sting" effect that might wrongly give the jury the impression that the party who called him was trying to foist an unreliable witness on them.
For cases dealing with the New Jersey practice before adoption of N.J.Ev.Rule 20, see State v. Holley, 34 N.J. 9, 166 A.2d 758 (1961), cert. den. 368 U.S. 854, 82 S. Ct. 89, 7 L. Ed. 2d 51; State v. Laws, 50 N.J. 159, 233 A.2d 633 (1967).
For federal cases reflecting the practice before the enactment of Fed.Ev.Rules 607 and 609, see Application of Holley, 205 F. Supp. 933 (D-N.J., 1962); U.S. v. Freeman, 302 F.2d 347(CA-2, 1962); U.S. v. Chamley, 376 F.2d 57 (CA-7, 1967).
See, also, for a specific note on the practice of allowing the party calling a witness with a criminal record to elicit the record on direct examination, Wigmore, "Evidence", § 900, especially footnote 1 at p. 667.
Despite a dearth of treatment of the subject in primary and secondary authorities, the practice was already long established and widely recognized by the profession, bench and bar, 40 or more years ago. One of the classic examples (unfortunately not a reported case) is State v. Workman (Essex County, N.J.), in which Charles (The Bug) Workman was tried for the murder of Arthur Flegenheimer (Dutch Schultz) at the Palace Chop House in Newark, on October 23, 1935. See U.S. v. Flegenheimer, 14 F. Supp. 584, at 592 (D-N.J.1935); ordered stricken from the records, 110 F.2d 379, at 381 (CA-3, 1936). Some five years later one Abe (Kid Twist) Reles provided information inculpating Workman as "the one who shot the Dutchman". At Workman's trial, Reles was the star witness for the prosecution. It was at the conclusion of his relevant, inculpatory testimony that Essex County Prosecutor (later Mr. Justice) Wachenfeld elicited on direct examination the list of prior convictions of the witness. This was then, and is today (from this court's observation) the widely accepted practice.
Any implication to the contrary that might be drawn from the passage in State v. Fox, 12 N.J.Super. 132, at 139, 79 A.2d 76 (App.1951), is misunderstood. The opinion in Fox was written by Judge John O. Bigelow, who had long experience as Essex County Prosecutor, was the predecessor of Hon. William A. Wachenfeld (who had been his assistant), and also served as Chairman of the Legislative Commission to Study the Improvement of the Law of Evidence (COSILE), established by N.J.J.R. 15, 1955. What Judge Bigelow referred to in Fox was the case of the willing witness for the prosecution. For that class of witness, the strategy was to elicit the prior convictions early in the direct examination. But, where confidence in the readiness of the witness to testify on the merits was not that strong, the practice was and still is to elicit the prior convictions at the end of the direct examination.
Three : Except for the special case where evidence of the commission of other crimes or civil wrongs may be received for the limited purpose of showing motive, intent, plan, knowledge, identity, or absence of mistake or accident as against the accused on trial, N.J.Ev.Rule 55; Fed.Ev.Rule 404(b), evidence of the prior conviction of a witness is limited to the question of his credibility as a witness.
Four : The common law rule that the party calling a witness "vouched" for him and thus could not impair his credibility had been eroded by decisions, court rules and statutes before the adoption of modern evidence rules. The federal formulation, Fed.Ev.Rule 607, simply states that the "credibility of a witness may be attacked by any party, including the party calling him."
The New Jersey formulation is more sophisticated, N.J.Ev.Rule 20. In the context of this case, the New Jersey formulation does not allow impeachment of one's own witness (a) except to neutralize his live testimony with his prior inconsistent statement (cf., Fed.Ev.Rule 801(d)(1)), and (b) only if it is found that the testimony "surprises" the party.
This point was one of the disagreements that delayed adoption of many of the New Jersey evidence rules from their promulgation in September, 1964 until they took effect September 11, 1967. In the pamphlet published by the N.J. Rules of Evidence Study Commission (Gann Law Books, 1968) the Commission articulated a "caution" to Rule 20, reflecting the original disagreement and its eventual resolution. It read as follows:
"CAUTION: While the original proposal was broad enough to permit impeachment of one's own witness (as in Fed.Ev.Rule 607), the exception added in the final draft probably limits this to neutralization in cases of surprise. There would be no point to an impeachment (i. e., an attack on the witness' general reputation for truth and veracity) for other purposes not permitted. Query: There may be open questions in cases of witnesses who switch stories: (a) if the party is aware of the switch and so informs the court, may the witness be called as the court's witness; (b) in the same case, should the witness first testify without the jury-it may be that he will not switch." (Emphasis added)