May a defendant call before a jury a witness who states in advance that he will exercise his Fifth Amendment privilege and refuse to answer any questions? The State is precluded from doing so, but unexplained dicta in a footnote in State v. Jamison, 64 N.J. 363 (1974) states that:
[n]o similar policy considerations would seem to apply . . . where the defense desires to call a witness who is expected to decline to testify, asserting his privilege. [at 374]
However, the Court specifically left the question open until presented with a case raising the issue.
The State argues that defendant's purpose in offering the witness is not to elicit evidence or to seek the truth, but is a patently transparent tactic designed to deceive the jury into inferring that the offense was probably committed by the witness and not defendant. Defendant, who also exercised his Fifth Amendment privilege not to testify, appeared pro se and not only was not subjected to cross-examination, but effectively presented his defense to the jury through his examination of witnesses and his opening statement and summation. He was provided with counsel from the public defender's office to sit at his side throughout the trial. See McKaskle v. Wiggins, U.S. , 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984).
A few weeks after a house burglary, police obtained a search warrant for defendant's house and seized stolen items in the basement and a stolen shotgun from defendant's bed. The State's case was circumstantial and was based predominantly on a screwdriver seized from defendant's living room which an FBI tool-marks identification expert testified was the precise tool used to break the lock on the back door of the burglarized home through which entrance was gained, footprints obtained from the snow outside the burglarized home which matched shoes seized from defendant's bedroom and the fact that stolen property was found at defendant's home shortly after the burglary.
In his summation defendant conceded that stolen property was seized at his residence but strenuously insisted that they were brought there by a friend whose identity he refused to disclose and, in any event, that he was unaware they were previously stolen. He said the police insisted that he disclose the identity of his friend but his loyalty and friendship prohibited him from "squealing." He argued that it was the obligation of the police to apprehend persons who committed crimes and it was unfair to expect him to assist the police by turning on his friends. He obviously had no compunction against indirectly disclosing the identity of that same friend by attempting to call him during the trial as a witness.
The defendant called J.M. as his witness and at the request of the State a R. 8 hearing was conducted outside the presence of the jury. The witness was placed under oath and asked by defendant:
Q. . . . did you at any time after January 17, drop over some, a bag and a sawed-off shotgun and ask me to hold these for you?
(at this time the court interrupted the questioning and informed the witness of his constitutional rights)
THE COURT: . . . Do you feel at this point that you have any questions or that you want an attorney, or anything?
MR. M.: Not at this point, no sir. If I do, I'll ...