These are motions by a criminal defendant for orders conferring use immunity upon defense witnesses who have invoked privileges against self-incrimination. It has never been considered, or even referred to, in this jurisdiction. It finds its genesis in a well-reasoned Third Circuit Court of Appeals opinion in which Judge Garth enunciated the theory that in an appropriate circumstance constitutional due process might require the grant of immunity to a defense witness and that a court has inherent power to grant the necessary immunity to vindicate that right. Government of Virgin Islands v. Smith, 615 F.2d 964 (3 Cir.1980).
Defendant John Summers was indicted for theft of a 1983 Mercury Cougar automobile and receiving stolen property. The State contends that defendant, a co-defendant Julia Kosarowich,*fn1
and an unknow third party stole the key for the Cougar from an automobile rental agency in Kearny and later returned with the key and stole the car.
The story in support of the State's contention as related by its two witnesses -- both employees of the car rental agency -- is as follows:
At about 6:15 p.m. on January 5, 1984, defendant accompanied by a male and a female companion visited the offices of Budget Rental. Defendant was a recently fired employee and came to the office to collect some unreimbursed tolls which were owed to him. Defendant spent part of the time in the front office by the counter and part of the time in a rear office with the manager. His companions remained by the front counter throughout the visit.
During the time of the visit, keys to a 1983 Mercury Cougar were placed on a shelf behind the counter. After the defendant and his companions left, the keys could not be found. When this loss was discovered, because the car could not be moved without the keys, other motor vehicles were parked on each side of the Cougar and behind it, to make its theft more difficult. It remained possible however to move the Cougar forward across the curb and into the street.
The rental agency employees went to dinner and returned to the premises a little after 7:00 p.m. As they approached, they saw the Cougar being driven across the curb and into the street. They immediately gave chase and cut the Cougar off within some 40 feet or so, at which time two men and a girl got out of the Cougar and ran away. Foot pursuit ultimately resulted in the capture of the girl; the two men escaped. The defendant was positively identified in court by both witnesses as one of the occupants of the Cougar.
As a matter of statutory law, use immunity may be granted in criminal cases at the request of a county prosecutor with the approval of the Attorney General or at the direct request of the Attorney General. N.J.S.A. 2A:81-17.3. Such immunity permits testimonial compulsion without violating the witness' Fifth Amendment rights. Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972). Unlike the Federal immunity statute, 18 U.S.C.A. § 6002, which can be used to grant immunity to defense witnesses, see Virgin Islands, supra, 615 F.2d at 969, n. 7, the New Jersey statute appears to be thought of as solely directed at prosecution witnesses. See In re Petition to Compel Testimony of Tuso, 73 N.J. 575 (1977). At least no cases or commentaries have been found suggesting a broader use. As a general rule defendants do not have the benefit of such testimonial compulsion. Annotation, "Right of Defendant in Criminal Proceeding to have Immunity from Prosecution Granted to Defense Witness," 4 A.L.R. 4th 617 (1981). While it is arguable that the New Jersey statute might be broadly interpreted so as to provide for the grant of use immunity to defense witnesses at the request of the prosecutor and/or Attorney General, the question is moot because here this issue was not pressed. Thus the question before this court is whether it has the inherent power to grant use immunity to a defense witness in order to vindicate both the witness' Fifth Amendment rights and the defendant's due process rights.
In Virgin Islands, supra, Judge Garth drew from an earlier 3rd Circuit opinion, United States v. Herman, 589 F.2d 1191 (3 Cir.1978), cert. den. 441 U.S. 913, 99 S. Ct. 2014, 60 L. Ed. 2d 386 (1979), the proposition "that in certain cases a court may have inherent authority to effectuate the defendant's compulsory process right by conferring a judicially fashioned immunity upon a witness whose testimony is essential to an effective defense. [589 F.2d at 1204] (emphasis added)." Virgin ...