This case raises the issue specifically left open in a footnote in State v. Jamison, 64 N.J. 363, 374, n. 1 (1974) of whether the defense may call a witness to the stand for the sole purpose of having the witness invoke the Fifth Amendment privilege in the presence of the jury.
The facts of the case as developed at trial are as follows. Defendant Joseph T. Karlein was convicted of possession of cocaine, possession of cocaine with intent to distribute and distribution of cocaine. On November 26, 1982 at 11:50 p.m., Newark Police Officer Thomas Sumter set up a surveillance at Mount Prospect and Second Avenue, Newark, New Jersey. Officer Sumter observed Karlein standing on the corner. Soon thereafter, Officer Sumter saw a green Toyota pull up to the
corner and stop at the red light. The officer then watched Karlein cross the street and walk over to the Toyota. Karlein and the driver, Joseph Guinta, Jr., engaged in conversation. Officer Sumter testified he saw an exchange take place between Karlein and Guinta in which Guinta gave Karlein money and Karlein reached into his left pocket and gave something to Guinta. Officer Sumter then approached the car and observed Karlein drop a packet on the ground. At the same time, Guinta attempted to give the passenger of the car a packet. Both packets were later found to contain cocaine. At this point Karlein and Guinta were placed under arrest.
Karlein testified to a different version of the events. He stated that he was visiting his grandmother for the Thanksgiving holidays. On the night in question he had visited his girlfriend's home and was returning to his grandmother's house. As he was passing through Mount Prospect Avenue one and a half blocks from Second Avenue where his grandmother lived, a man driving a green Toyota, which was stopped at the light, called him over. Karlein testified that he walked over to the car believing that the driver meant to ask him directions. He denied attempting to sell cocaine. When the officer picked up the packet which was on the ground outside the car and asked Karlein what it was, Karlein stated he did not know.
Guinta and Karlein were both arrested. However, they were indicted separately and their indictments were not consolidated for trial. During Karlein's trial the charges against Guinta, which derived from the above recounted incident, remained pending. At trial the defense sought to call Guinta to the stand for the sole purpose of having him exercise his privilege against self-incrimination before the jury.
To test whether Guinta would in fact invoke the Fifth Amendment if he were called to testify at trial a Rule 8 Hearing outside the presence of the jury was held. At such hearing, Guinta invoked the Fifth Amendment privilege in regards to all questions concerning the details of the incident.
This court then refused to allow the defense to call Guinta to the stand in front of the jury and instructed the prosecutor and defense to refrain from commenting on the failure of either defense or prosecution to call Guinta to testify.
As previously stated, the issue of the defense, rather than the State, calling a witness who will invoke the privilege against self-incrimination before the jury was specifically left open in State v. Jamison, 64 N.J. 363 (1974). In Jamison the defense intended to call a witness who would invoke his Fifth Amendment privilege in front of the jury. Id. at 370. On voir dire the witness indicated he would not answer on the grounds that the answers would tend to incriminate him. Id. at 372. However, at trial, the defense chose not to call the witness, relieving the Court of the opportunity to rule on the issue. The Court, nonetheless, pointed out:
We need not here pursue the question of whether the defense had a right to call Roseboro [the witness] before the jury after what transpired on the voir dire. It is plain to us that defense counsel justifiably concluded that the court would not allow it, probably concurring with the court's view that Cullen [103 N.J. Super. 360 (App.Div.1968)] and Guido [40 N.J. 191 (1963)] dictated that course once the claim of privilege had been sustained, and may well have believed the interests of his client might suffer if he forced the issue. [ Id. at 373-374]
In a footnote the Court indicated that the prosecution is precluded from calling to the stand a witness who has invoked his Fifth Amendment privilege on voir dire because it may lead the jury to draw ...