On Appeal from Superior Court of New Jersey, Law Division, Mercer County.
Fritz, Gaynor and Baime. The opinion of the court was delivered by Baime, J.A.D.
[208 NJSuper Page 226] This appeal presents novel questions pertaining to the "absent witness" instruction approved by our Supreme Court in State v. Clawans, 38 N.J. 162 (1962). There the Court held that under certain circumstances the failure of a party to produce a witness whose testimony would serve to elucidate the material facts in issue may support an inference that he fears exposure of such evidence. Id. at 170-171. The Court also determined that where the appropriate conditions are satisfied, the trial judge may in his instructions apprise the jury of the adverse inference which permissibly flows from the party's nonproduction of the witness. Id. at 172. At issue here is whether a defendant in a criminal action is obliged to call a witness to the stand in the presence of the jury for the sole purpose of having him invoke his privilege against self-incrimination in order to avoid the inference which might otherwise flow from his non-production. Citing State v. Jamison, 64 N.J. 363 (1974) and
State v. Jennings, 126 N.J. Super. 70 (App.Div.1972), certif. den. 60 N.J. 512 (1972), the trial judge held that the defense could avoid a Clawans instruction only by presenting the witness and having him assert the privilege in the presence of the jury. We disagree and are constrained to reverse.
We need not recount the facts at length. Defendant, a licensed clinical psychologist, was charged with ten counts of Medicaid fraud in violation of N.J.S.A. 30:4D-17(a) and (b). The gist of the charges was that defendant fraudulently misrepresented the nature and extent of the psychological counseling services she had rendered to five youthful patients in obtaining benefits under the New Jersey Medical Assistance and Health Services Act (N.J.S.A. 30:4D-1 et seq.). Under the applicable Medicaid regulations, the "provider" is required to specify whether the counseling services performed were in conjunction with "individual", "group" or "family" psychotherapy. (Psychologist's Medicaid Manual -- Group and Family Psychotherapy Definitions). Apparently, different rates of reimbursement are applicable depending upon the nature of the therapy rendered. In order to qualify as "individual" psychotherapy, the psychologist must have had "personal involvement with [the] patient to the exclusion" of others. Id. It was alleged that defendant submitted claim forms falsely representing that she had performed 160 hours of individual psychotherapy. While the State conceded that the five patients received some therapy, the essential thrust of the charges was that defendant's involvement in such treatment was minimal and that she had little or no personal interaction with the children.
This factual question was hotly contested at trial. The State presented evidence indicating that the five patients, all emotionally disturbed children, received little or no therapy during their sessions at defendant's office. Several of the children testified that they had "conversations" with defendant's husband, Dr. Felix Del Vecchio, who was also a licensed clinical psychologist. One of the witnesses testified that Dr. Del Vecchio administered several psychological tests and that these sessions lasted
approximately one-half hour. However, most of the State's evidence disclosed that the children "played pool and other games" and were treated to "ice cream or pizza" while at defendant's office.
Defendant elected to take the stand. She testified that she and her husband formed a professional association, the Leander Psychological Institute, and generally worked as a team. According to her testimony, one of the "treatment modalities" commonly used in counseling children is "play therapy." This method is often employed in treating young or seriously disturbed children who have problems with verbal communications. Defendant testified that she employed the play therapy modality in counseling the five patients because of their tender ages and their resistance to other types of treatment. She further stated that two of the patients needed "a stable male figure" to assist them in confronting their problems. Defendant's husband, thus, took a more active role in providing therapy in those cases.
After the defense rested, the prosecutor requested that the judge include a reference to defendant's failure to produce Dr. Del Vecchio in his instructions at the conclusion of the case. Specifically, the State argued that defendant's failure to present her husband as a witness supported the "natural inference" that his testimony would be unfavorable to her. In response, defense counsel contended that Dr. Del Vecchio was unavailable as a witness because he was charged in a separate indictment with 112 counts of Medicaid fraud and would likely invoke his Fifth Amendment privilege.*fn1 Although Dr. Del Vecchio was present in court, no attempt was made to determine whether he would assert his privilege. Relying upon State v. Jamison, supra, 64 N.J. at 373-374, n. 1 and State v. Jennings, supra, 126 N.J. Super. at 75-77, the trial judge
refused to accept defense counsel's representation regarding Dr. Del Vecchio's intention not to testify. Noting that the privilege was personal to the witness, the judge determined that it could be invoked only in the presence of the jury. While acknowledging that the witness' invocation of the privilege in the presence of the jury might well have a deleterious effect upon defendant's case, the judge nevertheless concluded that this course was mandated by State v. Jamison and State v. Jennings.
Based upon this ruling, defense counsel decided not to call Dr. Del Vecchio as a witness. The State thereafter, in rebuttal, introduced into evidence Dr. Del Vecchio's appointment book and presented testimony indicating that it would have been impossible for him to have rendered individualized ...