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State v. Strong

Decided: June 16, 1988.


On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Handler, J.


[110 NJ Page 586] This appeal requires the Court to determine the scope of the limited immunity from prosecution under N.J.S.A. 2A:81-17.3. This prohibits the State from using evidence against a person that is "directly or indirectly derived" from his own compelled testimony.*fn1 Defendant, Michael Strong, contends that he was indicted on evidence derived from testimony that he was compelled to give in exchange for a grant of limited immunity

under this statute. This, he claims, violates his right not to incriminate himself as guaranteed by both the fifth amendment to the Federal Constitution and the privilege against self-incrimination under state law.


The case originated with a robbery murder on the streets of Camden on February 20, 1981. Theodore Custis, Christopher Watson, and defendant were arrested a few blocks from the scene of the crime shortly after its commission. In the course of the investigation that followed, the prosecutor, having determined that the evidence against Strong was not sufficient, decided to obtain and use Strong's testimony against the other suspects. As required by N.J.S.A. 2A:81-17.3, the prosecutor applied to the Attorney General for an order requiring Strong to testify against Custis and Watson under immunity. This application was granted, and, pursuant to the order compelling immunized testimony, Strong gave a statement before a grand jury on April 7, 1981. He described the events of the crime and provided incriminating testimony against Custis and Watson. He also acknowledged his own participation in the crime. Later, during the trial of Watson, Strong testified for the State under the continuing grant of immunity and again incriminated himself as well as Watson. Watson was convicted on October 20, 1981.

One year later defendant himself was indicted for murder. He moved to dismiss the indictment on the ground that it was based on evidence derived from his earlier compelled testimony and therefore violated the statutory immunity under which he had testified both before the grand jury and at Watson's trial. The trial court disagreed with his contention, holding that the evidence on which the indictment was based had been gained through means that were independent of Strong's compelled testimony. Accordingly, the court denied Strong's motion to dismiss the indictment.

Thereafter, defendant pled guilty to the indictment, reserving the right to appeal from the order denying the motion to dismiss. In an unpublished per curiam decision, the Appellate Division affirmed the trial court's holding. We granted defendant's petition for certification. 108 N.J. 567 (1987).


The issue posed by this appeal must be analyzed in a framework that relates the privilege against self-incrimination to State attempts to compel incriminating testimony. This analysis is facilitated by a consideration of the different possible forms of immunity from prosecution or other penal sanctions that can be offered in exchange for government compelled testimony in order to vindicate the privilege against self-incrimination.

Historically the least protective form of immunity from criminal sanctions offered in exchange for compelled testimony has been simple "use" immunity. This form of immunity protects against the use in a subsequent prosecution of the actual statement made or evidence provided under compulsion; it furnishes a prosecutorial bar against only the "direct" use of compelled testimony. While this form of immunity was commonly provided, in Counselman v. Hitchcock, 142 U.S. 547, 12 S. Ct. 195, 35 L. Ed. 1110 (1892), the Supreme Court specifically invalidated a statute providing only direct-use immunity because it was not considered sufficiently protective of the privilege against self-incrimination. Id. at 562-67, 585, 12 S. Ct. at 197-200, 206, 35 L. Ed. at 1114-115, 1122.

Following Counselman, it was generally believed that only the broadest form of protective immunity would be constitutionally tolerated. See, e.g., United States v. Murdock, 284 U.S. 141, 149, 52 S. Ct. 63, 64, 76 L. Ed. 210, 213 (1931), overruled on unrelated grounds, Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964); Hale v. Henkel, 201 U.S. 43, 67,

26 S. Ct. 370, 376, 50 L. Ed. 652, 662 (1906). This broad form is "transactional immunity," which, in effect, "operate[s] as a complete pardon for the offense to which [the compelled testimony] relates[.]" Brown v. Walker, 161 U.S. 591, 595, 16 S. Ct. 644, 646, 40 L. Ed. 819, 820 (1896). In the years after Counselman this broader immunity was specifically upheld by the Supreme Court. Ullmann v. United States, 350 U.S. 422, 76 S. Ct. 497, 100 L. Ed. 511 (1956); Brown, supra, 161 U.S. 591, 16 S. Ct. 644, 40 L. Ed. 819; see also Kastigar v. United States, 406 U.S. 441, 451-52, 92 S. Ct. 1653, 1660-61, 32 L. Ed. 2d 212, 220-21 (1972) (discussing post-Counselman statutory and decisional treatment of immunity).

Over the years lawmakers felt constrained by the breadth of transactional immunity. It was perceived as being overprotective of the interests covered by the privilege against self-incrimination. As a result, considerable efforts were directed toward finding a middle ground between "use" immunity and "transactional" immunity, between the least and most protective forms of immunity. See id. at 451-52, 92 S. Ct. at 1660-61, 32 L. Ed. 2d at 220-21; 2 National Commission on Reform of Federal Criminal Laws, Working Papers 1406-09, 1422-32 (1970). This led to the development of "use and derivative use," or "use and fruits," immunity.

Under this form of immunity the state is barred from using compelled testimony or any evidence that was developed as a result of such testimony to prosecute a defendant who had given the compelled testimony, but it can use any evidence that is found or derived through means totally independent of the compelled testimony; and it may use such independently obtained evidence to prosecute a defendant even if the prosecution is for the same crime or criminal events that were the subject of the compelled testimony.

The Supreme Court in Kastigar v. United States, supra, upheld the constitutionality of use and derivative use immunity.*fn2

The reasoning underlying the Court's holding is that the fifth amendment does not require that one who invokes the privilege against self-incrimination may not be subsequently prosecuted for the same criminal acts or events that are the subject of compelled testimony. 406 U.S. at 453, 92 S. Ct. at 1661, 32 L. Ed. 2d at 222. Observing that the only constitutional requirement that must be honored in this area is that "the immunity granted [be] . . . coextensive with the scope of the privilege [against self-incrimination,]" id. at 448, 92 S. Ct. at 1658, 32 L. Ed. 2d at 219, the Court reasoned that there could be circumstances under which a subsequent prosecution, even for the same acts or events, would not violate the privilege. Accordingly, a grant of immunity does not, under the fifth amendment, per se confer absolute immunity from prosecution even with respect to the same criminal transaction.

The key to understanding the scope of protection of the privilege under the Court's analysis is its perception that it is the impermissible use of compelled testimony that is the object of the privilege's protection. The privilege, in effect, mandates neutralizing the prosecutorial use of compelled testimony. The emphasis of the Supreme Court was that a subsequent prosecution may be constitutionally allowed as long as it "insures that the testimony cannot lead to the infliction of criminal penalties on the witness." 406 U.S. at 453, 92 S. Ct. at 1661, 32 L. Ed. 2d at 222.

The Supreme Court did not amplify circumstances under which a subsequent prosecution involving earlier compelled testimony would constitute "the infliction of criminal penalties." It ruled simply that the State in bringing a subsequent prosecution must establish only that it had "an independent, legitimate source for the disputed evidence." Id. at 460, 92 S. Ct. at 1665, 32 L. Ed. 2d at 226. In reinforcing the point that under a valid statute a witness is "not dependent for the preservation of his rights upon the integrity and good faith of the prosecuting authorities," ibid., at 460, 92 S. Ct. at 1665, 32 L. Ed. 2d at 226, the Court placed the burden of proof on the state. The Court emphasized the weight of this prosecutorial burden by declaring that it

is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony. [ Ibid. at 460, 92 S. Ct. at 1665, 32 L. Ed. 2d at 226.]

This decisional history strongly informs our own understanding of the scope of the privilege against self-incrimination under both federal constitutional standards and state law.

Prior to the Kastigar decision, our compelled immune testimony statute, L. 1968, c. 195, N.J.S.A. 2A:81-17.3 (amended 1973), prohibited the State from use of the actual "testimony or evidence" that a defendant had been required to give on prior occasions. Thus, on its face, the statute provided only direct "use" immunity, which had never received constitutional sanction. See Counselman v. Hitchcock, supra, 142 U.S. 547, 12 S. Ct. 195, 35 L. Ed. 1110. When originally enacted, the drafters of the statute used this form of immunity instead of the broader form found in the Model Witness Immunity Act on which the statute was ostensibly based. That model provided for transactional immunity, that is, immunity for "any transaction, matter or thing concerning which . . . [the witness] gave answer or produced evidence." Nevertheless, reflecting the constitutional unease with direct-use immunity, some judicial opinions suggested by dicta that the narrower language of the

original compelled immune testimony statute, though couched in terms of direct-use immunity, could be read as affording immunity from both use and "fruits," i.e. use and derivative use. See In re Zicarelli, 55 N.J. 249, 269-70 (1970); In re Addonizio, 53 N.J. 107, 115 n. 1 (1968). However, although this Court in In re Zicarelli, supra, 55 N.J. at 265-71, upheld the "use and derivative use" immunity that was provided by a different statute, N.J.S.A. 52:9M-17(b), dealing with testimony compelled by the State Commission of Investigation, it was never definitively held that the statutory immunity of N.J.S.A. 2A:81-17.3 provided more than the direct-use immunity found to be constitutionally deficient under Counselman.

Significantly, the Court's opinion in Zicarelli was later affirmed by the Supreme Court in Zicarelli v. Investigation Commission, 406 U.S. 472, 92 S. Ct. 1670, 32 L. Ed. 2d 234 (1972), the companion case to Kastigar. Accordingly, following the announcement of Kastigar, the Legislature concluded that there was a need to modify the immunity statute so that it would confer the broader immunity as formulated and approved in that decision. Therefore, it amended the statute to "make it clear" that full "use and derivative use" immunity was being provided. Senate Judiciary Committee, Statement to S.1154 (Jan. 22 1973); see Governor's Press Release, May 7, 1973 (describing amendment of the statute as replacing narrow "use" immunity with "use and derivative use" immunity). The amendatory provision providing for the use and derivative use immunity in N.J.S.A. 2A:18-17.3 was modelled after N.J.S.A. 52:9M-17(b), as approved by the Supreme Court in Zicarelli. See Sponsor's Statement to L. 1973, c. 112, ยง 1 (eff. May 7, 1973).

Thus, in addition to the prior bar against the later use of "testimony or evidence" that was the subject of compelled testimony, the State by virtue of the 1973 amendment was also prohibited from engaging in a subsequent prosecution involving the use of "any information directly or indirectly derived from such testimony or evidence . . ." N.J.S.A. 2A:81-17.3.

Kastigar has served to provide the broad guidelines for immunity situations. See, e.g., State v. Vinegra, 134 N.J. Super. 432, 440 (App.Div.1975); State v. Gregorio, 142 N.J. Super. 372 (Law Div. 1976). However, the general standard of Kastigar does not provide specific guidance for determining applications of use and derivative use immunity. We must therefore consider the factors that should govern a determination of whether evidence used in a subsequent prosecution is sufficiently untainted by earlier compelled testimony. These considerations are somewhat reminiscent of those that bear on whether after-acquired evidence is tainted as the result of being the fruit of an unconstitutional search or seizure. See, e.g., State v. Sugar, 100 N.J. 214 (1985). There are, nevertheless, signal differences between these two kinds of evidential taint, differences that ...

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