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State v. Feaster

July 14, 2005

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICHARD FEASTER (NOW KNOWN AS SEAN PADRAIC KENNEY), DEFENDANT-APPELLANT.



On appeal from the Superior Court, Law Division, Gloucester County.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Defendant Richard Feaster was convicted of capital murder and sentenced to death. This Court upheld his conviction and sentence on direct appeal and on proportionality review. Feaster then filed a petition for post-conviction relief (PCR) alleging numerous grounds for reversal. The PCR court rejected Feaster's petition for relief, and he appealed as of right to this Court. The Court addresses only one issue in this opinion -- whether the prosecutor interfered with a defense witness's decision to testify in the PCR proceeding and violated Feaster's rights to due process and compulsory process rights.

The witness is Michael Sadlowski, who had been one of Feaster's closest friends at the time of the murder. There was no direct physical evidence linking Feaster to the murder. The State's case was based almost exclusively on the inculpatory statements made by Feaster after the murder. Those statements were related to the jury by friends and acquaintances of Feaster, including Sadlowski. At Feaster's murder trial, Sadlowski testified, among other things, that on the evening of the murder Feaster confided he had "shot the guy" and "his brains went all over the place."

The primary defense strategy was characterized by a sustained attack on the credibility of key State witnesses, and the attack on Sadlowski was no exception. Sadlowski was cross-examined about the deal he struck with the State for testifying against Feaster, in which the State disposed of burglary and theft charges. The burglary charge carried a maximum potential sentence of five years. In exchange for Sadlowski's plea to the burglary charge and his promise to "testify truthfully" in Feaster's case, the State limited Sadlowski's sentence to a custodial term not to exceed thirty days in the county jail and dismissed the theft charge. Sadlowski acknowledged that he would not have cooperated with the prosecution without a favorable plea agreement. He also was impeached with his prior criminal record. Defense counsel probed Sadlowski's ability to recall key events and his state of mind on the night of the murder. Sadlowski admitted that he had been drinking a lot that evening, that he was "hammered," and that he had possibly ingested cocaine.

In 2001, Feaster filed a PCR petition. In July 2001, Feaster's PCR counsel and a defense investigator met with Sadlowski in Bayside State Prison, where he was incarcerated. Sadlowski signed a certified statement in which he averred that important parts of his trial testimony against Feaster were false and that he was induced to give that testimony because of threats and promises from the prosecutor's office. The statement also stated that Feaster never told him that he had killed anyone. Relying on that statement, Feaster filed a motion for a new trial in March 2002 based on newly discovered evidence.

In August 2003, pursuant to a writ commanding his presence, Sadlowski appeared before the PCR court to give testimony. Feaster's counsel conveyed to the court that Sadlowski wished to consult with counsel before he testified. An attorney was assigned to represent Sadlowski at the PCR hearing. Sadlowski's attorney sought both to retract Sadlowski's certified statement and to invoke his Fifth Amendment privilege against self-incrimination without placing Sadlowski on the stand. Feaster's counsel insisted that any repudiation of the recantation had to come from Sadlowski himself, and "not from his lawyer."

The PCR court permitted Sadlowski to take the stand for the limited purpose of withdrawing his certified statement and invoking his Fifth Amendment privilege. Feaster's counsel objected to this procedure, arguing that Sadlowski waived his privilege against self-incrimination when he withdrew his certified statement and that defense counsel had the right to cross-examine him. Counsel contended it was unfair to allow Sadlowski to "say something in aid of the State's case" and then hide behind the privilege. The PCR court concluded that Sadlowski had Testified at defense counsel's request and had not waived the privilege. The court also refused to strike Sadlowski's testimony in which he withdrew the recantation.

When PCR counsel inquired whether there had been a threat of prosecution against Sadlowski, the assistant prosecutor responded that there was no threat. The assistant prosecutor explained that she told Sadlowski's attorney that if Sadlowski "testifies the way he does, then there are considerations." Defense counsel argued that the reference to "considerations" constituted a threat and that it was fundamentally unfair for the State to raise the specter of a perjury prosecution with the recanting witness. Defense counsel requested that the State or the PCR court grant Sadlowski immunity so that he could come to court and tell whether the truth is what he said at trial or what he said in his certified statement.

The prosecutor refused to grant Sadlowski immunity, asserting the State had done nothing inappropriate. Feaster moved to have the court compel Sadlowski to testify. The court denied the motion, finding that it was clear Sadlowski had invoked his privilege because he was subject to a possible perjury charge. The judge recognized that the "considerations" the prosecutor was alluding to were the possibility of perjury charges. The court, nevertheless, concluded that the prosecutor's warning to Sadlowski's attorney did not influence Sadlowski's decision to invoke the Fifth Amendment because he already knew he had some criminal exposure. In denying Feaster's petition for post-conviction relief, the court did not consider Sadlowski's certified statement recanting his trial testimony.

HELD: The prosecutor substantially interfered with the defense witness's decision to testify in the PCR proceeding, thereby violating Feaster's constitutional due process and compulsory process rights.

1. When a witness' direct testimony concerns a matter at the heart of a defendant's case, the court should strike that testimony if the witness relies on the privilege against self-incrimination to prevent cross-examination. Direct testimony cannot be deemed reliable unless tested in the crucible of cross-examination. Sadlowski's testimony here was not collateral. It went to the core of Feaster's motion for a new trial. Feaster was denied the opportunity to determine why Sadlowski certified under penalty of perjury that his trial testimony was false, why he withdrew that certification, and, more particularly, whether that withdrawal was directly related to the prosecutor's threat. The PCR court should not have allowed Sadlowski to testify after he had invoked the privilege as a shield against cross-examination. (pp. 14-17)

2. This Court's jurisprudence has underscored the importance of fair play at every stage of a capital proceeding. An accused in a criminal case has a constitutional right to present witnesses in his defense pursuant to the due process and compulsory process provisions of the federal and state constitutions. In a capital case, the need for compulsory process of a recanting witness at a post-conviction relief hearing should be self-evident. A defendant's due process rights are violated when there is substantial government interference with a defense witness' free and unhampered choice to testify. The Court has previously condemned the prosecutorial practice of placing a provision in a plea agreement barring a co-defendant from testifying for a defendant. State v. Fort, 101 N.J. 123 (1995). In doing so, the Court noted approvingly authority from other federal and state courts condemning governmental threats to defense witnesses that impinged on a defendant's right to offer witnesses in his favor. Those cases included some where prosecutors threatened, both directly and indirectly, defense witnesses with perjury charges if warranted from their testimony on a defendant's behalf. Underlying those cases is the notion that a prosecutor should not substantially interfere with a defense witness's decision to testify. (pp. 17-29)

3. The State maintains that it was absolutely appropriate for the assistant prosecutor to advise Sadlowski that he could be prosecuted for perjury or false swearing if he recanted his trial testimony. The State proffered that without such a warning, the witness most likely could not be prosecuted for perjury. The Court disagrees. The State has no affirmative duty to tell a witness subpoenaed by the defense that he could be prosecuted if his testimony is different from previously sworn testimony and inconsistent with the State's theory of the case. Nor are such warnings a precondition to a perjury or false swearing prosecution. One of the purposes of a trial is the search for truth. It is not the function of the State to save a defense witness from himself or to spare the court a supposed falsehood at the expense of denying the court critical testimony. If falsehood is to be exposed, the State has a fair opportunity to do so on cross-examination. That the PCR prosecutor may have acted in good faith to spare Sadlowski a second round of false swearing is not a valid basis for choking off the free flow of evidence to the court. (pp. 29-35)

4. The Court next considers the appropriate remedy. Feaster is entitled to a limited remand to the PCR court for the purpose of taking Sadlowski's testimony. Should Sadlowski continue to invoke his Fifth Amendment privilege, the State will be given two options. First, it may grant testimonial use immunity to Sadlowski at the remand PCR hearing. The grant of immunity is not a license to commit perjury and would not protect Sadlowski if he swore falsely at the hearing. Under use immunity, Sadlowski's testimony could not be used to prove a past offense. At the hearing, the PCR court would proceed in the ordinary course, consider all the evidence, and determine what weight, if any, to give Sadlowski's testimony. It would then decide whether Feaster is entitled to a new trial based on newly discovered evidence. If the State does not grant Sadlowski testimonial immunity, the second option will come into play. The PCR court will disregard Sadlowski's trial testimony in full. It will then determine whether the absence of Sadlowski's trial testimony would have the probable effect of raising a reasonable doubt as to Feaster's guilt in the minds of the jury. If the answer to that question is yes, Feaster will receive a new trial. If the answer is no, this Court will review this issue along with the other remaining issues on appeal. (pp. 35-39)

The matter is REMANDED to the PCR court for a hearing consistent with this opinion, and the Court retains jurisdiction.

JUSTICE RIVERA-SOTO has filed a dissenting opinion, expressing the views: that the State never threatened or forced Sadlowski to withdraw the recantation; that Feaster cannot satisfy the standard for relief on a motion for a new trial; that there is no sustainable allegation of prosecutorial misconduct in the case, a prerequisite for any remedy involving a grant of immunity; and that any error was harmless, because even if the prosecutor had overtly threatened Sadlowski, he would have withdrawn the recantation and asserted his Fifth Amendment privilege.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, and WALLACE join in JUSTICE ALBIN's opinion. JUSTICE RIVERA-SOTO has filed a separate, dissenting opinion.

The opinion of the court was delivered by: Justice Albin.

Argued January 31, 2005

Defendant Richard Feaster, now known as Sean Padraic Kenney,*fn1 was convicted of capital murder by a jury and sentenced to death. This Court upheld his conviction and sentence on direct appeal, State v. Feaster, 156 N.J. 1, 18 (1998) (Feaster I), cert. denied sub nom. Kenney v. New Jersey, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001), and on proportionality review, State v. Feaster, 165 N.J. 388, 393 (2000) (Feaster II), cert. denied sub nom. Kenney v. New Jersey, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001). Defendant then filed a petition for post-conviction relief (PCR) in the Superior Court in which he alleged numerous grounds for reversal, centered primarily on the claim that at trial he was denied the effective assistance of counsel guaranteed by the federal and state constitutions. After the PCR court rejected defendant's petition, he sought review by this Court.

In this opinion, we address only one issue raised by defendant in his PCR petition. At the PCR hearing, defendant intended to call Michael Sadlowski, a key State's witness who had recanted his trial testimony in a certified statement made to defendant's attorneys. Before Sadlowski took the stand at the hearing, the prosecutor indicated to Sadlowski's attorney that there would be "considerations" if he testified consistent with his recantation statement. When called as a witness, Sadlowski withdrew his certified statement and invoked his Fifth Amendment privilege against self-incrimination. Defendant contends that the prosecutor's thinly veiled threat to prosecute Sadlowski for perjury if he testified in defendant's favor deprived him of a critical witness. We agree. We will not theorize whether Sadlowski would have invoked the privilege even in the absence of a prosecutorial threat. We now hold that the prosecutor substantially interfered with Sadlowski's decision to testify and, therefore, denied defendant a witness who might have supported his claim that he was wrongly convicted and sentenced to death. The prosecutor's interference with that witness's decision to testify violated defendant's state constitutional due process and compulsory process rights.

I.

A.

We first provide a brief overview of the State's case against defendant to place in perspective the importance of Sadlowski's trial testimony. On the evening of October 6, 1993, the lifeless and bloodied body of Keith Donaghy was found lying on the office floor of the Family Texaco gas station in Deptford Township. Donaghy, the gas station attendant, died from a single shotgun blast to his head at close range. Police investigators had little success in breaking the case until defendant's friend, Tina Shiplee, came forward one month later with information that implicated both defendant and his friend, Michael Mills, in the crime.

The next day, investigators questioned Mills, who led them to a sawed-off shotgun that ballistics tests later identified as the murder weapon. The investigators retrieved the shotgun from the bottom of a river along the route between the Family Texaco and the Columbia Café, a bar in National Park where Mills and defendant socialized on the night of the murder. Defendant was arrested shortly afterwards.*fn2

At trial, defendant's friends testified to defendant's whereabouts on the night of October 6 and to incriminating statements he made after the murder. "The State's case was based almost exclusively on the inculpatory statements made by defendant after the murder." Feaster I, supra, 156 N.J. at 56. No direct physical evidence linked defendant to the murder.

The jury learned that two weeks before the murder, defendant borrowed a twenty-gauge sawed-off shotgun from his friend, Daniel Kaighn, for the purpose of collecting a debt from his employer. Defendant placed the shotgun in a blue gym bag and that same day returned the gun in the bag to Kaighn along with a $30 payment for the gun's use. Around that time, Shiplee gave defendant permission to store a gym bag in the back of her car after defendant explained that his parents had "kicked him out" of their home. Shiplee later felt the bag and suspected that it contained a gun, but never looked inside to confirm her suspicion.

On the night of the murder, defendant got together at the Columbia Café with a group of friends that included Sadlowski, Mills, Shiplee, and defendant's girlfriend. That evening, Shiplee requested that defendant remove the gym bag from her car. Later, when Shiplee returned to her car, the bag was gone. At around 8:00 p.m., defendant and Mills borrowed a car and left the bar for about one hour. Before leaving, defendant told two of his friends that he needed to collect some money from his boss. At 8:30 p.m., Donaghy's body was discovered at the Family Texaco gas station, approximately a twelve-minute drive from the Columbia Café. Shiplee testified that after defendant came back to the bar, she overheard him tell Mills and Sadlowski "that he can't believe that he killed the guy and didn't get any money."

Another witness bolstering the State's case was Kevin Wrigley, a jailhouse informant who shared a holding cell in the county jail with defendant for a brief time while defendant awaited trial. Wrigley testified that defendant described to him shooting a person in the head at "point-blank" range. Defendant explained that before he joined the Marines he wanted "to see what it felt like" to kill a person.

Sadlowski offered some of the most damaging testimony against defendant. Sadlowski, who considered defendant to be a "good friend," had played football and "partied" with defendant in high school. On the night of the murder, Sadlowski drove defendant and Mills to the Columbia Café, arriving between 7:00 and 8:00 p.m. At the bar, defendant tried to borrow a car so that he could "get money off his boss." Sometime before 9:00 p.m., defendant left the bar and did not return until shortly before 10:00 p.m., at which time he got into an argument with his girlfriend.

At about 10:00 p.m., Sadlowski and defendant drove to Sadlowski's apartment. During the ride, defendant repeatedly urged Sadlowski "to watch the news" when they got to the apartment. Upon their arrival, they began drinking beer. Later, Shiplee, who lived with Sadlowski, joined them, and all three watched television, flipping through the channels. When they switched to a channel with news about a "murder in South Jersey," defendant told Sadlowski "to check this one part out" and to "turn it up a little bit." Defendant was "focused on the news" about "a gas station attendant [who] was shot and killed" in Deptford.

After the news, defendant said, "I can't believe I did this shit. I can't believe this. Why me?" Sadlowski and defendant then made their way out to the apartment's balcony where defendant continued, "I can't believe I did this shit; why me?" Back in the apartment, defendant and Sadlowski drank more beer and played cards until Sadlowski decided to take his friend home.

After leaving the apartment, defendant was "all hyped up," cursing at people in the street, making inflammatory remarks, and attempting to pick a fight. As they approached the car, Sadlowski asked defendant "what the hell is going on." During the drive, defendant repeated "a couple of times" that "his brains went all over the place." According to Sadlowski, defendant confided that "he shot the guy, you know, shot his brains all over the place." When Sadlowski asked him if he was serious, he replied, "Yeah, man, his brains are all over the place." While revealing these details, defendant had "tears in his eyes," and said again, "I can't believe I did this shit." Sadlowski did not inquire where the shooting had occurred, having connected defendant's grisly account with the news story about "the guy [who] got shot in Deptford." Sadlowski dropped defendant off at his apartment and avoided contact with defendant thereafter.

"The primary defense strategy was characterized by a sustained attack on the credibility of key State witnesses," Feaster I, supra, 156 N.J. at 27, and the attack on Sadlowski was no exception. Sadlowski was cross-examined about the deal he struck with the State for testifying against defendant. Before defendant's trial, Sadlowski entered into a plea agreement with the State to dispose of burglary and theft charges pending against him. In exchange for Sadlowski's plea to the burglary charge, which carried a maximum potential sentence of five years, and his promise to "testify truthfully" in defendant's case, the State limited Sadlowski's sentence to a custodial term not to exceed thirty days in the county jail and dismissed the theft charge. Sadlowski acknowledged that he would not have cooperated with the prosecution without a favorable plea agreement and that he had a penchant for using false names. Sadlowski also was impeached with his prior criminal record, including an aggravated assault charge filed just ten days before he gave his final statement to the police in this case.

Defense counsel probed Sadlowski's ability to recall key events and his state of mind on the night of the murder. Sadlowski admitted that he had been "[d]rinking a lot" that evening, that he was "hammered," and that he had possibly ingested cocaine. Defense counsel pointed out the discrepancies between Sadlowski's testimony and his prior statements, particularly his failure to mention in his initial statements to the police that defendant confessed to "[blowing] somebody's head off."

B.

In 1996, a Gloucester County jury convicted defendant of capital murder, felony murder, first-degree robbery, possession of a sawed-off shotgun, and other lesser-included offenses. On the capital murder conviction, the jury sentenced defendant to death. On the robbery conviction, the court sentenced defendant to a consecutive twenty-year term of imprisonment with a ten-year parole disqualifier, and on the shotgun possession conviction to a concurrent five-year term of imprisonment. The felony murder and other lesser offenses were merged into the convictions for which defendant was sentenced.

In 1998, this Court upheld defendant's capital murder, robbery, and gun possession convictions and sentences. Feaster I, supra, 156 N.J. at 93. In 2000, this Court upheld defendant's death sentence after conducting proportionality review. Feaster II, supra, 165 N.J. at 393. In 2001, defendant filed a verified petition for post-conviction relief, alleging twenty-two separate grounds for reversing either his capital conviction or his death sentence. In 2003, the PCR court conducted a hearing and took testimony from witnesses. The PCR court denied defendant's petition for relief and request for a new trial. In 2004, defendant appealed to this Court as of right. R. 2:2-1(a)(3).

C.

We now turn to the events surrounding defendant's failed attempt to call Michael Sadlowski as a witness at the PCR hearing. In July 2001, defendant's PCR counsel and a defense investigator met with Sadlowski in Bayside State Prison, where he was incarcerated. Sadlowski signed a certified statement in which he averred that important parts of his trial testimony against defendant were false and that he was induced to give that testimony because of threats and promises from the prosecutor's office. The certified statement read:

Statement of Michael Sadlowski 7/10/01 -- Bayside State Prison --

Michael Sadlowski, presently an inmate at Bayside State Prison -- #286305/581123B certify [sic] as follows:

(1) I was a witness at the murder trial of [defendant] Richard Feaster in March of 1996.

(2) When I testified at the trial that Richard Feaster admitted the murder of Keith Donaghy to me, I was not telling the truth.

(3) Richard Feaster has never told me that he killed anyone.

(4) I testified at his trial that he admitted the killing because the prosecutor's office said I would go to prison on a charge I had at the time and that they would charge me with conspiracy on the murder charge.

(5) The prosecutor's investigator, . . . and Assistant Prosecutor . . . told me that if I testified against Richard Feaster they would help me with my charge and that I would not be charged with conspiracy.

(6) Before I testified, the investigator and the prosecutor asked me to work into my testimony as many bad things about Richard Feaster as I could think of. As a result, during my testimony I said Rich was a violent person who liked to beat people up.

I have read the above statement of seven [handwritten] pages and I certify that the foregoing statement is true. I am aware that if any of the foregoing statements are wilfully false I am subject to punishment.

Relying on that statement, in March 2002, defendant submitted a Notice of Motion for a New Trial based on newly discovered evidence. About one year after giving his statement, Sadlowski reaffirmed in a meeting with the defense investigator and defendant's two PCR attorneys that he "stood by" the recantation of his trial testimony.

In August 2003, pursuant to a writ commanding his presence from state prison, Sadlowski appeared before the PCR court to give testimony. Defendant's PCR counsel conveyed to the court that Sadlowski wished to consult with counsel before he testified. Louis Fletcher, Esq., later was assigned to represent Sadlowski at the PCR hearing. Fletcher sought both to retract Sadlowski's certified statement and to invoke his Fifth Amendment privilege against self-incrimination without placing Sadlowski on the stand. Defendant's PCR counsel insisted that any repudiation of the recantation had to come from Sadlowski himself, and "not from his lawyer."

The PCR court permitted Sadlowski to take the stand for the limited purpose of withdrawing his certified statement and invoking his Fifth Amendment privilege. Fletcher engaged in the following colloquy with Sadlowski:

Q: [D]id you have the opportunity to speak with me before court today concerning your statement?

A: Yeah.

Q: Did you make a request to me to withdraw that statement on the record?

A: Yeah.

Q: It is your desire, then, to retract, withdraw that statement, is that correct, sir?

A: Yes.

Q: Is it your desire to invoke your Fifth

Amendment privilege against self-incrimination against any and all questions?

A: Yes.

Q: Did anybody force you, threaten you to withdraw this statement?

A: No.

Defendant's PCR counsel objected to this procedure. He argued that Sadlowski waived his privilege against self-incrimination when he withdrew his certified statement on the stand and that defense counsel had a right to cross-examine him on the substance of his testimony. Defense counsel contended that it was unfair to allow Sadlowski to "say something in aid of the State's case" and then hide behind the privilege. The PCR court concluded that Sadlowski had testified at defense counsel's request and had not waived the privilege. The court also refused to strike Sadlowski's testimony.

When PCR counsel inquired whether there had been a threat of prosecution against Sadlowski, the Assistant Prosecutor responded:

Judge, when I talked to -- when I talked to Mr. Fletcher I gave him his statement and said this is his statement. If he testifies the way he does, then there are considerations. That's all I said. Then Mr. Fletcher took that statement and talked to his client. I don't know what he told him. So, there is no threat. [(Emphasis added).]

Defense counsel argued that it was "fundamentally unfair" for the State to raise the specter of a perjury prosecution with the recanting witness, thus threatening him into silence. Counsel noted that "the State has no real means of discerning the truth or falsity of the recantation as opposed to trial testimony. Although, in its opinion the State may feel they know the difference." That being so, counsel submitted that "[t]o threaten the witness if he recants . . . to me seems like the height of unfairness." Defense counsel requested that the State or the PCR court grant Sadlowski immunity "so [Sadlowski] can come to court and tell [whether] the truth is" what he said at trial or in his certified statement.

The prosecutor refused to grant Sadlowski immunity, asserting that the State had done nothing "inappropriate." The court then granted counsel time to brief the issue and excused Sadlowski without requiring him to explain his reasons for invoking the Fifth Amendment privilege.

When the hearing resumed six days later, defendant moved to have the court compel Sadlowski to testify. In denying the motion, the court observed that "it's clear on its face as to why he invoked his privilege." The court noted that Sadlowski invoked the privilege because he was subject to "a possible perjury charge." The judge recognized that "the considerations that the prosecutor was alluding to [were] the possibility of perjury charges . . . ." (Emphasis added). The court, nevertheless, concluded that the prosecutor's warning to Sadlowski's attorney did not influence Sadlowski's decision to invoke the Fifth Amendment because he "knew he had some criminal exposure." In denying defendant's petition for post-conviction relief, the court did not consider Sadlowski's certified statement recanting his trial testimony.

II.

A.

In his certified statement, Sadlowski averred that he had given false testimony against defendant as a result of prosecutorial inducements. The State, both in its brief and at oral argument, did not dispute that the assistant prosecutor's warning to Sadlowski was intended to convey the message that he might face a perjury or false swearing prosecution if he disavowed his trial testimony and testified consistent with his statement to PCR counsel. In the wake of the prosecutor's warning, Sadlowski "withdrew" his certified statement and invoked his Fifth Amendment privilege in response to questioning by his attorney.

As a preliminary matter, we note that the PCR judge never should have permitted Fletcher, an attorney who did not represent a party in the case, to question a defense witness. Fletcher had no role in the proceedings other than to advise his client. The judge then compounded that error by accepting Sadlowski's testimony after he invoked the privilege as a shield against cross-examination.

When a witness's direct testimony concerns a matter at the heart of a defendant's case, the court should strike that testimony if the witness relies on the privilege against self-incrimination to prevent cross-examination. See, e.g., United States v. Brooks, 82 F.3d 50, 54 (2d Cir.), cert. denied, 519 U.S. 907, 117 S.Ct. 267, 136 L.Ed. 2d 191 (1996); Dunbar v. Harris, 612 F.2d 690, 692 (2d Cir. 1979); United States v. Rogers, 475 F.2d 821, 827 (7th Cir. 1973); Fountain v. United States, 384 F.2d 624, 628 (5th Cir. 1967), cert. denied sub nom. Marshall v. United States, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed. 2d 105 (1968); United States v. Cardillo, 316 F.2d 606, 611 (2d Cir.), cert. denied, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed. 2d 55 (1963). One of the essential purposes of cross-examination is to test the reliability of testimony given on direct-examination. See State v. Branch, 182 N.J. 338, 348 (2005); see also Neighbour v. Matusavage, 128 N.J.L. 331, 333 (E. & A. 1942). ...


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