NCJ Number
25286
Journal
Criminal Justice Quarterly Volume: 1 Issue: 2 Dated: (SPRING 1973) Pages: 48-52
Date Published
1973
Length
5 pages
Annotation
A 1967 NEW JERSEY SUPERIOR COURT DECISION WHICH HELD THAT CASES AGAINST TARGET WITNESSES APPEARING BEFORE GRAND JURIES MUST BE DISMISSED IF THEY HAVE NOT WAIVED OR BEEN WARNED OF THEIR FIFTH AMENDMENT RIGHTS.
Abstract
THE AUTHOR STATES THAT THE TIME HAS COME TO REEVALUATE THE CONSTITUTIONAL PROTECTION TO BE ACCORDED PERSONS WHO ARE 'COMPELLED' TO TESTIFY OR GIVE EVIDENCE - WITHOUT WARNING - BEFORE A GRAND JURY. IT IS THE AUTHOR'S OPINION THAT IT MUST NOW BE CLEAR THAT IF A PERSON IS IMPROPERLY COMPELLED TO TESTIFY BEFORE A GRAND JURY - EITHER BY VIRTUE OF A LACK OF ADEQUATE WARNING OR OVER A VALID CLAIM OF PRIVILEGE - THE REMEDY SHOULD PROVIDE TESTIMONIAL IMMUNIZATION. THE REMEDY SHOULD BE IDENTICAL FOR THOSE PERSONS SO IMPROPERLY COMPELLED AND THOSE WHO TEST THEIR PRIVILEGE (EVEN IN CONTEMPT PROCEEDINGS IF NECESSARY) AND OBTAIN AN ADEQUATE STATUTORY GRANT OF IMMUNITY AFTER THEIR PRIVILEGE IS ULTIMATELY UPHELD. SEVERAL CASES RELATING TO THE SARCONE DECISION ARE REVIEWED. THE AUTHOR CONCLUDES THAT UNDER THE APPLICABLE FEDERAL AND STATE CASES, IT DOES NOT APPEAR THAT MIRANDA TYPE WARNINGS ARE REQUIRED, AND THAT THE 'TARGET' MUST MERELY BE TOLD OF THE NATURE OF THE INVESTIGATION AS WELL AS HIS RIGHT AGAINST SELF-INCRIMINATION, GENERALLY. IN CASES. HOWEVER, THE NEW JERSEY TARGET CASES ARE AN EXCEPTION TO THE GENERAL RULE; SARCONE REQUIRES DISMISSAL WHEN A TARGET WITNESS IS INDICTED AND HAS NOT BEEN ADVISED OF THE RIGHT AGAINST SELF-INCRIMINATION OR WAIVED THIS RIGHT. THE AUTHOR CONTENDS THAT SARCONE DOES NOT POSE A TERRIBLE THREAT TO LAW ENFORCEMENT WHICH SOME HAVE THOUGHT. RATHER IT STANDS AS A NOBLE AND FAIR PROHIBITION AGAINST PROSECUTORIAL INSOLENCE. (AUTHOR ABSTRACT MODIFIED)