State v. FaryState v. Fary
Brennan, Jr., J. Appellants, Benjamin and Harry Eary, sold gravel to Ocean Township, Monmouth County, on orders placed by appellant, Vogel, the township’s road foreman. The Monmouth County grand jury which sat for the January 1953 term indicted the Earys for alleged cheats and frauds in the sale of the road gravel to the township and indicted Vogel for allegedly aiding and abetting them. This appeal, taken with leave of the Appellate Division and certified to this court on its own motion, brings up for review an order of Judge Giordano denying appellants’ motion to dismiss the indictments. The single point on the brief is that the indictments are invalid because “the defendants were subpoenaed before the grand jury and, without any notification of their rights as to their privilege against crimination, were required to testify with the end result that the indictments were found against them.”
This grand jury was the second to conduct an inquiry into the operations of the township road department, the 1952 May term grand jury having conducted a like investigation without handing up indictments but filing a presentment in sharp criticism of the laxity of “elected Township officials” in supervising purchasing practices. The January 1953 term grand jury reopened the inquiry and its investigation resulted in the handing up of the indictments here under attack, without other action. The three appellants testified before both grand juries without claiming the privilege against self-incrimination before either body.
The privilege of a witness against being compelled to incriminate himself, of ancient origin, is precious to free men as a restraint against high-handed and arrogant inquisitorial practices. 8
Wigmore, Evidence (3d ed.
1940),
p.
276
et seq.; Corwin,
29
Mich. L. Rev.
1 (1930). It has survived centuries of hot controversy periodically rekindled when there is popular impatience that its protection sometimes allows the guilty to escape. It has endured as a wise and necessary protection of the individual against arbitrary power; the price of occasional failures of justice under its protection
It is a fallacy, however, to regard the right of a witness to remain mute when a criminating fact is inquired about as a fixed barrier to the search of the judicial process for truth. The barrier is up as to any question only when the witness himself chooses to put it up, but the court, and not the witness, is the ultimate arbiter whether the witness is entitled to the protection of the privilege. In re Pillo, supra. The witness may not claim the privilege until the question is put, Vineland v. Maretti, 93 N. J. Eq. 513, 521 (Ch. 1922), and if he answers the question without claiming the privilege he irrevocably waives it. State v. Toscano, 13 N. J. 418, 423 (1953).
It is a logical corollary of the personal quality of the privilege that there is no general requirement calling for a warning to the witness, before the question is put, of his option to refuse to answer the question. See
State v. Mohr,
99
N. J. L.
124, 129
(E.
&
A.
1923). The contrary notion lost any support it had over a century ago,
Wigmore, supra, p.
398, as knowledge of the nature of the privilege and the right to assert it became widespread. Certainly in the present
Should an exception be made, and an indictment be quashed, if, as here, a grand jury conducting an inquiry into public affairs indicts a witness summoned to testify in such inquiry, when he was not warned of his privilege ? The affirmative of the proposition argues that our conception of the fair play and self-respect which should attend a great state’s administration of criminal justice demands that law enforcement authorities show a scrupulous regard for the rights of those accused of crime,
State v. Borg,
9
N. J. Misc.
59
(Sup. Ct.
1931). These are the considerations, related to the privilege, which underlie the provision of
N. J. S.
2JL:81-8 that on the trial of an indictment a defendant shall be admitted to testify only if he offers himself as a witness,
State v. Edelman,
19
N. J. Super.
350, 357
(App. Div.
1952), and the provisions of
R.
Nevertheless, as Eederal Judge Medina recently pointed out, in
United States v. Scully,
225
F. 2d
113
(2d Cir.
1955), there is serious doubt that the safeguards, stemming from the privilege, surrounding inquiry of a person actually on trial for a crime apply with the same force to the inquisitorial proceedings of a grand jury. It doubtless is not, as it should not be, the practice of our prosecutors and .grand juries to summon witnesses whose indictment is contemplated. It must be remembered, however, that a grand jury does not
“* * # A practice imported here from England three centuries ago as part of the common law and steadily exercised ever since under three successive State Constitutions is too firmly entrenched in our jurisprudence to yield to fancied evils. If presentments of matters of public concern were found necessary in the public interest in the relatively simple conditions of English and colonial life three centuries ago, how much more essential are they in these days when government at all levels has taken on a complexity of organization and of operation that defies the best intentions of the citizen to know and understand it. What is not known and understood is likely to be distrusted. What cannot be investigated in a republic is likely to be feared. The maintenance of popular confidence in government requires that there be some body of laymen which may investigate any instances of public wrongdoing. * * *
* * * The grand jury provides a readily available group of representative citizens of the county empowered, as occasion may demand, to voice the conscience of the community. There are many official acts and omissions that fall short of criminal misconduct and yet are not in the public interest. It is very much to the public advantage that such conduct be revealed in an effective, official way. No community desires to live a hairbreadth above the criminal level, which might well be the case if there were no official organ of public protest. Such presentments are a great deterrent to official wrongdoing. By exposing wrongdoing, moreover, such presentments inspire public confidence in the capacity of the body politic to purge itself of untoward conditions.”
Decisions outside our State apparently agree that a failure to warn the witness of Ms right to assert the privilege is fatal to an indictment if the grand jury indicts the witness after questioning him about specific criminal charges made
Where, therefore, the inquiry is in fact a general investigation not aimed at the witness and the witness fails to claim the privilege, his testimony may be used against him, or even be the basis of an indictment.
People v. Bermel, supra.
And in such case the mere possibility when he is called that the witness may later be indicted furnishes no basis for requiring that he be advised of his privilege
“To say that, because a grand jury in such an investigation [a general inquiry] examined a witness, such person could not thereafter be indicted even upon the most satisfactory proof of guilt from sources outside himself, would be to limit and restrain the power and usefulness of a grand jury, at the instance of a defendant, who can show no constitutional or other right in himself to demand such an exercise of judicial powers.”
From what appears in the record before us, the grand jury which indicted appellants was conducting a general inquiry, of familiar form, into the conduct of the Ocean Township Road Department. The subpoenas were expressly so captioned. The appellants were not under formal criminal charges when they testified. The strongest case that can be made for their position is that they were at the time under suspicion of wrongdoing. The authorities cited establish that, of itself, this would not be sufficient reason for invalidating their indictment because they were not warned. In addition, while the complete list of the witnesses who testified at the inquiry is not in the record, it is strongly implied on appellants’ brief that other witnesses did testify and the parties’ stipulation identifies one, Benjamin Fary’s
One last observation is pertinent. We have noted that the general rule is that the privilege is irrevocably waived if the question is answered without claiming the privilege. Here the appellants did not claim the privilege when testifying before the first grand jury, and it is not suggested that different questions were asked at the second inquest. In that circumstance, a waiver barring their right to assert the privilege at the second inquiry may be constructed. 49 Tale L. J., supra, p. 1066.
Affirmed.
For affirmance—Chief Justice Vanderbilt, and Justices Oliphant, Wacheneeld, Burling, Jacobs and Brennan—-6.
For reversal—Justice Heher—1.