Zicarelli v. New Jersey Investigation Commission

After appellant invoked the Fifth Amendment and refused to answer questions concerning organized crime, racketeering, and political corruption in Long Branch, New Jersey, appellee Commission granted him statutory immunity "from having such responsive answer given by him or such responsive evidence produced by him, or evidence derived therefrom used to expose him to criminal prosecution or penalty or to a forfeiture of his estate...." Appellant still refused to answer, contending that full transactional immunity was required, that the statutory ban on the use and derivative use of "responsive" answers is unconstitutionally vague, and that the immunity would not protect him from foreign prosecution, of which he has a real and substantial fear. Appellant was adjudged to be in contempt and the judgment was upheld on appeal. The New Jersey Supreme Court, construing the responsiveness limitation, held that "the statute protects the witness against answers and evidence he in good faith believed were demanded." Commission procedure provides for an advance statement of the subject matter of the questioning and permits a witness to have counsel present at the hearing.

Held:


 * 1. The New Jersey statutory immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and is sufficient to compel testimony. Kastigar v. United States, ante, p. 441. Pp. 474-476.


 * 2. In light of the State Supreme Court's construction and the context in which the statute operates, the responsiveness limitation is not violative of due process. Pp. 476-478.


 * 3. The self-incrimination privilege protects against real dangers, not remote and speculative possibilities, and here there was no showing that appellant was in real danger of being compelled to disclose information that might incriminate him under foreign law. Pp. 478-481.

55 N.J. 249, 261 A. 2d 129, affirmed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, and BLACKMUN, JJ., joined. DOUGLAS, J., post, p. 481, and MARSHALL, J., post, p. 481, filed dissenting statements. BRENNAN and REHNQUIST, JJ., took no part in the consideration or decision of the case.

Michael A. Querques argued the cause for appellant. With him on the brief were Daniel E. Isles, Harvey Weissbard, and Joseph E. Brill.

Andrew F. Phelan argued the cause and filed a brief for appellee.

George F. Kugler, Jr., Attorney General, argued the cause for the State of New Jersey as amicus curiae urging affirmance. With him on the brief were Barry H. Evenchick and Michael R. Perle, Deputy Attorneys General.

Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.

Robert G. Dixon, Jr., filed a brief for the National District Attorneys Association et al. as amici curiae urging affirmance.