For example, in State v. Strong (1988), the Supreme Court remanded a criminal case to the trial court for a new evidentiary hearing on a defendant’s motion to dismiss an indictment based on the defendant’s assertion that the prosecution was barred because of immunity that had been previously granted to him as a witness. The trial court was tasked in Strong with determining from the facts whether the immunity extended to the testimony of another person who had testified before the grand jury, or whether the testimony was derived independently from the earlier compelled testimony of the immunized witness. The Court concluded that because the dispositive factual issue had not been “fully explored and developed” in the trial court, “there must be a remand and reconsideration of the issue.”
Similarly, in State v. Barone (1996), the Court upheld a trial court’s decision to conduct an evidentiary hearing concerning a defendant’s invocation of an immunity, even though a federal court had previously addressed immunity issues at a hearing without the State’s participation. Reversing the Appellate Division, the Court in Barone upheld and reinstated the Law Division judge’s determination that the State’s indictment was based upon independent sources not derived from an immunized proffer session with federal agents.
The State’s reliance on State v. Ochmanski (Law Div. 1987) in opposing an evidentiary hearing in the OPA setting is unavailing. Ochmanski did not involve an issue of criminal immunity. Instead, it considered whether a defendant’s criminal liability was precluded by the statute of limitations because of a factual dispute concerning the defendant’s fugitive status that would extend the limitations period. The Law Division judge in Ochmanski noted that such a factual dispute concerning the proper computation of the statute of limitations “is for the jury to decide, not the judge at a pretrial testimonial motion hearing.” By contrast to a statute of limitations, which supplies a potential defense to prosecution, the OPA provides immunity from prosecution itself, starting with the arrest and charging phase. As such, Ochmanski is distinguishable.
The Court’s distinction regarding immunity starting at the arrest and charging phase is questionable. It will be very rare circumstance in which a defendant has the knowledge to raise the issue at such an early point and even less likely that a would-be arresting officer would be guided by an overdosing defendant’s claims as opposed to erring on the side of arresting and leaving the dismissal decision to the prosecutor.