We also do not find dispositive State v. Majewski (App. Div. 2017), which the State has also cited. The defendant in Majewski moved to dismiss an indictment claiming the prosecutor had misrepresented the applicable law to grand jurors and had failed to tell the grand jurors about allegedly exculpatory evidence relating to the element of purposeful intent. We reversed the trial court’s denial of the motion to dismiss because we concluded from the record that the State had failed to define a material element of the crime for the grand jurors, without resolving whether “internally inconsistent” accounts of witnesses comprised “clearly exculpatory” proof that should have been presented to the grand jurors. We concluded that the best course under the circumstances was for the existing indictment to be dismissed and the matter presented anew before another grand jury. If the State secured a new indictment, defendant could move again for dismissal in the trial court.
Although re-presentment to a grand jury was the appropriate approach in Majewski, that remedy does not necessarily pertain to situations of a statutory immunity where, as we discuss infra, factual disputes exist that do not result from grand jury omissions or a violation of Hogan. See also Nicholson, 451 N.J. Super. at 542 n.3 (noting that, as an exception to the general rule in federal and New Jersey criminal courts, a pretrial motion to dismiss an indictment is a “permissible vehicle” to address the sufficiency of the government’s evidence in narrow instances where there is a stipulated record or “immunity issues are implicated”). In short, the immunity context can provide a discrete exception to the general practice that disfavors having criminal trial judges conduct evidentiary hearings about the facts of a case.
As may be appropriate, the hearing may entail testimony from witnesses, as well as documentary proofs. As we have already noted, the defendant will have the burden of proving evidence to support the immunity, which the prosecutor can attempt to dispel.
The phrase “may entail testimony” is disheartening. It means that testimony is not required and very few judges would order it if given the choice to decide the issue “on the papers.” If testimony were required, the hearing could, at a minimum, be used by the defense as a discovery tool in preparation for trial.