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.