We have considered the possibility of the factual issues instead being referred to a grand jury rather than decided by the court. That is an option the parties may mutually elect to pursue. If the grand jury elects to “no-bill” the case with the additional immunity-related evidence, then the matter is over. However, if the grand jurors do elect to re-indict, their decision is not final, and defendant may move once again to dismiss the indictment on appropriate grounds.
In noting these various alternatives, we point out that one procedural advantage of litigating the factual dispute before the court (or a trial jury) at an adversarial proceeding, rather than before a grand jury, is that a hearing in court affords defense counsel the opportunity to call and cross-examine witnesses, to present argument to the tribunal, and to respond to the prosecutor’s proofs and arguments. The one-sided nature of a grand jury proceeding, by contrast, might be less effective in developing an appropriate record to resolve the immunity issue.
If the trial court determines the OPA immunity applies, the charges covered by the immunity must be dismissed, subject to the State’s right of appeal, as was exercised in this case. Conversely, if the court finds the facts as presented to it at the motion phase do not support the immunity, the defense nonetheless must be afforded a final opportunity at trial to persuade a jury as the ultimate fact-finder to the contrary, and marshal further proofs and arguments on the subject. Cf. State v. Hampton, (1972) (analogously permitting a jury to assess the voluntariness and probative value of a confession the trial court ruled earlier at a pretrial hearing was sufficiently voluntary to be admissible). Although we recognize this would provide a defendant with a “second bite at the apple,” the OPA’s explicit provisions immunizing eligible defendants from prosecution and conviction logically support providing them with a final opportunity to persuade the jurors to consider their immunity claims.
This part of the Court’s opinion answers the question regarding whether the immunity issue can be raised again if a defense motion is denied by the Court pretrial. Defense counsel would have to be intently focused on the judge’s instruction to make sure s/he does not inject their own prior analysis and opinion into the jury instruction. Similarly, the prosecution would have to be scrutinized to avoid the suggestion that the Court has already dismissed the defendant’s claim of immunity.