The Fifth Amendment of the United States Constitution states rather clearly that “no person shall be compelled to be a witness against himself.”  Although New Jersey does not have a similar component in its constitution, the judge-made law in New Jersey provides to its citizens the same privilege against self incrimination.  That principle is also codified in New Jersey’s rules of evidence.  

Under New Jersey’s Consumer Fraud Act (Act), the state’s Attorney General is provided with the power to issue subpoenas to require the production of evidence, so as to facilitate the enforcement of the Act.  These subpoenas can be used during administrative investigations.  The provision of the Act that enables the Attorney General to issue investigative subpoenas contains a special provision that says in essence that if a person can lawfully assert the Fifth Amendment privilege against self incrimination that person cannot be prosecuted or subjected to any type of penalty of forfeiture resulting from the information that was produced, as a result of the subpoena.  In short, if a person complies with the Attorney General’s instruction under the subpoena, that person would be immunized from further consequences resulting from the disclosure of that information if the person had a lawful claim to the privilege.

In a recent case decided by the Appellate Division, the court reversed the decision of a lower court that provided immunity to a corporation subject of the Attorney General’s consumer fraud investigation, where the corporation was subpoenaed to produce its corporate records.  In analyzing the issue, the Appellate Division noted that the Act required the person or entity claiming immunity to identify some law that would justify the use of the privilege against self incrimination and since a corporation may not invoke the privilege, the corporate target could not receive the benefit of that part of the Act that provided immunity.