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Peter S. Gluck, Middlesex County Prosecutor, attorney; Mr. Hamerslag and Mr. Rosenbach, of counsel; Mr. Rosenbach, on the brief. Steven D. Altman and Doris E. McNeil, on the brief. The State appeals, pursuant to leave granted, from portions of an order of the Law Division entered on March 12,"recusing Assistant Prosecutor Peter Hamerslag from prosecuting the case of M.

We reverse the order disqualifying the prosecutor and remand for further proceedings on the issue of severance. The background for this appeal is taken from the grand jury transcript of August 29, and material before the trial court on defendant's motion to sever and his motion "for an order dismissing the indictment and other relief" including an order recusing Hamerslag "from prosecuting this case predicated upon his being a factual witness.

Both M. Both attributed the mother's allegation to defendant's recent break-up with her and his planned marriage to another woman. Accordingly, the police investigation was closed without the filing of charges. However, in June after seeing an Oprah Winfrey show about adults who had been sexually molested when they were children, M.

The mother again contacted the police. Interviews confirmed the conversations and M. According to later reports, however, her story at that time was incomplete. One day in when M. Defendant offered M. Defendant then kissed her on the lips. On a subsequent occasion shortly thereafter, defendant "grabbed" M. Eventually, defendant began inserting his fingers into M. These incidents occurred at both the defendant's and M.

The sexual conduct between defendant and M. Defendant also attempted to have vaginal intercourse with M. At first he was unsuccessful, but ultimately that occurred at age thirteen.

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In MayM. In AugustM. Their relationship included sexual intercourse, and defendant took M. However, in May M. As we already noted, around June M. However, M. On June 18,a. On June 10, defendant was indicted for aggravated sexual assault based on sexual penetration with M. In preparing the indictment for trial, Assistant Prosecutor Hamerslag met with Lieutenant Carol Whalen, the Edison Police officer who initially investigated the matter.

Whalen reported to Hamerslag about another investigation involving similar alleged conduct by defendant with a different young woman, M. That investigation had been closed in March when the young woman's family declined to cooperate.

However, after being contacted again in JanuaryM. At one point while M. Defendant "sat [M. Defendant finally stopped his advances after M. Sometime thereafter, M. Defendant offered to put M. Defendant paid for the room, showed M. He then "tried pushing himself on" M. Defendant eventually dropped M. One or two months later, M. She hoped Chris could give her a ride to her grandmother's house where she was living. She was afraid of being tardy and locked out for the night. Defendant offered to give her the ride, and M. However, during the drive, defendant ignored M.

Defendant tried to kiss M. Defendant stopped his advances after M. Rather, in M. Based on the new information from M. On September 15, a superseding indictment was returned charging defendant with aggravated sexual assault, N. Shortly thereafter defendant filed the motions resulting in the orders before us. The judge believed that, although it was "admittedly a distant or remote possibility" that Hamerslag would become a fact witness, "thereby precipitating a mistrial," that would be "extremely harmful to the Hamerslag must be precluded from trying the M.

The State insists that prosecutors must be permitted to interview witnesses without fearing that they too must necessarily become witnesses in the case. The State also argues that, despite defendant's claim that it may be necessary to call Hamerslag as a witness, the information known to Hamerslag is readily available to defendant through discovery including the grand jury transcript.

Thus, the State asserts that defendant will not be able to satisfy the "compelling and legitimate need" standard necessary to call the trial prosecutor as a witness. We start our analysis by agreeing with the principle that trial prosecutors should not interview victims and other prospective witnesses in the absence of an investigator or other third person. The prosecutor should avoid interviewing a prospective witness except in the presence of a third person unless the prosecutor is prepared to forego impeachment of a witness by the prosecutor's own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case in order to present his impeaching testimony.

Birdman, F. Use of a third person is virtually the only effective means of impeaching a witness. Assuming a court would permit it, a prosecutor is in a difficult situation if he must seek leave to withdraw and substitute other counsel so that he might take the stand to relate what he claimed the adverse witness had said to him.

See also R. This policy avoids the risk of having the prosecuting attorney disqualified as trial counsel in the event of a dispute regarding what the witness said in the pretrial interview. See United States v. Wallach, F. That does not mean, however, that a judge should automatically disqualify a trial prosecutor because a pretrial interview was.

The State and federal constitutions guarantee defendants in a criminal prosecution the right of confrontation and compulsory process to obtain witnesses on their behalf.

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VI; N. I, However, the determination of whether or not to allow a defendant to call the prosecuting attorney as a witness is a matter of discretion for the trial judge based on the issue involved. See State v.

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Saez, N. We cannot p that M. Nor can we p that she will not honestly detail any unrecorded statements to Hamerslag. Moreover, defendant acknowledges that he received all the discovery to which he was entitled -- discovery which is more liberal than many states and includes recorded statements of potential witnesses.

It is therefore premature to suggest that the defense will need to solicit the prosecutor's testimony. See footnote 1 Thus, the. The issue concerning whether the defense can call Hamerslag at trial can be considered "only upon a full offer of proof" "at the time defendant wishes to make his move. Maloney, F. See also United States v. We agree with the State that Wallach, supra, is instructive.

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There, after a defendant's conviction was reversed because of the perjury of a principal government witness during trial, the defendant moved to disqualify the trial attorneys who handled the first prosecution, in part, because "they are necessary witnesses who will be called to testify to statements made to them" by the witness. Wallach, supra, F. Defendant insisted that trial counsel's testimony may be needed to "impeach" the witness' "false statements" at the second trial. The trial judge concluded that "even if such evidence is deemed relevant There, however, a federal agent or third party was always privy to the interviews of the witness by trial counsel, and "could be called" to the stand.

However, in its opinion the federal district court added the following: The law does not liberally permit a defendant to call a prosecutor as a witness. On the contrary, a defendant must demonstrate a compelling and legitimate need to do so.

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United States v. Schwartzbaum, F. Torres, F. Moreover, the necessity of calling any witness to testify to matters concerning conversations or agreements between the government and [the witness] is sharply reduced, if not eliminated, by the government's offer to stipulate to much of what Wallach says he wishes to introduce through testimony of the prosecutors. Stipulations provide an adequate substitute for testimony and may eliminate the need to disqualify an attorney based on conversations between the attorney and a witness. See States v.

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