dissenting. This case presents the recurring problem of attempting to safeguard a witness’ privilege against self-incrimination while compelling him to testify under a grant of use immunity. N. J. S. A. 2A:81-17.3. As I stated in my dissent in State v. Vinegra, 73 N. J. 484 (1977), I believe that adequate protections for the privilege cannot be fashioned as long as the State is free to prosecute a witness for acts about which he has been compelled to testify. As a result, I again urge the Court to adopt transactional immunity as a matter of state constitutional law.
In the present case, the State sought to present evidence simultaneously to two grand juries concerning the involvement of defendant and his alleged co-conspirator, D’Anastasio, in a scheme to bribe a public official. Although it had sufficient evidence to secure an indictment of defendant, it considered his testimony necessary for an indictment and successful prosecution of the co-conspirator. The State attempted to obtain Tuso’s testimony in the grand jury investigation of D’Anastasio by granting him use immunity and by erecting certain safeguards to ensure against the subsequent use of his compelled testimony. Separate Deputy Attorneys General conducted the two trials, and all evidence against Tuso which had been obtained prior to the order to testify was sealed. (Ante at 581).
Although designed to prove that its sources of evidence at the Tuso trial were obtained independently of the accused’s compelled testimony, the State’s procedures fall short *583of providing safeguards which are “coextensive with the privilege against self-incrimination.” See State v. Vinegra, supra, 73 N. J. at 514 (Pashman, J., dissenting). As I stated in greater detail in Vinegra, supra, even where investigatory leads are derived from independent sources, the prosecution’s case may be benefitted at trial by the defendant’s compelled testimony. The prosecutor may be able to tailor his questioning or presentation to reflect testimony which he knows Tuso will give, or even deter him from testifying for fear that his prior compelled testimony may be used to impeach him. See Vinegra, at 525-526 (Pashman, J., dissenting). This may be true even if there are separate prosecutors. As Justice Brennan observed:
Men working in the same office or department exchange information without recording carefully how they obtained certain information; it is often impossible to remember in retrospect how or when or from whom information was obtained. By hypothesis, the situation involves one jurisdiction with presumably adequate exchange of information among its various law enforcement officers. Moreover, the possibility of subtle inferences drawn from action or nonaction on the part of fellow law enforcement personnel would be difficult if not impossible to prove or disprove.
[Piccirillo v. New York, 400 U. S. 548, 567-68, 91 S. Ct. 520, 531, 27 L. Ed. 2d 596, 609 (1971) (Brennan, Marshall, JJ., dissenting from order dismissing writ of certiorari as improvidently granted) ; (citation omitted)].
In the instant case it would be impossible to prove that, if Tuso had been compelled to testify, information obtained from him would not have been made available to the person prosecuting his case. Significantly, both grand jury inquiries in this case were handled by the same Deputy Attorney General. If Tuso had testified under immunity before the grand jury investigating D’Anastasio, the Deputy Attorney General handling this proceeding would have been barred from participating at trial against Tuso. By his own statement at oral argument, the Deputy Attorney General in charge of this case admitted that he had not handled *584the Tuso trial, and would have been prevented from discussing any part of this case with the prosecutor trying Tuso if he had testified under compulsion.1 But it seems ludicrous to assume that, after hearing Tuso testify before Grand Jury No. 27, the Deputy Attorney General would have simply handed over the case in midstream to a new trial attorney without ever discussing any of the facts of the case. Yet clearly any such interaction would have violated Tuso’s privilege.
While these considerations lead me to dissent from the Court’s judgment, they do not support the Appellate Division’s conclusion that a court may deny a request for an order directing a grand jury witness to testify under a grant of use immunity solely because the State already has sufficient evidence to return an indictment. On this ground, I am in accord with the majority’s reasoning. However, I hasten to add that a court still has substantial review powers to consider the constitutionality of a particular order and to guard against prosecutorial abuses in grand jury investigations. I add the following comments lest the Court’s description of the purely “ministerial” role of the court be taken to undercut these well established powers.
I concur in the majority’s conclusion that the immunity statute, N. J. S. A. 2A:81-17.3, should be interpreted in harmony with federal precedents construing analogous statutory provisions. These cases uniformly hold that a court is without discretion in reviewing the United States Attorney’s conclusion that such an order is necessary to the public interest, and that the court exercises duties which are merely ministerial in nature. See, e. g., Ullman v. United States, 350 U. S. 422, 434, 76 S. Ct. 497, 100 L. Ed. 511, reh. den. 351 U. S. 928, 76 S. Ct. 777, 100 L. Ed. *5851457 (1956); United States v. Leyva, 513 F. 2d 774, 776 (5 Cir. 1975); Urasaki v. United States District Court, 504 F. 2d 513, 514 (9 Cir. 1974); In Re Grand Jury Investigation, 486 F. 2d 1013, 1016 (3 Cir. 1973) (dictum), cert. den. sub nom., Testa v. United States, 417 U. S. 919, 94 S. Ct. 2625, 41 L. Ed. 2d 224 (1974); In Re Kilgo, 484 F. 2d 1215, 1219 (4 Cir. 1973); In Re Russo, 448 F. 2d 369, 372-73 (9 Cir. 1971); In Re Shead, 302 F. Supp. 569, 570 (N. D. Calif. 1969), aff'd sub nom. Carter v. United States, 417 F. 2d 384 (9 Cir. 1969), cert. den. 399 U. S. 935, 90 S. Ct. 2253, 26 L. Ed. 807 (1970).
But while federal precedents indicate that a court has no discretion to determine whether a grant of immunity would be in the public interest, they also establish that courts have ample authority to check prosecutorial abuses in utilizing the immunity apparatus to secure compelled testimony. It is universally accepted that courts are bound to examine the constitutionality of a proposed order compelling a witness to testify.2 See Brown v. United States, 359 U. S. 41, 49, 79 S. Ct. 539, 3 L. Ed. 2d 609, 616 (1959); reh. den. 359 U. S. 976, 79 S. Ct. 873, 3 L. Ed. 2d 843 (1959); Bursey v. United States, 466 F. 2d 1059, 1075 (9 Cir. 1972); Matter of Doe, 410 F. Supp. 1163, 1165 (E. D. Mich. 1976); Application of U. S. Senate Select Com. on Pres. Cam. Act, 361 F. Supp. 1270, 1279 (D. D. C. 1973); In re Baldinger, 356 F. Supp. 153, 169-70 (C. D. Calif. 1973). As the court in Baldinger, supra, stated:
*586Congress cannot compel the courts to issue orders which violate the constitutional privileges of this nation’s citizens, * * [or] engage in any action which deprives a party before it of his constitutional rights. It has long been recognized that it is a proper function of courts to act as a check of improper use of both executive and legislative investigatory powers.
[356 F. Supp. at 169]
This authority would extend, of course, to determinations concerning the constitutionality of the immunity statute as applied to a specific case, see, e. g., Brown v. United States, supra, 359 U. S. at 49, 79 S. Ct. at 545, 3 L. Ed. 2d at 616; Baldinger, supra, 356 F. Supp. at 170; Hearings on H. R. 11157 and H. R. 12041 Before Subcomm. No. 3 of the House Comm. on the Judiciary, 91st Cong., 1st Sess., Ser. 14 at 69 (1969), and to allegations that an order to testify would violate some independent constitutional right, see, e. g., Bursey v. United States, supra, 466 F. 2d at 1079-81 (finding that fundamental fairness inherent in due process places some limitations on repetitious questioning, and that due process is violated by requiring a witness to answer questions excepted from grant of immunity); In re Tierney, 465 F. 2d 806, 810 (5 Cir. 1972), cert. den. 410 U. S. 914, 93 S. Ct. 959, 35 L. Ed. 2d 276 (1973) (alleged violation of right to counsel); Bursey v. United States, supra, 466 F. 2d at 1081-88 (rejecting government’s claim that first amendment rights of freedom of press and association are applied loss rigorously to immunized witnesses before a grand jury). See generally, Comment “Rights of Grand Jury Witnesses,” 48 N. Y. U. L. Rev. 171 (1973).
Moreover, it is apparent under federal precedents that the courts have a role in overseeing grand jury operations. United States v. Dionisio, 410 U. S. 1, 9, 93 S. Ct. 764, 769, 35 L. Ed. 2d 67, 76-77 (1973); Branzburg v. Hayes, 408 U. S. 665, 689, 92 S. Ct. 2646, 2660, 33 L. Ed. 2d 626, 644 (1972); Robert Hawthorne, Inc. v. Director of Int. Rev., 406 F. Supp. 1098, 1115 (E. D. Pa. 1976); In re Grand Jury Witness Subpoenas, 370 F. Supp. 1282, 1284 n. 3 (S. D. Fla. 1974). This power has been held sufficient *587to warrant judicial review of a wide variety of grand jury abuses,3 with at least one court holding that under such authority a court would have the power to vacate an order immunizing a witness. Matter of Doe, supra.
On the state level, our courts would seem to have equally broad authority under their supervisory role to check abuses stemming from the use of immunity before a grand jury. It has been repeatedly stated that the grand jury is an arm of the court. State v. Smith, 102 N. J. Super. 325, 336 (Law Div. (1968)), aff’d 55 N. J. 476, cert. den. 400 U. S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970); In re Jeck, 26 N. J. Super. 514 (App. Div. 1953), certif. den. 13 N. J. 429 (1953); O’Regan v. Schermerhorn, 25 N. J. Misc. 1, 19 (Sup. Ct. 1946). Additionally, the courts’ supervisory role over state grand juries is specifically set forth by R. 3:6-11(b) and N. J. S. A. 2A:73A-6.
Nevertheless, while a court may refuse to issue an order which is inherently unfair or which would deprive a witness of some constitutional right, I cannot accept the conclusion that the instant order should have been denied for the reason that the prosecutor did not need Tuso’s testimony in order to obtain an indictment against his co-conspirator.4 This reasoning, if adopted, would encourage, or even require, a prosecutor to obtain an indictment based on *588information which is insufficient to sustain a conviction at trial. Although cases in this State generally have adhered to the rule that an indictment may be based upon evidence which is inadmissible at trial, compare, State v. Laws, 50 N. J. 159, 182 (1967), cert. den. 393 U. S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384, modified 51 N. J. 494 (1968) ; State v. Grundy, 136 N. J. L. 96, 99 (Sup. Ct. 1947) ; State v. Dayton, 23 N. J. L. 49, 56 (Sup. Ct. 1850); State v. Ferrante, 111 N. J. Super. 299, 304-06 (App. Div. 1970); with, State v. Costa, 109 N. J. Super. 243 (Law Div. 1970) (indictment almost exclusively based upon hearsay dismissed) ; State v. Chandler, 98 N. J. Super. 241 (Cty. Ct. 1967) (dismissing indictment based solely on the prosecutor’s investigative file), this rule is of doubtful wisdom and has been questioned by numerous judges and commentators. See United States v. Umans, 368 F. 2d 725, 730 (2 Cir. 1966), cert. granted 386 U. S. 940, 87 S. Ct. 975, 17 L. Ed. 2d 872 (1967), dismissed as improvidently granted, 389 U. S. 80, 88 S. Ct. 253, 19 L. Ed. 2d 255, reh. den. 389 U. S. 1025, 88 S. Ct. 583, 19 L. Ed. 2d 675 (1967); United States v. Payton, 363 F. 2d 996, 999-1000 (2 Cir. 1966) (Friendly, J., dissenting); United States v. Arcuri, 282 F. Supp. 347, 349 (E. D. N. Y. 1968), aff’d 405 F. 2d 691 (2 Cir. 1968), cert. den. 395 U. S. 913, 89 S. Ct. 1760, 23 L. Ed. 2d 227 (1969) (holding that an indictment based solely on hearsay evidence- would be dismissed if “better evidence was readily available for presentation to the grand jury.”) ; “Report on the Grand Jury,” 100 N. J. L. J. 393, 407-08 (May 12, 1977); The American Bar Association Project on Standards for Criminal Justice, Standard Relating to the Prosecution Function, § 3.6(a) (Approved Draft, 1971). Since this rule impedes the grand jury’s ability to protect persons from having to stand trial needlessly, courts should require, rather than prohibit, that indictments be supported by evidence which may be introduced at trial. See United States v. Lovasco, - U. S. -, -, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977).
*589Eurthermore, this is not a case where the prosecutor has sought to use the grand jury “for the purpose of preparing an already pending indictment for trial,” Beverly v. United States, 468 F. 2d 732, 743 (5 Cir. 1972); United States v. Dardi, 330 F. 2d 316, 336 (2 Cir. 1964), cert. den. 379 U. S. 845, 85 S. Ct. 50, 13 L. Ed. 2d 50 (1964), or as a “substitute for discovery.”5 Beverly, supra. While a court would be justified in refusing to compel a witness to testify in such situations, as the majority states, this does not mean that a court should engage in drawing “finespun distinctions between what evidence is sufficient to return a valid indictment and what is necessary to convict.” See ante at 580. See Robert Hawthorne, Inc., v. Director of Int. Rev., supra, 406 F. Supp. at 1116, quoting United States v. Johns-Manville Corp., 213 F. Supp. 65, 72 (E. D. *590Pa. 1962) (inquisitorial power of grand jury should be curtailed only in clearest case of abuse). Under the Appellate Division’s holding a court would have to consider the relevancy of each question, a function which it was not intended to exercise under the immunity act. Compare In re Kilgo, supra, 484 F. 2d at 1218 (holding that the court is not authorized to consider relevancy where immunity has been authorized under a statute which is not limited to certain, enumerated crimes) with cases ante at 585, n. 2.
Accordingly, I do not read the majority as foreclosing a court from exercising its constitutional duty to review the propriety of an order compelling a witness to testify. While I reiterate my plea for transactional immunity, I note that even under the present immunity statute a court should not leave an immunized witness totally unprotected. Though it exercises a ministerial role in reviewing the Attorney General’s conclusion that an order would be in the public interest, the constitutionality of that order is for the court alone to decide.
Hughes, O. J., concurring in the result.
For reversal — Chief Justice Hughes, Justices Mountain, Sullivan, Clifford and Sohreibbr and Judge Conford— 6.
Dissenting — Justice Pashman — 1.
Although the Deputy Attorney handling the D’Anastasio grand jury did appear as a witness in the Tuso trial, he did not indicate whether he would have done so if Tuso had testified at the grand jury proceeding.
Additionally, those cases which have construed provisions limiting the use of immunity to specific crimes, uphold judicial authority to determine whether the subject matter of the questioning is related to the investigation for which immunity was granted. See Bursey v. United States, 466 F. 2d 1059, 1075-76 (9 Cir. 1972) ; In Re Bart, 113 U. S. App. D. C. 54, 304 F. 2d 631, 636 (D. C. Cir. 1962) ; In Re Vericker, 446 F. 2d 244 (2 Cir. 1971) ; In re Kilgo, supra, 484 F. 2d at 1220 (dictum). This power is also present where immunity has been granted in connection with a Congressional investigation. See Application of U. S. Senate Select Com. on Pres. Cam. Act, 361 F. Supp. 1270, 1279 (D. D. C. 1973).
In Robert Hawthorne, Inc. v. Director of Int. Rev., supra, the court listed a long line of federal precedents which have held that a court has the power to review grand jury abuses involving prejudicial remarks and questioning, prosecutorial domination, inducement of perjury or contempt, manipulation of situs, intimidation or harassment, interference with the attorney-client relationship, and post-indictment attempts to gather evidence. 406 F. Supp. at 1115, n. 29.
Although I would hold that the order was unconstitutional since it failed to provide for transactional immunity, I recognize that the trial court would be bound by the previous decisions of this Court upholding use immunity. See In re Zicarelli, 55 N. J. 249 (1970), aff'd 406 U. S. 472, 92 S. Ct. 1670, 32 L. Ed. 2d 234 (1972) ; State v. Vinegra, supra.
The Appellate Division emphasized the fact that the Deputy Attorney General had conceded during oral argument that he had sufficient information to obtain an indictment against D’Anastasio, but that he desired to obtain Tuso’s testimony in order to secure a conviction at trial. 140 N. J. Super. at 509. However, the Deputy Attorney General argued that much of its evidence against the eoeonspirator was inadmissible and that, in any event, the extent of the co-conspirator’s involvement in the illegal scheme was not known. Even assuming that an indictment could have been obtained without Tuso’s testimony, the State was certainly entitled to utilize Tuso’s testimony at the grand jury proceeding as a means of fully investigating the alleged illegal activities. See In re Russo, supra, 448 F. 2d at 374 (an order compelling a witness to testify may be issued even after an indictment has been handed down where there is a possibility that additional defendants or criminal acts may be discovered). While there has been increasing criticism of such powers, United States v. Lardieri, 506 F. 2d 319, 323-24 (3 Cir. 1974) ; Robert Hawthorne, Inc., v. Director of Int. Rev., supra, 406 F. Supp. at 1114, n. 28; “Report on the Grand Jury,” 100 N. J. L. J. 369, n. 6 and accompanying text, there is still virtual unanimity that such authority is incident to the grand jury’s normal role. See, e .g., United States v. Calandra, 414 U. S. 338, 343, 94 S. Ct. 613, 617, 38 L. Ed. 2d 561 (1974) ; Branzburg v. Hayes, supra, 408 U. S. at 688, 92 S. Ct. at 2660, 33 L. Ed. 2d at 643; In re Grand Jury Proceedings, 525 F. 2d 151, 157 (3 Cir. 1975). In re Addonizio, 53 N. J. 107, 124 (1968).